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13ASR2d

13ASR2d

13ASR2d


Summary judgment is appropriate if the pleadings and supporting papers show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. T.C.R.C.P.56(c). [13ASR2d12]

In considering a motion for summary judgment, the court must consider all pleadings and supporting papers in the light most favorable to opposing party, and must also give such party the benefit of all inferences reasonably deducible from the evidence. T.C.R.C.P. 56.

Plaintiff suing for value of goods paid for by defendants with checks drawn against insufficient funds was denied summary judgment where defendants raised triable issues of tact, claiming that plaintiff coerced them into sales contract; supplied unordered goods and overcharged for incomplete quantities of goods; and induced one of the defendants to sign a letter acknowledging liability by assuring them it was merely "for the record" and that they should "not worry" about it. [13ASR2d13]

We hold that there is a factual dispute regarding the obligation underlying the returned checks and deny plaintiff's motion accordingly.

It is so Ordered.

*********

TUTUPU A. MEAFUA, Plaintiff

v.

SIAKI MATA'U TALIU and VINETA ALLEN, Defendants

High Court of American Samoa

Land and Titles Division LT No.21-87 December 8, 1989

__________ Witness from one village, testifying on behalf of a land claimant from that same village, had no reason to lie when he said the land was in another village.

That territorial registrar office had abandoned its former practice of using unsworn certificates rather than notarized affidavits as evidence of posting, and that the new practice was more desirable, did not render the former practice illegal.

Even if territorial registrar had expressed a legal opinion on whether procedure followed by former registrar would render a registration invalid, this would be a question of law on which the court mus1 make its own judgment.

Before REES, Associate Justice, TAUANU'U, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Gata E. Gurr

For Defendants, Tau'ese P.F. Sunia

On Motion for New Trial:

 

We took this motion under advisement in order to consider whether, as alleged by counsel for defendant Allen, our finding that this land was originally settled by Ili'ili people was without support in the record. Our recollection was that Mulinu'u Asapaolo, an elderly witness for defendant Siaki Mata'utia Taliu, had testified that the lands had belonged to lIi'ili people before Vaitogi people came there shortly before World War II. The English translation of this witness's testimony includes the following exchange: [13ASR2d75]THE COURT: You were talking about period when everybody scrambled for land; this was before the war?

THE WITNESS [Mulinu'u]: Yes.

THE COURT: Now what was there before? You said it was a jungle, but did anybody own that land before the war?

THE WITNESS: My belief and knowledge is, Your Honor, that these lands are Ili'ili lands.

Because Mulinu'u had been in a positi9n to observe the events of which he spoke, and because as a Vaitogi person testifying on behalf of another Vaitogi person he had no reason to lie on this point, we found his testimony highly credible.

In any event, this finding was not essential to our primary holding, which was that defendant Allen was barred by A.S.C.A. §§ 37.0103(c) from presenting a claim contrary to that of plaintiff Meafua,

Defendant's contention that the Territorial Registrar has expressed a "view that the registration seems improperly executed" is a highly partisan gloss on the Registrar's testimony. With regard to one of several irregularities alleged by defendant -- the use of an unsworn certificate rather than a notarized affidavit as evidence that the notice of registration was posted in accordance with A.S.C,A. §§ 37.0103 ---the present Registrar did testify that his office now follows a different procedure. He also testified that the procedure used in connection with this registration in 1983 was the procedure followed by the Registrar's office at the time. The practice in question, although not as desirable as the practice adopted by the present Registrar, was not illegal and did not render the registration invalid; A.S.C,A. §§ 37.0103 requires only that the notice be posted, not that an affidavit or certificate or any other particular evidence of posting be placed in the Registrar's file. Even if the present Registrar had expressed a legal opinion that an unsworn certificate or improperly notarized affidavit of posting renders a registration invalid, this would be a question of law on which the Court must make its own judgment.

Finally, defendant urges that we "totally ignored the obvious lack of creditability in Plaintiff Meafua's testimony. " Aside from the problem that defendant's own testimony was far more extravagant than [13ASR2d76]

anything asserted by the plaintiff, this objection fails because no finding of fact essential to our opinion rested on the uncorroborated testimony of any party.

Accordingly, the motion is denied.

It is so ordered.

*******",*

V AIMAONA FOLOI, ARIET A VAIMAQNA, LAGIMA

VAIMAONA, and T AU FUlA V A, Plaintiffs

v.

FA'AMAMAFA TUITASI, Defendant

High Court of American Samoa

Trial Division LT No. 18-88

December 12, 1989

__________

 

Under territorial statute dealing with "title to land," a procedurally valid registration precludes subsequent judicial inquiry into the validity of the record owner's title; anyone who wishes to object on any ground whatever to the registrant's claim of ownership has sixty days within which to do so, and ill the absence of such objection the land is registered in the name of the claimant and all other claims of ownership are forever precluded. A.S.C.A. §§§ 37.0101 et seq.

Territorial statute dealing with "alienation of land" provides substantive restriction on alienation and also sets forth procedures for the lawful alienation of land, which are designed to ensure that land will not be alienated lightly even in the absence of a specific substantive restriction, A.S.C.A. §§ 37.0201 et s~q.

Final step in the statutory procedure for alienation of communal land is recordation of the transaction with the territorial registrar; when a buyer and seller comply with all the statutory provisions for alienation of land, including this recordation provision, the buyer becomes the owner of whatever interest the seller had in the land. A.S.C.A. §§ 37.0210.

Distinction between separate statutory procedures tor registration "of the land" and "of the deed" is best characterized as distinction between substance and procedure: compliance with the land registration statute protects the landowner by precluding rival claimants from attacking the record owner's title, whereas the statute on land alienation leaves rival claimants procedurally free to object to the record owner's title but provides that anyone

[13ASR2d77]who complies with its provision; becomes the lawful owner of the land. A.S.C.A. §§§ 37.0101 et seq., 37.0201 et seq.

It would be to the advantage of a party who purchases land that has never been previous1y registered to apply for registration in accordance with both the "titles" chapter and the "alienation" chapter. A.S.C.A. §§ 37.0101 et seq., 37.0201 et seq.

Registrar's certificate of title is presumed to be valid and a party asserting its procedural irregularity has the burden of presenting compelling proof. A.S.C.A. §§§§ 37.0101 et seq,

Territorial statute on alienation pf land does not prohibit tho: alienation of con1muqallands, but does prohibit such alienation without the written approval of the Governor or to any person who has less than one-half native blood.

Custom that major family decisions should be made in consultation with the whole family is not among those incorporated into statutory restrictions on the otherwise plenary powers of a sa'o over family lands.

Sa'o could not avoid his contract for the sale of land on the ground of his own violation of custom, and other family members' remedies were against the sa'o, not the purchaser.

Objection to court's finding that the signature on a deed was not a forgery, where the objecting party had judicia1ly admitted that he signed the deed, had had every opportunity to examine the document before trial, and had even appended it to his complaint as Exhibit. A, but had testified for the first time at trial that he had not signed the document after all, was without merit,

Issue not raised in the pleadings or at trial could not be raised for the first time by motion for new trial.

Land registration statute does not required that posting of noticed be evidenced by an affidavit or by any other particular form of notice. A.S.C.A. ~§§ 37 .0101 et seq.

Territorial statute providing for the registration of instruments, as opposed to the registration of title, itself does not specify posting or any other particular form of notice prior to registration. A.S.C.A. §§ 37.0210.

Where certificate of required posting of notice snid that notice was posted at "the Administration Building" rather than at "the Court House" as required by statute, the court would take judicial notice that the certificate tracked the language of a former statute and that the registrar had for some years posted notice not at the Administration Building but at the Court House, which was itself the former Administration Building. A.S.C.A. §§ 37.0103.

Before REES, Associate Justice. OLO, Associate Judge. and VAIVAO. Associate Judge. [13ASR2d78]

Counsel: For Plaintiffs, Togiola T.A. Tulafono

For Defendant, Charles V. Ala'ilima

On Motion for New Trial:

We held that a warranty deed signed by plaintiff Vaimaona Foloi conveying land to defendant Fa'amamafa Tuitasi was valid and that the land in question now belongs to the defendant. 12 A.S.J{.2d 6& {1989). Plaintiffs allege fourteen grounds of error in Our decision.

One of these grounds may have merit. Our finding that "on August 6, 1987, defendant Tuitasi had offered the deed for registration as her individually owned land, " while technically an accurate statement of the record, may have been misleading.

It appears that defendant (and/or plaintiff Vaimaona) filed a copy of the warranty deed with the Territorial Registrar on August 6. See Plaintiffs' Exhibit 2. The record reflects that the Registrar treated this filing as a request ( 1) for approval of the sale by the Land Commission and (2) for registration of the land as individually-owned land of defendant Tuitasi. See id. A notice was posted the saq1e day at the Court House and at two places in Lauli'i, stating that any objections could be filed with the Secretary of the Land Commission on or before September 8, 1987. No objections were filed. The sale was approved by the Land Commission on September 28 and by the Governor on October 2.

On October 20 the Territorial Registrar issued a "Certificate of Registration. " It certified that "Warranty Deed, Portion of Land 'Mulipa' in the village of Lauli'i" had been offered for registration by Mrs. Tuitasi ''as her individually-owned land" and had been "duly registered."

The Registrar's certificate implies that the registration in question was both a registration of the deed as an "instrument. .. effectual to pass title" under A.S.C.A. §§ 37.0210 and a registration of the land described therein as the individually-owned land of defendant Tuitasi in accordance with A.S.C.A. §§§§ 37.0101 et seq. Although the statutes in question do not prohibit the registration "of the deed" and "of the land" from being initiated by a single application, the two processes are technically distinct. [13ASR2d79] Chapter 1 of Title 37 of the American Samoa Code Annotated (A.S.C.A. §§§§37.0101 et seq.) deals with "Titles to Land." This chapter provides, inter alia, that the owner o(any land not previously registered may register his title with the Territorial Registrar. A.S.C.A. §§ 37.0101(a). The application for registration of titJe is done in accordance with the procedures set forth in A.S.C.A. §§§§ 37.0102-03, whose purpose is to give notice to anyone who might wish to file an objection to the application. Provided that no such objections are tiled, the Registrar records a title which is good against the world. A.S.C.A. §§ 37.0103(c); See Ifopo v. Siatu'u, 12 A.S.R.2d 24 (1989). A procedurally valid registration in accordance with A.S.C,A. §§ 37.0101 et seq. precludes subsequent judicial inquiry into the validity of the record owner's title; the statutory scheme gives "anyone who wishes to object on any ground whatever to the registrant's claim of ownership" a sixty-day period within which to do so, and provides that in the absence of such objection, "the land is registered in the name of the claimant and all other claims of ownership are forever precluded. " Ifopo, supra, at 26.

The immediately succeeding chapter, A.S.C.A~ §§ 37.0201 et seq. , deals with" Alienation of Land. " It provides a number of substantive restrictions on alienation and also sets forth procedures tor the lawful alienation of land. The latter, including a requirement that any proposed alienation of communal land be submitted to a Land Commission and to the Governor for approval or rejection, are designed to ensure that land will not be alienated lightly even in the absence of a specific substantive restriction. The final step in the procedure for alienation of land is set forth in A.S.C.A. §§ 37.0210, providing that "[n]o instrument shall be effectual to pass the title to any land. ..until such instrument has been duly registered with the territorial registrar." When a buyer and seller comply with the provisions of A.S.C.A. §§§§ 37.0201 et seq., including the recordation provision of A.S.C.A. §§ 37.0210, the buyer becomes the owner of whatever interest the seller had in the land.

The distinction between registration "of the land" and "of the deed " is best characterized as a distinction between substance and procedure. The protection afforded a landowner by compliance with A.S.C.A. §§§§ 37.0101 et seq. is essentially a form of estoppel: having been duly notified to come forward within sixty days, rival claimants are thereafter precluded from attacking the validity of the record owner's title. The protection afforded by compliance with A.S.C.A. §§§§ 37.0201 et seq. is substantive: although rival claimants remain procedurally free to object to the record owner's title, anyone who acquires land in [13ASR2d80] conformity with the substantive and procedural provisions of this chapter (and who acquires the land from someone who really was the owner) thereby becomes the lawful owner of the land. Thus a party who claims to own land, even though he may not have registered the land in accordance with the procedurally requirements of A.S.C.A. §§§§ 37.0101 et seq. and therefore cannot take advantage of the preclusive effect of that chapter, will nevertheless prevail on the merits provided that he bought the land from its lawful owner in compliance with A.S.C.A. §§ 37.0210 and the other statutes governing the validity of land transfers.

It would be to the advantage of a party who purchases land that has never previously been registered to apply for registration in accordance with both the "Titles" chapter and the" Alienation" chapter . The Certificate of Title issued by the Registrar suggests that defendant's application was so construed. It does not appear from the evidence before us, however, whether the process of registration met all the statutory requisites for registration of land under A.S.C.A. §§§§ 37.0101 et seq. Specifically, although it does appear that a notice was posted telling interested persons that they had a right to object to the warranty deed, the last date specified for such objections was September 8. This was twenty -eight days sooner than the end of the sixty-day period specified by A;S.C.A. §§ 37.0103 for objections to land registrations.

It may be that the Registrar was relying on the sixty-day notice that had been posted pursuant to Vaimaona's offer of registration in 1978 ---which, together with the subsequent warranty deed from Vaimaona to Tuitasi, would arguably bar any objections to Tuitasi's title .. or it may be that a separate notice was posted pursuant to A.S.C.A. §§37.0103 but not introduced into evidence in the present case. Although a number of documents pertaining to registration of the land were introduced by both parties, neither party called the Registrar to testify about whether the documents in evidence constituted his office's entire file on the land, as is the usual practice in land registration cases. The record does reflect that the Registrar waited until October 20, which was more than sixty days after the application and posting of notices, before registering defendant's title.

Contrary to another of plaintiffs' assertions of error. the Registrar's certificate of title is presumed to be valid and a party asserting its procedural irregularity has the burden of presenting "compelling proof." lfopo v. Siatu'u, supra, at 28 ([989). "[T]hat a document should be missing from a file in the Registrar's Office" ... much less from what may have been only the partial contents of such a [13ASR2d81]file -- "is so common as to be an extremely unreliable indicator of whether an event that might have been attested by the document did or did not occur. " Id. at 28. Nevertheless, if our holding that defendant Tuitasi is the owner of the land rested squarely on the preclusive effect of plaintiffs' failure to file objections within the sixty days prescribed by A.S.C.A. §§§§ 37.0103, we would be inclined to grant a new trial for the limited purpose of calling the Territorial Registrar to testify about the process by which Mrs. Tuitasi's title was registered.

Such an exercise would be pointless, however, for plaintiffs cannot prevail on the merits even if A.S.C.A. §§ 37.0103 does not preclude them from attacking defendant's title. This is because the record clearly shows that the land was validly purchased in accordance with all the provisions of A.S,C.A. §§§§ 37.0201 et seq. Defendant acquired the land from Vaimaona, who as sa'o of the family was the person vested by law with power to dispose of it within the statutory restrictions and procedures for alienation of communal land.

Plaintiffs' assertion that A.S.C.A. §§ 37.0204 "specifically prohibits the alienation of communal lands" is simply wrong. On the contrary, the section prohibits such alienation only "without the written approval of the Governor" and "to any person who has less than one-half native blood. "This section is living proof that the Fono knows how to restrict the power of a sa'o when it wants to. The custom that major decisions should be made ip cor1sultationwith the whole family {a custom unfortunately honored perhaps as often in the breach as in the observance) is not among those the Fono has seen fit to incorporate into the statutory restrictions on the otherwise plenary powers of a sa'o over family lands. Vaimaona is therefore unable to avoid his contract on the ground of his own violation of this custom, and the other plaintiffs' remedies are against Vaimaona and not the purchaser. When she "received her deed from the grantor and registered it. ...title to the property described in her instrument passed to her and the grantor lost all of his interest therein. " Moon v. Falemalmna, 4 A.S.R. 836, 839 (1975).1

Plaintiffs' other objections are without merit. Our finding that Vaimaona signed the deed is supported not only by the weight of the evidence, but also by plaintiffs' own judicial admission: paragraphs 5 and

 


1 The quoted passage cites former 27 A.S.C. §§ 601(a), the scction providing for registration of instruments which) was renumbered as A.S.C.A. §§ 47.0210 when the present Code was adopted. [13ASR2d82]

 

6 of the complaint state that he executed the document in question but that he did not understand what it was. Plaintiff Vairnaona had every opportunity prior to trial to examine the deed for possible forgeries; he even appended it to his complaint as Exhibit A. His discovery that he did not sign the document after all seems to have been a last-minute inspiration.

Similarly, Vaimaona's testimony that he always thought he was just giving permission to renovate a house and not conveying land was contradicted not only by the defendant but also by the two Land Commission members who testified at trial. Although their recollections differed in some respects, both members specifically recalled explaining to Vaimaona the legal effects of his proposed action.

Plaintiffs also urge for the first time that notice of the deed and/or land registration should have been posted in Aumi, not Lauli'i. Aumi is usually regarded as a subdivision of the village of Lauli'i. In any case, plaintiffs did not raise this issue in their pleadings or at trial; indeed, paragraph 4 of their complaint alleges that the disputed land is located "in Aumi, Laulii, American Samoa."

Plaintiffs further suggest that the registration was invalid beca4se the file contains no notarized affidavit of posting. This objection is moot insofar as our holding does not rest on the preclusive effect of A.S.C.A. §§ 37.0103. In any case, this section does not require that posting pe evidenced by an affidavit or any other particular term of evidence; see Ifopo, supra. (A.S.C.A. §§ 37.0210, the statute providing for registration of instruments as opposed to title itself, not only requires no affidavit but does not specify posting or any other particular form of notice prior to registration. In this case, however, the record shows that at least 52 days' notice was given of the Land Commission hearing on the deed transferring title. Indeed, it is hard to see how plaintiffs can complain that they received no notice when plaintiff Vaimaona himself was there and testified.)

Finally, plaintiffs note that the certificate of posting says that notice was posted at "the Administration Building" rather than "the Court House. " Again, this matters only insofar as our holding rests on the preclusive effect of A.S.C.A. §§ 37.0103; it has no bearing on whether defendant validly purchased the land. We take judicial notice, however , that the language in question tracks the language of A.S.C.A. §§ 37.0103 prior to its amendment in 1979, and that for some years now the Registrar has posted notices not at the Administration Building but at the [13ASR2d83]Court House (which is itself the former Administration Building). Although the Registrar's office should certainly have gotten around to changing its form by now, we decline to accept this as a basis for the invalidation of every land title registered since 1979.

Accordingly, the motions are denied.

It is So ordered.

*********

In re Guardianship of the Estate of SOFA'I

FALELUA, A Minor Child, and concerning FUATINO

FALELUA, Guardian of the Estate FUATINO FALELUA, Guardian Ad Litem for the Minor

SOFA'I FALELUA, Plaintiff

v.

CONTINENTAL INSllRANCE COMPANY and

DOES I through V, Defendant

High Court of American Samoa Trial Division

PR No. 32~88

CA No.89-88 December 13, 1989

__________ No cause of action for "loss of filial consortium" was recognized at common law, although parents could recover damages for tangible losses such as child's lost wages and medical expenses.

Although traditional limitation or damages for the injury of one's child to palpable economic losses may ref1ect an outmoded view of children as mere economic assets, in a territory where the typical tortfeasor has few traceable assets and little or no insurance the recognition of a cause of action for collateral harm to a parent as a result of his child's injuries would almost certainly have the principal effect of reducing the sum available; to compensate the child for injuries more palpable, direct, and severe than those suffered by the parent. [13ASR2d84]

Recognition of a cause of action for collateral harm to parent arising out of his minor child's injuries would practically guarantee a conflict of interest in every settlement negotiation arising out of such injuries, since zealous representation of the child's claims would deplete the fund available to compensate the fiduciary:

Case in which (I) child's injuries were unlikely to have a shattering effect on the paren\- child relationship; (2) the parent and guardian ad 1item might herself have contributed to the injuries; and (3) the parent/guardian had waived any claim in her personal capacity by submitting a stipulated judgment requesting in effect that the entire settlement be deposited in a trust account for the child, was inappropriate for the recognition of a new cause of action for loss of filial companionship.

 

Before REES, Associate Justice, MATA'UTIA, Associate Judge. Counsel: For Petitioner, John L. Ward II.

 

On Motion for Reconsideration:

This motion, tiled in connection with what would otherwise be a routine request by the guardian of a minor child for disbursement of funds held in trust for the child, raises the question whether the law of American Samoa recognizes a cause of action for "loss of filial consortium" for a parent whose child has been injured.

The child in question, Sota'i Falelua, was injured in a motor accident. The child had been riding in a pickup truck belonging to his father. The truck was being driven by someone else, apparently with permission of the father. The child's mother sought appointment as guardian ad litem and then sued the driver and the owner's (i.e., the child's father's) insurance company. The complaint alleged that the driver had negligently caused the minor's injuries. Although plaintiff was identified throughout the complaint as guardian ad litem and purported to sue only in such capacity, her complaint also stated that she had "been deprived of comfort and happiness in minor's society and has suffered a great deal of mental pain and anguish, has been deprived of the services of minor as her parent, and those other pleasures and rights growing out of the parent-child relationship known as consortium."

On April 24, 1989, the parties submitted a proposed settlement and stipulated judgment for the approval of the Court. The stipulation provided in pertinent part that "[t]he Court, having previously appointed Plaintiff herein as Guardian ad Litem of the minor child. is [13ASR2d85]

respectfully urged to order deposit of the proceeds of this settlement in the Court Registry. " The Court approved the proposed settlement and accepted the proposed deposit of funds into the registry of the Court in trust for the child.

On June 1, 1989, the guardian submitted a "petition for release of funds, " The petition stated that the American Samoa Government had determined that the child Sofa'i should be sent to Hawaii for medical care; that, in accordance with its usual practice, the Government was to pay air fare for Sofa'i and also for the guardian herself as well all medical costs; but that the guardian anticipated certain other travel expenses for which she requested a disbursement from the child's trust fund. The unitemized request was for $1,500. The Court felt that $300 was more consistent with the usual standard for supplemental travel expenses, and disbursed this amount subject to the guardian's commitment to file an accounting upon her return from Hawaii.

On June 22 ~he Court received a request for a supplemental disbursement of $350. This request contained the following assertion:

[t]he funds on deposit. ..represent the settlement of claims on behalf of the minor child, as well as the parents as outlined in Count II of the original complaint. The actual amounts due the minor [and] the parents. ..has yet to be judicially determined.

This was news to the Court, which had already established a trust account for the minor child and approved a disbursement from this account. The Court did approve the requested supplemental disbursement of $350, subject to the requirement of a subsequent accounting, but observed that "the money belongs to the child. "

The Guardian subsequently moved for reconsideration of that part of the Court's order decreeing that the entire sum held in the registry of the Court belongs to the child. Counsel has submitted authorities for the proposition that parents have a right to recover for loss of "filial consortium" in connection with injuries to a child, and argues that the Court should allocate part of the settlement to the mother/guardian as compensation for such loss.

"Loss of filial consortium" is a new idea in American Samoa and a relatively new one elsewhere. No such cause of action was recognized at common law, although parents could recover damages for [13ASR2d86]

tangible losses such as a child's lost wages and medica! expenses. Prosser & Keeton on Torts §§ 125 at 934 (5th ed. 1982). Despite the traditional association of the term "consortium" with discontinued sexual relations between an injured person and his spouse, at least one court has used this term in connection with damages arising from the loss of filial companionship, society, and comfort. See Reben v. Ely, 705 P.2d 1360 (Ariz. App. 1985). Other courts have awarded such damages while avoiding the term "consortium. " Shockley v. Prier, 225 N. W .2d 495, 499 (Wis. 1975); Bullard v. Barnes, 468 N .E.2d 1228, 1233 (Ill. 1984).

It may be true, as cases such as Shockley and Bullard suggest, that the traditional limitation of damages for the injury of one's child to palpable economic losses reflects an outmoded view of children as mere economic assets. In American Samoa, however, where the typical tortfeasor has few traceable assets and is insured tor $10,000 if he is insured at all, the recognition of a cause of action for collateral harm to a parent as a result of his child's injuries would almost certainly have the principal effect of reducing the sum otherwise available to compensate the child for injuries that are by definition far more palpable, direct, and severe. This, in turn, would practically guarantee a substantial conflict of interest in every settlement negotiation arising out of personal injuries to a minor child; unless the direct injury to the child is unusually slight or the fund available for settlement unusually large, zealous representation of the child's claims will have the effect of depleting the fund available to compensate the fiduciary. Cf Galo v. American Samoa Government, 10 A.S.R.2d 94 (1989); Logoa'i v. South Pacific Island Airways, 111(:.,6 A.S.R.2d 28 (1987).

The facts of the pr~sent case, moreover, render it a singularly inappropriate vehicle for the recognition of a new cause of action for loss of filial companionship. On the face of the complaint it appears most unlikely that the injuries suffered by Sofa'i will have the sort of "shattering effect"on the parent-child relationship that has been found to justify such a cause of fiction. Shockley, supra, 225 N.W.2d at 499. It was also asserted in defendants' answer that the guardian herself had contributed to the accident by permitting her child to ride in the back of a pickup truck. If proven at trial, this might have severely limited the guardian's recovery.

If the guardian ever had a claim in her personal capacity, she waived it when she submitted a stipulated judgment which requested that the entire settlement be deposited in the Registry of the Court. In the context of High Court practice, such a request in connection with a [13ASR2d87] settlement involving a minor (and in a stipulation referring to the child's mother as Guardian ad Litem and in no other capacity) can only be reasonably construed as a request for the establishment of a trust account. See: Judicial Memorandum No.1-88, 7 A.S.R.2d 146 (1988). Finally, a proposed order submitted by the guardian during the pendency of the present motion for reconsideration, formally requesting the establishment of a trust account and approval of the submitted expenses submitted by the guardian, appears even more clearly to waive any personal claim of the guardian to the funds in the trust account.

Accordingly, insofar as it requests a reconsideration of our decision that the entire settlement amount belongs to Sofa'i Falelua, the motion is denied.

Taking the motion as one for the approval of the submitted expenses, we find the following items to be related closely enough to the child's medical condition to justify their satisfaction from the trust fund: $ 79.04 for prescription sunglasses; $ 8.78 for eye patches; $ 5.00 for medicine; and $45.00 for transportation to medical appointments while in Hawaii. The request for $131.20 for telephone calls from Samoa to Hawaii is granted on the guardian's representation that the calls concerned the child's medical treatment.

The guardian has also submitted a claim for $565.00 for food, representing payments the guardian says she made to the relatives with whom she was staying. Only those food costs in excess of what would have been expended in Samoa for food may be recovered. Despite the lack of any evidence on this, but in recognition of the fact that prices in Hawaii may be somewhat higher, $150,00 is granted for food costs.

The guardian has also submitted a bill for $168.34 for medical bills she herself incurred while in Hawaii. Because she was in Hawaii to care for Sofa'i during his medical appointments, and because she would have had access to free medical care had she remained in Samoa, these expenses may be recoverable provided that they were truly necessary. The guardian has submitted no evidence to establish the necessity of these expenses.

We therefore approve expenditures from the trust fund in the amount of $419.02, out of the total amount of $650 that was advanced to the guardian. The guardian should submit evidence to document the necessity of the $168.34 requested for her own medical expenses, and should return $62.64 to the trust fund. [13ASR2d88]

It is so ordered.

*********

SINIRA FUIMAONO LUTU, Plaintiff

v.

MUAMUA SEMEATU and SALA SEMEATU, Defendants

High Court of American Samoa

Land and Titles Division LT No. 9-87

December 14, 1989

__________ Counsel who wished to readvance an argument that had been rejected by the court should have done so by filing a timely motion to reconsider the court's interlocutory order, not by simply ignoring the order.

Where it did not appear from the evidence that a common grantor had so1d two parties the same land, but on the contrary the two deeds clearly described two different adjoining parcels, a defect in the title conveyed to the first purchaser would not give him right to the land the common grantor had conveyed to the second purchaser.

Where a common grantor had sold two different adjoining parcels to two purchasers, and it appeared that strangers to these transactions had encroached on the land sold to the first purchaser, the first purchaser's remedy was against the people who were encroaching on his land and not against the second purchaser .

Before REES, Associate Justice, TAUAN'U, Chief Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Plaintiff, Afoa L.S. Lutu

For Defendants, Charles v. Ala'ilima This is a boundary dispute between two parties who purchased adjoining lots in the same subdivision.

Most of the facts are undisputed. Plaintiff and defendants each purchased a portion of a tract of land in Ili'ili called Leuluasi. This [13ASR2d89] tract, said to contain about 18 acres, had been registered and subdivided in 1974 by one Logotala Noa.

In 1975 Noa sold a lot in the northwest comer of the subdivisior1, described by reference to certain metes, bounds, and iron pins and further described as containing 1.027 acres more or less, to Vincent Ah San. In 1984 Ah San executed a contract of sale to the defendants, which was recorded in the office of the Territorial Registrar. Ah San also signed a deed conveying the land to the defendants but did not appear before the Territorial Registrar to attest to his signature, apparently because the Semeatu had not yet paid the purchase price. The Registrar has therefore not recorded the deed. Defendant Muamua Semeatu testified that he has paid Ah San about $IO,OOQ of the $15,000 purchase price.

In the meantime, plaintiff had purchased her lot from Noa and recorded the deed in 1981. This lot, like that of defendants, is defined by reference to metes and bounds and iron pins; it is further described as containing. 998 acres more or less. It is clear from the maps accompanying the 1975 deed to Ah San and the 1981 deed to plaintiff that the two lots were meant to share a 208-foot border. Plaintiffs property is along the western edge of the subdivision just to the southeast of defendants.

After purchasing their land in 1981 plaintiff and her h\lsban4 di4 not immediately build on it. In 1986 plaintiff went to clear what she thought was her land and found much of it occupied by defendant. This lawsuit followed,

Each party hired a surveyor to retrace his or her boundaries. Each surveyor testified that he had found a few old pins and other landmarks, although not many, suggesting that the boundaries was where his client said it was. On balance this evidence was not particularly helpful to either party.

Each party also offered evidence offered that his or her boundaries were accepted as such by other neighbors. Unfortunately, this evidence also pointed both ways.

It appears that the line used by defendants to calculate their western boundary {i.e. , the western boundary of the whole Leuluasi subdivision) roughly corresponds to the boundary observed by the occupants of a tract to the west. This tract, called Lauofe, was [13ASR2d90] registered in 1981 as the property of Lupelele Letuligasenoa, and its occupants are there by permission either of Lupelele or the late Ti'a Misilagi. (Lupelele and Ti'a are prominent land claimants in and around Ili'ili.) The boundary observed by plaintiff, on the other hand, corresponds to the boundaries observed by most if not all of the other residents of the Logotala Noa subdivision.

Whether or not acceptance of certain boundaries by neighbors is part of the solution to this case, it definitely is part of the probleIJ1. If plaintiff is right about her boundary with defendants, then the tract purchased by defendants is further to the west than defendants claim it to be, and therefore includes an area currently occupied by the Lupelele or Ti'a people. If defendants are right, then not only plaintiff but everyone else in the subdivision is mistaken: plaintiffs eastern and southern neighbors are encroaching on her land, and those neighbor's own eastern and southern neighbors are committing a similar encroachment, and so forth.

At the conclusion of the trial the Court observe<} that neither side had presented what appeared to b~ a crucial piece of evidence expert testimony with respect to the actual physical location of the two coordinates {X = 239,818.75', Y = 283,953.05') defining the starting point of the subdivision. The legal descriptions of both plaintiffs and defendants' land consisted of metes and bounds defined by reference to this point. The point, in turn, is defined as being a relatively short distance (1328 feet) in a specified direction from a point (the Agogo Triangulation Station) whose location is undisputed. If this point could be relocated on the ground, and if it was correctly located when Noa did his survey in 1974, the Court would be able to identify with certainty the true boundary between plaintiffs land and that of defendants.

Plaintiffs surveyor apparently did not attempt to relocate the original starting point on the ground by reference to the Triangulation Station because he accepted the accuracy of a point identified by Tito Malae, an occupant of the subdivision who had purchased his lot from Noa in 1983. The Court asked defendants' surveyor why he had not located this point on the ground; he said that he considered this exercise too time-consuming and that the evidence he had already presented was more probative than the physical location of the point in question. The Court respectfully disagreed and ordered the parties to present evidence by August 31, 1989, of the physical location of the starting point defined in the 1974 survey. The Court ordered that the parties agree on a single [13ASR2d91]surveyor to do the necessary work, or in the event such agreement should prove impossible that each party choose a surveyor and the two surveyors choose a third surveyor to locate the point of beginning.

August 31 came and went with no submission of evidence by the parties or either of them and no request for an extension. The Hi8h Court of American Samoa being an extraordinarily easygoing tribunal with respect to its treatment of those who inadvertently disobey its orders, the Court waited until mid. October and then asked the Clerk to inquire after the missing evidence.

Counsel for defendants responded with a memorandum reiterating his position that the evidence requested by the Court w~s unimportant comp~red to the evidence already submitted by defendants, and concluding with the observation that "defendants' surveyor does not have sufficient information to either retrace the original surveyor's control in the field or to calculate the accuracy of the mathematics used to establish the coordinates given." Although couched in language suggesting the impossibility of compliance with the Court's order, on closer inspection this statement amounts to yet another reiteration of defendants' original position that the evidence sought by the Court was not important because the original surveyor might have been mistaken about the coordinates.

While it is impossible for a Court to evaluate evidence it has not yet seen, we have as yet no reason to believe that the coordinates depicted in the 1974 survey map ---the key link in each party's chain of title --.were anything but an accurate representation of the point from which Logotala made his original survey on the ground. Counsel for defendants advances no particular reason to believe any such error occurred, but seems to say that if the point depicted by the coordinates should turn out to be anywhere but where his surveyor says it ought to be, then the coordinates would necessarily be wrong. For reasons we shall discuss, this contention rests on a vastly inflated estimate of the strength of the evidence presented by defendants. If, however, counsel for defendants had wished to re-advance this argument in an effort to persuade the Court to reconsider its order, he should have filed a motion for reconsideration within ten days after the order was made. Instead he apparently chose simply to ignore the order.

Courts usually deal with a party's refusal to produce evidence by pres~ming conclusively that the evidence would be unfavorable to the [13ASR2d92] party. In this case, however, the defendants were not alone in ignoring the order. When the Clerk contacted counsel for plaintiff to inquire about the supplemental evidence, counsel responded that he had been very busy and had not been able to get to it. Like counsel for defendants, he expressed the opinion that the evidence already presented clearly preponderated in favor of his own client and obviated the need for further evidence.

The Court has given serious consideration to imposing sanctions on both counsel. Our decision not to do so should not be regarded as a precedent likely to be followed in future cases.

We are left to decide the case on the preponderance of the evidence before us. This evidence, although hardly clear and convincing, favors the plaintiff.

Both parties agreed that many if not all of the original 1974 pins and monuments can no longer be located and have probably been removed, and that many new monuments have been placed by various persons since 1974. Defendant Muamua Semeatu himself admits to having removed survey pins, although he insists that he has removed only new illegitimate pins and not old legitimate ones. All of the pins and other man-made monuments (fences, hedges, etc.) "found" by defendants' surveyor could easily have been placed there some years after 1974 by persons ---most notably defendants themselves, their grantor Ab San, and the Lupelele or Ti'a people to the west ---whose? interests may have consisted not in perpetuating the 1974 boundary but in relocating it, Indeed, one of the surveyors who surveyed the tract sold to Ah San by Noa in 1974 testified that he revisited the land in or around 1985 and that Ah San's tract (which Ah San had contracted to sell to defendants) was by then located in a different place.

It further appears that the 1981 survey of Lauofe registered by Lupelele substantially encroaches on the northwestern corner of the 1974 Leuluasi survey registered by Logotala. According to the survey maps, any attempt by the residents of Lauofe to occupy the entire extent of the area claimed by Lupelele would consume all the land purchased by the defendants and much of that purchased by the plaintiff.

This evidence, together with the Court's impression of the witness Ah San as a man with a healthy regard f(>r his own interests but no taste for outright disagreement with anyone, supports plaintiffs contention that Ah San ---or possibly defendants themselves ---moved

[13ASR2d93] to the south and east of the tract Ah San had purchased from Noa in order to avoid a boundary dispute with his western neighbors, or perhaps as the result of such a dispute. This put him in occupation of a substantial portion of the tract sold to plaintiff Lutu but not yet occupied by her. Although the evidence for this contention is circumstantial rather than direct, it is less speculative and more consistent with the record than defendants' contention that the various other buyers in the Leuluasi subdivision ---including the Nomuras, who purchased their tract in 1975, before the Ah San purchase and only a year after the origin31 survey by Noa ---all made an identical mistake about the location of the boundaries of this survey.

Nor does the evidence support defendants' intention that any conflict must be resolved in their favor because their grantor, Ah San, purchased his tract before plaintiff purchased hers. This does not appear to be a case in which a common grantor sold two parties the same land; on the contrary, the deeds to Ah San and the plaintiff clearly describe two different parcels which adjoin but do not overlap. If the tract sold to Ah San really belonged to Lupelele, there was no reason to take it out on Mrs. Lutu. If (as seems more likely in light of the undisputed tracts that Lupelele's survey was not registered until seven years after Noa's and that the area now in dispute was jungle in 1974) the Lupelele people began encroaching on Ah San's land at sometime after he bought it, then his remedy was against them and not plaintiff Lutu.

Defendants could purchase from Ah San only what he owned. This appears to be a tract whose boundary with defendant is about 84 feet to the north and west of the boundary they claim, to the northwest of the land designated "disputed area" in Plaintiffs' Exhibit 4.

Although it would appear from the evidence that defendants may have a claim against Ah San and/or their neighbors to the west, no such claims can be adjudicated in this action.

For the reasons stated, judgment will be entered for the plaintiff permanently enjoining the defendants from going on the tract belonging to plaintiff, including the land designated "disputed area" in Exhibit 4. Execution of this judgment will be stayed for sixty days to allow defendants time in which to harvest crops and remove any other property they may have in the disputed area.

 

It is so ordered.

*********

[13ASR2d94]

In the Matter of TWO MINOR CHILDREN

High Court of American Samoa

Trial Division JUV No.9-89

JUV No.43-89

December 15, 1989

__________

Petitions to terl11inate legal rights and obligations of natural parents in order to facilitate adoption by much older prospective adopting parents were not in the best interest of the children, where natural parents were; much younger, had potential to be good providers, and appeared to have strong bonds with the children.

Before REES, Associate Justice, MATA'UTIA, Associate Judge. and OLO , Associate Judge. Counsel: For Petitioner in JUV No.9-89! Isa-Lei F. Iuli

For Petitioner in JUV No.43-89, Togiola T.A. Tulafono and Roger Hazell These two cases involve the requested termination of parental rights in order to facilitate adoptions by much old~r sets of prospective adopting parents.

The prospective adopting father in JUV No.43-89 will be 82 when the child reaches the age of majority. The prospective adopting father in JUV No.9-89 will be 91 when the child reaches the age of majority.

In each case the prospective adopting parents are prominent citizens and fine people who wish to provide a good future for the child. Also, however, in each case the natural parents are much younger, have the potential to be good providers, and appear to have strong bonds to the child.

In each case the parties are free to adopt the child fa'a Samoa and to have the child live with them as long as this is the wish of the child and the natural parents. But in neither case cap we certify that [13ASR2d95]termination or the legal rights and duties of the natural parent would be in the best interest of the child.

Accordingly, the petitions are denied. It is so ordered. *********

SIVIA SIVIA, JR., BEN FALEAFAGA, and

FUATA PEPA, Objector/Plaintiffs

v.

ALAIMALO PEPINE HENRY PORTER and HEIRS,

Claimant/Defendants High Court of American Samoa

Land and Titles Division

LT No.88-81

December 18, 1989

__________

 

Claim to individual ownership of land in American Samoa requires proof of initial clearing of bush land and sustained use and occupation of the land thereafter.

Matai assigning or designating family land for the use of a particular member does not lose pule (authority) over such land.

Family member's continued right to use and occupy communal land is conditional upon his providing tautua to the matai.

Matai cannot alienate land without complying with certain statutory procedures, including the approval of the Governor of American Samoa. A.S.C.A. §§§ 37.0201 et seq.

Offer to register certain land either as individual or communal property of claimants would be denied where: a prior suit held that land was owned communally by objectors to the registration; claimants cited two different theories of ownership in their offer of registration and at trial; and claimants' theories were inconsistent with both law and custom.

Where objectors to registration of land cited a prior case holding that the land belonged to them, but offered no surveys delineating the extent of their respective claims within the disputed area, the court would deny the offer of registration but would express no opinion with regard to the claims of the objectors beyond the holding in the prior case. [13ASR2d96]

Before KRUSE, Chief Justice, OLO, Associate Judge, and VAIVAO, Associate Judge. Counsel: For Plaintiff Sivia, Togiola T .A. Tulafono and Roger Hazell

For Plaintiffs Utu family, Utu Sinagege R.M. For Defendants, Charles V. Ala'ilima In January 1981, Alaimalo Pepine Henry Porter surveyed a certain area of land which he then offered for registration as the individually owned and of" Alaimalo Pepine Henry Porter and his heirs. " This offer prompted a number of objections from members of both the Utu family and the Paolo family of Amouli village in the County of Saole, Eastern District. The land, which the parties refer to as "Oloie, " is located in Auasi towards the eastern outskirts of Amouli village. The objectors complain that Porter is attempting to claim their respective communal fami1y land. They point to an earlier title dispute which the Court resolved in favor of the Utu and Paolo families against certain people from Aunu'u who laid claim to a part of Oloie. Utu and Paolo v. Fonoti, 1 A.S.R. 208 (1907).

At the time of trial, claimant Porter aborted his claim of individual ownership. In lieu thereof, he sought to establish his family's stake as being one in communal ownership pertaining to the title "Alaimalo. " Mr. Porter has, since the commencement of this action, resigned from the title "Alaimalo" in favor of his daughter, Jane, who has joined in these proceedings as the Alaimalo title holder. The Porters are also members of the Utu family; however, they ground their claim to "Oloie" on the basis of an "assignment" of the land made by a former Utu to one Faimafili. They contend that this as assignment was in fact all outright transfer of ownership to Faimatili, a taute'ale'a (non.matai) who was at the time rewarded for tautua (traditional services) rendered to Utu. Faimafili is also the father of claimant Alaimalo Pepine Henry Porter .

The Porters further claim that the said Faimafili "created" for himself the matai title" Alaimalo" in 1941 with the blessings of the Utu. The conclusion one is invited to draw from the above is that Faimafili's new found matai status then somehow merged with his estate in the land "Oloie," giving the said land communal status appurtenant to his Alaimalo title, and, therefore, belonging to the Alaimalo family,

 


1

 

The offer to pursue his claim as one in "communal ownership as opposed to [13ASR2d97] Counsel for the Paolo family objected strongly against permitting the claimant to suddenly change story in midstream. His clients were not alert to contest a communal ownership claim. Alternatively, counsel pointed out that the new allegations by the claimant, regarding an assignment by a former Utu, did not take anything away from the Paolo family's entitlement to "Oloie"as established in Utu and Paolo v. Fonoti, supra. Utu may not give away what is Paolo's.2

For the Utu family, the incumbent senior matai, Utu Sinagege R. Morris, who himself besides on "Oloie," also rejected the Porter's ownership claim and vigorously denied the asserted conveyance. He explained their presence on "Oloie" as stemming from the fact that they are members of the Utu family occupying Utu family property in accordance with custom. Utu further claims that Alaimalo is a lesser matai of the Utu family.

Discussion

The claim to ownership asserted by the Porters sadly lacked coherence and hence the rather uncertain manner in which their claim evolved in the course of these proceedings. Credibility was immediately at issue with claimant's change of theory. Among other things, a claim to "individual ownership is a claim to initial clearing of bushland as well as sustained use and occupation of the land thereafter. See, e. g. , Lealaimatafao v. Noa, 9 A,S.R.2d 9 (1988). The initial clearing of bushland by claimant would, therefore, have been a necessary often of proof, for a claim in individual ownership. Such an offer of proof, however, would be a contradiction of Utu and Paolo v. Fonoti, supra. In these circumstances, it is difficult to resist the conclusion that claimam 's change in theory was necessitated by the need to be consistent with the holding in Utu and Paolo v. Fonoti.

 


"individual ownnership is in essence the same: attempt to register the land in favor of the Porter family to the exclusion of the extended Utu family. Registration of title to the land "Oloie" is sought in the name of the "Alaimalo" family. The "Alaimalo" family is non~ other than the Porter family as the title "Alaimalo " is claimed by the Porters as a creation of their grandfather, Faimafili, and, therefore, as the exclusive reserve of Faimafili's immediate descendants.

 

2 Notwithstanding the reasoned submission by counsel, curiosity nonetitle remains aroused with Paolo's admission that none of his family members had, within his time, occupied or maintained crops in the vicinity of Oloie. [13ASR2d98]

The amended claim to communa1 ownership is, however , without foundation. The claim to an outright assignment, or surrender by Utu of his family's title to "Oloie," in return for services rendered, is not only inconsistent with law but also with custom. Firstly, a matai assignment or designation of family land for the use of a particular family member does not divest the matai of his authority or "pule" over the land. Toleafo v. Tiapula, 7 A.S.R.2d 117(1988), (aff'd 12 A.S.R.2d 56 (1989); Leapalga v. Masalosalo, 4 A.S.R. 868 (1962); Pisa v. Solita, 1 A.S.R. 520{1935); Levu v. Maluia, 1 A.S.R. 197 (1908), If it were otherwise, there would be very little communal land left, if any, in the territory.

Moreover, a family member's continued right to use and occupy communal land holdings is conditional upon his providing tautua to the matai. Toelefoa v. Tiapula, supra. 1f, as suggested by claimant, assignments could be construed as out and out grants, then there would be no further need for tautua, for matai, or indeed for a communal way of living and fa'a Samoa.

Finally, claimant's theory of assignment (of communal land) cannot be reconciled with the legislative prohibition against matai alienation of land without compliance with certain statutory procedures, including the approval of the Governor of American Samoa. A.S.C.A. §§ 37.0201 et seq. See also Teo v. Totoa,2 A.S.R. 243 (1947); Tuafili v. Taape, 2 A.S.R. 155 (1944).

We sustain the objections and accordingly deny the application by Alaimalo Pepine Henry Porter and his heirs to register title to the land "Oloie."

On the other hand, neither of the objecting families provided a survey delineating the exact extent of their respective claim for the Court's consideration. At the same till1e the objectors both agree al1d submit that "Oloie" is a much larger area of land than that considered in Utu and Paolo v. Fonoti, supra, and that surveyed by the Porter family. They also both lay claims to greater Oloie, whatever that might be. With regard, therefore, to the respective claims of the Utu and Paolo families, we intimate no opinion beyond this Court's holding in Utu and Paolo v. Fonoti.

Judgment accordingly. It is so Ordered.

*********

[13ASR2d99]JUDICIAL MEMORANDUM

High Court of American Samoa

May 8, 1989

__________ KRUSE, Chief Justice; Re: Scheduling of Jury Tria}s As you know, we are currently setting jury trials for about six months after the date on which trial is set. This has resulted partly from a receipt increase in the number of defendants requesting jury trials, and partly from the Court's policy of scheduling no more than ono jury trial per week.

The Court has neither personnel nor facilities adequate to handle more than one jury trial at a time. However, it appears that fewer than one-fourth of the jury trials scheduled are actually taking place. Most cases are resolved by pleas bargains a week or two before the scheduled trial date. As a result, the Court is only hearing about one jury trial per month, while some defendants are facing several month$ of pretrial incarceration.

We are capable of hearing one jury trial every week or so; and are more than willing to do so in order to clear the current backlog. Accordingly, we have decided to change (our policy so as to schedule two jury trials per week until the backlog is substantially reduced.

In order to implement this change, the following steps should be taken during the next few days:

I) The Assistant Attorneys General handling criminal cases should review all such cases scheduled for trial after June I, 1989, to determine which cases should be reset to earlier dates. First priority should go to cases in which the defendants are incarcerated.

2) The Public Defender and private defense attorneys should also review their scheduled cases, and should contact the Attorney. [13ASR2d100]Generals office immediately in the event that an accelerated trial date is not desired or in the event that some dates would be inconvenient.

3) The Assistant Attorneys General should prepare stipulation in each case in which it is determine that a new trial date would be appropriate. The stipulation should be presented to the defense attorney for his approval, and then to the Court.

4) In any case in which one party wants an accelerated trial date and the other party does not, the party desiring acceleration can make a motion to the Court.

5) The Court will grant motions or stipulations sufficient to result in a schedule of two jury trials per week, beginning as soon as possible. Both trials should be set on Tuesday unless there are good reasons to prefer another day of the week.

6) On Monday of each week, the Attorney Generals office and the defense attorneys in the two cases set for the following week should report to the Court whether those cases will actually go to trial. If it appears that both cases will go no trial, it may be necessary to postpone one of them for a few days.

Thank you for your cooperation on this matter . *********

JUDICIAL MEMORANDUM High Court of American Samoa December 20 , 1989KRUSE, Chief Justice: Judiciary Memorandum and Order: The District Court is not ordinarily a court of record; however, in cases where a stenographic record of its proceedings has been made, final decisions of the District Court may be appealed directly to the [13ASR2d101] Appellate Division of the High Court. A.S.C.A. §§3.0309. In the case of proceedings taken without a record, appeal is by way of trial de novo before the Trial Division of the High Court. A.S.C.A. §§ 3.0309.

The Judicial Branch currently has under its full time employ three certified stenographic court reporters, no more then two of whom are required in the High Court at any on time. Since a reporter is, therefore, avai1able at most times to keep a record of the District Court's proceedings, and because trials de novo are, in many instances, unecessary duplication of effort, in the interests of efficient and economic use of personnel, and pursuant to authority conferred by the A.S.C.A, §§ 3.0102; and §§ 3.0306.

IT IS HEREBY ORDERED: That a record shall be made in the fo1lowing proceedings before the District Court all criminal matters: all civil actions excepting small claims matters; and all traffic proceedings involving serious traffic offenses under Title 22, Chapter 7, A.S.C.A, §§§ 22.0701 et seq.

*******'* 101

Taliu; Meafua v.


TUTUPU A. MEAFUA, Plaintiff

v.

SIAKI MATA'U TALIU and VINETA ALLEN, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 21-87

December 8, 1989

__________

Witness from one village, testifying on behalf of a land claimant from that same village, had no reason to lie when he said the land was in another village.

That territorial registrar office had abandoned its former practice of using unsworn certificates rather than notarized affidavits as evidence of posting, and that the new practice was more desirable, did not render the former practice illegal.

Even if territorial registrar had expressed a legal opinion on whether procedure followed by former registrar would render a registration invalid, this would be a question of law on which the court must make its own judgment.

Before REES, Associate Justice, TAUANU'U, Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Gata E. Gurr
For Defendants, Tau'ese P.F. Sunia

On Motion for New Trial:

We took this motion under advisement in order to consider whether, as alleged by counsel for defendant Allen, our finding that this land was originally settled by Ili'ili people was without support in the record. Our recollection was that Mulinu'u Asapaolo, an elderly witness for defendant Siaki Mata'utia Taliu, had testified that the lands had belonged to lIi'ili people before Vaitogi people came there shortly before World War II. The English translation of this witness's testimony includes the following exchange: [13ASR2d75]

THE COURT: You were talking about period when everybody
scrambled for land; this was before the war?

THE WITNESS [Mulinu'u]: Yes.

THE COURT: Now what was there before? You said it was a
jungle, but did anybody own that land before the war?

THE WITNESS: My belief and knowledge is, Your Honor, that
these lands are Ili'ili lands.

Because Mulinu'u had been in a position to observe the events of which he spoke, and because as a Vaitogi person testifying on behalf of another Vaitogi person he had no reason to lie on this point, we found his testimony highly credible.

In any event, this finding was not essential to our primary holding, which was that defendant Allen was barred by A.S.C.A. § 37.0103(c) from presenting a claim contrary to that of plaintiff Meafua.

Defendant's contention that the Territorial Registrar has expressed a "view that the registration seems improperly executed" is a highly partisan gloss on the Registrar's testimony. With regard to one of several irregularities alleged by defendant -- the use of an unsworn certificate rather than a notarized affidavit as evidence that the notice of registration was posted in accordance with A.S.C,A. § 37.0103 ---the present Registrar did testify that his office now follows a different procedure. He also testified that the procedure used in connection with this registration in 1983 was the procedure followed by the Registrar's office at the time. The practice in question, although not as desirable as the practice adopted by the present Registrar, was not illegal and did not render the registration invalid; A.S.C,A. § 37.0103 requires only that the notice be posted, not that an affidavit or certificate or any other particular evidence of posting be placed in the Registrar's file. Even if the present Registrar had expressed a legal opinion that an unsworn certificate or improperly notarized affidavit of posting renders a registration invalid, this would be a question of law on which the Court must make its own judgment.

Finally, defendant urges that we "totally ignored the obvious lack of creditability in Plaintiff Meafua's testimony." Aside from the problem that defendant's own testimony was far more extravagant than[13ASR2d76] anything asserted by the plaintiff, this objection fails because no finding of fact essential to our opinion rested on the uncorroborated testimony of any party.

Accordingly, the motion is denied.

It is so ordered.

**********

Taliu; Meafua v.


TUTUPU A. MEAFUA, Plaintiff

v.

SIAKI MATA'U TALIU and VINETA ALLEN, Defendants

High Court of American Samoa
Land and Titles Division

LT No.21-87

October 10, 1989

__________

Territorial land registration statute gives anyone who believes himself the owner of land a fair opportunity to present his claim to the court, and then conclusively presumes that anyone who did not avail himself of this opportunity was not the true owner of the land. A.S.C.A. § 37.0101 et seq.

Temporary absence from the vicinity during the time when land was surveyed and offer of registration posted did not excuse failure to object to the registration during statutory 60-day period. A.S.C.A. § 37.0101 et seq.

Statute providing that "no affidavit affecting the chain of title to real estate may be filed for record" without first being posted for sixty days does not apply to registrar's certificate that notice of offer of land registration has been posted for sixty days, since (1) land registration statute does not require an affidavit or even an unsworn certificate of posting, but only that posting in fact be done; and (2) requiring that an affidavit of posting itself be posted would create an infinite regress under which no document could ever be filed and no land ever registered. A.S.C.A. §§ 37.0103, 37.0112.

Testimony of matai that he always attended village council meetings and always looked at the post on which notices were posted, but had not heard the opposing party's survey announced and had not seen notice of her registration posted, was insufficient to rebut the presumption of validity of certificates by officials charged with announcing the survey and posting the notice, especially where matai admitted that he frequently travels abroad and may have done so during the time in question. A.S.C.A. § 37.0101 et seq. [13ASR2d14]

Court must assume, and absent compelling proof to the contrary must conclude, that territorial registrar recorded a title only after complying with his obligations under the law. A.S.C.A. § 37.0101 et seq.

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

Counsel: For Plaintiff, Gata E. Gurr
For Defendants, Tau'ese P.F. Sunia

Plaintiff seeks to evict the defendants from a tract of land she calls Talie.

It is undisputed that this land was registered in 1983 as the individually owned land of plaintiff and her children. It is also undisputed that the defendants are or have been occupying parts of the land. Defendants maintain, however, that the land never really belonged to Tutupu Meafua and that her registration of it did not vest title in her to the exclusion of the true owners.

Defendant Vineta Allen testified that the land in dispute is part of a far larger tract called Vaipapa, which is said to extend from the mountains to the ocean and to belong to a Vaitogi family called Ufuti. Defendant Allen contends that plaintiffs parents began cultivating the land not on their own account but because of a connection to the Ufuti family. As a member of the Ufuti family herself, Allen claims the right to occupy part of the land.

This claim should have been made within sixty days of plaintiff s offer of registration, not five years later. See A.S.C.A. § 37.0103(c); Ifopo v. Siatu'u, 12 A.S.R.2d 24 (1989); Puluti v. Muliufi, 4 A.S.R. 672 (1965); Molitui v. Pisa, 2 A.S.R. 268 (1947).

Even if the contention that this land and the surrounding area are the historic communal land of the Ufuti family had been timely raised, we would reject it on the merits. Although all three parties to the present case are from Vaitogi and therefore regard the land as belonging to Vaitogi, the most credible testimony is to the effect that the area was originally settled by Ili'ili people and that settlers from Vaitogi did not arrive until well into the present century. The land is located miles from the village of Vaitogi proper, on the far side of the village of Ili'ili; much of the surrounding land appears still to be occupied by Ili'ili people. [13ASR2d15] Defendant Allen's testimony that the land has always been the communal land of a Vaitogi family is therefore far less credible than the testimony of plaintiff and of defendant Siaki Taliu that their respective fathers came from Vaitogi about fifty years ago to clear and cultivate the land for themselves.

The claim raised by defendant Siaki Taliu raises a far more difficult issue. It is clear that Taliu's father worked part of this land, or perhaps another tract very close to it, for some years. Plaintiff concedes that the elder Taliu worked near her father; she says that he once encroached on her father's plantations but that her father soon put a stop to the encroachment. Defendant says his father never left until the 1970s when he became too old to tend plantations.

The choice between plaintiffs version of the history of this land and that of defendant Taliu would be a difficult one were it not for Taliu's failure to raise any objection to plaintiffs registration during the sixty days provided by A.S.C.A. § 37.0103(c). As the Appellate Division of the High Court held in Ifopo v. Siatu'u, supra:

[T]he registration statute [A.S.C.A. §§ 37.0101 et seq .] gives anyone who believes himself the owner of land a fair opportunity to present his claim to the court; it then conclusively presumes that anyone who did not avail himself of this opportunity was not the true owner of the land.

Id., 12 A.S.R.2d at 26.

Defendant Taliu testified that the land was offered for registration at a time when no land in the area was being worked by anyone in his family, since his father was old and sick and the defendant himself was otherwise engaged. Nobody in the Taliu family was there in 1982 to see the survey conducted on the land at the request of plaintiff Meafua, or the notices posted by the Territorial Registrar later the same year to the effect that Meafua had offered the land for registration and that any objections must be filed within sixty days. The result ---that Meafua's title was recorded and the Talius barred forever from pressing their competing claim ---may be a harsh one even in light of the temporary abandonment of the area by the Talius, but it is clearly the result dictated by the law then in force. See Ifopo, supra, and authorities [13ASR2d16] cited therein; see also Vaimaona v. Tuitasi, 12 A,S.R.2d 68, 71 (1989) (Vaivao, J., concurring in part and dissenting in part). (1)

Finally, defendant Allen contends that the registration by Meafua is invalid because it was not effected in accordance with the procedures set forth in A.S.C.A. §§ 37.0101 et seq. If it should affirmatively appear, either on the face of the public records or by other clear and convincing evidence, that a land title was registered in contravention of the statutory requirements for registration, then such registration would be of no force or effect. Ifopo, supra, at 28; Faleafine v.Suapilimai, 7 A.S.R.2d 108 (1988).

In this case, however, it affirmatively appears that the registration was conducted in accordance with the statutory procedures. Records of the Territorial Registrar admitted into evidence reflect that a survey was conducted on the land in October of 1982. The pu!enu'u of the village of Vaitogi certified that he had given public oral notice in the village at a meeting of the chiefs of the time and place of the intended survey in order that other interested land owners might have opportunity to be present thereat. The employee of the Registrar's office designated to post notices in the village and at the Court House certified that he had [13ASR2d17] done so. (2) The only evidence that the procedures were not followed was the testimony of Ulu, a matai of the Ufuti family, that he always attends village council meetings and always checks the telephone pole near the church in Vaitogi but that he never heard an announcement and never saw a notice. Ulu admitted on cross-examination, however, that he frequently travels abroad to visit his children, sometimes for months at a time, and may have done so during 1982. Moreover

the Court [cannot] conclude that no notice was given simply because
a number of witnesses testified that they never saw any notices. The
registration statute cannot have the intended effect of affording finality
to disputes and security to titles if the Court is prepared to conduct its
own de novo review of whether there was compliance with the statute
in every case where non- compliance is allege. Rather, the Court must
assume [13ASR2d18] ---and, absent compelling proof to the contrary,
must conclude ---that the Registrar recorded a title only after complying
with his obligations under the law.

Ifopo, supra, at 28.

Because the registration by Meafua was effected in compliance with the statutory procedures and neither the defendants nor anyone else objected within the statutory time limit, the law conclusively presumes that she was and is the owner .

Accordingly, judgment will enter in favor of the plaintiff enjoining the defendants, members of their families, their agents, employees, servants, and others in active participation with them from continuing to trespass, to plant crops, or to construct buildings or other structures on the land. Defendants must remove any structures and harvest any crops which they presently have on the land within ninety days.

It is so ordered.

*********

1. An amendment to A.S.C.A. § 37.0103 recently enacted by the Fono will go a long way toward eliminating such results in future cases. The amendment, contained in Public Law No. 21-1, will prevent the registration of land unless the proposed registration has been advertised at least twice in a local newspaper. Thus a land claimant who is neither presently occupying the land nor privy to the proceedings of the village council will have notice that a competing claimant is about to register the land, provided only that he reads the newspapers.
Under the system that was in effect in 1982 and 1983 when tl1e land presently in dispute was registered, a claimant who was not represented in the village council and who did not actually live on the land might easily have missed the required notices. According to the testimony of the present Territorial Registrar, it has never been the practice of the Registrar's office to make periodic visits to the telephone poles on which notices are posted to make sure that they have not been illegally removed. The posting official simply posts the notice and then certifies sixty days later that he has posted it for sixty days. Unless a potential land claimant wishes to make frequent visits to the Courthouse in Fagatogo to check for notices of pending registration, the only ways to be certain of getting notice are (I) physical presence on the land or in the immediate neighborhood, so as to be aware of any survey that might be conducted; and (2) scrupulous attention to the proceedings of the village council, so as to receive notice of any pending surveys. Although these methods are reasonably calculated to give notice to Samoans who are living in accordance with Samoan custom and tradition, the amendment embodied in Public Law 21-1 recognizes the increasing likelihood that they will not reach all potential claimants.

2. Counsel for defendant Meafua contended at trial that this certification was invalid, relying on a provision of A.S.C.A. § 37.0112 that "[n]o affidavit affecting the chain of title to real estate may be filed for record unless the affidavit has first been posted for sixty days at the courthouse in Fagatogo and in the village where the land is located. This provision would appear to be a reference to the preceding section, A.S.C.A. § 37.0111, which provides that an owner in possession of land may under certain circumstances post Man affidavit explaining any defect in the chain of title" to his land. In any event the posting requirement of A.S.C.A. § 37.0112 has no bearing on the present case. A.S.C.A. § 37.0103, the section that requires posting for sixty days of a notice that an offer of registration has been made, does not require the official who posts this notice to file an "affidavit" --or even an unsworn certificate --that the posting has been done. It is within the discretion of the Registrar to file such a certificate for the convenience of his own office, of the Court, and of the interested public. In the absence of a certificate, however, the fact that the Registrar recorded the title at all would give rise to a strong presumption of compliance with the posting requirement. See Ifopo, supra, at 28.
The rule proffered by counsel for defendant Allen ---that after the Registrar posts a notice for sixty days he must make an affidavit that the notice was posted for sixty days, but cannot file this affidavit until he has posted the affidavit itself for sixty days, and would be unable to certify the posting of the latter document by any means other than yet another document which itself would presumably have to be posted for sixty days before it could be filed ---would amount to an infinite regress under which no document could ever be filed and no land could ever be registered.
The location of the land does raise one serious question about the procedural regularity of the registration: whether the notice of proposed registration should have been posted in Ili'ili as well as (or instead of) in Vaitogi. If one of the present defendants regarded himself or herself as a resident of Ili'ili or had complained that he did not receive notice because the notice was posted in the wrong village, the Court would have to consider whether posting in Vaitogi was sufficient to meet the requirements of the statute. Since all three parties to the present case regard the land as part of Vaitogi, however, none has standing to raise this issue.

Lutu v. Semeatu,


SINIRA FUIMAONO LUTU, Plaintiff

v.

MUAMUA SEMEATU and SALA SEMEATU, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 9-87

December 14, 1989

__________

Counsel who wished to readvance an argument that had been rejected by the court should have done so by filing a timely motion to reconsider the court's interlocutory order, not by simply ignoring the order.

Where it did not appear from the evidence that a common grantor had so1d two parties the same land, but on the contrary the two deeds clearly described two different adjoining parcels, a defect in the title conveyed to the first purchaser would not give him right to the land the common grantor had conveyed to the second purchaser.

Where a common grantor had sold two different adjoining parcels to two purchasers, and it appeared that strangers to these transactions had encroached on the land sold to the first purchaser, the first purchaser's remedy was against the people who were encroaching on his land and not against the second purchaser .

Before REES, Associate Justice, TAUAN'U, Chief Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Plaintiff, Afoa L.S. Lutu
For Defendants, Charles v. Ala'ilima

This is a boundary dispute between two parties who purchased adjoining lots in the same subdivision.

Most of the facts are undisputed. Plaintiff and defendants each purchased a portion of a tract of land in Ili'ili called Leuluasi. This [13ASR2d89] tract, said to contain about 18 acres, had been registered and subdivided in 1974 by one Logotala Noa.

In 1975 Noa sold a lot in the northwest comer of the subdivision, described by reference to certain metes, bounds, and iron pins and further described as containing 1.027 acres more or less, to Vincent Ah San. In 1984 Ah San executed a contract of sale to the defendants, which was recorded in the office of the Territorial Registrar. Ah San also signed a deed conveying the land to the defendants but did not appear before the Territorial Registrar to attest to his signature, apparently because the Semeatu had not yet paid the purchase price. The Registrar has therefore not recorded the deed. Defendant Muamua Semeatu testified that he has paid Ah San about $10,000 of the $15,000 purchase price.

In the meantime, plaintiff had purchased her lot from Noa and recorded the deed in 1981. This lot, like that of defendants, is defined by reference to metes and bounds and iron pins; it is further described as containing. 998 acres more or less. It is clear from the maps accompanying the 1975 deed to Ah San and the 1981 deed to plaintiff that the two lots were meant to share a 208-foot border. Plaintiffs property is along the western edge of the subdivision just to the southeast of defendants.

After purchasing their land in 1981 plaintiff and her husband did not immediately build on it. In 1986 plaintiff went to clear what she thought was her land and found much of it occupied by defendant. This lawsuit followed,

Each party hired a surveyor to retrace his or her boundaries. Each surveyor testified that he had found a few old pins and other landmarks, although not many, suggesting that the boundaries was where his client said it was. On balance this evidence was not particularly helpful to either party.

Each party also offered evidence offered that his or her boundaries were accepted as such by other neighbors. Unfortunately, this evidence also pointed both ways.

It appears that the line used by defendants to calculate their western boundary (i.e., the western boundary of the whole Leuluasi subdivision) roughly corresponds to the boundary observed by the occupants of a tract to the west. This tract, called Lauofe, was [13ASR2d90] registered in 1981 as the property of Lupelele Letuligasenoa, and its occupants are there by permission either of Lupelele or the late Ti'a Misilagi. (Lupelele and Ti'a are prominent land claimants in and around Ili'ili.) The boundary observed by plaintiff, on the other hand, corresponds to the boundaries observed by most if not all of the other residents of the Logotala Noa subdivision.

Whether or not acceptance of certain boundaries by neighbors is part of the solution to this case, it definitely is part of the problem. If plaintiff is right about her boundary with defendants, then the tract purchased by defendants is further to the west than defendants claim it to be, and therefore includes an area currently occupied by the Lupelele or Ti'a people. If defendants are right, then not only plaintiff but everyone else in the subdivision is mistaken: plaintiffs eastern and southern neighbors are encroaching on her land, and those neighbor's own eastern and southern neighbors are committing a similar encroachment, and so forth.

At the conclusion of the trial the Court observe<} that neither side had presented what appeared to b~ a crucial piece of evidence expert testimony with respect to the actual physical location of the two coordinates (X = 239,818.75', Y = 283,953.05') defining the starting point of the subdivision. The legal descriptions of both plaintiffs and defendants' land consisted of metes and bounds defined by reference to this point. The point, in turn, is defined as being a relatively short distance (1328 feet) in a specified direction from a point (the Agogo Triangulation Station) whose location is undisputed. If this point could be relocated on the ground, and if it was correctly located when Noa did his survey in 1974, the Court would be able to identify with certainty the true boundary between plaintiffs land and that of defendants.

Plaintiffs surveyor apparently did not attempt to relocate the original starting point on the ground by reference to the Triangulation Station because he accepted the accuracy of a point identified by Tito Malae, an occupant of the subdivision who had purchased his lot from Noa in 1983. The Court asked defendants' surveyor why he had not located this point on the ground; he said that he considered this exercise too time-consuming and that the evidence he had already presented was more probative than the physical location of the point in question. The Court respectfully disagreed and ordered the parties to present evidence by August 31, 1989, of the physical location of the starting point defined in the 1974 survey. The Court ordered that the parties agree on a single [13ASR2d91] surveyor to do the necessary work, or in the event such agreement should prove impossible that each party choose a surveyor and the two surveyors choose a third surveyor to locate the point of beginning.

August 31 came and went with no submission of evidence by the parties or either of them and no request for an extension. The High Court of American Samoa being an extraordinarily easygoing tribunal with respect to its treatment of those who inadvertently disobey its orders, the Court waited until mid. October and then asked the Clerk to inquire after the missing evidence.

Counsel for defendants responded with a memorandum reiterating his position that the evidence requested by the Court was unimportant compared to the evidence already submitted by defendants, and concluding with the observation that "defendants' surveyor does not have sufficient information to either retrace the original surveyor's control in the field or to calculate the accuracy of the mathematics used to establish the coordinates given." Although couched in language suggesting the impossibility of compliance with the Court's order, on closer inspection this statement amounts to yet another reiteration of defendants' original position that the evidence sought by the Court was not important because the original surveyor might have been mistaken about the coordinates.

While it is impossible for a Court to evaluate evidence it has not yet seen, we have as yet no reason to believe that the coordinates depicted in the 1974 survey map ---the key link in each party's chain of title --.were anything but an accurate representation of the point from which Logotala made his original survey on the ground. Counsel for defendants advances no particular reason to believe any such error occurred, but seems to say that if the point depicted by the coordinates should turn out to be anywhere but where his surveyor says it ought to be, then the coordinates would necessarily be wrong. For reasons we shall discuss, this contention rests on a vastly inflated estimate of the strength of the evidence presented by defendants. If, however, counsel for defendants had wished to re-advance this argument in an effort to persuade the Court to reconsider its order, he should have filed a motion for reconsideration within ten days after the order was made. Instead he apparently chose simply to ignore the order.

Courts usually deal with a party's refusal to produce evidence by presuming conclusively that the evidence would be unfavorable to the [13ASR2d92] party. In this case, however, the defendants were not alone in ignoring the order. When the Clerk contacted counsel for plaintiff to inquire about the supplemental evidence, counsel responded that he had been very busy and had not been able to get to it. Like counsel for defendants, he expressed the opinion that the evidence already presented clearly preponderated in favor of his own client and obviated the need for further evidence.

The Court has given serious consideration to imposing sanctions on both counsel. Our decision not to do so should not be regarded as a precedent likely to be followed in future cases.

We are left to decide the case on the preponderance of the evidence before us. This evidence, although hardly clear and convincing, favors the plaintiff.

Both parties agreed that many if not all of the original 1974 pins and monuments can no longer be located and have probably been removed, and that many new monuments have been placed by various persons since 1974. Defendant Muamua Semeatu himself admits to having removed survey pins, although he insists that he has removed only new illegitimate pins and not old legitimate ones. All of the pins and other man-made monuments (fences, hedges, etc.) "found" by defendants' surveyor could easily have been placed there some years after 1974 by persons ---most notably defendants themselves, their grantor Ah San, and the Lupelele or Ti'a people to the west ---whose interests may have consisted not in perpetuating the 1974 boundary but in relocating it, Indeed, one of the surveyors who surveyed the tract sold to Ah San by Noa in 1974 testified that he revisited the land in or around 1985 and that Ah San's tract (which Ah San had contracted to sell to defendants) was by then located in a different place.

It further appears that the 1981 survey of Lauofe registered by Lupelele substantially encroaches on the northwestern corner of the 1974 Leuluasi survey registered by Logotala. According to the survey maps, any attempt by the residents of Lauofe to occupy the entire extent of the area claimed by Lupelele would consume all the land purchased by the defendants and much of that purchased by the plaintiff.

This evidence, together with the Court's impression of the witness Ah San as a man with a healthy regard for his own interests but no taste for outright disagreement with anyone, supports plaintiffs contention that Ah San ---or possibly defendants themselves ---moved [13ASR2d93] to the south and east of the tract Ah San had purchased from Noa in order to avoid a boundary dispute with his western neighbors, or perhaps as the result of such a dispute. This put him in occupation of a substantial portion of the tract sold to plaintiff Lutu but not yet occupied by her. Although the evidence for this contention is circumstantial rather than direct, it is less speculative and more consistent with the record than defendants' contention that the various other buyers in the Leuluasi subdivision ---including the Nomuras, who purchased their tract in 1975, before the Ah San purchase and only a year after the original survey by Noa ---all made an identical mistake about the location of the boundaries of this survey.

Nor does the evidence support defendants' intention that any conflict must be resolved in their favor because their grantor, Ah San, purchased his tract before plaintiff purchased hers. This does not appear to be a case in which a common grantor sold two parties the same land; on the contrary, the deeds to Ah San and the plaintiff clearly describe two different parcels which adjoin but do not overlap. If the tract sold to Ah San really belonged to Lupelele, there was no reason to take it out on Mrs. Lutu. If (as seems more likely in light of the undisputed tracts that Lupelele's survey was not registered until seven years after Noa's and that the area now in dispute was jungle in 1974) the Lupelele people began encroaching on Ah San's land at sometime after he bought it, then his remedy was against them and not plaintiff Lutu.

Defendants could purchase from Ah San only what he owned. This appears to be a tract whose boundary with defendant is about 84 feet to the north and west of the boundary they claim, to the northwest of the land designated "disputed area" in Plaintiffs' Exhibit 4.

Although it would appear from the evidence that defendants may have a claim against Ah San and/or their neighbors to the west, no such claims can be adjudicated in this action.

For the reasons stated, judgment will be entered for the plaintiff permanently enjoining the defendants from going on the tract belonging to plaintiff, including the land designated "disputed area" in Exhibit 4. Execution of this judgment will be stayed for sixty days to allow defendants time in which to harvest crops and remove any other property they may have in the disputed area.

It is so ordered.

*********

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. 34-89

November 27, 1989

__________

Extrinsic evidence tending to corroborate information provided by an informant might be important to bolster a relatively weak showing on either of the two principal factors considered by issuing magistrates in such cases ---the credibility of the informant and the basis of the informant's knowledge ---but is not necessary where neither of these factors needs bolstering[13ASR2d50]

Judge was justified in finding probable cause to believe marijuana was present on premises, even without extrinsic corroborating evidence, where the police officer's affidavit stated persuasively and with particularity the grounds for the officer's belief that the informant was reliable and had a reliable basis for knowing whereof he spoke: that the officer had personally known the informant for over a year; that the informant had previously provided information which had proved reliable and trustworthy; that information provided by this informant had in fact been instrumental in securing more than one criminal conviction; and that the information provided to the officer was that the informant had not only been told about the existence and location of the substance by the defendant himself, but had also seen it personally and actually obtained samples.

Test by police officer of samples provided by informant, which showed the substance to be marijuana, tended to corroborate only part of the informant's story, and not the part tying the marijuana to the location in question; but if the officer had tried to corroborate that part of the story before applying for a warrant, defendant might well have been justified in complaining of a warrantless search.

Task of judge to whom officer had applied for a search warrant was to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, there was a fair probability that contraband or evidence of a crime would be found.

Duty of court in reviewing the decision of the judge who issued search warrant is not to try the question anew but simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

Before REES, Associate Justice.

Counsel: For Plaintiff, Jeff Buckner, Assistant Attorney General
For Defendant, William H. Reardon

On Motion to Suppress Evidence:

Defendant moves to suppress evidence seized pursuant to a search warrant. Counsel for defendant cites Illinois v. Gates, 462 U.S. 213 (1983), and Massachusetts v. Upton, 466 U.S. 727 (1984), for the proposition that a warrant grounded on information supplied by a confidential informant is constitutionally defective in the absence of "independent corroboration of the tip." Neither case stands for such a proposition; indeed, Upton specifically rejected an almost identical argument. See 466 U,S. at 730. It is true that extrinsic evidence tending to corroborate information provided by an informant might be important to bolster a relatively weak showing on either of the two principal factors considered by issuing magistrates in such cases: the credibility of the informant and the basis of the informant's knowledge. Gates, supra, 462 [13ASR2d51] U.S. at 227-28. In the present case, however, neither of these factors needed bolstering.

The police officer's affidavit stated persuasively and with particularity the grounds for the 'officer's belief that the informant was personally reliable and had a reliable basis for knowing whereof he spoke. The officer swore that he had personally known the informant for over a year; that the informant had previously provided information which had proved reliable and trustworthy; and that information provided by this informant had in fact been instrumental in securing more than one criminal conviction. The information provided to the officer, moreover , was that the informant had not only been told about the existence and location of the substance in question by the defendant himself, but had also seen it personally and actually obtained samples.

This showing would have been sufficient to justify the judge in finding probable cause to believe the substance was present at that location even if there had been no extrinsic corroborating evidence. In fact, however, the po1ice officer himself tested the samples provided by the informant and found them to be marijuana. This test tended to corroborate only part of the informant's story, and not the part tying the marijuana to the location in question; but if the officer had tried to corroborate that part of the story before applying for a warrant, defendant might well have been justified in complaining of a warrantless search. Instead, the officer went before a judge and told him why he believed that the informant (1) was trustworthy and (2) had a reliable basis for knowing the truth or falsehood of the information he had given to the officer .

The judge's task was to make "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him. ..there [was] a fair probability that contraband or evidence of a crime [would] be found...." Gates, supra, at 238. The duty of this Court in reviewing the issuing judge's decision is not to try the question anew but "simply to ensure that the magistrate had a substantial basis for. ..conclud[ing]' that probable cause existed." Id. at 238-39, quoting Jones v. United States, 362 U.S. 257,271 (1960). The judge's conclusion was clearly supported by the record.

The memorandum accompanying the present motion also alleges that the police officer's affidavit "contains material false and misleading statements" and that a statement given to the officers by the defendant [13ASR2d52]was not voluntarily made. No evidence in support of these contentions was adduced at the hearing on the motion.

Accordingly, the motion is denied.

It is so ordered.

*********

Klauk v. American Samoa Gov’t,


HELMUTH W. KLAUK, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT, Defendant

High Court of American Samoa 
Trial Division

CA No. 44-89

November 29, 1989

__________

Territorial legislature has incorporated by reference the United States Internal Revenue Code, 26 U.S.C., for income taxation in American Samoa. A.S.C.A. § 11.0403.

Power of levy and distraint over a taxpayer's property may be invoked without intervention of judicial process, on the theory that the taxpayer has already had the opportunity to invoke administrative and judicial remedies. 26 U.S.C. § 6331(a).

High Court of American Samoa has i:xclusive and original jurisdiction over territorial income tax proceedings, sitting as a District Court in refund cases and a Tax Court in deficiency proceedings. A.S.C.A. § 11.0401, 11.0408.

Government must issue a statutory notice pf deficiency (90-day letter) by registered mail before assessing or collecting any deficiency, and is expressly prohibited from such assessment or collection until it has done so. 26 U.S.C. §§ 6212(a), 6213(a).

According to Tax Court rule, a 90-day notice must have been issued for the court to have jurisdiction in a deficiency proceeding initiated by a taxpayer. United States Tax Court Rule 13(a).

Deficiency proceedings, which allow a taxpayer to litigate the government's determination of a deficiency before paying such deficiency, are an essential part of the statutory scheme. 26 U.S.C. § 6213(a). [13ASR2d53]

Before the government can distrain and seize a taxpayer's property, it must validly assess a deficiency by preparing and sending a 90-day statutory notice to taxpayer before the statute of limitations expires. 26 U.S.C. § 62I2(a), 6501(a).

For a court to have jurisdiction over a suit to recover taxes erroneously or illegally assessed or collected, the government must have assessed such taxes and the taxpayer must have timely filed a refund claim with the Tax Office. 26 U .S.C. § 7422.

A taxpayer may sue and enjoin the government from levying on, distraining, or seizing property under the authority of purported deficiency assessment where the government did not issue a 90-day statutory notice of deficiency. 26 U.S.C. 6213(a).

Tax laws permitting the seizure and sale of property must be strictly construed.

Sovereign immunity docs not bar a taxpayer's suit to recover property seized by the government for unpaid taxes where the government failed to comply with the procedure of the Internal Revenue Code, because Congress deliberately waived sovereign immunity by providing for deficiency hearings and refund suits.

Government violates due process when it seizes a taxpayer's property for unpaid taxes without following the procedure mandated by the Internal Revenue Code for distraint and levy.

Where government failed to issue a 90-day statutory notice of deficiency before seizing plaintiff property for unpaid taxes, it was enjoined from depriving plaintiff of his right to due process, either by continuing to deprive him of his rights under the Internal Revenue Code to challenge and contest income tax deficiencies or by withholding the property it had seized from plaintiff, until it complied with the applicable Code provisions pertaining to distraint and levy.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, and OLO, Associate Judge. Counsel: For Plaintiff pro se 
For Defendant Aitofele T. Sunia, Assistant Attorney General

Plaintiff taxpayer brings this action pro se to recover certain funds of his which the government seized for unpaid taxes by way of a levy on his bank account. Plaintiff denies owing any taxes and claims that the government's assessment of additional taxes and its collection thereof was" erroneous and illegal."

Facts

We find on the evidence that the Tax Office was, for a brief period between August 20 and October 12, 1984, active in the process [13ASR2d54] of examining plaintiff's returns for tax years 1981 and 1982. The examining agent assigned had proposed a disallowance of certain claimed deductions on the grounds that plaintiff had not provided substantiating records as requested of him. A copy of the agent's report explaining his proposed adjustments was sent to plaintiff together with a transmittal letter (30-day letter) dated September 26, 1984. Plaintiff did not respond to the options offered in the 30-day letter.

Quite surprisingly, the Tax Office did not thereafter process and mail out a statutory notice of deficiency (the 90-day letter). Except for a letter dated October 12, 1984, which demanded plaintiff's compliance with certain informational requests, there was nothing further done in these matters for the next two (2) years. (1)

On December 2, 1986, the Tax Office prepared and sent two notices to plaintiff. These notices contained the headings "FIRST NOTICE" and "STATEMENT OF TAX DUE." One notice was for tax year 1981 and it stated "assessed tax:" in the amount of $1,158.00, with penalty of $327.00 and interest at $538,37, for a total of $2,023.49. For tax year 1982, the other notice stated the "assessed tax" as being $1,438.00; penalty as $256.36; and interest at $368.91, totaling $7,063.27. When plaintiff received these notices, he simply wrote the Tax Office advising that he had paid his taxes for the tax years referenced.

On May 1, 1987, the Tax Office next sent out a further notice to plaintiff which contained the notation "FINAL NOTICE. " This notice demanded payment of the taxes claimed as due and owing from taxpayer , and it also cautioned that certain collection means, including the power to levy bank accounts, were, by statute, available to the government. Plaintiff, in turn, gave the Tax Office the same response he had given to the notices earlier sent.

On or about August 4, 1987, the government, after making further adjustments for additional penalties and interest, levied plaintiff's savings bank account and seized $4,256.46. [13ASR2d55]

Discussion

A. The Levy

For purposes of income taxation in the Territory, the Fono has simply incorporated by reference the United States Internal Revenue Code of 1954, hereafter referred to as the "Code." See A.S.C.A. § 11.0403. The power of levy and distraint over a taxpayer's property is provided in 26 U,S.C. § 6331(a), and may be invoked without the intervention of the judicial process, United States v. Eiland, 223 F,2d 118 (4th Cir. 1955), This power has been described as "a summary non-judicial process, a method of self-help authorized by statute which provides the [government] with a prompt and convenient method for satisfying delinquent tax claims." United States v. Sullivan, 333 F. 2d 100, 116 (3rd Cir. 1964). This broad administrative power is drastic, however, and as one commentator has explained:

it is based on the theory that the taxpayer has already had the 
opportunity at this stage to invoke his administrative and judicial 
remedies to redetermine or to set aside the asserted tax liability, 
and that he is now at the stage where he owes a tax liability that 
he refuses or neglects to satisfy.

Chommie, Federal Income Taxation 923 (2d ed. 1973).

In the present case, the evidence clearly demonstrates that the government simply ignored the administrative process mandated by the Code. In the normal course, the Tax Office is first required to mail the taxpayer a statutory notice of deficiency (the 90-day letter) by registered mail. See 26 U.S.C. § 6212(a). The Code further provides that within 90 days after the notice of deficiency is mailed, the taxpayer may file a petition with the Tax Court (2) for a redetermination of the deficiency. Until such a notice has been issued, the assessment or collection of any deficiency, whether by levying on or otherwise seizing a taxpayer's property, is expressly prohibited by the provisions of 26 U.S.C. § 6213(a). In view, therefore, of its omission in this case to issue the required deficiency notice pursuant to 26 U.S.C. § 6212(a), the [13ASR2d56] government not only lacked the power of self-help when it levied plaintiffs bank account, it violated a clear statutory prohibition against the use of self-help. It acted illegally.

A number of observations giving cause for concern may be made in the light of events. Firstly, the Court's jurisdiction in a deficiency proceeding initiated by taxpayer is dependent on the issuance of a 90-day notice, (3) and the statute providing for the 90-day notice (4) is as binding on the government as upon plaintiff. Maxwell v. Campbell, 205 F.2d 461 (5th Cir. 1953). The government's failure in this case to issue the 90-day notice had, therefore, effectively deprived plaintiff of his option to litigate the Tax Office's claim of deficiency as provided by 26 U.S.C. § 6213(a). This option was specifically given by Congress to overcome the potential hardship associated with having to first payout the Internal Revenue Service's determination of a deficiency before one is afforded the opportunity to litigate that determination. Laino v. United States, 633 F.2d 626 (2nd Cir. 1980). "[Section 6213(a) is an essential part of the whole statutory scheme of furnishing the taxpayer with an option. ..to apply for relief to the Tax Court, ...[and] was not enacted as mere idle gesture." Maxwell v. Campbell, 205 F.2d at 463.

Secondly, a distraint on and seizure of a taxpayer's property presupposes in the normal case that a prior and valid deficiency assessment has been made. 26 U.S.C. § 6212(a). In turn, a valid assessment presupposes that: (a) the government has prepared and sent the required 90-day notice to taxpayer; (5) and (b) the statute of limitations, 26 U.S.C. § 6501(a), has not run. (6) The outcome here has been a total disregard for the administration process provided by the Code ---that is, the government not only overlooked clear statutory directives, prohibitions, and [13ASR2d57] limitations with regard to its revenue powers, but it also clearly undermined taxpayer's statutory rights.

B. Recovery and sovereign immunity

Having said as much, the question remains, however, whether plaintiff can recover. It is one thing to say that the government has acted in excess of its tax collection powers, but it is quite another thing to say that government can therefore be sued. For instance, it has been said "that the right to sue the government is purely statutory, and that the right to recover back taxes wrongfully collected rests upon the same basis." Gotham Can Co. v. United States, 37 F.2d 793 (C.Cl. 1930), cert. den. 281 U.S. 706 (1930). That is, at issue is the doctrine of sovereign immunity and whether there has been a waiver of immunity. (7)

The Code does provide for refund suits against the government for the recovery of any tax alleged to have been erroneously or illegally assessed or collected. 26 U.S.C § 7422. Such an action, however, is not available in the situation presented here. The filing of a refund suit ensues certain detailed administrative proceedings. Unsurprisingly, the occurrence of certain steps in this administrative process are jurisdictional prerequisites to suit, including: the government's assessment of the tax owed, Hansen v. United States, 455 F. Supp. 1367 (W.D.Mo. 1938), and the taxpayer's timely filing of a refund claim with the Tax Office. U.S.C. § 7422(a). In the matter before us, an assessment of taxes owed had not been made by the government and, at the same time, the opportunity to file administratively for a refund did not arise. Given the circumstances of the levy, plaintiffs filing of a refund claim with the Tax Office would have been a meaningless exercise. The remedial provisions of 26 U.S.C. § 7422 are not apposite.

C. Immunity Waived

Taxation is a subject matter which has been extensively regulated. and in the process of that regulation Congress has come up with an elaborate statutory scheme which attempts to address two competing but fundamental interests: the government's need to raise and [13ASR2d58] collect taxes on the one hand, and the individuals right to own property free from undue government interference on the other. The Code has accordingly furnished the taxpayer with a remedial process designed not only to afford him with a number of protective measures but opportunities as well for judicial review and, therefore, statutory waiver of sovereign immunity. In the statutory scheme of things, his access to the courts is, as we have seen, a sequel to an administrative process which is as binding on the government as it is on the taxpayer. The government is such an integral part of that statutory scheme that without its envisaged cooperation that whole scheme can be effectively frustrated. (8)

In cases involving the seizure of real property, some courts hl1:ve been quite willing to find a waiver of sovereign immunity under 28 U.S.C. § 2410(a), which provides that the United States may be named as a party in a civil action to quiet title and to set aside sale. See, e.g., Aqua Bar & Lounge Inc. v. United States, 539 F.2d 935 (3d Cir. 1976); Yanicelli v. Nash, 354 F. Supp. 143 (D.N.J. 1972).

Yet in other cases, certain courts have, without any mention of § 2410 (or sovereign immunity), simply invalidated certain tax sales which were not undertaken in strict compliance with the requirements of the Code. Johnson v. Gartlan, 334 F. Supp. 438 (E.D. Va. 1971), cert. denied, 414 U.S. 865 (1973); Reece v. Scoggins, 506 F.2d 967 (5th Cir. 1975). The starting premise in these cases is the proposition that tax laws which permit the seizure and sale of property must be strictly construed. This is in recognition of the citizenry's inviolable right to property; it was noted by Chief Justice Marshall in 1821:

That no individual or public officer can sell, and convey a good title 
to, the land of another, unless authorized so to do by express law, is 
one of those self-evident propositions to which the mind assents, without 
hesitation; and that the person invested with [13ASR2d59] such a 
power must pursue with precision the course prescribed by law, or 
his act is invalid, is a principle which has been repeatedly recognized 
in this court.

Thatcher v. Powell, 19 U.S. (6 Wheat.) 119, 125 (1821). In Reece v. Scoggins, supra, the Fifth Circuit went on to suggest that:

[t]he reason for this notion of the inviolability of private ownership 
*** [is that the power] of seizure and sale of land is one of the most 
potent weapons in the government's arsenal. The consequences of 
seizure and sale are often staggering and irreversible; this action not only 
deprives a taxpayer of a sometimes significant capital investment but 
also denies him a source of additional income. Seizure and sale are 
therefore generally available only as a last resort. In recognition of the 
Damoclean nature of this ultimate weapon, Congress has imposed 
precise strictures on the seizure and sale of property to satisfy legitimate 
tax deficiencies.

Id. at 971.

An explanation for jurisdiction in these and similar case is attempted by the concurring opinion in Aqua Bar & Lounge Inc. v. United States, supra, which involved a § 2410 action. The suggestion here made is that the elaborate and detailed seizure and sale provisions of the Code provide an implied waiver of sovereign immunity where it is alleged that the Internal Revenue Service has failed to comply with the Code:

It would appear axiomatic that whenever Congress directs in an 
unambiguous, detailed manner prescribed, protective procedures to be 
taken by a government agency, but fails to provide either sanctions or a 
method of enforcement in the event its mandate is ignored, a waiver of 
sovereign immunity necessarily must be inferred in order to enforce the 
legislative will. If it were otherwise, Congressional mandates *** could 
be treated not as obligatory but rather as mere recommendations which 
the Internal Revenue Service could violate negligently or intentionally 
behind the shield of sovereign immunity. [13ASR2d60]

Id. at 942.

The logic is compelling. Since Congress has deliberately waived sovereign immunity by providing deficiency hearings and refund suits, can it then be said that the government may perversely benefit by its very own wrongdoing which has, among other things, effectively thwarted taxpayer's access to the courts? Of course not. We note subject matter jurisdiction and conclude that sovereign immunity is not a bar to plaintiff's action here for relief. (9)

D. Due Process

However, these proceedings do not concern issues of taxation. We are not here concerned with the question of whether or not taxes are owed and payable, nor are we concerned with the merits of the Tax Office's claim of deficiency. Those issues come up properly for judicial review in the context of deficiency proceedings pursuant to 26 U .S.C. § 6212 or refund actions under 26 U.S.C. § 7422. As we have seen, those opportunities for review never arose because of the government's actions. To the contrary, the Court is accordingly confronted with questions of whether plaintiff.'s property interests were seized in accordance with "due process" of law. Compliance with the deficiency notice procedure satisfies due process requirements. Phillip. v. Commissioner of Internal Revenue, 283 U.S. 589, 597 (1931). We are here concerned with the question of whether the government complied with the detailed requirements of the law concerning seizure of taxpayer's property. We are here concerned with the question of whether or not the government has, in seeking to enforce the law, followed the enforcement steps detailed by Congress. Thatcher v. Powell, supra. For reasons given, the above questions must be answered in the negative.

An order will enter accordingly to enjoin the government from depriving plaintiff of his rights to due process:

The government is hereby enjoined from continuing to deprive plaintiff of his rights under the Code to challenge and contest any and all income tax deficiency as the government may determine as due and payable from plaintiff for income tax years 1981 and 1982. [13ASR2d61]

In compliance with this injunction the government is further enjoined from withholding all property it had seizure from plaintiff as aforesaid until it has complied with all the requirements of the Code pertaining to distraint and levy. (10)

It is so Ordered.

*********

 

1. The Court was given the explanation that an ongoing suit by plaintiff, which related to some dispute about his 1983 income tax return. had apparently distracted attention from the proceedings involving the 1981 and 1982 returns. To compound matters, the examining agent subsequently resigned and the returns in question were further overlooked.

2. The High Court has exclusive and original jurisdiction with respect to American Samoa income tax proceedings. A.S.C.A. § 11.0408. The High Court sits as a Tax Court in deficiency proceedings, and otherwise as a District Court when hearing refund cases. A.S.C.A. § 11.0401; Patu v. Westervell, 4 A.S.R. 818 (1974).

3. United States Tax Court Rule 13(a).

4. 26 U .S.C. § 6212(a).

5. An assessment is illegal and void if a 90-day letter has not been sent to the taxpayer. Steiner v. Nelson, 259 F.2d 853 (7th Cir. 1958); United States v. Williams, 161 F. Supp. 158 (E.D.N.Y. 1958).

6. This enactment requires that assessments be made within 3 years after the return was filed.

7. In tort, for example, an action for damages, allegedly arising from the wrongful seizure of property pursuant to a tax levy, would not lie against the government. The government's waiver of immunity under the Government Tort Liability Act, A.S.C.A. §§ 43.1201 el. seq., does not extend to any claims relating to the assessment or collection of any tax. See A.S.C.A. § 43.1203(b)(3).

8. Undoubtedly, Congress was cognizant of this possibility when it also waived sovereign immunity in the following circumstances. Generally no suit can be maintained to restrain the assessment or collection of any tax. 26 U.S.C. § 7421(a). Howcver, 26 U.S.C. § 6213(a) provides an exception to that general prohibition by granting the taxpayer the right to sue and enjoin the government from making any levy, seizure or distraint under the authority of purported deficiency assessments where the government has failed to give the 90-day notice of deficiency. See also Laino v. United States, 633 F.2d 626 (2nd Cir. 1980).

9. See also United States v. Hefner, 420 F.2d 209 (4th Cir. 1969), for the proposition that where a government agency fails to scrupulously observe its rules and regulations, its actions cannot stand and the courts will strike it down.

10. The government's ability to comply with the code's requirements at this point in time is not of concern to the Court. The Court here focuses on the constitutional requirement that any seizure meet the due process standard formulated in the Code.

In re Two Minor Children (Juv. Nos. 09-89, 43-89),


In the Matter of TWO MINOR CHILDREN

High Court of American Samoa
Trial Division

JUV No. 9-89
JUV No. 43-89

December 15, 1989

__________

Petitions to terminate legal rights and obligations of natural parents in order to facilitate adoption by much older prospective adopting parents were not in the best interest of the children, where natural parents were; much younger, had potential to be good providers, and appeared to have strong bonds with the children.

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

Counsel: For Petitioner in JUV No.9-89, Isa-Lei F. Iuli
For Petitioner in JUV No.43-89, Togiola T.A. Tulafono and Roger Hazell

These two cases involve the requested termination of parental rights in order to facilitate adoptions by much older sets of prospective adopting parents.

The prospective adopting father in JUV No. 43-89 will be 82 when the child reaches the age of majority. The prospective adopting father in JUV No. 9-89 will be 91 when the child reaches the age of majority.

In each case the prospective adopting parents are prominent citizens and fine people who wish to provide a good future for the child. Also, however, in each case the natural parents are much younger, have the potential to be good providers, and appear to have strong bonds to the child.

In each case the parties are free to adopt the child fa'a Samoa and to have the child live with them as long as this is the wish of the child and the natural parents. But in neither case cap we certify that [13ASR2d95] termination or the legal rights and duties of the natural parent would be in the best interest of the child.

Accordingly, the petitions are denied.

It is so ordered.

*********

In re Petition of Puailoa,


In the Matter of the Petition for Registration of a
Foreign Judgment of Adoption by
PUA'AELO PUAILOA and FA'AMANU PUAILOA, Petitioners

High Court of American Samoa
Trial Division

FJ No. 01-89
FJ No. 02-89

October 25, 1989

__________

Uniform Enforcement of Foreign Judgments Act applies only to foreign judgments entitled to "full faith and credit" in American Samoa, but the Act does not define such judgments. A.S.C.A. § 43.1702.

Judgments of the courts of foreign nations are not entitled io full faith and credit in courts of the United States. U.S. Const. Art. IV, § 1; A.S.C.A. § 43.1702.

Judgments of the courts of foreign nations may be recognized in American Samoa under the doctrine of comity, by which a nation recognizes in its territory the legal acts of another nation with due regard both to international duty and convenience and to the rights of persons protected by its laws.

Recognition of any particular judgment of a foreign court depends on wide ranging local policy considerations, including whether the foreign proceeding comports with due process requirements.

Petitions for registration of Western Samoan adoption decrees were denied where the petitions revealed nothing about the facts underlying the foreign judgments, sought a blanket declaration to the effect that Western Samoan adoption decrees were entitled to full faith and credit in American Samoa, and were conspicuously unrelated to any underlying rights at stake requiring "enforcement" in American Samoa. A.S.C.A. § 43.1701 et seq.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Petitioners, Charles v. Ala'ilima
For American Samoa Government as Amicus Curiae, Tauivi Tuinei, Assistant Attorney General

Pua'aelo and Fa'arnanu Puailoa petition, under the Uniform Enforcement of Foreign Judgments Act, A.S.C.A. § 43.1701 et seq.[13ASR2d23] (hereinafter "the Act"), for the "registration" of two adoption decrees issued by the Magistrate's Court of Western Samoa. Specifically, petitioners point to A.S.C.A. § 43.1702 for the proposition that judgments of the courts of Western Samoa are entitled to full faith and credit in American Samoa. (1)

We disagree. The section cited merely defines the scope of the Act as extending only to those foreign judgments "entitled to full faith and credit in American Samoa." The enactment does not say which foreign judgments are entitled to full faith and credit in American Samoa. In order to determine this we need to look to other law.

"Full faith and credit" is a term of art referring to a specific provision under the United States Constitution. (2) The Constitution, as supplemented by legislation, (3) does not apply to judgments of foreign countries. Aetna Life ins. Co. v. Tremblay, 223 U.S. 185 (1922). Rather,

[t]he extent to which the law of one nation. ..shall be allowed to
operate within the dominion of another nation, depends on. ..
'the comity of nations. , 'Comity' in the legal sense, is neither a
matter of absolute obligation. ..nor of mere courtesy and good
will. ...It is the recognition which one nation allows within its
territory to the legislative, executive, or judicial acts of another
nation, having due regard both to international duty and
convenience, and to the rights [13ASR2d24] of its own citizens,
or of other persons who are under the protection of its laws.

Hilton v. Guyot, 159 U.S. !13, 16 S Ct. 139, 143 (1895). Thus a judgment of a court of Western Samoa, while not entitled to full faith and credit under organic law (nor under the Act), may nonetheless be recognized in the Territory because of the "comity" due from one nation to another, and to its courts and judgments. The recognition of any particular judgment of a foreign court is dependent on wide ranging local policy considerations. Thus in different circumstances, for example, a foreign divorce decree may or may not be recognized and enforced. See, e.g. , Sangiovanni Hernandez v. Dominicana de Aviacion, 556 F.2d 611 (1st Cir. 1977); Pentz v. Kuppinger, 107 Cal. Rptr. 540 (Cal. App. 1973); Rosenbaum v. Rosenbaum, 130 N.E.2d 902 (N. Y .App. 1955). Moreover, '"[t]o actuate the doctrine of judicial comity or reciprocity, the foreign judgment must partake of the element that would support it if procured in this country."' Pawley v. Pawley, 46 So.2d 464, 468, (Fla. 1950), cert. denied 340 1J.S. 866, quoting Ogden v. Ogden, 33 So.2d 870, 874 (Fla. 1947). That is, a foreign proceeding must in essence comport with our notions of due process. Ogden v. Ogden, 33 So.2d at 874.

The precise effect a Western Samoa adoption decree should nave in American Samoa is an issue involving serious questions of law and of public policy. The answer to some of these questions might depend heavily on the facts of the particular case before the Court. For instance, to deprive a child of his share in his inheritance on the ground that his deceased parent had adopted him in a foreign country would seem directly contrary to policies underlying the law of intestacy. At the other extreme, a "no questions asked" approach would almost certainly encourage resort by residents of American Samoa to extraterritorial proceedings as a means of evading due process safeguards imposed by the United States Constitution with regard to termination of the rights of natural parents. This would be contrary not only to sound policy but also to law.

We cannot decide the present case on its facts because we are told nothing about the facts. The petitioners are essentially seeking something in the way of a blanket declaration to the effect that Western Samoan adoption decrees ought to be given full faith and credit in American Samoa. At the same time, the petitions are conspicuously unrelated to any underlying rights at stake requiring "enforcement" in the Territory . They are properly subject to dismissal. No factual basis [13ASR2d25] sufficient for an extension of comity has been shown to be present in this case. The petitions are hereby dismissed.

It is so Ordered.

*********

1. For purposes of the Act, the term "foreign judgment" means any judgment of a court of the United States or of any other court which is entitled to full faith and credit in this territory. A.S.C.A. § 43.1702.

2. Article IV, § 1 of the Constitution requires that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, and Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.

3. Congress did exercise its delegated power to implement the provisions of Art. IV , §§ 1, which resulted in 28 U.S.C. § 1738, which in pertinent part reads: Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such States, Territory or Possession from which they are taken.

In re Matai Title “Tauala”,


TA'AVASA F. FALESIGAGO TAVALA, Objector

v.

LUAVASA TAUALA, Claimant

LEFITI FA'AFETAI, for himself and on behalf of
members of the TAUALA family, Plaintiff

v.

LUAVASA TAUALA, Defendant

[In the Matter of the Registration of the Matai
Title "TAUALA" of the Village of Ta'u]

High Court of American Samoa
Land and Title Division

MT No. 6-88
MT No. 7-88

October 20, 1989

__________

Candidate for matai title who had been enjoined from holding himself out as the title holder, and from asserting any authority or doing anything the title holder would do, committed contempt of court by performing a role in a village function which was ordinarily performed by the matai whose title he claimed and which was absolutely inconsistent with his status as an untitled man, notwithstanding the claim that he had received a "special dispensation" from the village council to allow him to perform this role as an untitled man, where such dispensation was a smokescreen designed to insulate him from the consequences of violating the court order.

Before REES, Associate Justice, OLO, Associate Judge, VAIVAO, Associate Judge, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge. [13ASR2d20]

Counsel: For Objector, Togiola T.A. Tulafono
For Claimant, Charles v. Ala'ilima

On Motion for Reconsideration:

Luavasa Tauala moves for reconsideration of the Court's order finding him in contempt and sentencing him to serve five weekends in the Correctional Facility:

The contempt consisted of violating an injunction not to hold himself out as the Tauala title holder. Luavasa and all other claimants to the title were enjoined from "asserting any authority or doing anything which such matai title holder would do within and outside of the village of Ta'u, Manu'a." Luavasa was found to have performed a role in a village function which, according to Samoan custom, was absolutely inconsistent with his status as an untitled man. He claims no matai title other than Tauala, and his actions at the function in question were those which Tauala ordinarily would have performed. He was therefore found to have violated the order not to assert the authority of Tauala or to do anything which Tauala would do.

Luavasa now contends that the Court engaged in a "broad interpretation" of the injunction, and that he should not have been found in contempt since he avoided using the name Tauala. He particularly relies on the testimony of one witness, Leasau, whose testimony he interprets as tantamount to a "special dispensation" by the village council allowing him to participate in the function as an untitled man notwithstanding the admitted tradition to the contrary.

We find this argument unconvincing. The "special dispensation" assuming for the sake of argument that the village council ever agreed to any such thing ---was a smoke screen evidently designed to insulate Luavasa from the consequences of what he surely knew to be a clear violation of the substance of the Court's order. Indeed, it was quite clear from the testimony of Leasau that he believes the Court had no authority to enjoin Luavasa from using the title in the first place. For a person who has been specifically ordered by a Court not to do certain things, perhaps the surest way to be found in contempt of Court is to accept a "special dispensation" from someone who believes that he and not the Court has the final authority to say what the law is. [13ASR2d21]

Luavasa was enjoined not just from using the name Tauala, but also from holding himself out as Tauala, asserting the authority of Tauala, or performing any of Tauala's usual functions. A person who had been enjoined to stop asserting the authority of a judge would violate such an injunction if he wore a black robe and purported to announce judgments, even if he designated himself a special non-judicial adjudicatory officer. An injunction not to assert the authority of the Governor would be violated by an attempt to veto a bill, even if the attempt were accompanied by a solemn assurance that it was being done not in the voter's capacity as Governor but in his capacity as himself. Similarly, the performance by one who has long claimed to be Tauala of acts that throughout the centuries have only been performed by orators of the standing of Tauala is an assertion of the authority of Tauala, notwithstanding the dramatic announcement of a new and contrary tradition.

Finally, Luavasa apologizes for the misunderstanding and promises that it will not happen again if his jail sentence is remitted. We note, however, that this is the third time Luavasa has been found to have violated the law by holding himself out as Tauala. In 1976 Chief Justice Jochimsen found that "defendant Luavasa Tauala did disobey the order of the Court" by holding himself out as the Tauala titleholder, but decided that "the court will overlook this and will not take action against the defendant at this time." LT No. 189-76, Order Restraining Luavasa Tauala from Holding and Using the Tauala Title, issued December 30, 1976. Again in January of 1989, Chief Justice Kruse and three Associate Judges found that "the matai title Tauala is vacant, and defendant is holding himself out as the title holder. ..contrary to Section 1.0410 ASCA, subjecting himself to criminal penalties under Section 1.0414 A.S.C.A." There was testimony at the recent hearing of several arguable violations of the injunction issued in January. Far from taking a broad interpretation of the injunction, we gave Luavasa the benefit of every possible doubt and found him guilty of contempt only for one of these violations. He has already had a second chance and a third chance, and at some point the law must be enforced.

Accordingly, the motions for reconsideration and for a stay of execution are denied.

It is so ordered.

*********

In re Guardianship of Falelua,


In re Guardianship of the Estate of SOFA'I 
FALELUA, A Minor Child, and concerning FUATINO 
FALELUA, Guardian of the Estate

FUATINO FALELUA, Guardian Ad Litem for the Minor 
SOFA'I FALELUA, Plaintiff

v.

CONTINENTAL INSURANCE COMPANY and 
DOES I through V, Defendant

High Court of American Samoa 
Trial Division

PR No. 32-88 
CA No. 89-88

December 13, 1989

__________

No cause of action for "loss of filial consortium" was recognized at common law, although parents could recover damages for tangible losses such as child's lost wages and medical expenses.

Although traditional limitation or damages for the injury of one's child to palpable economic losses may ref1ect an outmoded view of children as mere economic assets, in a territory where the typical tortfeasor has few traceable assets and little or no insurance the recognition of a cause of action for collateral harm to a parent as a result of his child's injuries would almost certainly have the principal effect of reducing the sum available; to compensate the child for injuries more palpable, direct, and severe than those suffered by the parent. [13ASR2d84]

Recognition of a cause of action for collateral harm to parent arising out of his minor child's injuries would practically guarantee a conflict of interest in every settlement negotiation arising out of such injuries, since zealous representation of the child's claims would deplete the fund available to compensate the fiduciary:

Case in which (1) child's injuries were unlikely to have a shattering effect on the parent-child relationship; (2) the parent and guardian ad 1item might herself have contributed to the injuries; and (3) the parent/guardian had waived any claim in her personal capacity by submitting a stipulated judgment requesting in effect that the entire settlement be deposited in a trust account for the child, was inappropriate for the recognition of a new cause of action for loss of filial companionship.

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

Counsel: For Petitioner, John L. Ward II.

On Motion for Reconsideration:

This motion, tiled in connection with what would otherwise be a routine request by the guardian of a minor child for disbursement of funds held in trust for the child, raises the question whether the law of American Samoa recognizes a cause of action for "loss of filial consortium" for a parent whose child has been injured.

The child in question, Sota'i Falelua, was injured in a motor accident. The child had been riding in a pickup truck belonging to his father. The truck was being driven by someone else, apparently with permission of the father. The child's mother sought appointment as guardian ad litem and then sued the driver and the owner's (i.e., the child's father's) insurance company. The complaint alleged that the driver had negligently caused the minor's injuries. Although plaintiff was identified throughout the complaint as guardian ad litem and purported to sue only in such capacity, her complaint also stated that she had "been deprived of comfort and happiness in minor's society and has suffered a great deal of mental pain and anguish, has been deprived of the services of minor as her parent, and those other pleasures and rights growing out of the parent-child relationship known as consortium."

On April 24, 1989, the parties submitted a proposed settlement and stipulated judgment for the approval of the Court. The stipulation provided in pertinent part that "[t]he Court, having previously appointed Plaintiff herein as Guardian ad Litem of the minor child.... is [13ASR2d85] respectfully urged to order deposit of the proceeds of this settlement in the Court Registry." The Court approved the proposed settlement and accepted the proposed deposit of funds into the registry of the Court in trust for the child.

On June 1, 1989, the guardian submitted a "petition for release of funds." The petition stated that the American Samoa Government had determined that the child Sofa'i should be sent to Hawaii for medical care; that, in accordance with its usual practice, the Government was to pay air fare for Sofa'i and also for the guardian herself as well all medical costs; but that the guardian anticipated certain other travel expenses for which she requested a disbursement from the child's trust fund. The unitemized request was for $1,500. The Court felt that $300 was more consistent with the usual standard for supplemental travel expenses, and disbursed this amount subject to the guardian's commitment to file an accounting upon her return from Hawaii.

On June 22 the Court received a request for a supplemental disbursement of $350. This request contained the following assertion:

[t]he funds on deposit. ..represent the settlement of claims on behalf 
of the minor child, as well as the parents as outlined in Count II of the 
original complaint. The actual amounts due the minor [and] the parents..
has yet to be judicially determined.

This was news to the Court, which had already established a trust account for the minor child and approved a disbursement from this account. The Court did approve the requested supplemental disbursement of $350, subject to the requirement of a subsequent accounting, but observed that "the money belongs to the child. "

The Guardian subsequently moved for reconsideration of that part of the Court's order decreeing that the entire sum held in the registry of the Court belongs to the child. Counsel has submitted authorities for the proposition that parents have a right to recover for loss of "filial consortium" in connection with injuries to a child, and argues that the Court should allocate part of the settlement to the mother/guardian as compensation for such loss.

"Loss of filial consortium" is a new idea in American Samoa and a relatively new one elsewhere. No such cause of action was recognized at common law, although parents could recover damages for [13ASR2d86]tangible losses such as a child's lost wages and medical expenses. Prosser & Keeton on Torts § 125 at 934 (5th ed. 1982). Despite the traditional association of the term "consortium" with discontinued sexual relations between an injured person and his spouse, at least one court has used this term in connection with damages arising from the loss of filial companionship, society, and comfort. See Reben v. Ely, 705 P.2d 1360 (Ariz. App. 1985). Other courts have awarded such damages while avoiding the term "consortium." Shockley v. Prier, 225 N. W .2d 495, 499 (Wis. 1975); Bullard v. Barnes, 468 N.E.2d 1228, 1233 (Ill. 1984).

It may be true, as cases such as Shockley and Bullard suggest, that the traditional limitation of damages for the injury of one's child to palpable economic losses reflects an outmoded view of children as mere economic assets. In American Samoa, however, where the typical tortfeasor has few traceable assets and is insured tor $10,000 if he is insured at all, the recognition of a cause of action for collateral harm to a parent as a result of his child's injuries would almost certainly have the principal effect of reducing the sum otherwise available to compensate the child for injuries that are by definition far more palpable, direct, and severe. This, in turn, would practically guarantee a substantial conflict of interest in every settlement negotiation arising out of personal injuries to a minor child; unless the direct injury to the child is unusually slight or the fund available for settlement unusually large, zealous representation of the child's claims will have the effect of depleting the fund available to compensate the fiduciary. Cf. Galo v. American Samoa Government, 10 A.S.R.2d 94 (1989); Logoa'i v. South Pacific Island Airways, Inc., 6 A.S.R.2d 28 (1987).

The facts of the present case, moreover, render it a singularly inappropriate vehicle for the recognition of a new cause of action for loss of filial companionship. On the face of the complaint it appears most unlikely that the injuries suffered by Sofa'i will have the sort of "shattering effect"on the parent-child relationship that has been found to justify such a cause of action. Shockley, supra, 225 N.W.2d at 499. It was also asserted in defendants' answer that the guardian herself had contributed to the accident by permitting her child to ride in the back of a pickup truck. If proven at trial, this might have severely limited the guardian's recovery.

If the guardian ever had a claim in her personal capacity, she waived it when she submitted a stipulated judgment which requested that the entire settlement be deposited in the Registry of the Court. In the context of High Court practice, such a request in connection with a [13ASR2d87] settlement involving a minor (and in a stipulation referring to the child's mother as Guardian ad Litem and in no other capacity) can only be reasonably construed as a request for the establishment of a trust account. See: Judicial Memorandum No.1-88, 7 A.S.R.2d 146 (1988). Finally, a proposed order submitted by the guardian during the pendency of the present motion for reconsideration, formally requesting the establishment of a trust account and approval of the submitted expenses submitted by the guardian, appears even more clearly to waive any personal claim of the guardian to the funds in the trust account.

Accordingly, insofar as it requests a reconsideration of our decision that the entire settlement amount belongs to Sofa'i Falelua, the motion is denied.

Taking the motion as one for the approval of the submitted expenses, we find the following items to be related closely enough to the child's medical condition to justify their satisfaction from the trust fund: $ 79.04 for prescription sunglasses; $ 8.78 for eye patches; $ 5.00 for medicine; and $45.00 for transportation to medical appointments while in Hawaii. The request for $131.20 for telephone calls from Samoa to Hawaii is granted on the guardian's representation that the calls concerned the child's medical treatment.

The guardian has also submitted a claim for $565.00 for food, representing payments the guardian says she made to the relatives with whom she was staying. Only those food costs in excess of what would have been expended in Samoa for food may be recovered. Despite the lack of any evidence on this, but in recognition of the fact that prices in Hawaii may be somewhat higher, $150,00 is granted for food costs.

The guardian has also submitted a bill for $168.34 for medical bills she herself incurred while in Hawaii. Because she was in Hawaii to care for Sofa'i during his medical appointments, and because she would have had access to free medical care had she remained in Samoa, these expenses may be recoverable provided that they were truly necessary. The guardian has submitted no evidence to establish the necessity of these expenses.

We therefore approve expenditures from the trust fund in the amount of $419.02, out of the total amount of $650 that was advanced to the guardian. The guardian should submit evidence to document the necessity of the $168.34 requested for her own medical expenses, and should return $62.64 to the trust fund. [13ASR2d88]

It is so ordered.

*********

Hunkin v. Grisard,


FA'ANENEFU HUNKIN, Plaintiff

v.

MARCEL GRISARD, Trustee for the Estate of 
CAROL GRISARD, Defendant

High Court of American Samoa 
Trial Division

CA No. 97-88

November 7, 1989

__________

Leasehold interest in communal land did not "merge" into an assignment of communal land, whose terms would have been different and virtually antithetical to those clearly set forth in the lease agreement itself.

Failure of family members to demand immediate payment of rent when lessee fell behind did not constitute a waiver of the family's entitlement to eventual payment, especially in light of the vacancy in the family matai title, but did justify the lessee in treating time of payment as not of the essence. [13ASR2d39]

Motion for dismissal of action for lack of subject matter jurisdiction of the High Court of American Samoa, which went riot to the jurisdiction of the court itself but to the bringing of the action in the trial division rather than the land and 1itles division, was without merit, as the appropriate remedy was not dismissal but transfer to the proper division; because the same judges sit in both divisions, the most important practical consequence of such a transfer would be a change in case number.

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

Counsel: For Plaintiff. Charles v. Ala'ilima 
For Defendant. Roy J.D. Hall. Jr.

On Motion for Summary Judgment:

Plaintiff Fa'anenefu Hunkin brought this action in her capacity as a member of the Afoa family. The action seeks eviction of the defendant Estate from a certain parcel of land held under a lease from the Afoa family, as well as a judgment for rental payments alleged to be overdue.

The defendant Trustee answered that the Court had not obtained personal jurisdiction over him; that the Court also lacked subject matter jurisdiction; that plaintiff Hunkin, who purported to act on behalf of the family but is not the sa'o of the family, lacked standing to bring the action; and that plaintiffs' claims were barred by waiver, laches, and equitable estoppel. The Trustee also asserted a defense to the claim on its merits, urging that "the leasehold estate merged into a communal assignment of land to the late Ruby Grisard and her heirs."

Plaintiff then moved for summary judgment and the motion came for a hearing on January 18, 1989. Without ruling on the motion, the Court ordered a stay of further proceedings for ninety days so that the Afoa family could complete the process of selecting a sa'o.

On August 22, 1989, pursuant to a stipulation between the parties, the Clerk set the case for trial. Apparently no one noticed that plaintiff's motion for summary judgment was still pending. Just before the scheduled trial date the Court noticed the pending motion and notified counsel that the trial would be postponed to allow consideration of the motion for summary judgment. [13ASR2d40]

We have determined that the motion for summary judgment should be granted in part and denied in part.

Taking the facts in the light most favorable to the defendant, we find that the late Ruby Grisard was recognized by the late Afoa Fouvale as his adopted daughter according to Samoan custom; that Carol Grisard is the natural daughter of Ruby Grisard; that the land in question was leased to Ruby Grisard by Afoa Fouvale in accordance with the terms of the Leasehold Agreement appended to the Complaint as Exhibit "B" ; that the leasehold interest belonging to Ruby Grisard was conveyed in trust to the defendant Estate of Carol Grisard; that between 1982 and 1988 no demand for rental payment was made by any member of the Afoa family; and that the Afoa title has recently been assumed by Leulumoega S. Lutu, who now joins in, plaintiffs demands.

From these facts it follows that the Estate holds the land under the leasehold agreement rather than in accordance with an assignment of communal land. The leasehold agreement clearly sets forth its own terms, which are different from ---indeed, virtually antithetical to ---the communal assignment alleged by defendant.

The failure of family members to demand immediate payment of the rent when defendant fell behind did not constitute a waiver of the family's entitlement to eventual payment, either by "merger" of the leasehold interest into a fundamentally different kind of land tenure or otherwise. This is especially true in light of the vacancy in the Afoa title. During the time of this vacancy (as the defendant points out in another context) it was not at all clear that any family member h~d the legal right to demand payment of current rentals, much less the right to alter the terms of the leasehold agreement by failing to make such a demand. Plaintiffs motion for summary judgment must therefore be granted insofar as it seeks a declaratory judgment that the defendant Trust is liable for unpaid rentals in accordance with the terms of the leasehold agreement.

The lack of a demand for immediate payment did, however, justify defendant in treating time of payment as not of the essence. Insofar as the demand for eviction is premised on the delay in payment, therefore, the motion for summary judgment must be denied.

Because we hold that the late Ruby Grisard held the land under a leasehold agreement rather than a communal assignment of land, we need not decide whether an assignment of communal land by a sa'o to his[13ASR2d41] adopted daughter has the same legal consequences as an assignment to a blood member of the family, or whether such an assignment can be conveyed by the adopted daughter to her heirs. The only issue remaining before the Court would appear to be the calculation of the exact amount of rentals due in accordance with the provision of the leasehold, agreement for an automatic "cost of living" adjustment every five years.

Finally, however, we note the defendant's objections to the jurisdiction of this Court.

It is clear on the face of the pleadings that the objection to subject matter jurisdiction is without merit. This Court is the court of general jurisdiction for American Samoa; the present action concerns land in American Samoa, a contract made in American Samoa, and a deed pf trust executed in American Samoa; and defendant alleges no facts from which we can discern any possible basis for an exception to our general subject matter jurisdiction. {If the objection is not to the jurisdiction of the High Court but to the bringing of the action in the Trial Division rather than the Land and Titles Division, then the appropriate remedy is to transfer the case to the proper division. Should this action proceed further, a transfer wilt be ordered on motion of either party; since the same judges sit in both divisions, the most important practical consequence of such a transfer will be a change in the case number.)

The objection to jurisdiction over the person is similarly unadorned with supporting facts or argument. Counsel for defendant, however, has confirmed the Court's preliminary impression that the objection must be based on the method of service on the Trustee. The Trustee does not reside in the Territory, and the summons and complaint were served on the attorney who, according to counsel for plaintiff, regularly conducts the business of the Trust within American Samoa. This is the same attorney who now represents the Trustee, having styled his answer to the complaint a "special appearance."

Since the merit of this objection depends entirely on facts not in the present record, and since it is not among the grounds urged by defendant in its opposition to the motion for summary judgment, we are not presently able to rule on it. A prudent regard for the efficient use of judicial resources, however, dictates that the Court proceed no further until any arguable defect in its jurisdiction has been cured. Accordingly, we will stay further proceedings for an additional ninety days. This will [13ASR2d42] allow plaintiff time to effect personal service on the Trustee by publication, which service is hereby authorized.

The parties are strongly urged to make further proceedings unnecessary by settling their remaining differences. Should this not happen, either party may move for trial upon the expiration of ninety days and upon proof that the Court has acquired jurisdiction over the person of the defendant. Any such trial will be limited to the issues remaining for resolution after the entry of partial summary judgment in accordance with the above opinion.

It is so ordered.

*********

Hawaiian Airlines v. Uikirifi,


HAWAIIAN AIRLINES, Appellant

v.

AMERICAN SAMOA GOVERNMENT ex rel. AFAESE UIKIRIFI, Appellee

HAWAIIAN AIRLINES, Appellant

v.

AMERICAN SAMOA GOVERNMENT ex rel. GEORGE NERU, Appellee

High Court of American Samoa Appellate Division

AP No. 5-89 
AP No. 6-89

October 10, 1989

__________

Airline's role in its Contract of Carriage exonerating the airline from all liability for irreplaceable articles, valuable items, religious or ceremonial fiats and artifacts, samples, and goods for resale included in passenger's baggage was contrary to public policy and void, at least as applied to personal property that was neither fragile, perishable, inherently dangerous, nor uniquely valuable. [13ASR2d6]

An airline may not limit its liability for provable direct or consequential damage resuming from the disappearance of, damage to, or delay in delivery of a passenger's personal property, including baggage, in its custody to an amount less than $1250 for each passenger. 14 C.F.R. § 254.4.

Federal regulation prohibiting limitation of airline liability to an amount less than $1250 per passenger for "personal property, including baggage" is not limited only to baggage. 14 C.F.R. § 254.4.

Auto parts, clothing, and modestly priced mats are not the type of goods --such as live animals, jewelry, fragile, perishable, or inherently dangerous items, or items with unique value ---which an airline may reject from carriage altogether, or for which it may require increased payment or a release or other condition before agreeing to carry the goods.

Language in airline ticket limiting airline's liability for lost baggage adequately notifies passenger of such limited liability where language is conspicuous and understandable, even though the language deviates from that provided in federal regulation. 14 C.F.R. § 254.5(b).

Language suggested in federal regulation to give notice of monetary limitations on airline's liability for passengers' baggage is not mandatory; alternative language that effectively notifies passengers is permitted. 14 C.F.R. § 254.5(b).

Before CANBY,* Acting Associate Justice, THOMPSON,** Acting Associate Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

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

Per Thompson, J.:

Facts

The Uikirifi Case

Appellee Uikirifi made two trips on Hawaiian Airlines from Honolulu to Pago Pago, one on August 7, 1987, and another on [13ASR2d7] September 17, 1989. On the August 7th trip the airline lost two of Uikirifi's bags containing clothing which he valued at $1,926.64. On the September 17th trip the airline lost nine pieces of luggage containing clothing and "fine mats" valued by Uikirifi at $5,055.24. In a trial de novo in the Trial Division, the trial court rendered judgment in favor of Uikirifi but limited his recovery to $1,250.00 for each of the two trips, a total of $2,500.00, plus $129.00 which Uikirifi had paid in excess baggage charges. [ASG ex rel Afaese Uikirifi v. Hawaiian Airlines, Inc., 10 A.S.R.2d 31 (1989).]

The Neru Case

Appellee Neru made one trip on Hawaiian Airlines on February 8, 1987. The airline lost two of Neru's bags. The lost bags contained auto parts which Neru valued at $2,286.70. In a trial de novo in the Trial Division, the trial court awarded Neru the full amount of his claim, $2,286.70. [Id.]

The Appeal

Hawaiian Airlines appeals. Uikirifi and Neru do not. Hawaiian argues that by its Contract of Carriage, incorporated by reference into the airline tickets which Uikirifi and Neru bought, Hawaiian is exempt from any liability for the lost baggage claims asserted against it. Hawaiian contends that its Contract of Carriage exclusion applies, because Uikirifi's clothing and fine mats and Neru's auto parts were the kind of baggage described in Hawaiian's Contract of Carriage Rule 26(B)(2), for which Hawaiian has no liability in the event of loss or damage. Alternatively, Hawaiian argues its liability for the lost baggage is limited to $1,250.00 per passenger per trip, and the trial court should have limited Neru's recovery to this amount.

Discussion

Hawaiian's Contract of Carriage Rule 26(B)(2) provides in pertinent part:

HA [Hawaiian Airlines] assumes no liability for irreplaceable 
articles and/or valuable items; ... religious or ceremonial mats 
and artifacts; ...samples and goods for resale; ...included in a 
passenger's baggage with or without knowledge of HA. 
[emphasis added] . [13ASR2d8]

This section differs from subsection (B)(1) immediately preceding it in the Contract of Carriage. Subsection (B)(1) begins with a modifying introductory clause: "When HA has exercised the ordinary standard of care it shall not be liable for. .." damage to perishable or fragile articles under certain circumstances. Thus, while subsection (B)(1) purports to absolve Hawaiian from liability only when it has not been negligent, subsection (B)(2) purports to absolve Hawaiian from all liability in any case in which a passenger's baggage is lost, if the baggage is of a type described in the subsection.

Hawaiian's Rule 26(B)(2), at least insofar as Hawaiian seeks to apply it to the kind of baggage Uikirifi and Neru shipped, is contrary to public policy and void; the rule attempts to exonerate Hawaiian Airlines from all liability due to its own negligence for the loss of or damage to baggage it carries on the airline. See Klicker v. Northwest Airlines, Inc., 563 F.2d 1310, 1313-14 (9th Cir. 1977). Hawaiian argues that it has no way, short of disruptive and time consuming searches of passengers' baggage, to know what its passengers are shipping, and therefore it should be liable only for the loss of or damage to the kind of baggage a passenger typically takes along for his own personal use and comfort.

Hawaiian suggests that there are, at minimum, two categories of baggage which come into play in the cases now before us: "passenger baggage" which it defines as that taken for personal use and comfort, and "unusual or valuable items of inventory"; it argues that while it might be appropriate to impute to it knowledge, and hence its acceptance for carriage, of personal property within its definition of "passenger baggage, " it should not be forced to assume liability, even in a limited amount, for its carriage of other classes of baggage. It argues that Uikirifi's and Neru's lost baggage fits into the category of "unusual or valuable items of inventory," and as a result Hawaiian is contractually exonerated from all liability for the loss of this baggage. We disagree.

First, Hawaiian's argument overlooks 14 C.F.R. § 254.4 (1984). This section provides in pertinent part that:

[A]n air carrier shall not limit its liability for provable direct 
or consequential damage resuming from the disappearance 
of, damage to, or delay in delivery of a passenger's personal 
property, including baggage, in its custody to an amount less 
than $1250 for each passenger. [13ASR2d9]

Id. (emphasis added). A reasonable reading of this section would be that Hawaiian may not limit its liability down to zero. The section expressly applies to "personal property, including baggage." It does not limit its application only to "baggage." Since the claims made by Uikirifi and Neru were for personal property which was contained in the bags which they shipped with Hawaiian, Hawaiian should not be able to limit its liability to less than the $1,250.00 prescribed by 14 C.F.R. § 254.4.

Second, and of equal if not greater significance, the lost baggage in the present cases does not involve fragile or perishable items, nor does it involve personal property such as live animals, jewelry , or inherently dangerous items or items having a unique value which an airline may be permitted to reject from carriage altogether, or for which it may require an increased payment, or for which it may demand a release or other condition before agreeing to carry the goods. We deal here only with auto parts, clothing, and "fine mats." Insofar as the "fine mats" are concerned, the shipment was for 270 mats which Uikirifi valued at a total of $2, 700.00, or the rather modest amount of $10.00 per mat. As to the clothing, there is nothing unusual about baggage containing clothing, and as to the auto parts, it certainly cannot be said they represented items of any unique nature or special value.

We conclude that Hawaiian Airlines may not absolve itself from all liability for the loss of the Uikirifi and Neru baggage. We turn now to a consideration of the question whether Hawaiian Airlines effectively limited its liability to $1,250.00 for Neru's lost baggage. (1)

In Neru's case, the trial court concluded that Hawaiian Airlines' notice of the limitation of its liability for lost baggage contained in the ticket Neru bought was ineffective because, although the notice was sufficiently "conspicuous, " the language of the notice was deficient. It also concluded that, while the language of the notice of Hawaiian Airlines' liability limitation which appeared in the jacket into which the ticket was placed was adequate, this notice in the jacket was not sufficiently "conspicuous" because the notice was hidden from view by an inside jacket flap. Because we conclude that the notice in the ticket was itself sufficient to impart notice of Hawaiian Airlines' limitation of [13ASR2d10] liability for lost baggage, we do not consider the sufficiency of the notice in the jacket, either as to language or conspicuousness. (2)

The notice of limitation of liability for lost or damaged baggage set forth in the ticket Neru bought from Hawaiian Airlines provided in pertinent part:

NOTICE OF BAGGAGE LIABILITY LIMITATIONS Liability 
for loss, delay, or damage to baggage is limited as follows unless a
higher value is declared in advance and additional charges are paid: 
...(2) For travel wholly between U.S. points, to $1,250 per passenger 
on most carriers (a few have lower limits). Excess valuation may not 
be declared on certain types of valuable articles. Carriers assume 
no liability for fragile or perishable articles. Further information may 
be obtained from the carrier .

In Diero v. American Airlines, Inc., 816 F.2d 1360, 1365 (9th Cir. 1987), this same language was determined to be "conspicuous and understandable, especially the notice in relatively large type under the heading 'NOTICE OF BAGGAGE LIABILITY LIMITATIONS.'" Id. In the present case, the trial court viewed this language as inadequate because it deviated from the language of 14 C.F.R.§ 254.5(1), and in so doing the language did not provide adequate notice of Hawaiian's particular limitation of liability. "

Section 254.5(b) sets forth language which, if used by an airline, will be sufficient to limit its liability for lost baggage. The language reads: "Federal rules require any limit on an airline's baggage liability to be at least $1250 per passenger." 14 C.F.R. § 254.5(b) (1984). But this is not the only language which will suffice. Section 254.5(a) permits an airline to use alternative language consisting of "Notice of any monetary limitation on its baggage liability to passengers. " 14 C.F.R. § 254.5(a) (1984).

Given the substantial similarity between the language on the Hawaiian Airlines ticket and the statutory language of 14 C.F.R. § 2 [13ASR2d11] 254.5(b), bearing in mind that alternative language is permissible (see 14 C.F .R. §§ 254.5(a) (1984)), and considering the decision in the Diero case by which language identical to the language contained in Neru's ticket was found to be "understandable and conspicuous," we conclude that the language of the notice of limitation of liability on the Hawaiian Airlines ticket which Neru bought was sufficient to impart notice of Hawaiian Airlines' limitation of liability. (3)

Conclusion

The judgment in favor of Uikirifi for $2,500.00 plus excess baggage charges of $129.00 is AFFIRMED. The judgment in favor of Neru for $2,286.70 is reduced to $1,250.00.

*********

* Honorable William C. Canby, Jr. Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior .

1. Uikirifi does not appeal the trial court's limitation of his recovery to $1,250.00 per trip plus the excess baggage charges. Hawaiian Airlines' alternative argument by which it seeks to limit its liability to $1,250.00 applies only to Neru's case.

2. The trial court determined that the notice of limitation of liability in the ticket was sufficiently "conspicuous"; it found fault only with the wording of the notice. No party has raised the "conspicuousness" issue on appeal as it applies to the ticket, and we therefore do not consider it.

3. The trial court found that the ticket was sufficient to incorporate by reference Hawaiian Airlines. Contract of Carriage, which contains its rules for the shipment of baggage and other property and which limits its liability to $1,250.00 for lost or damaged baggage. No party challenges the district court's resolution of the "incorporated by reference" issue, and we do not consider it in this appeal.

Hawaiian Airlines v. American Samoa Gov’t,


HAWAIIAN AIRLINES, Appellant

v.

AMERICAN SAMOA GOVERNMENT ex rel. AFAESE UIKIRIFI, Appellee

HAWAIIAN AIRLINES, Appellant

v.

AMERICAN SAMOA GOVERNMENT ex rel. GEORGE NERU, Appellee

High Court of American Samoa Appellate Division

AP No. 5-89 
AP No. 6-89

October 10, 1989

__________

Airline's role in its Contract of Carriage exonerating the airline from all liability for irreplaceable articles, valuable items, religious or ceremonial fiats and artifacts, samples, and goods for resale included in passenger's baggage was contrary to public policy and void, at least as applied to personal property that was neither fragile, perishable, inherently dangerous, nor uniquely valuable. [13ASR2d6]

An airline may not limit its liability for provable direct or consequential damage resuming from the disappearance of, damage to, or delay in delivery of a passenger's personal property, including baggage, in its custody to an amount less than $1250 for each passenger. 14 C.F.R. § 254.4.

Federal regulation prohibiting limitation of airline liability to an amount less than $1250 per passenger for "personal property, including baggage" is not limited only to baggage. 14 C.F.R. § 254.4.

Auto parts, clothing, and modestly priced mats are not the type of goods --such as live animals, jewelry, fragile, perishable, or inherently dangerous items, or items with unique value ---which an airline may reject from carriage altogether, or for which it may require increased payment or a release or other condition before agreeing to carry the goods.

Language in airline ticket limiting airline's liability for lost baggage adequately notifies passenger of such limited liability where language is conspicuous and understandable, even though the language deviates from that provided in federal regulation. 14 C.F.R. § 254.5(b).

Language suggested in federal regulation to give notice of monetary limitations on airline's liability for passengers' baggage is not mandatory; alternative language that effectively notifies passengers is permitted. 14 C.F.R. § 254.5(b).

Before CANBY,* Acting Associate Justice, THOMPSON,** Acting Associate Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

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

Per Thompson, J.:

Facts

The Uikirifi Case

Appellee Uikirifi made two trips on Hawaiian Airlines from Honolulu to Pago Pago, one on August 7, 1987, and another on [13ASR2d7] September 17, 1989. On the August 7th trip the airline lost two of Uikirifi's bags containing clothing which he valued at $1,926.64. On the September 17th trip the airline lost nine pieces of luggage containing clothing and "fine mats" valued by Uikirifi at $5,055.24. In a trial de novo in the Trial Division, the trial court rendered judgment in favor of Uikirifi but limited his recovery to $1,250.00 for each of the two trips, a total of $2,500.00, plus $129.00 which Uikirifi had paid in excess baggage charges. [ASG ex rel Afaese Uikirifi v. Hawaiian Airlines, Inc., 10 A.S.R.2d 31 (1989).]

The Neru Case

Appellee Neru made one trip on Hawaiian Airlines on February 8, 1987. The airline lost two of Neru's bags. The lost bags contained auto parts which Neru valued at $2,286.70. In a trial de novo in the Trial Division, the trial court awarded Neru the full amount of his claim, $2,286.70. [Id.]

The Appeal

Hawaiian Airlines appeals. Uikirifi and Neru do not. Hawaiian argues that by its Contract of Carriage, incorporated by reference into the airline tickets which Uikirifi and Neru bought, Hawaiian is exempt from any liability for the lost baggage claims asserted against it. Hawaiian contends that its Contract of Carriage exclusion applies, because Uikirifi's clothing and fine mats and Neru's auto parts were the kind of baggage described in Hawaiian's Contract of Carriage Rule 26(B)(2), for which Hawaiian has no liability in the event of loss or damage. Alternatively, Hawaiian argues its liability for the lost baggage is limited to $1,250.00 per passenger per trip, and the trial court should have limited Neru's recovery to this amount.

Discussion

Hawaiian's Contract of Carriage Rule 26(B)(2) provides in pertinent part:

HA [Hawaiian Airlines] assumes no liability for irreplaceable 
articles and/or valuable items; ... religious or ceremonial mats 
and artifacts; ...samples and goods for resale; ...included in a 
passenger's baggage with or without knowledge of HA. 
[emphasis added] . [13ASR2d8]

This section differs from subsection (B)(1) immediately preceding it in the Contract of Carriage. Subsection (B)(1) begins with a modifying introductory clause: "When HA has exercised the ordinary standard of care it shall not be liable for. .." damage to perishable or fragile articles under certain circumstances. Thus, while subsection (B)(1) purports to absolve Hawaiian from liability only when it has not been negligent, subsection (B)(2) purports to absolve Hawaiian from all liability in any case in which a passenger's baggage is lost, if the baggage is of a type described in the subsection.

Hawaiian's Rule 26(B)(2), at least insofar as Hawaiian seeks to apply it to the kind of baggage Uikirifi and Neru shipped, is contrary to public policy and void; the rule attempts to exonerate Hawaiian Airlines from all liability due to its own negligence for the loss of or damage to baggage it carries on the airline. See Klicker v. Northwest Airlines, Inc., 563 F.2d 1310, 1313-14 (9th Cir. 1977). Hawaiian argues that it has no way, short of disruptive and time consuming searches of passengers' baggage, to know what its passengers are shipping, and therefore it should be liable only for the loss of or damage to the kind of baggage a passenger typically takes along for his own personal use and comfort.

Hawaiian suggests that there are, at minimum, two categories of baggage which come into play in the cases now before us: "passenger baggage" which it defines as that taken for personal use and comfort, and "unusual or valuable items of inventory"; it argues that while it might be appropriate to impute to it knowledge, and hence its acceptance for carriage, of personal property within its definition of "passenger baggage, " it should not be forced to assume liability, even in a limited amount, for its carriage of other classes of baggage. It argues that Uikirifi's and Neru's lost baggage fits into the category of "unusual or valuable items of inventory," and as a result Hawaiian is contractually exonerated from all liability for the loss of this baggage. We disagree.

First, Hawaiian's argument overlooks 14 C.F.R. § 254.4 (1984). This section provides in pertinent part that:

[A]n air carrier shall not limit its liability for provable direct 
or consequential damage resuming from the disappearance 
of, damage to, or delay in delivery of a passenger's personal 
property, including baggage, in its custody to an amount less 
than $1250 for each passenger. [13ASR2d9]

Id. (emphasis added). A reasonable reading of this section would be that Hawaiian may not limit its liability down to zero. The section expressly applies to "personal property, including baggage." It does not limit its application only to "baggage." Since the claims made by Uikirifi and Neru were for personal property which was contained in the bags which they shipped with Hawaiian, Hawaiian should not be able to limit its liability to less than the $1,250.00 prescribed by 14 C.F.R. § 254.4.

Second, and of equal if not greater significance, the lost baggage in the present cases does not involve fragile or perishable items, nor does it involve personal property such as live animals, jewelry , or inherently dangerous items or items having a unique value which an airline may be permitted to reject from carriage altogether, or for which it may require an increased payment, or for which it may demand a release or other condition before agreeing to carry the goods. We deal here only with auto parts, clothing, and "fine mats." Insofar as the "fine mats" are concerned, the shipment was for 270 mats which Uikirifi valued at a total of $2, 700.00, or the rather modest amount of $10.00 per mat. As to the clothing, there is nothing unusual about baggage containing clothing, and as to the auto parts, it certainly cannot be said they represented items of any unique nature or special value.

We conclude that Hawaiian Airlines may not absolve itself from all liability for the loss of the Uikirifi and Neru baggage. We turn now to a consideration of the question whether Hawaiian Airlines effectively limited its liability to $1,250.00 for Neru's lost baggage. (1)

In Neru's case, the trial court concluded that Hawaiian Airlines' notice of the limitation of its liability for lost baggage contained in the ticket Neru bought was ineffective because, although the notice was sufficiently "conspicuous, " the language of the notice was deficient. It also concluded that, while the language of the notice of Hawaiian Airlines' liability limitation which appeared in the jacket into which the ticket was placed was adequate, this notice in the jacket was not sufficiently "conspicuous" because the notice was hidden from view by an inside jacket flap. Because we conclude that the notice in the ticket was itself sufficient to impart notice of Hawaiian Airlines' limitation of [13ASR2d10] liability for lost baggage, we do not consider the sufficiency of the notice in the jacket, either as to language or conspicuousness. (2)

The notice of limitation of liability for lost or damaged baggage set forth in the ticket Neru bought from Hawaiian Airlines provided in pertinent part:

NOTICE OF BAGGAGE LIABILITY LIMITATIONS Liability 
for loss, delay, or damage to baggage is limited as follows unless a
higher value is declared in advance and additional charges are paid: 
...(2) For travel wholly between U.S. points, to $1,250 per passenger 
on most carriers (a few have lower limits). Excess valuation may not 
be declared on certain types of valuable articles. Carriers assume 
no liability for fragile or perishable articles. Further information may 
be obtained from the carrier .

In Diero v. American Airlines, Inc., 816 F.2d 1360, 1365 (9th Cir. 1987), this same language was determined to be "conspicuous and understandable, especially the notice in relatively large type under the heading 'NOTICE OF BAGGAGE LIABILITY LIMITATIONS.'" Id. In the present case, the trial court viewed this language as inadequate because it deviated from the language of 14 C.F.R.§ 254.5(1), and in so doing the language did not provide adequate notice of Hawaiian's particular limitation of liability. "

Section 254.5(b) sets forth language which, if used by an airline, will be sufficient to limit its liability for lost baggage. The language reads: "Federal rules require any limit on an airline's baggage liability to be at least $1250 per passenger." 14 C.F.R. § 254.5(b) (1984). But this is not the only language which will suffice. Section 254.5(a) permits an airline to use alternative language consisting of "Notice of any monetary limitation on its baggage liability to passengers. " 14 C.F.R. § 254.5(a) (1984).

Given the substantial similarity between the language on the Hawaiian Airlines ticket and the statutory language of 14 C.F.R. § 2 [13ASR2d11] 254.5(b), bearing in mind that alternative language is permissible (see 14 C.F .R. §§ 254.5(a) (1984)), and considering the decision in the Diero case by which language identical to the language contained in Neru's ticket was found to be "understandable and conspicuous," we conclude that the language of the notice of limitation of liability on the Hawaiian Airlines ticket which Neru bought was sufficient to impart notice of Hawaiian Airlines' limitation of liability. (3)

Conclusion

The judgment in favor of Uikirifi for $2,500.00 plus excess baggage charges of $129.00 is AFFIRMED. The judgment in favor of Neru for $2,286.70 is reduced to $1,250.00.

*********

* Honorable William C. Canby, Jr. Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior .

1. Uikirifi does not appeal the trial court's limitation of his recovery to $1,250.00 per trip plus the excess baggage charges. Hawaiian Airlines' alternative argument by which it seeks to limit its liability to $1,250.00 applies only to Neru's case.

2. The trial court determined that the notice of limitation of liability in the ticket was sufficiently "conspicuous"; it found fault only with the wording of the notice. No party has raised the "conspicuousness" issue on appeal as it applies to the ticket, and we therefore do not consider it.

3. The trial court found that the ticket was sufficient to incorporate by reference Hawaiian Airlines. Contract of Carriage, which contains its rules for the shipment of baggage and other property and which limits its liability to $1,250.00 for lost or damaged baggage. No party challenges the district court's resolution of the "incorporated by reference" issue, and we do not consider it in this appeal.

Fuiava; Chang v.


JOE CHANG and DRAGON LIGHT CO. Ltd., Plaintiffs

v.

MIKE FUIAVA, NATIONAL IMPORT& EXPORT ENTERPRISE, 
and NATIONAL IMPORT & EXPORT, Defendant

High Court of American Samoa 
Trial Division

CA No. 59-5

October 2, 1989

__________

Plaintiffs claim that defendant was liable for the entire amount noted in an agreement to purchase inventory from their dissolved joint business was not sustained by evidence showing that defendant had returned the bulk of the inventory to plaintiffs new place of business; that plaintiffs relative or employee kept an accounting of merchandise returned by the defendant, but no copy of this accounting was ever supplied either to the defendant or to the court; and that defendant admitted owing plaintiff for the items he had not returned and had made installment payments on this debt.

Where defendant returned goods to one corporation owned by plaintiff, rather than to another similarly named corporation also owned by plaintiff with which defendant had a contract, and where both parties in their dealings with each other had shown only so much respect for corporate formality as suited their convenience; defendant was not liable to the second corporation for the goods he had returned to the first.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiffs, Tautai A.F. Fa'alevao 
Defendant Mike Fuiava pro se

Factual Background

Plaintiff Chang and defendant Fuiava went into business together for purposes of merchandising in American Samoa. Chang is a merchant of Western Samoa, where he operates business, Dragon Light Co. Ltd., a Western Samoan corporation and the co-plaintiff herein. Also, [13ASR2d2] Chang had either the goods, or at least access to a credit facility, to supply the venture with inventory.

Fuiava, on the other hand, had neither business experience nor capital to contribute to the venture, However, as the American Samoan party, he had the responsibility of securing the requisite license to do business in the territory. (1)

At first the parties went through the motions of setting up a corporation under the name "National Import Export Company, Inc." Articles were duly adopted which stipulated that sixty percent of the corporate stock would be held by Chang and his family, with the remaining forty percent held by Fuiava and his family. The articles further named Chang as President and Fuiava as Vice President.

As the approval of corporate status proved to be time consuming, the parties decided to obtain in the interim a license in Fuiava's name in order to open for business immediately. Fuiava did indeed secure a business license as a proprietorship trading under the name "National Import & Export Enterprise." After opening a bank account and taking delivery of a variety of goods supplied on credit by the plaintiff, Dragon Light Co. Ltd., the parties began selling at a location in Pago Pago. Although a corporate charter was eventually granted, the parties continued doing business under the license issued to Fuiava personally. (2)

In time, Chang notified Fuiava that he desired to terminate their business relationship and he proposed to Fuiava a division of the inventory between them. With some American Samoan relatives of his wife, Chang formed another local corporation called "Dragon Light, Inc.," which was opened for business in Happy Valley and retailed in the same lines. Fuiava retained a certain quantity of the inventory for which an invoice, drawn on Dragon Light Co. Ltd. letterhead, was made out [13ASR2d3] in the amount of $35,945.50 to "National Import & Export." This invoice also contained a paragraph reciting an agreement "that a weekly payment of $500.00 (US) to be paid [sic] to Mr. Joe Chang by Mr. Mike Fuiava on behalf of the NATIONAL IMPORT & EXPORT, commencing 8th December 1984. "This invoice agreement was signed by Chang on behalf of Dragon Light Co. Ltd. as its director, while Fuiava signed as "Vice-President" on behalf of National Import & Export.

Fuiava found a location for himself in Nu'uuli where he set up shop and for the first few months he managed to make the scheduled payments to Chang. It did not take very long, however, for Fuiava to learn that there was more to business than anticipated riches. He was just not generating the sort of sales envisaged at the time of the invoice/agreement and he began to fall progressively into arrears. Plaintiffs filed suit to enforce the invoice/agreement.

Notwithstanding the filing of suit, there was dialogue between the parties in the hope of resolving arrears and reinstating the payment schedule. Despite Fuiava's further attempts at business, the situation with sales did not improve. He therefore notified Chang that he would return the remaining inventory with him and pay the difference. Over the course of several days, Fuiava's wife and some relatives delivered pickup truckloads of the inventory to the Happy Valley premises of Dragon Light, Inc. There, a count was made by Chang's sister-in-law or shop employee as each load was delivered. Fuiava's wife was promised a copy of the count by Chang's sister-in-law but none was ever delivered.

The Suit

The controversy before us is somewhat puzzling. For reasons unknown, the matter between the parties was never finalized. Nobody bothered to reconcile what Fuiava had returned and paid for against what he was initially given. It seems that the goods he had returned were eventually commingled with whatever stock Dragon Light, Inc., possessed. As to what happened to the stock count taken by Chang's sister-in-law, the Court was never told; however, the significance of the suit against Fuiava became apparent with Chang's testimony that the business venture with his American Samoan in-laws incurred a loss of some $70,000.

Chang nonetheless insists that the invoice/agreement continues to render Fuiava liable to plaintiff Dragon Light Co. Ltd. He opined on [13ASR2d4] the stand that Fuiava's delivery of the goods (subject to the invoice/agreement) to Dragon Light, Inc., a distinct and separate corporate entity, did not constitute a restitution by Fuiava to plaintiff Dragon Light Co. Ltd. Additionally, Chang argues that when he agreed to Fuiava's return of the goods, it was Fuiava's duty and responsibility to do the stock taking and to reconcile an accounting of his indebtedness to the plaintiff corporation.

Fuiava, on the other hand, testified that as far as he was concerned, his obligations to Chang and Dragon Light Co. Ltd. were settled, except for that which he owes on the goods he had sold less the installment payments which he had already made pursuant to the invoice/agreement. Chang, however, has never billed him.

Conclusions

We are in agreement with Fuiava's position that he is liable on account with Dragon Light Co. Ltd. and that the extent of his liability is for the goods he had sold or failed to return less the payments he had paid to Chang. In so concluding, we reject Chang's alternative and somewhat inconsistent theories: that the return of the inventory held by Fuiava did not vary the effect of the invoice/agreement, which remained in full force and effect; or that Fuiava was responsible for providing an accounting of the returned goods to Dragon Light Co. Ltd., and by failing to do so remains liable on terms of the invoice/agreement. Neither theory has any support in law or on the evidence. Further, Chang's resort to legal niceties about separate corporate identities in the attempt to get around the undisputed fact that Fuiava returned the goods is, at best, desperate and also thoroughly unconvincing. The parties in their dealings with each other and with the government licensing authorities had only so much respect for corporate formality as it suited their convenience. (3)

Finally, in terms of what is actually owed by Fuiava to Chang and Dragon Light Co. Ltd. , the evidence was just not there to permit the Court to make any meaningful finding. The evidence at its best [13ASR2d5]suggested that the loads delivered by Fuiava's wife constituted the bulk of the inventory listed in the invoice/agreement. (In view of the losses incurred by Dragon Light, Inc., there is hardly any mystery in what happened to these returned goods.) To attempt, however, to be any more specific with the ultimate division of the inventory among Chang and Fuiava would take us well within the realm of speculation.

Plaintiffs have simply failed in their burden to adduce sufficient proofs and judgment shall therefore enter accordingly.

It is so Ordered.

*********

1. The territorial licensing laws --A.S.C.A. §§ 27.0201 et seq,--- are in certain aspects parochial in effect. An applicant for a business license who is neither an American Samoan nor a "permanent" resident of the territory is subject to greater scrutiny and regulation, particularly if the activity for which licensure is sought is already adequately covered by local businesses.

2. The corporation, for purposes of the business licensing laws, would have been treated asa non-American Samoan given the stock issue contemplated by the articles of incorporation which designated the majority shares in non-American Samoans. See A.S.C.A, § 27.0207.

3. Indeed, if we accepted Chang's argument on corporate legalities, then we would also be required to question why Fuiava should not have the benefit of limited liability, since the invoice/agreement purported on its face to be a dealing between the Dragon Light Co. Ltd. and arguably the American Samoan corporate entity National Import Export Co., Inc. Fuiava signed as "Vice-President" rather than as proprietor.

Daily Shoppers, Inc.; D. Gokal & Co. v.


D. GOKAL & COMPANY, Ltd., Plaintiff

v.

DAILY SHOPPERS INC., a corporation, JOSEPH P. 
FRUEAN, and TAGILIMA FRUEAN 
dba DAILY SHOPPERS, Inc., Defendants

High Court of American Samoa 
Trial Division

CA No. 52-89

October 10, 1989

__________

Summary judgment is appropriate if the pleadings and supporting papers show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. T.C.R.C.P.56(c). [13ASR2d12]

In considering a motion for summary judgment, the court must consider all pleadings and supporting papers in the light most favorable to opposing party, and must also give such party the benefit of all inferences reasonably deducible from the evidence. T.C.R.C.P. 56.

Plaintiff suing for value of goods paid for by defendants with checks drawn against insufficient funds was denied summary judgment where defendants raised triable issues of tact, claiming that plaintiff coerced them into sales contract; supplied unordered goods and overcharged for incomplete quantities of goods; and induced one of the defendants to sign a letter acknowledging liability by assuring them it was merely "for the record" and that they should "not worry" about it.

Before KRUSE, Chief Justice, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, John L. Ward II 
For Defendants, Togiola T .A. Tulafono

On Motion for Summary Judgment:

Plaintiff moves for summary judgment pursuant to T .C.R.C.P. Rule 56. The rule provides for entry of judgment if the pleadings and supporting papers show that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of Law." Rule 56(c). All the pleadings and supporting papers submitted on a motion for summary judgement must be viewed in a light most favorable to the opposing party. United States v. Diebold, Inc., 369 U.S. 654 (1962). That is, the Court must not only treat the adverse party's evidence as true, but he should also be given the benefit of all inferences reasonably deducible from the evidence. Lokan v. Lokan, 6 A.S.R.2d 44 (1987).

In the present matter, plaintiff sues for the value of goods sold and delivered to defendants for which checks drawn against insufficient funds were tendered to plaintiff. Defendants, on the other hand, have raised triable issues of fact in their responsive pleadings and affidavit filed in opposition to the motion for summary judgment. Defendants claim that the alleged sale of goods contract was forced upon them at plaintiffs insistence; that plaintiff supplied material not ordered; that plaintiff overcharged for quantities incompletely supplied; and that an exhibit upon which plaintiff places reliance for its motion ---a certain letter acknowledging liability and under signature of one of the defendants ---was in fact prepared by plaintiffs representative for "the record" and "[that defendants should] not worry about it." [13ASR2d13]

We hold that there is a factual dispute regarding the obligation underlying the returned checks and deny plaintiff's motion accordingly.

It is so Ordered.

**********

Vaimaona v. Tuitasi,


VAIMAONA FOLOI, ARIETA VAIMAONA, LAGIMA
VAIMAONA, and TAU FUlAVA, Plaintiffs

v.

FA'AMAMAFA TUITASI, Defendant

High Court of American Samoa
Trial Division

LT No. 18-88

December 12, 1989

__________

Under territorial statute dealing with "title to land," a procedurally valid registration precludes subsequent judicial inquiry into the validity of the record owner's title; anyone who wishes to object on any ground whatever to the registrant's claim of ownership has sixty days within which to do so, and ill the absence of such objection the land is registered in the name of the claimant and all other claims of ownership are forever precluded. A.S.C.A. §§ 37.0101 et seq.

Territorial statute dealing with "alienation of land" provides substantive restriction on alienation and also sets forth procedures for the lawful alienation of land, which are designed to ensure that land will not be alienated lightly even in the absence of a specific substantive restriction, A.S.C.A. § 37.0201 et seq.

Final step in the statutory procedure for alienation of communal land is recordation of the transaction with the territorial registrar; when a buyer and seller comply with all the statutory provisions for alienation of land, including this recordation provision, the buyer becomes the owner of whatever interest the seller had in the land. A.S.C.A. § 37.0210.

Distinction between separate statutory procedures tor registration "of the land" and "of the deed" is best characterized as distinction between substance and procedure: compliance with the land registration statute protects the landowner by precluding rival claimants from attacking the record owner's title, whereas the statute on land alienation leaves rival claimants procedurally free to object to the record owner's title but provides that anyone[13ASR2d77] who complies with its provision; becomes the lawful owner of the land. A.S.C.A. §§ 37.0101 et seq., 37.0201 et seq.

It would be to the advantage of a party who purchases land that has never been previous1y registered to apply for registration in accordance with both the "titles" chapter and the "alienation" chapter. A.S.C.A. § 37.0101 et seq., 37.0201 et seq.

Registrar's certificate of title is presumed to be valid and a party asserting its procedural irregularity has the burden of presenting compelling proof. A.S.C.A. §§ 37.0101 et seq,

Territorial statute on alienation pf land does not prohibit tho: alienation of con1muqallands, but does prohibit such alienation without the written approval of the Governor or to any person who has less than one-half native blood.

Custom that major family decisions should be made in consultation with the whole family is not among those incorporated into statutory restrictions on the otherwise plenary powers of a sa'o over family lands.

Sa'o could not avoid his contract for the sale of land on the ground of his own violation of custom, and other family members' remedies were against the sa'o, not the purchaser.

Objection to court's finding that the signature on a deed was not a forgery, where the objecting party had judicia1ly admitted that he signed the deed, had had every opportunity to examine the document before trial, and had even appended it to his complaint as Exhibit. A, but had testified for the first time at trial that he had not signed the document after all, was without merit.

Issue not raised in the pleadings or at trial could not be raised for the first time by motion for new trial.

Land registration statute does not required that posting of noticed be evidenced by an affidavit or by any other particular form of notice. A.S.C.A. §§ 37 .0101 et seq.

Territorial statute providing for the registration of instruments, as opposed to the registration of title, itself does not specify posting or any other particular form of notice prior to registration. A.S.C.A. § 37.0210.

Where certificate of required posting of notice said that notice was posted at "the Administration Building" rather than at "the Court House" as required by statute, the court would take judicial notice that the certificate tracked the language of a former statute and that the registrar had for some years posted notice not at the Administration Building but at the Court House, which was itself the former Administration Building. A.S.C.A. § 37.0103.

Before REES, Associate Justice. OLO, Associate Judge. and VAIVAO. Associate Judge.[13ASR2d78]

Counsel: For Plaintiffs, Togiola T.A. Tulafono
For Defendant, Charles V. Ala'ilima

On Motion for New Trial:

We held that a warranty deed signed by plaintiff Vaimaona Foloi conveying land to defendant Fa'amamafa Tuitasi was valid and that the land in question now belongs to the defendant. 12 A.S.R.2d 68 (1989). Plaintiffs allege fourteen grounds of error in Our decision.

One of these grounds may have merit. Our finding that "on August 6, 1987, defendant Tuitasi had offered the deed for registration as her individually owned land," while technically an accurate statement of the record, may have been misleading.

It appears that defendant (and/or plaintiff Vaimaona) filed a copy of the warranty deed with the Territorial Registrar on August 6. See Plaintiffs' Exhibit 2. The record reflects that the Registrar treated this filing as a request (1) for approval of the sale by the Land Commission and (2) for registration of the land as individually-owned land of defendant Tuitasi. See id. A notice was posted the same day at the Court House and at two places in Lauli'i, stating that any objections could be filed with the Secretary of the Land Commission on or before September 8, 1987. No objections were filed. The sale was approved by the Land Commission on September 28 and by the Governor on October 2.

On October 20 the Territorial Registrar issued a "Certificate of Registration." It certified that "Warranty Deed, Portion of Land 'Mulipa' in the village of Lauli'i" had been offered for registration by Mrs. Tuitasi ''as her individually-owned land" and had been "duly registered."

The Registrar's certificate implies that the registration in question was both a registration of the deed as an "instrument. .. effectual to pass title" under A.S.C.A. § 37.0210 and a registration of the land described therein as the individually-owned land of defendant Tuitasi in accordance with A.S.C.A. §§ 37.0101 et seq. Although the statutes in question do not prohibit the registration "of the deed" and "of the land" from being initiated by a single application, the two processes are technically distinct.[13ASR2d79] Chapter 1 of Title 37 of the American Samoa Code Annotated (A.S.C.A. §§ 37.0101 et seq.) deals with "Titles to Land." This chapter provides, inter alia, that the owner of any land not previously registered may register his title with the Territorial Registrar. A.S.C.A. § 37.0101(a). The application for registration of title is done in accordance with the procedures set forth in A.S.C.A. §§ 37.0102-03, whose purpose is to give notice to anyone who might wish to file an objection to the application. Provided that no such objections are tiled, the Registrar records a title which is good against the world. A.S.C.A. § 37.0103(c); See Ifopo v. Siatu'u, 12 A.S.R.2d 24 (1989). A procedurally valid registration in accordance with A.S.C,A. § 37.0101 et seq. precludes subsequent judicial inquiry into the validity of the record owner's title; the statutory scheme gives "anyone who wishes to object on any ground whatever to the registrant's claim of ownership" a sixty-day period within which to do so, and provides that in the absence of such objection, "the land is registered in the name of the claimant and all other claims of ownership are forever precluded." Ifopo, supra, at 26.

The immediately succeeding chapter, A.S.C.A. § 37.0201 et seq., deals with "Alienation of Land." It provides a number of substantive restrictions on alienation and also sets forth procedures tor the lawful alienation of land. The latter, including a requirement that any proposed alienation of communal land be submitted to a Land Commission and to the Governor for approval or rejection, are designed to ensure that land will not be alienated lightly even in the absence of a specific substantive restriction. The final step in the procedure for alienation of land is set forth in A.S.C.A. § 37.0210, providing that "[n]o instrument shall be effectual to pass the title to any land. ..until such instrument has been duly registered with the territorial registrar." When a buyer and seller comply with the provisions of A.S.C.A. §§ 37.0201 et seq., including the recordation provision of A.S.C.A. § 37.0210, the buyer becomes the owner of whatever interest the seller had in the land.

The distinction between registration "of the land" and "of the deed " is best characterized as a distinction between substance and procedure. The protection afforded a landowner by compliance with A.S.C.A. §§ 37.0101 et seq. is essentially a form of estoppel: having been duly notified to come forward within sixty days, rival claimants are thereafter precluded from attacking the validity of the record owner's title. The protection afforded by compliance with A.S.C.A. §§ 37.0201 et seq. is substantive: although rival claimants remain procedurally free to object to the record owner's title, anyone who acquires land in [13ASR2d80] conformity with the substantive and procedural provisions of this chapter (and who acquires the land from someone who really was the owner) thereby becomes the lawful owner of the land. Thus a party who claims to own land, even though he may not have registered the land in accordance with the procedurally requirements of A.S.C.A. §§ 37.0101 et seq. and therefore cannot take advantage of the preclusive effect of that chapter, will nevertheless prevail on the merits provided that he bought the land from its lawful owner in compliance with A.S.C.A. § 37.0210 and the other statutes governing the validity of land transfers.

It would be to the advantage of a party who purchases land that has never previously been registered to apply for registration in accordance with both the "Titles" chapter and the" Alienation" chapter . The Certificate of Title issued by the Registrar suggests that defendant's application was so construed. It does not appear from the evidence before us, however, whether the process of registration met all the statutory requisites for registration of land under A.S.C.A. §§ 37.0101 et seq. Specifically, although it does appear that a notice was posted telling interested persons that they had a right to object to the warranty deed, the last date specified for such objections was September 8. This was twenty-eight days sooner than the end of the sixty-day period specified by A.S.C.A. § 37.0103 for objections to land registrations.

It may be that the Registrar was relying on the sixty-day notice that had been posted pursuant to Vaimaona's offer of registration in 1978 ---which, together with the subsequent warranty deed from Vaimaona to Tuitasi, would arguably bar any objections to Tuitasi's title .. or it may be that a separate notice was posted pursuant to A.S.C.A. §37.0103 but not introduced into evidence in the present case. Although a number of documents pertaining to registration of the land were introduced by both parties, neither party called the Registrar to testify about whether the documents in evidence constituted his office's entire file on the land, as is the usual practice in land registration cases. The record does reflect that the Registrar waited until October 20, which was more than sixty days after the application and posting of notices, before registering defendant's title.

Contrary to another of plaintiffs' assertions of error. the Registrar's certificate of title is presumed to be valid and a party asserting its procedural irregularity has the burden of presenting "compelling proof." Ifopo v. Siatu'u, supra, at 28 (1989). "[T]hat a document should be missing from a file in the Registrar's Office" ... much less from what may have been only the partial contents of such a [13ASR2d81] file -- "is so common as to be an extremely unreliable indicator of whether an event that might have been attested by the document did or did not occur. " Id. at 28. Nevertheless, if our holding that defendant Tuitasi is the owner of the land rested squarely on the preclusive effect of plaintiffs' failure to file objections within the sixty days prescribed by A.S.C.A. § 37.0103, we would be inclined to grant a new trial for the limited purpose of calling the Territorial Registrar to testify about the process by which Mrs. Tuitasi's title was registered.

Such an exercise would be pointless, however, for plaintiffs cannot prevail on the merits even if A.S.C.A. § 37.0103 does not preclude them from attacking defendant's title. This is because the record clearly shows that the land was validly purchased in accordance with all the provisions of A.S,C.A. §§ 37.0201 et seq. Defendant acquired the land from Vaimaona, who as sa'o of the family was the person vested by law with power to dispose of it within the statutory restrictions and procedures for alienation of communal land.

Plaintiffs' assertion that A.S.C.A. § 37.0204 "specifically prohibits the alienation of communal lands" is simply wrong. On the contrary, the section prohibits such alienation only "without the written approval of the Governor" and "to any person who has less than one-half native blood. "This section is living proof that the Fono knows how to restrict the power of a sa'o when it wants to. The custom that major decisions should be made in consultation with the whole family (a custom unfortunately honored perhaps as often in the breach as in the observance) is not among those the Fono has seen fit to incorporate into the statutory restrictions on the otherwise plenary powers of a sa'o over family lands. Vaimaona is therefore unable to avoid his contract on the ground of his own violation of this custom, and the other plaintiffs' remedies are against Vaimaona and not the purchaser. When she "received her deed from the grantor and registered it. ...title to the property described in her instrument passed to her and the grantor lost all of his interest therein." Moon v. Falemalmna, 4 A.S.R. 836, 839 (1975). (1)

Plaintiffs' other objections are without merit. Our finding that Vaimaona signed the deed is supported not only by the weight of the evidence, but also by plaintiffs' own judicial admission: paragraphs 5 and [13ASR2d82] 6 of the complaint state that he executed the document in question but that he did not understand what it was. Plaintiff Vairnaona had every opportunity prior to trial to examine the deed for possible forgeries; he even appended it to his complaint as Exhibit A. His discovery that he did not sign the document after all seems to have been a last-minute inspiration.

Similarly, Vaimaona's testimony that he always thought he was just giving permission to renovate a house and not conveying land was contradicted not only by the defendant but also by the two Land Commission members who testified at trial. Although their recollections differed in some respects, both members specifically recalled explaining to Vaimaona the legal effects of his proposed action.

Plaintiffs also urge for the first time that notice of the deed and/or land registration should have been posted in Aumi, not Lauli'i. Aumi is usually regarded as a subdivision of the village of Lauli'i. In any case, plaintiffs did not raise this issue in their pleadings or at trial; indeed, paragraph 4 of their complaint alleges that the disputed land is located "in Aumi, Laulii, American Samoa."

Plaintiffs further suggest that the registration was invalid because the file contains no notarized affidavit of posting. This objection is moot insofar as our holding does not rest on the preclusive effect of A.S.C.A. §§ 37.0103. In any case, this section does not require that posting pe evidenced by an affidavit or any other particular term of evidence; see Ifopo, supra. (A.S.C.A. § 37.0210, the statute providing for registration of instruments as opposed to title itself, not only requires no affidavit but does not specify posting or any other particular form of notice prior to registration. In this case, however, the record shows that at least 52 days' notice was given of the Land Commission hearing on the deed transferring title. Indeed, it is hard to see how plaintiffs can complain that they received no notice when plaintiff Vaimaona himself was there and testified.)

Finally, plaintiffs note that the certificate of posting says that notice was posted at "the Administration Building" rather than "the Court House." Again, this matters only insofar as our holding rests on the preclusive effect of A.S.C.A. § 37.0103; it has no bearing on whether defendant validly purchased the land. We take judicial notice, however , that the language in question tracks the language of A.S.C.A. § 37.0103 prior to its amendment in 1979, and that for some years now the Registrar has posted notices not at the Administration Building but at the [13ASR2d83] Court House (which is itself the former Administration Building). Although the Registrar's office should certainly have gotten around to changing its form by now, we decline to accept this as a basis for the invalidation of every land title registered since 1979.

Accordingly, the motions are denied.

It is so ordered.

*********

1. The quoted passage cites former 27 A.S.C. § 601(a), the section providing for registration of instruments which was renumbered as A.S.C.A. § 47.0210 when the present Code was adopted.

Vaeao; Tufono v.


TUFONO IONAT ANA, Plaintiff

v.

VAEAO SOLIPO, MOAMOA VAEAO, TIPI LAUTOA, SASA
MALEPEAI, and LELA SAVALl, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 27-88

November 21, 1989

__________

Parties who did not object to offer for registration of land in accordance with statutory procedure were bound by the result in the ensuing registration proceedings, although they were not parties to the proceeding, because registration proceedings have in rem effect. A.S.C.A. §§ 37.0101 et seq.

Party seeking injunction as matter of summary judgment must show that no material question of fact remains. T.C.R.C.P. 56.

Summary judgment would be awarded plaintiff on issue of land ownership previously established in a proceeding having in rem effect; but would be denied with respect to injunction against interference or encroachment on land where the pleadings and papers did not clearly show such interference or encroachment and where survey of disputed land in prior proceeding showed existing structures that might raise equitable issues.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, Utu Sinagege R.M.
For Defendants, Gata E. Gurr

On Motion for Summary Judgment:

Plaintiff Tufono Ionatana seeks a permanent injunction against the defendants to enjoin them from interfering with his family's use of the land "Milomilo" and to enjoin defendants' encroachment on said land. [13ASR2d48]

Defendants are various individuals alleged as living "immediately adjacent to Plaintiffs land MILOMILO, a couple of their dwelling[s] actually [having] overlapped onto plaintiffs land." Complaint paragraph 4. Plaintiff also complaint that defendants have at different times interfered with his family's use and enjoyment of "Milomilo," which numerous court decisions have affirmed as being owned by the Tufono family. Plaintiff seeks a permanent injunction.

In order to delimit the issues in this matter, the Court required the parties to either provide pre-trial briefs on past court decisions or , alternatively, to seek summary judgment where appropriate.

Plaintiff has responded by way of a lengthy motion for summary judgment addressing only the question of ownership. After reviewing the cases referred us by the parties, we find ourselves in agreement with plaintiffs claim that his family was awarded title to a certain 2.59 acre tract of land known a "Milomilo" located in the village of Fagatogo. See Tufono v. Ta'amu, LT No. 06-1984 (1984).

In so concluding, we necessarily reject defendants' argument to the effect that the decision in LT No. 06-1984 is not binding on them since they --- as members of the Fa'agata family -- were not privy to those proceedings. The defendants are bound by the decision in Tufono v. Ta'amu. This particular matter was referred to the Land and Titles Division as a contested registration application pursuant to A.S.C.A. § 37.0104. Tufono there attempted to register title to the subject land pursuant to the provisions of A.S.C.A. §§ 37.0101 et seq. The only objector to the offer for registration was the Ta'amu family. The Fa'agata family, by failing to object to Tufono's offer of registration, cannot now complain. Puluti v. Muliufi, 4 A.S.R. 672, 674 (1965). Registration proceedings pursuant to A.S.C.A. § 37.0101 et seq. have in rem effect. Molitui v. Pisa, 2 A.S.R. 268, 270 (1947).

The Fa'agatas, and indeed the rest of the world, are therefore bound by the decision in Tufono v. Ta'amu, LT No. 06-1984 (1984). Partial summary judgment against the defendants may accordingly enter on the issue of established ownership.

To obtain an injunction as a matter of summary judgment, the plaintiffs would of course have to show that no material question of fact exists. T.C.R.C.P. Rule 56. Tufono's motion fails on at least two critical points. First, he alleges that the defendants have committed several acts of actual or near violence. This is the reason his family [13ASR2d49] seeks an injunction. The defendants deny this in paragraph 4 of their Answer. This alone raises a material question of fact. Secondly, plaintiffs pleadings do not specify the exact location of defendants' interference or overlap beyond stating that it is within "Milomilo". No reference to any survey or map is made, To prevail, plaintiff must establish that such interference or overlap is within "Milomilo" as that tract of land is known in LT No.06-84.

Additionally, we note from the exhibits in Tufono v. Ta 'amu, LT No.06-84, particularly plaintiffs exhibit No.1, that Tufono's survey of "Milomilo" upon which judgment was based actually traversed through what look like existing structures. If indeed there are instances of asserted overlapping, then any permanent injunctions would necessarily give rise to equitable considerations "to avoid economic waste or unjust enrichment." Atofau v.Lopa, 2 A.S.R.2d 45, 47 (1985).

Summary judgment is denied. Partial summary judgment is granted.

It is so Ordered.

 

*********

In re a Minor Child (Juv. No. 52-89),


In re A MINOR CHILD

High Court of American Samoa
Trial Division

JUV No. 52-89

November 3, 1989

__________

Petition by natural parents to relinquish their parental rights was denied where petitioners failed to show they were unable to provide for the child, or that relinquishment was in child's best interests considering the age difference between the child and grandparents wishing to adopt her.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.
Counsel: For Petitioners, Robert A, Porter

The natural parents are a relatively young couple who petition the Court to relinquish their parent rights to their ten month old baby girl in order that she may be made available for adoption by the child's paternal grandparents. The reasons for the petition are that the child has been in the grandparents' primary care and that the natural parents are not financially able to provide for the child. In point of fact, all the parties concerned comprise the one household, as the natural parents are also dependent on the grandparents.

We harbor no doubts about the grandparents' doting devotion to their grandchild; however, they are 62 and 55 years of age respectively. While the parents are presently as dependent as the child on the grandparents, it does not follow that the parents are therefore less suited than the grandparents to provide for the child's "future" needs. The parents' present dependency status has more to do with the fact that[13ASR2d34] grandparents are conveniently accommodating rather than indicative of any inherent lack of ability on their part to provide as parents. (1)

The age difference between the grandparents and the minor is a significant factor in these proceedings. In re a Minor Child, 4 A.S.R.2d 181 (1987). This child is one year old and it is within her best interests to have able parents to whom the law can look for her continuing support until she reaches majority. In re a Minor Child, 6 A.S.R.2d 123 (1987). Since relinquishment decrees have precisely the effect of terminating a parent's legal obligation of support towards the child, the Court is compelled to look very carefully at the child's best interest and welfare. In re a Minor Child, 7 A.S.R.2d 115 (1988).

We hold that petitioners have failed to show that it would be in the child's best interests and welfare to grant the petition. Petition denied.

It is so Ordered.

*********

1. The various statements offered about the parents having nothing further to do with the child all seemed rather staged when considered against the fact that the natural mother is nursing her child.

Immigration Bd.; Rakhshan v.


DAVOUD RAKHSHAN, Appellant

v.

IMMIGRATION BOARD, AMERICAN

SAMOA GOVERNMENT, Appellee

High Court of American Samoa
Appellate Division

AP No. 18-89

October 26, 1989

__________

Interlocutory stay of a deportation order should be granted only when there is a substantial likelihood that the petitioner will prevail on the merits and the petitioner will be greatly or irreparably injured if the stay is not granted. A.S.C.A. § 41.0211.

Because deportation tends severely to disrupt the life of the one deported, whether a stay is granted pending appeal of deportation order usually depends on whether the petitioner appears to have a good chance of prevailing. A.S.C.A. § 41.0211.

Alien whose sponsor had moved out of the territory was left without a sponsor and would appear to have had the right to remain in the territory for only ten days. A.S.C.A. § 41.0408(i).

Starting point for judicial inquiry in reviewing immigration board order is the record itself; where board did not supply a complete record of its proceedings, the missing facts would be found favorably to the appellant. A.S.C.A. § 41.0210.

When a person loses the status which entitled him to enter or remain in the territory , he has no further right to remain indefinitely. A.S.C.A. § 41.0407.

Where it was not clear from immigration board decision that in the absence of allegedly false statements the appellant would have been deported solely because he was no longer employed, and where the court had found no false statements in the record, a stay of[13ASR2d26] deportation would be granted and the matter remanded fora new hearing. A.S.C.A. §§ 41.0210-11.

Before KRUSE, Chief Justice, REES, Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Appellant, Charles V. Ala'ilima
For Appellee, Tauivi Tuinei, Assistant Attorney General On Petition for Stay:

Appellant moves to stay the order of the Immigration Board that he leave the Territory for his country of origin.

An interlocutory stay of a deportation order should be granted "only when there is a substantial likelihood that the petitioner will prevail on the merits and the petitioner will be greatly or irreparably injured if the stay is not granted." Loti v. Immigration Board, 8 A.S.R.2d 107, 109 (1988). Because deportation tends severely to disrupt the life of the one deported, whether a stay is granted pending trial usually depends on whether the petitioner appears to have a good chance of prevailing at trial.

The present proceeding began as a request by petitioner Rakhshan himself that the Board allow a change in his sponsorship. The Board denied the request. Since Rakhshan's former sponsor had moved out of the Territory, he was left without a sponsor and would appear to have had the right to remain in American Samoa for only ten days. See A.S.C.A. § 41.0408(i). Mr. Rakhshan contends, however, that the Board routinely allows change of sponsorship and that the denial in this case was therefore an abuse of discretion.

The Board gave three reasons for denying the change of sponsorship:
(1) Petitioner has "changed sponsors several times without any clear reasons."
(2) "Mr. Rakhshan's main purpose here is to look for employment," his previous employment having been terminated.
(3) After being asked "whether he was involved with the law in the Philippines, "he answered that he had not." When alien Rakhshan was confronted with [a] document," however, to the effect that "one[13ASR2d27] Davoud Rakhshan was arrested in Manila, Philippines and that a warrant for his arrest is outstanding. ...his counsel announced that Mr. Rakhshan will not say anything that might tend to incriminate him."

The Immigration Board's decision implies, although it does not clearly state, that the third ground for its decision was the most important. Petitioner contends, however, that he was never arrested in Manila, never knew of any warrant for his arrest, and did not lie to the Board. He admits that he was technically "involved with the law," but only as the complaining witness in an assault case; his counsel speculates that the defendant in that case may have filed a countercharge which resulted in a warrant that was never served on Mr. Rakhshan.

Petitioner's counsel further represented to the Court that this explanation of the Manila incident had been tendered to the Board at its hearing on his motion for reconsideration; and therefore that the Board's conclusions that Rakhshan was a fugitive from the Philippines and had lied to the Board about this were inconsistent with the record.

Judicial review of Immigration Board orders "is confined to the record; however, the court in its sound discretion may receive evidence to supplement the record." A.S.C.A. §§ 41.0210. Whatever else this may mean, it would seem to direct that the starting point for our inquiry be the record itself. After the hearing on the present motion we granted a temporary stay pending production of the record. Without determining exactly what it was Mr. Rakhshan told the Board about "involvement with the law" in the Philippines, and how he explained himself later at the hearing on his motion to reconsider, we cannot begin to evaluate his claim that the Board's conclusion is inconsistent with the record.

Unfortunately, however, the record with respect to these questions turns out not to exist. Counsel for the Board has submitted a transcript of the original hearing interspersed at frequent intervals with ellipses ("....") and with the notation "(NOT CLEAR)." It includes the following exchange:

TUINEI: Did you have any confrontation with the law in the Philippines?
RAKHSHAN: (NOT CLEAR)

Counsel for the Board further informs us that no record at all exists of the hearing on Rakhshan's motion tor reconsideration. [13ASR2d28]

Since it was the responsibility of the Board to produce a record, the absence of any such record compels us to find the missing facts favorably to Mr. Rakhshan. We therefore conclude that he did not tell the Board that he had never been "involved with the law." Nor does the record reflect that he lied when he said he had never been arrested. Insofar as the Immigration Board's order was based on false statements made by Mr. Rakhshan, therefore, we must conclude for the purposes of this motion that it was not supported by the record.

The allegedly false statements were, however, only one of three grounds cited by the Board for denying the change of sponsorship. At least as important was the Board's finding that Mr. Rakhshan was no longer employed. On this ground the record is more complete: it reflects that Mr. Rakhshan originally came to American Samoa as a tourist. On May 23, 1988, his status was changed to that of an alien admitted for the purpose of professional employment in accordance with A.S.C.A. § 41.0303(a)(4)(b). The Immigration Board's approval of this change in status was granted "only as follows: One year contract until May 11, 1989."

The immigration statute provides that when a person loses the status which entitled him to enter or remain in American Samoa, he shall "be deemed to be a person seeking to enter American Samoa from the date when he ceases to hold such status." A.S.C.A. § 41.0407. That is, he has no further right to remain indefinitely in the Territory .If the Board's decision to deport the present petitioner had been based solely on his loss of employment, therefore, we would be inclined to deny his petition for a stay of enforcement.

It is by no means clear from the Board's decision, however, that in the absence of the alleged false statements Mr. Rakhshan would have been deported solely because he was no longer employed. In its written opinion the Board treats the two issues as though they were one. Concluding a paragraph about Mr. Rakhshan's current employment status, for instance, and before going on to discuss his search for new employment, the Board observes that his "false statement before the board and his effort to hide the truth is in clear violation of immigration rules. " The Board seems to be saying that an unemployed alien is bad enough but that a lying unemployed alien is a good deal worse. There is much to be said for this proposition, but it leaves us unable to conclude that the Board would wish to deport Mr. Rakhshan if it did not believe him to be a liar. [13ASR2d29]

The two issues are even more closely intertwined in the record, such as it is, of the Immigration Board hearing. This record reflects that the Deputy Director of Education ,--- who was apparently present to testify on behalf of Mr. Rakhshan ---had second thoughts after learning about the Philippine arrest warrant. He thereupon spontaneously rescinded a request that Mr. Rakhshan be allowed to remain in the Territory for re-employment as a teacher.

Because there is no record with respect to any statements made by petitioner about the Philippine incident; and because the Immigration Board relied heavily on that incident and those statements to the virtual exclusion of other grounds for deportation, a stay will be granted pending further proceedings.

For the same reasons, it would seem impossible on the present record for the Court to conduct a "review of the board's interpretation of the evidence, its factual inferences, and its conclusions of law" as required by A.S.C.A. § 41.0210. Accordingly, we remand the case to the Immigration Board for a new hearing. The Board is free to take evidence with regard to any or all of the grounds on which it based its previous decision or to such other grounds as it may choose. Care should be taken to produce a complete transcript and to state clearly the grounds for any action taken.

It is so ordered.

*********

Grisard; Hunkin v.


FA'ANENEFU HUNKIN, Plaintiff

v.

MARCEL GRISARD, Trustee for the Estate of
CAROL GRISARD, Defendant

High Court of American Samoa
Trial Division

CA No. 97-88

November 7, 1989

__________

Leasehold interest in communal land did not "merge" into an assignment of communal land, whose terms would have been different and virtually antithetical to those clearly set forth in the lease agreement itself.

Failure of family members to demand immediate payment of rent when lessee fell behind did not constitute a waiver of the family's entitlement to eventual payment, especially in light of the vacancy in the family matai title, but did justify the lessee in treating time of payment as not of the essence. [13ASR2d39]

Motion for dismissal of action for lack of subject matter jurisdiction of the High Court of American Samoa, which went riot to the jurisdiction of the court itself but to the bringing of the action in the trial division rather than the land and 1itles division, was without merit, as the appropriate remedy was not dismissal but transfer to the proper division; because the same judges sit in both divisions, the most important practical consequence of such a transfer would be a change in case number.

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

Counsel: For Plaintiff. Charles v. Ala'ilima
For Defendant. Roy J.D. Hall. Jr.

On Motion for Summary Judgment:

Plaintiff Fa'anenefu Hunkin brought this action in her capacity as a member of the Afoa family. The action seeks eviction of the defendant Estate from a certain parcel of land held under a lease from the Afoa family, as well as a judgment for rental payments alleged to be overdue.

The defendant Trustee answered that the Court had not obtained personal jurisdiction over him; that the Court also lacked subject matter jurisdiction; that plaintiff Hunkin, who purported to act on behalf of the family but is not the sa'o of the family, lacked standing to bring the action; and that plaintiffs' claims were barred by waiver, laches, and equitable estoppel. The Trustee also asserted a defense to the claim on its merits, urging that "the leasehold estate merged into a communal assignment of land to the late Ruby Grisard and her heirs."

Plaintiff then moved for summary judgment and the motion came for a hearing on January 18, 1989. Without ruling on the motion, the Court ordered a stay of further proceedings for ninety days so that the Afoa family could complete the process of selecting a sa'o.

On August 22, 1989, pursuant to a stipulation between the parties, the Clerk set the case for trial. Apparently no one noticed that plaintiff's motion for summary judgment was still pending. Just before the scheduled trial date the Court noticed the pending motion and notified counsel that the trial would be postponed to allow consideration of the motion for summary judgment. [13ASR2d40]

We have determined that the motion for summary judgment should be granted in part and denied in part.

Taking the facts in the light most favorable to the defendant, we find that the late Ruby Grisard was recognized by the late Afoa Fouvale as his adopted daughter according to Samoan custom; that Carol Grisard is the natural daughter of Ruby Grisard; that the land in question was leased to Ruby Grisard by Afoa Fouvale in accordance with the terms of the Leasehold Agreement appended to the Complaint as Exhibit "B" ; that the leasehold interest belonging to Ruby Grisard was conveyed in trust to the defendant Estate of Carol Grisard; that between 1982 and 1988 no demand for rental payment was made by any member of the Afoa family; and that the Afoa title has recently been assumed by Leulumoega S. Lutu, who now joins in, plaintiffs demands.

From these facts it follows that the Estate holds the land under the leasehold agreement rather than in accordance with an assignment of communal land. The leasehold agreement clearly sets forth its own terms, which are different from ---indeed, virtually antithetical to ---the communal assignment alleged by defendant.

The failure of family members to demand immediate payment of the rent when defendant fell behind did not constitute a waiver of the family's entitlement to eventual payment, either by "merger" of the leasehold interest into a fundamentally different kind of land tenure or otherwise. This is especially true in light of the vacancy in the Afoa title. During the time of this vacancy (as the defendant points out in another context) it was not at all clear that any family member h~d the legal right to demand payment of current rentals, much less the right to alter the terms of the leasehold agreement by failing to make such a demand. Plaintiffs motion for summary judgment must therefore be granted insofar as it seeks a declaratory judgment that the defendant Trust is liable for unpaid rentals in accordance with the terms of the leasehold agreement.

The lack of a demand for immediate payment did, however, justify defendant in treating time of payment as not of the essence. Insofar as the demand for eviction is premised on the delay in payment, therefore, the motion for summary judgment must be denied.

Because we hold that the late Ruby Grisard held the land under a leasehold agreement rather than a communal assignment of land, we need not decide whether an assignment of communal land by a sa'o to his [13ASR2d41] adopted daughter has the same legal consequences as an assignment to a blood member of the family, or whether such an assignment can be conveyed by the adopted daughter to her heirs. The only issue remaining before the Court would appear to be the calculation of the exact amount of rentals due in accordance with the provision of the leasehold, agreement for an automatic "cost of living" adjustment every five years.

Finally, however, we note the defendant's objections to the jurisdiction of this Court.

It is clear on the face of the pleadings that the objection to subject matter jurisdiction is without merit. This Court is the court of general jurisdiction for American Samoa; the present action concerns land in American Samoa, a contract made in American Samoa, and a deed pf trust executed in American Samoa; and defendant alleges no facts from which we can discern any possible basis for an exception to our general subject matter jurisdiction. {If the objection is not to the jurisdiction of the High Court but to the bringing of the action in the Trial Division rather than the Land and Titles Division, then the appropriate remedy is to transfer the case to the proper division. Should this action proceed further, a transfer wilt be ordered on motion of either party; since the same judges sit in both divisions, the most important practical consequence of such a transfer will be a change in the case number.)

The objection to jurisdiction over the person is similarly unadorned with supporting facts or argument. Counsel for defendant, however, has confirmed the Court's preliminary impression that the objection must be based on the method of service on the Trustee. The Trustee does not reside in the Territory, and the summons and complaint were served on the attorney who, according to counsel for plaintiff, regularly conducts the business of the Trust within American Samoa. This is the same attorney who now represents the Trustee, having styled his answer to the complaint a "special appearance."

Since the merit of this objection depends entirely on facts not in the present record, and since it is not among the grounds urged by defendant in its opposition to the motion for summary judgment, we are not presently able to rule on it. A prudent regard for the efficient use of judicial resources, however, dictates that the Court proceed no further until any arguable defect in its jurisdiction has been cured. Accordingly, we will stay further proceedings for an additional ninety days. This will [13ASR2d42] allow plaintiff time to effect personal service on the Trustee by publication, which service is hereby authorized.

The parties are strongly urged to make further proceedings unnecessary by settling their remaining differences. Should this not happen, either party may move for trial upon the expiration of ninety days and upon proof that the Court has acquired jurisdiction over the person of the defendant. Any such trial will be limited to the issues remaining for resolution after the entry of partial summary judgment in accordance with the above opinion.

It is so ordered.

*********

Gaoa v. Tulifua,


GAOA SALOFI, Petitioner

v.

T ALALUMA TULIFUA, ALE FILIOALI'I, and

MATAMULI PUNIMATA, Petitioners

TULIFUA SIVA, Intervenor

High Court of American Samoa
Land and Titles Division

LT No. 41-89

November 1, 1989

__________

Preliminary injunction may issue only if petitioner shows "sufficient grounds" after a hearing inter partes duly noticed. A.S.C.A. § 43.1301(g).

To have sufficient grounds for issuing a preliminary injunction. a court must find that petitioner has a substantial likelihood of prevailing on the merits at trial and without such injunction will suffer great or irreparable injury before a full trial. A.S.C.A. § 43.1301(i).

Preliminary injunction against construction on certain land was denied where petitioner's case consisted of a claim to the land based on an uncertain family history, while respondent claimed ownership based upon a differing family history plus a showing of established use and settled occupation; and where petitioner did not show that the construction Would irreparably alter the land or cause any other great or irreparable injury .

Indignity and sense of hurt felt by petitioners with respect to respondents' construction on disputed land was not "irreparable injury" within meaning of the preliminary injunction statute. A.S.C.A. § 43.1301(j).

Before KRUSE, Chief Justice, TAUANU'U , Chief Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Petitioner, Fai'ivae A. Galea'i and Levaula Kamu
For Respondents and Intervenor, Tau'ese P.F. Sunia

On Request for Preliminary Injunction:

Petitioner, for himself and the Gaoa family. seeks a preliminary injunction to enjoin respondents for their continuing construction of a [13ASR2d31]guest house on a certain land area in the village of Tau known as "Malaetele." Petitioner claims ownership to this land and he complains that the respondents are building on "Malaetele" without his consent.

Respondents are members of the Tulifua family who are allegedly involved with the mentioned construction. Their senior matai, Tulifua Siva, was off-island for medical reasons at the time of the filing of the petition. However, Tulifua has since ret\1med to the territory and has moved to intervene as the senior matai of respondents' family. The motion was granted.

The work complained of is in fact the rebuilding of the Tulifua family's guest house which was damaged during hurricane "Tusi." The rebuilding has utilized much of the old structure.

A preliminary injunction may only issue upon applicant's showing of "sufficient grounds" after a hearing inter-partes duly noticed. A.S.C.A. § 43.l30l(g). Also, A.S.C.A. § 43.1401(j) provides that sufficient grounds for the issuance of a preliminary injunction means:

(1) there is a substantial likelihood that the applicant will
prevail at trial on the merits and that a permanent injunction
will be issued against the opposing party; and

(2) great or irreparable injury will result to the applicant
before a full and final trial can be fairly held on whether
a permanent injunction should issue.

The petitioner has not sustained the required statutory showing on the evidence presented. The merits of petitioner's case essentially consist of a claim to ownership based on an uncertain family history. Against this, respondents' claim to ownership does not merely rest on contradictory family history, but it is also coupled with a showing of established use and settled occupation.

Additionally, there has been no showing of "irreparable harm" by petitioner. At one point in his testimony, petitioner talked of irreparable harm in terms of physical alteration to the land through excavation and the placement of things thereon. He could not, however, be specific with the extent of the harm claimed. The extent of the evidence presented does not suggest that the physical injury claimed is such that it may not be adequately redressed at law. [13ASR2d32]

Petitioner also alluded somewhat unclearly to the indignity and profound sense of hurt felt by his family by reason of respondents' unauthorized reconstruction on Gaoa family land and their continuing disregard for petitioner's objection to that reconstruction. This is not "irreparable harm" within the meaning of the statute, Moreover, petitioner's sense of hurt is derived from the presupposition that his family owns the land in question. But that is exactly the very issue to be decided by the Court after trial on the merits.

For reasons given, the application for preliminary injunction is denied

*********

American Samoa Gov’t; Hawaiian Airlines v.


HAWAIIAN AIRLINES, Appellant

v.

AMERICAN SAMOA GOVERNMENT ex rel. AFAESE UIKIRIFI, Appellee

HAWAIIAN AIRLINES, Appellant

v.

AMERICAN SAMOA GOVERNMENT ex rel. GEORGE NERU, Appellee

High Court of American Samoa Appellate Division

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

October 10, 1989

__________

Airline's role in its Contract of Carriage exonerating the airline from all liability for irreplaceable articles, valuable items, religious or ceremonial fiats and artifacts, samples, and goods for resale included in passenger's baggage was contrary to public policy and void, at least as applied to personal property that was neither fragile, perishable, inherently dangerous, nor uniquely valuable. [13ASR2d6]

An airline may not limit its liability for provable direct or consequential damage resuming from the disappearance of, damage to, or delay in delivery of a passenger's personal property, including baggage, in its custody to an amount less than $1250 for each passenger. 14 C.F.R. § 254.4.

Federal regulation prohibiting limitation of airline liability to an amount less than $1250 per passenger for "personal property, including baggage" is not limited only to baggage. 14 C.F.R. § 254.4.

Auto parts, clothing, and modestly priced mats are not the type of goods --such as live animals, jewelry, fragile, perishable, or inherently dangerous items, or items with unique value ---which an airline may reject from carriage altogether, or for which it may require increased payment or a release or other condition before agreeing to carry the goods.

Language in airline ticket limiting airline's liability for lost baggage adequately notifies passenger of such limited liability where language is conspicuous and understandable, even though the language deviates from that provided in federal regulation. 14 C.F.R. § 254.5(b).

Language suggested in federal regulation to give notice of monetary limitations on airline's liability for passengers' baggage is not mandatory; alternative language that effectively notifies passengers is permitted. 14 C.F.R. § 254.5(b).

Before CANBY,* Acting Associate Justice, THOMPSON,** Acting Associate Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

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

Per Thompson, J.:

Facts

The Uikirifi Case

Appellee Uikirifi made two trips on Hawaiian Airlines from Honolulu to Pago Pago, one on August 7, 1987, and another on [13ASR2d7] September 17, 1989. On the August 7th trip the airline lost two of Uikirifi's bags containing clothing which he valued at $1,926.64. On the September 17th trip the airline lost nine pieces of luggage containing clothing and "fine mats" valued by Uikirifi at $5,055.24. In a trial de novo in the Trial Division, the trial court rendered judgment in favor of Uikirifi but limited his recovery to $1,250.00 for each of the two trips, a total of $2,500.00, plus $129.00 which Uikirifi had paid in excess baggage charges. [ASG ex rel Afaese Uikirifi v. Hawaiian Airlines, Inc., 10 A.S.R.2d 31 (1989).]

The Neru Case

Appellee Neru made one trip on Hawaiian Airlines on February 8, 1987. The airline lost two of Neru's bags. The lost bags contained auto parts which Neru valued at $2,286.70. In a trial de novo in the Trial Division, the trial court awarded Neru the full amount of his claim, $2,286.70. [Id.]

The Appeal

Hawaiian Airlines appeals. Uikirifi and Neru do not. Hawaiian argues that by its Contract of Carriage, incorporated by reference into the airline tickets which Uikirifi and Neru bought, Hawaiian is exempt from any liability for the lost baggage claims asserted against it. Hawaiian contends that its Contract of Carriage exclusion applies, because Uikirifi's clothing and fine mats and Neru's auto parts were the kind of baggage described in Hawaiian's Contract of Carriage Rule 26(B)(2), for which Hawaiian has no liability in the event of loss or damage. Alternatively, Hawaiian argues its liability for the lost baggage is limited to $1,250.00 per passenger per trip, and the trial court should have limited Neru's recovery to this amount.

Discussion

Hawaiian's Contract of Carriage Rule 26(B)(2) provides in pertinent part:

HA [Hawaiian Airlines] assumes no liability for irreplaceable
articles and/or valuable items; ... religious or ceremonial mats
and artifacts; ...samples and goods for resale; ...included in a
passenger's baggage with or without knowledge of HA.
[emphasis added] . [13ASR2d8]

This section differs from subsection (B)(1) immediately preceding it in the Contract of Carriage. Subsection (B)(1) begins with a modifying introductory clause: "When HA has exercised the ordinary standard of care it shall not be liable for. .." damage to perishable or fragile articles under certain circumstances. Thus, while subsection (B)(1) purports to absolve Hawaiian from liability only when it has not been negligent, subsection (B)(2) purports to absolve Hawaiian from all liability in any case in which a passenger's baggage is lost, if the baggage is of a type described in the subsection.

Hawaiian's Rule 26(B)(2), at least insofar as Hawaiian seeks to apply it to the kind of baggage Uikirifi and Neru shipped, is contrary to public policy and void; the rule attempts to exonerate Hawaiian Airlines from all liability due to its own negligence for the loss of or damage to baggage it carries on the airline. See Klicker v. Northwest Airlines, Inc., 563 F.2d 1310, 1313-14 (9th Cir. 1977). Hawaiian argues that it has no way, short of disruptive and time consuming searches of passengers' baggage, to know what its passengers are shipping, and therefore it should be liable only for the loss of or damage to the kind of baggage a passenger typically takes along for his own personal use and comfort.

Hawaiian suggests that there are, at minimum, two categories of baggage which come into play in the cases now before us: "passenger baggage" which it defines as that taken for personal use and comfort, and "unusual or valuable items of inventory"; it argues that while it might be appropriate to impute to it knowledge, and hence its acceptance for carriage, of personal property within its definition of "passenger baggage, " it should not be forced to assume liability, even in a limited amount, for its carriage of other classes of baggage. It argues that Uikirifi's and Neru's lost baggage fits into the category of "unusual or valuable items of inventory," and as a result Hawaiian is contractually exonerated from all liability for the loss of this baggage. We disagree.

First, Hawaiian's argument overlooks 14 C.F.R. § 254.4 (1984). This section provides in pertinent part that:

[A]n air carrier shall not limit its liability for provable direct
or consequential damage resuming from the disappearance
of, damage to, or delay in delivery of a passenger's personal
property, including baggage, in its custody to an amount less
than $1250 for each passenger. [13ASR2d9]

Id. (emphasis added). A reasonable reading of this section would be that Hawaiian may not limit its liability down to zero. The section expressly applies to "personal property, including baggage." It does not limit its application only to "baggage." Since the claims made by Uikirifi and Neru were for personal property which was contained in the bags which they shipped with Hawaiian, Hawaiian should not be able to limit its liability to less than the $1,250.00 prescribed by 14 C.F.R. § 254.4.

Second, and of equal if not greater significance, the lost baggage in the present cases does not involve fragile or perishable items, nor does it involve personal property such as live animals, jewelry , or inherently dangerous items or items having a unique value which an airline may be permitted to reject from carriage altogether, or for which it may require an increased payment, or for which it may demand a release or other condition before agreeing to carry the goods. We deal here only with auto parts, clothing, and "fine mats." Insofar as the "fine mats" are concerned, the shipment was for 270 mats which Uikirifi valued at a total of $2, 700.00, or the rather modest amount of $10.00 per mat. As to the clothing, there is nothing unusual about baggage containing clothing, and as to the auto parts, it certainly cannot be said they represented items of any unique nature or special value.

We conclude that Hawaiian Airlines may not absolve itself from all liability for the loss of the Uikirifi and Neru baggage. We turn now to a consideration of the question whether Hawaiian Airlines effectively limited its liability to $1,250.00 for Neru's lost baggage. (1)

In Neru's case, the trial court concluded that Hawaiian Airlines' notice of the limitation of its liability for lost baggage contained in the ticket Neru bought was ineffective because, although the notice was sufficiently "conspicuous, " the language of the notice was deficient. It also concluded that, while the language of the notice of Hawaiian Airlines' liability limitation which appeared in the jacket into which the ticket was placed was adequate, this notice in the jacket was not sufficiently "conspicuous" because the notice was hidden from view by an inside jacket flap. Because we conclude that the notice in the ticket was itself sufficient to impart notice of Hawaiian Airlines' limitation of [13ASR2d10] liability for lost baggage, we do not consider the sufficiency of the notice in the jacket, either as to language or conspicuousness. (2)

The notice of limitation of liability for lost or damaged baggage set forth in the ticket Neru bought from Hawaiian Airlines provided in pertinent part:

NOTICE OF BAGGAGE LIABILITY LIMITATIONS Liability
for loss, delay, or damage to baggage is limited as follows unless a
higher value is declared in advance and additional charges are paid:
...(2) For travel wholly between U.S. points, to $1,250 per passenger
on most carriers (a few have lower limits). Excess valuation may not
be declared on certain types of valuable articles. Carriers assume
no liability for fragile or perishable articles. Further information may
be obtained from the carrier .

In Diero v. American Airlines, Inc., 816 F.2d 1360, 1365 (9th Cir. 1987), this same language was determined to be "conspicuous and understandable, especially the notice in relatively large type under the heading 'NOTICE OF BAGGAGE LIABILITY LIMITATIONS.'" Id. In the present case, the trial court viewed this language as inadequate because it deviated from the language of 14 C.F.R.§ 254.5(1), and in so doing the language did not provide adequate notice of Hawaiian's particular limitation of liability. "

Section 254.5(b) sets forth language which, if used by an airline, will be sufficient to limit its liability for lost baggage. The language reads: "Federal rules require any limit on an airline's baggage liability to be at least $1250 per passenger." 14 C.F.R. § 254.5(b) (1984). But this is not the only language which will suffice. Section 254.5(a) permits an airline to use alternative language consisting of "Notice of any monetary limitation on its baggage liability to passengers. " 14 C.F.R. § 254.5(a) (1984).

Given the substantial similarity between the language on the Hawaiian Airlines ticket and the statutory language of 14 C.F.R. § 2 [13ASR2d11] 254.5(b), bearing in mind that alternative language is permissible (see 14 C.F .R. §§ 254.5(a) (1984)), and considering the decision in the Diero case by which language identical to the language contained in Neru's ticket was found to be "understandable and conspicuous," we conclude that the language of the notice of limitation of liability on the Hawaiian Airlines ticket which Neru bought was sufficient to impart notice of Hawaiian Airlines' limitation of liability. (3)

Conclusion

The judgment in favor of Uikirifi for $2,500.00 plus excess baggage charges of $129.00 is AFFIRMED. The judgment in favor of Neru for $2,286.70 is reduced to $1,250.00.

*********

* Honorable William C. Canby, Jr. Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable David R. Thompson, Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior .

1. Uikirifi does not appeal the trial court's limitation of his recovery to $1,250.00 per trip plus the excess baggage charges. Hawaiian Airlines' alternative argument by which it seeks to limit its liability to $1,250.00 applies only to Neru's case.

2. The trial court determined that the notice of limitation of liability in the ticket was sufficiently "conspicuous"; it found fault only with the wording of the notice. No party has raised the "conspicuousness" issue on appeal as it applies to the ticket, and we therefore do not consider it.

3. The trial court found that the ticket was sufficient to incorporate by reference Hawaiian Airlines. Contract of Carriage, which contains its rules for the shipment of baggage and other property and which limits its liability to $1,250.00 for lost or damaged baggage. No party challenges the district court's resolution of the "incorporated by reference" issue, and we do not consider it in this appeal.

American Samoa Gov’t; Tauiliili v.


POSINI TAUILIILI, JR., Plaintiff

v.

AMERICAN SAMOA GOVERNMENT and
EDDIE SAMUEL, Defendants

High Court of American Samoa
Trial Division

CA No. 75-88

November 29. 1989

__________

Court has jurisdiction over civil actions against the government for personal injury caused by the negligent or wrongful act or omission of a government employee acting within the scope of his office or employment. A.S.C.A. § 43.1209.

In a civil action for personal injury caused by the negligent or wrongful act or omission of a government employee acting within the scope of his office or employment, the government is liable in the same manner and to the same extent as a private individual under like circumstances, subject to a number of specific exceptions. A.S.C,A. § 43.17.03(a),

Government employee who, in the early hours of the morning and while intoxication, went to his place of work and picked up his employer's vehicle and then invited friends to go riding in the vehicle, was acting outside the scope of his employment; although he was to have used the vehicle later that day in his employment, his earlier personal use was [13ASR2d62]unauthorized and contrary to written policies and directives governing private use of government vehicles, and he was clearly on a frolic of his own.

Implied permission to use a vehicle is inferred from past occasions of acquiescence or absence of objection in circumstances signifying counsel on the part of the vehicle owner.

Evidence was contrary to a showing of acquiescence and passive consent by government to personal use of its vehicle by its employee, where written statement of policies forbade any after-hours or weekend use without specific prior approva1of manager; the Governor himself had sent out a memorandum with respect to such use; and the employee's manager had raised the Governor's concerns at staff meetings and circulated the Governor's memorandum to the staff.

Plaintiff could not introduce an alternative basis for government liability at closing argument, since the pleadings had not put defendant on notice to defend against such a claim.

Before KRUSE, Chief Justice, T AUANU'U, Chief Associate Judge, and MATA'UTIA, Associate Judge.

Counsel: For plaintiff, Charles v. Ala'ilima
For Defendant American Samoa Government, Richard D. Lerner, Assistant Attorney General

Plaintiff Posini Tauiliili was severely injured after an automobile in which he was riding ran off the road and crashed into some trees. The defendant Eddie Samuelu was the driver of the vehicle involved, which belonged to his employer, the American Samoa Government. Samuelu was clearly negligent in the manner in which he operated the vehicle.

Plaintiff seeks damages from the government on (a) the basis of the common law doctrine; of respondeat superior; and (b) the theory that the Compulsory Insurance statute, A.S.C.A. § 22.2001 et seq., provides a remedy against the government, as self insurer, for the torts of its permittees.

Facts

Samuelu, who had long departed the territory before process was served on him, worked as a cameraman for the government television station. One particular Friday, after work hours, the station's employees held a "Tofa" (farewell) party for a departing fellow worker. For Samuelu, the party escalated into a night out on the town, even though [13ASR2d63]he was scheduled to work early the next morning to cover a certain sporting event. In the early hours of the morning. Samuelu decided to go to the station and pick up the station's vehicle which he and a co-worker would be using to attend the coverage of the sporting event. Samuelu was then in no condition to be operating a vehicle; however, he found a friend to drive with him to Taputimu where they encountered plaintiff and others. Plaintiff and !1is friends were invited to go riding to the airport and after they got into the car Samuelu drove off at such a great rate of speed that he soon lost control of the vehicle and fan it off the road.

The evidence also revealed that Samuelu took the vehicle contrary to published station policies and duly promulgated government regulations regarding the private use of office vehicles. The station manager at the time testified that Samuelu's actions were not authorized and he was dismissed from employment as a result.

Discussion

A. Vicarious Liability

This Court has jurisdiction over civil actions against the government for personal injury "caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment." A.S.C.A. § 43.1209. Subject to a number of specific exceptions, the government is liable in the same manner and to the same extent as a private individual under like circumstances. A.S.C.A. § 43.1203(a).

We find that the defendant Samuelu was not, at the time of injury, acting within the scope of his office or employment. His taking of the vehicle was unauthorized and contrary to his employer's written directives. He was, at all relevant times, clearly on a frolic of his own. To read an employment purpose into his actions because of the fact that he was scheduled to work later that morning would be stretching the limits of credulity. We conclude against plaintiffs claim of vicarious liability.

B. Statutory Liability

Although this aspect of plaintiffs claim raises very interesting issues, those issues will have to be left for another day. Assuming that the Compulsory Insurance statute creates a new basis for liability on the [13ASR2d64] part of a vehicle owner, that liability would be dependent on whether the driver had the owner's "express or implied permission." See A.S.C.A. § 22.2003 (2).

There was no evidence of express permission given to Samuelu to take the vehicle after work hours. In terms of implied permission, such permission is inferred from past occasions of acquiescence or absence of objection in circumstances signifying consent on the part of the vehicle owner. Sataua v. Himphill, 5 A.S.R.2d 61 (1987). The evidence here was quite contrary to a showing of acquiescence and passive consent. A written statement of policies issued by the station manager and dated January 8, 1987, contained, among other things, a directive forbidding the use of station vehicles after hours or on weekend assignments without the manager's prior approval. Additionally, and some three months before the collision, the Governor himself sent out a memorandum, dated May 20, 1987, to all government departments regarding the use of government vehicles. He specifically pointed to applicable rules and regulations set forth in the American Samoa Administrative Code pertaining to .he" authorized " use of government property. The Governor's concerns were in turn raised by the station manager at staff meetings, and copies of his memorandum were circulated to the staff. We conclude that no permission was given.

Finally, plaintiff's counsel at closing arguments also invited the Court to consider "negligent entrustment" as an alternative basis of liability. The submission made is that the government was neg1igent in the manner in which its vehicle was secured. Counsel for the government, on the other hand, objects to the interjection of a new theory at the conclusion of the proceedings.

The government's objection is well taken and sustained. A negligent entrustment theory means an allegation of negligent conduct or omission on the part of an employee other than the driver Samuelu. This is an entirely new claim. The complaint (and the administrative claim) only alerted the government to defend a claim based on the allegation that Samuelu's conduct alone was the proximate cause of damage.

For the foregoing reasons, plaintiffs complaint against the American Samoa Government is dismissed.

It is so Ordered.

*********

Judicial Memorandum of Dec. 20, 1989;


JUDICIAL MEMORANDUM

High Court of American Samoa

December 20, 1989

__________

KRUSE, Chief Justice:

Judiciary Memorandum and Order:

The District Court is not ordinarily a court of record; however, in cases where a stenographic record of its proceedings has been made, final decisions of the District Court may be appealed directly to the [13ASR2d101] Appellate Division of the High Court. A.S.C.A. § 3.0309. In the case of proceedings taken without a record, appeal is by way of trial de novo before the Trial Division of the High Court. A.S.C.A. § 3.0309.

The Judicial Branch currently has under its full time employ three certified stenographic court reporters, no more then two of whom are required in the High Court at any on time. Since a reporter is, therefore, available at most times to keep a record of the District Court's proceedings, and because trials de novo are, in many instances, unnecessary duplication of effort, in the interests of efficient and economic use of personnel, and pursuant to authority conferred by the A.S.C.A, § 3.0102; and § 3.0306.

IT IS HEREBY ORDERED: That a record shall be made in the following proceedings before the District Court all criminal matters: all civil actions excepting small claims matters; and all traffic proceedings involving serious traffic offenses under Title 22, Chapter 7, A.S.C.A, §§ 22.0701 et seq.

**********

Judicial Memorandum of May 8, 1989;


JUDICIAL MEMORANDUM

High Court of American Samoa

May 8, 1989

__________

KRUSE, Chief Justice:

Re: Scheduling of Jury Trials

As you know, we are currently setting jury trials for about six months after the date on which trial is set. This has resulted partly from a receipt increase in the number of defendants requesting jury trials, and partly from the Court's policy of scheduling no more than ono jury trial per week.

The Court has neither personnel nor facilities adequate to handle more than one jury trial at a time. However, it appears that fewer than one-fourth of the jury trials scheduled are actually taking place. Most cases are resolved by pleas bargains a week or two before the scheduled trial date. As a result, the Court is only hearing about one jury trial per month, while some defendants are facing several months of pretrial incarceration.

We are capable of hearing one jury trial every week or so; and are more than willing to do so in order to clear the current backlog. Accordingly, we have decided to change (our policy so as to schedule two jury trials per week until the backlog is substantially reduced.

In order to implement this change, the following steps should be taken during the next few days:

1) The Assistant Attorneys General handling criminal cases should
review all such cases scheduled for trial after June I, 1989, to
determine which cases should be reset to earlier dates. First priority
should go to cases in which the defendants are incarcerated.

2) The Public Defender and private defense attorneys should also
review their scheduled cases, and should contact the Attorney.
[13ASR2d100]Generals office immediately in the event that an
accelerated trial date is not desired or in the event that some
dates would be inconvenient.

3) The Assistant Attorneys General should prepare stipulation in
each case in which it is determine that a new trial date would be
appropriate. The stipulation should be presented to the defense
attorney for his approval, and then to the Court.

4) In any case in which one party wants an accelerated trial date
and the other party does not, the party desiring acceleration can
make a motion to the Court.

5) The Court will grant motions or stipulations sufficient to result in
a schedule of two jury trials per week, beginning as soon as possible.
Both trials should be set on Tuesday unless there are good reasons
to prefer another day of the week.

6) On Monday of each week, the Attorney Generals office and the
defense attorneys in the two cases set for the following week should
report to the Court whether those cases will actually go to trial. If it
appears that both cases will go no trial, it may be necessary to
postpone one of them for a few days.

Thank you for your cooperation on this matter .

*********

Falelua; In re Guardianship of


In re Guardianship of the Estate of SOFA'I
FALELUA, A Minor Child, and concerning FUATINO
FALELUA, Guardian of the Estate

FUATINO FALELUA, Guardian Ad Litem for the Minor
SOFA'I FALELUA, Plaintiff

v.

CONTINENTAL INSURANCE COMPANY and
DOES I through V, Defendant

High Court of American Samoa
Trial Division

PR No. 32-88
CA No. 89-88

December 13, 1989

__________

No cause of action for "loss of filial consortium" was recognized at common law, although parents could recover damages for tangible losses such as child's lost wages and medical expenses.

Although traditional limitation or damages for the injury of one's child to palpable economic losses may ref1ect an outmoded view of children as mere economic assets, in a territory where the typical tortfeasor has few traceable assets and little or no insurance the recognition of a cause of action for collateral harm to a parent as a result of his child's injuries would almost certainly have the principal effect of reducing the sum available; to compensate the child for injuries more palpable, direct, and severe than those suffered by the parent. [13ASR2d84]

Recognition of a cause of action for collateral harm to parent arising out of his minor child's injuries would practically guarantee a conflict of interest in every settlement negotiation arising out of such injuries, since zealous representation of the child's claims would deplete the fund available to compensate the fiduciary:

Case in which (1) child's injuries were unlikely to have a shattering effect on the parent-child relationship; (2) the parent and guardian ad 1item might herself have contributed to the injuries; and (3) the parent/guardian had waived any claim in her personal capacity by submitting a stipulated judgment requesting in effect that the entire settlement be deposited in a trust account for the child, was inappropriate for the recognition of a new cause of action for loss of filial companionship.

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

Counsel: For Petitioner, John L. Ward II.

On Motion for Reconsideration:

This motion, tiled in connection with what would otherwise be a routine request by the guardian of a minor child for disbursement of funds held in trust for the child, raises the question whether the law of American Samoa recognizes a cause of action for "loss of filial consortium" for a parent whose child has been injured.

The child in question, Sota'i Falelua, was injured in a motor accident. The child had been riding in a pickup truck belonging to his father. The truck was being driven by someone else, apparently with permission of the father. The child's mother sought appointment as guardian ad litem and then sued the driver and the owner's (i.e., the child's father's) insurance company. The complaint alleged that the driver had negligently caused the minor's injuries. Although plaintiff was identified throughout the complaint as guardian ad litem and purported to sue only in such capacity, her complaint also stated that she had "been deprived of comfort and happiness in minor's society and has suffered a great deal of mental pain and anguish, has been deprived of the services of minor as her parent, and those other pleasures and rights growing out of the parent-child relationship known as consortium."

On April 24, 1989, the parties submitted a proposed settlement and stipulated judgment for the approval of the Court. The stipulation provided in pertinent part that "[t]he Court, having previously appointed Plaintiff herein as Guardian ad Litem of the minor child.... is [13ASR2d85] respectfully urged to order deposit of the proceeds of this settlement in the Court Registry." The Court approved the proposed settlement and accepted the proposed deposit of funds into the registry of the Court in trust for the child.

On June 1, 1989, the guardian submitted a "petition for release of funds." The petition stated that the American Samoa Government had determined that the child Sofa'i should be sent to Hawaii for medical care; that, in accordance with its usual practice, the Government was to pay air fare for Sofa'i and also for the guardian herself as well all medical costs; but that the guardian anticipated certain other travel expenses for which she requested a disbursement from the child's trust fund. The unitemized request was for $1,500. The Court felt that $300 was more consistent with the usual standard for supplemental travel expenses, and disbursed this amount subject to the guardian's commitment to file an accounting upon her return from Hawaii.

On June 22 the Court received a request for a supplemental disbursement of $350. This request contained the following assertion:

[t]he funds on deposit. ..represent the settlement of claims on behalf
of the minor child, as well as the parents as outlined in Count II of the
original complaint. The actual amounts due the minor [and] the parents..
has yet to be judicially determined.

This was news to the Court, which had already established a trust account for the minor child and approved a disbursement from this account. The Court did approve the requested supplemental disbursement of $350, subject to the requirement of a subsequent accounting, but observed that "the money belongs to the child. "

The Guardian subsequently moved for reconsideration of that part of the Court's order decreeing that the entire sum held in the registry of the Court belongs to the child. Counsel has submitted authorities for the proposition that parents have a right to recover for loss of "filial consortium" in connection with injuries to a child, and argues that the Court should allocate part of the settlement to the mother/guardian as compensation for such loss.

"Loss of filial consortium" is a new idea in American Samoa and a relatively new one elsewhere. No such cause of action was recognized at common law, although parents could recover damages for [13ASR2d86] tangible losses such as a child's lost wages and medical expenses. Prosser & Keeton on Torts § 125 at 934 (5th ed. 1982). Despite the traditional association of the term "consortium" with discontinued sexual relations between an injured person and his spouse, at least one court has used this term in connection with damages arising from the loss of filial companionship, society, and comfort. See Reben v. Ely, 705 P.2d 1360 (Ariz. App. 1985). Other courts have awarded such damages while avoiding the term "consortium." Shockley v. Prier, 225 N. W .2d 495, 499 (Wis. 1975); Bullard v. Barnes, 468 N.E.2d 1228, 1233 (Ill. 1984).

It may be true, as cases such as Shockley and Bullard suggest, that the traditional limitation of damages for the injury of one's child to palpable economic losses reflects an outmoded view of children as mere economic assets. In American Samoa, however, where the typical tortfeasor has few traceable assets and is insured tor $10,000 if he is insured at all, the recognition of a cause of action for collateral harm to a parent as a result of his child's injuries would almost certainly have the principal effect of reducing the sum otherwise available to compensate the child for injuries that are by definition far more palpable, direct, and severe. This, in turn, would practically guarantee a substantial conflict of interest in every settlement negotiation arising out of personal injuries to a minor child; unless the direct injury to the child is unusually slight or the fund available for settlement unusually large, zealous representation of the child's claims will have the effect of depleting the fund available to compensate the fiduciary. Cf. Galo v. American Samoa Government, 10 A.S.R.2d 94 (1989); Logoa'i v. South Pacific Island Airways, Inc., 6 A.S.R.2d 28 (1987).

The facts of the present case, moreover, render it a singularly inappropriate vehicle for the recognition of a new cause of action for loss of filial companionship. On the face of the complaint it appears most unlikely that the injuries suffered by Sofa'i will have the sort of "shattering effect"on the parent-child relationship that has been found to justify such a cause of action. Shockley, supra, 225 N.W.2d at 499. It was also asserted in defendants' answer that the guardian herself had contributed to the accident by permitting her child to ride in the back of a pickup truck. If proven at trial, this might have severely limited the guardian's recovery.

If the guardian ever had a claim in her personal capacity, she waived it when she submitted a stipulated judgment which requested that the entire settlement be deposited in the Registry of the Court. In the context of High Court practice, such a request in connection with a [13ASR2d87] settlement involving a minor (and in a stipulation referring to the child's mother as Guardian ad Litem and in no other capacity) can only be reasonably construed as a request for the establishment of a trust account. See: Judicial Memorandum No.1-88, 7 A.S.R.2d 146 (1988). Finally, a proposed order submitted by the guardian during the pendency of the present motion for reconsideration, formally requesting the establishment of a trust account and approval of the submitted expenses submitted by the guardian, appears even more clearly to waive any personal claim of the guardian to the funds in the trust account.

Accordingly, insofar as it requests a reconsideration of our decision that the entire settlement amount belongs to Sofa'i Falelua, the motion is denied.

Taking the motion as one for the approval of the submitted expenses, we find the following items to be related closely enough to the child's medical condition to justify their satisfaction from the trust fund: $ 79.04 for prescription sunglasses; $ 8.78 for eye patches; $ 5.00 for medicine; and $45.00 for transportation to medical appointments while in Hawaii. The request for $131.20 for telephone calls from Samoa to Hawaii is granted on the guardian's representation that the calls concerned the child's medical treatment.

The guardian has also submitted a claim for $565.00 for food, representing payments the guardian says she made to the relatives with whom she was staying. Only those food costs in excess of what would have been expended in Samoa for food may be recovered. Despite the lack of any evidence on this, but in recognition of the fact that prices in Hawaii may be somewhat higher, $150,00 is granted for food costs.

The guardian has also submitted a bill for $168.34 for medical bills she herself incurred while in Hawaii. Because she was in Hawaii to care for Sofa'i during his medical appointments, and because she would have had access to free medical care had she remained in Samoa, these expenses may be recoverable provided that they were truly necessary. The guardian has submitted no evidence to establish the necessity of these expenses.

We therefore approve expenditures from the trust fund in the amount of $419.02, out of the total amount of $650 that was advanced to the guardian. The guardian should submit evidence to document the necessity of the $168.34 requested for her own medical expenses, and should return $62.64 to the trust fund. [13ASR2d88]

It is so ordered.

*********

D. Gokal & Co. v. Daily Shoppers, Inc.,


D. GOKAL & COMPANY, Ltd., Plaintiff

v.

DAILY SHOPPERS INC., a corporation, JOSEPH P.
FRUEAN, and TAGILIMA FRUEAN
dba DAILY SHOPPERS, Inc., Defendants

High Court of American Samoa
Trial Division

CA No. 52-89

October 10, 1989

__________

Summary judgment is appropriate if the pleadings and supporting papers show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. T.C.R.C.P.56(c). [13ASR2d12]

In considering a motion for summary judgment, the court must consider all pleadings and supporting papers in the light most favorable to opposing party, and must also give such party the benefit of all inferences reasonably deducible from the evidence. T.C.R.C.P. 56.

Plaintiff suing for value of goods paid for by defendants with checks drawn against insufficient funds was denied summary judgment where defendants raised triable issues of tact, claiming that plaintiff coerced them into sales contract; supplied unordered goods and overcharged for incomplete quantities of goods; and induced one of the defendants to sign a letter acknowledging liability by assuring them it was merely "for the record" and that they should "not worry" about it.

Before KRUSE, Chief Justice, and MATA'UTIA, Associate Judge.

Counsel: For Plaintiff, John L. Ward II
For Defendants, Togiola T .A. Tulafono

On Motion for Summary Judgment:

Plaintiff moves for summary judgment pursuant to T .C.R.C.P. Rule 56. The rule provides for entry of judgment if the pleadings and supporting papers show that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of Law." Rule 56(c). All the pleadings and supporting papers submitted on a motion for summary judgement must be viewed in a light most favorable to the opposing party. United States v. Diebold, Inc., 369 U.S. 654 (1962). That is, the Court must not only treat the adverse party's evidence as true, but he should also be given the benefit of all inferences reasonably deducible from the evidence. Lokan v. Lokan, 6 A.S.R.2d 44 (1987).

In the present matter, plaintiff sues for the value of goods sold and delivered to defendants for which checks drawn against insufficient funds were tendered to plaintiff. Defendants, on the other hand, have raised triable issues of fact in their responsive pleadings and affidavit filed in opposition to the motion for summary judgment. Defendants claim that the alleged sale of goods contract was forced upon them at plaintiffs insistence; that plaintiff supplied material not ordered; that plaintiff overcharged for quantities incompletely supplied; and that an exhibit upon which plaintiff places reliance for its motion ---a certain letter acknowledging liability and under signature of one of the defendants ---was in fact prepared by plaintiffs representative for "the record" and "[that defendants should] not worry about it." [13ASR2d13]

We hold that there is a factual dispute regarding the obligation underlying the returned checks and deny plaintiff's motion accordingly.

It is so Ordered.

**********

Continental Ins. Co.; Te'o v.


TE'O MANUMA, for himself and as representative of
RYAN MANUMA, Plaintiff

v.

CONTINENTAL INSURANCE COMPANY, ANITA TEDROW,
and SCHWALGER, JR., Defendants

High Court of American Samoa
Trial Division

CA No. 59-83

November 21, 1989

__________

Where wrongful death complaint had omitted the name of the decedent's mother, but the pleadings as a whole could be construed to ask for recovery on behalf of both mother and father, both of whom had an equal right to recover for their son's death, judgment awarding damages to the father alone would be construed as being in favor of mother and father jointly.

Where counsel for plaintiff who died during the litigation did not move to substitute his client's estate, but instead continued to litigate for two years, recovered certain funds, and then moved for distribution of the funds among widow and various unnamed children of the decedent, court would deny the motion and retain the funds pending qualification of an administrator of decedent's estate.

Disbarred attorney had no right to enforce contingent fee agreements he had made while still a licensed attorney. Model Rule of Professional Conduct 5.4. [13ASR2d43]

Disbarred attorney had a duty to assist his former clients in an orderly transition to new counsel, but had no right to sell or barter his practice or any part of it to another attorney in exchange for a percentage of the proceeds. Model Rule of Professional Conduct 5.4.

Disbarred attorney might be able to collect on a quantum meruit basis for work performed for clients prior to his disbarment, but disbarred attorney who had apparently already illegally collected several thousand dollars after his disbarment could not collect additional fees without filing a claim to substantiate his entitlement to quantum meruit recovery. Model Rule of Professional Conduct 5.4.

Attorney who agreed to share contingent fee with disbarred attorney, and who had no fee agreement of his own with the client, could not enforce the fee agreement made by the disbarred attorney but could collect for his work on a quantum meruit basis. Model Rule of Professional Conduct 5.4.

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

Counsel: For Plaintiff, Asaua Fuimaono

On Motion to Disburse Funds and for Approval of Attorney Fees:

These motions concern disbursement of funds obtained in a post-judgment proceeding brought in the name of a deceased p1aintiff. Distribution is requested in accordance with the terms of a contingent fee agreement said to have been made between the late plaintiff and an attorney who has since been disbarred.

Plaintiff Te'o Manuma brought this wrongful death action in 1983 against defendants Schwalger, Tedrow, and Continental Insurance Co, The Court awarded Te'o $10,000 against Continental and $90,000 against the other two defendants. Te'o was represented at trial and throughout most of the appeal by counsel Mulitauaopele Ivi. After the appellate briefs had been filed, Mulitauaopele was disbarred; the oral argument was made by counsel Asaua Fuimaono. On April 5, 1985, the Appellate Division upheld the judgment of the trial court.

During 1986 and 1987 counsel Fuimaono made several unsuccessful attempts to collect on his client's $90,000 judgment against Anita Tedrow. (1) Counsel Fuimaono's collection efforts were directed [13ASR2d44] primarily to a parcel of land with a house on it, which was occupied by Anita Tedrow and her family. Although this property was not registered in Mrs. Tedrow's name, she had signed an agreement to purchase it in 1983 and had paid the purchase price in full by 1986. Counsel Fuimaono's efforts to execute upon the property were pointless, however, because Mrs. Tedrow is a Samoan and "[n]o real property of a Samoan may be subject to sale under a writ of a court to satisfy any judgment other than a judgment foreclosing a valid mortgage...." A.S.C.A. § 43.1528(a).

In September 1987 counsel Fuimaono learned that the Tedrows had taken steps to sell the property and to leave American Samoa. He immediately reported this discovery to the Court by way of an "Expedited Ex Parte Motion to Invalidate Warranty Deed and tp Prohibit Any Transaction on Land Without Approval of the Court." The ensuing saga is told in Te'o v. Continental insurance Co., 6 A.S.R.2d 135 (1987); In re Special Guardianship of Tedrow, 7 A.S.R.2d 72 (1988); and Tedrow v. Manuma, 12 A:S.R,2d 51 (1989). The upshot is that the registry of the Court now contains $32,500 plus accrued interest which has been held to be the property of Te'o Manuma.

Unfortunately, however, Te'o Manuma has passed away. He had already passed away two months before counsel Fuimaono filed his Expedited Ex Parte Motion, yet counsel chose to litigate for two years on behalf of his deceased client rather than to move for the substitution of decedent's estate. Counsel now informs the Court of his client's demise and asks that the proceeds be disbursed directly to the heirs of Te'o without resort to probate: one-third to the widow Sifaga Manuma, and the balance to be "distributed amongst" certain unnamed children. To be more precise, counsel asks that half the proceeds be thus distributed. He requests that the other half be given entirely to Sifaga Manuma, who was mentioned in several places in plaintiffs complaint although she was not actually named as a plaintiff.

The Court can grant half of this request. Although the omission of Sifaga Manuma as a named plaintiff was extremely sloppy pleading and caused the trial court to omit any mention of Sifaga in its decision - - and also caused the appellate court, apropos of another issue, to observe that "there is only one plaintiff besides the estate" ---the [13ASR2d45] pleadings as a whole can be construed to request recovery tor Te'o on behalf of himself and Sifaga jointly. Sifaga, the mother of the boy who was killed, had the same legal and equitable right as Te'o to recover for their son's death. We believe the trial and appellate courts would have mentioned her specifically had the matter been called to its attention. We therefore construe the judgment as being in favor of Sifaga and Te'o jointly. Half of the award, after deduction of attorney fees, should be distributed directly to Sifaga.

The requested distribution of the remainder of the proceeds not to Te'o's estate but directly to his heirs, most of whose names are known neither to the Court nor apparently to counsel (and without any prior notice to creditors or to anyone else who might wish to make a claim against the estate) would violate several bedrock principles of the law of successions, not to mention numerous explicit statutory provisions. See generally Title 40 of the American Samoa Code Annotated. The share of the proceeds belonging to Te'o Manuma will be disbursed to the administrator of his estate as soon as an administrator has qualified.

The Court is asked to perform yet another illegal act by distributing a fifty per cent share in a contingent fee to former counsel Mulitauaopele, who is not licensed to practice law. See Model Rules of Professional Conduct, Rule 5.4; ABA Model Code of Professional Responsibility, EC 3-8, DR 3-102. One of the rights counsel Mulitauaopele lost when he was disbarred was the right to enforce, as against sums accruing to his clients after the disbarment, contingent fee agreements he had made while still a lawyer. Although he had a duty to assist his former clients in an orderly transition to new counsel, he had no right to sell or barter his practice or any part of it to another attorney in exchange for a percentage of the proceeds.

We assume for the purpose of this motion, although we have been unable to find any authority on the question, that a disbarred lawyer might be able to collect on a quantum meruit basis for work performed for clients prior to his disbarment. In the present case, however, we note that attorney Fuimaono has already collected $12,520.85 from Continental Insurance on behalf of Te'o and other parties who were represented by Mulitauaopele and later by himself. This happened in 1985, after counsel Mulitauaopele had been disbarred; it was therefore unlawful for him to collect his forty percent contingent fee or to divide it with counsel Fuimaono; the request presently before us, however, strongly suggests that he and counsel Fuimaono did not see the matter this way. If Mulitauaopele has already collected several thousands of [13ASR2d46] dollars for his work on this case, it would appear most unlikely that he could recover more on a quantum meruit basis. If he wishes to make such a claim, however, he may do so within the next ten days.

Counsel Fuimaono did not have a contingent fee agreement -- nor, as far as the record discloses, any agreement at all ---with Te'o. Fuimaono's agreement with former counsel Mulitauaopele to violate Rule 5.4 by sharing the latter's unenforceable fee agreement is itself unenforceable; for the same reason that Mulitauaopele is forbidden from selling shares in his former cases, counsel Fuimaono may not purchase them. He may, however, collect fees on a quantum meruit basis. (2)

The writer of the present opinion was the trial judge in all the post-judgment proceedings in which counsel Fuimaono was involve and is intimately familiar with the record in there proceedings. On the basis of this record the Court will authorize a $3,000 fee for counsel Fuimaono. If he believes he is entitled to a larger fee he may move for reconsideration of this order within ten days.

In accordance with the above, the following distribution of the sum in the registry of the Court will be authorize: $3,000 to Asaua Fuimaono; $16,250 plus accrued interest, minus $1,500, to Sifaga Manuma; $16,750 plus accrued interest, minus $1,500, to the administrator of the Estate of Te'o Manuma when such an administrator shall have qualified.

Execution of this order will be stayed for ten days pending any motions for reconsideration or modification.

It is so ordered.

*********

1. Continental paid its part of the judgment, along with accrued interest, soon after the appellate decision was rendered. Schwalger, who as driver of Mrs. Tedrow's car wasprincipally responsible for the fatal accident, seems to have had no assets. Soon after the judgment was affirmed on appeal he disappeared from the case and apparently from the Territory.

2. At the time this motion was made counsel Fuimaono had been suspended from the practice of law. The work he did on these post-judgment proceedings, however, was done at a time when he was under no such disability. In order to avoid any question about his ability to collect on a quantum meruit basis, the Court has held the present motion under advisement pending counsel Fuimaono's recent reinstatement.

Chang v. Fuiava,


JOE CHANG and DRAGON LIGHT CO. Ltd., Plaintiffs

v.

MIKE FUIAVA, NATIONAL IMPORT& EXPORT ENTERPRISE,
and NATIONAL IMPORT & EXPORT, Defendant

High Court of American Samoa
Trial Division

CA No. 59-5

October 2, 1989

__________

Plaintiffs claim that defendant was liable for the entire amount noted in an agreement to purchase inventory from their dissolved joint business was not sustained by evidence showing that defendant had returned the bulk of the inventory to plaintiffs new place of business; that plaintiffs relative or employee kept an accounting of merchandise returned by the defendant, but no copy of this accounting was ever supplied either to the defendant or to the court; and that defendant admitted owing plaintiff for the items he had not returned and had made installment payments on this debt.

Where defendant returned goods to one corporation owned by plaintiff, rather than to another similarly named corporation also owned by plaintiff with which defendant had a contract, and where both parties in their dealings with each other had shown only so much respect for corporate formality as suited their convenience; defendant was not liable to the second corporation for the goods he had returned to the first.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiffs, Tautai A.F. Fa'alevao
Defendant Mike Fuiava pro se

Factual Background

Plaintiff Chang and defendant Fuiava went into business together for purposes of merchandising in American Samoa. Chang is a merchant of Western Samoa, where he operates business, Dragon Light Co. Ltd., a Western Samoan corporation and the co-plaintiff herein. Also, [13ASR2d2] Chang had either the goods, or at least access to a credit facility, to supply the venture with inventory.

Fuiava, on the other hand, had neither business experience nor capital to contribute to the venture, However, as the American Samoan party, he had the responsibility of securing the requisite license to do business in the territory. (1)

At first the parties went through the motions of setting up a corporation under the name "National Import Export Company, Inc." Articles were duly adopted which stipulated that sixty percent of the corporate stock would be held by Chang and his family, with the remaining forty percent held by Fuiava and his family. The articles further named Chang as President and Fuiava as Vice President.

As the approval of corporate status proved to be time consuming, the parties decided to obtain in the interim a license in Fuiava's name in order to open for business immediately. Fuiava did indeed secure a business license as a proprietorship trading under the name "National Import & Export Enterprise." After opening a bank account and taking delivery of a variety of goods supplied on credit by the plaintiff, Dragon Light Co. Ltd., the parties began selling at a location in Pago Pago. Although a corporate charter was eventually granted, the parties continued doing business under the license issued to Fuiava personally. (2)

In time, Chang notified Fuiava that he desired to terminate their business relationship and he proposed to Fuiava a division of the inventory between them. With some American Samoan relatives of his wife, Chang formed another local corporation called "Dragon Light, Inc.," which was opened for business in Happy Valley and retailed in the same lines. Fuiava retained a certain quantity of the inventory for which an invoice, drawn on Dragon Light Co. Ltd. letterhead, was made out [13ASR2d3] in the amount of $35,945.50 to "National Import & Export." This invoice also contained a paragraph reciting an agreement "that a weekly payment of $500.00 (US) to be paid [sic] to Mr. Joe Chang by Mr. Mike Fuiava on behalf of the NATIONAL IMPORT & EXPORT, commencing 8th December 1984. "This invoice agreement was signed by Chang on behalf of Dragon Light Co. Ltd. as its director, while Fuiava signed as "Vice-President" on behalf of National Import & Export.

Fuiava found a location for himself in Nu'uuli where he set up shop and for the first few months he managed to make the scheduled payments to Chang. It did not take very long, however, for Fuiava to learn that there was more to business than anticipated riches. He was just not generating the sort of sales envisaged at the time of the invoice/agreement and he began to fall progressively into arrears. Plaintiffs filed suit to enforce the invoice/agreement.

Notwithstanding the filing of suit, there was dialogue between the parties in the hope of resolving arrears and reinstating the payment schedule. Despite Fuiava's further attempts at business, the situation with sales did not improve. He therefore notified Chang that he would return the remaining inventory with him and pay the difference. Over the course of several days, Fuiava's wife and some relatives delivered pickup truckloads of the inventory to the Happy Valley premises of Dragon Light, Inc. There, a count was made by Chang's sister-in-law or shop employee as each load was delivered. Fuiava's wife was promised a copy of the count by Chang's sister-in-law but none was ever delivered.

The Suit

The controversy before us is somewhat puzzling. For reasons unknown, the matter between the parties was never finalized. Nobody bothered to reconcile what Fuiava had returned and paid for against what he was initially given. It seems that the goods he had returned were eventually commingled with whatever stock Dragon Light, Inc., possessed. As to what happened to the stock count taken by Chang's sister-in-law, the Court was never told; however, the significance of the suit against Fuiava became apparent with Chang's testimony that the business venture with his American Samoan in-laws incurred a loss of some $70,000.

Chang nonetheless insists that the invoice/agreement continues to render Fuiava liable to plaintiff Dragon Light Co. Ltd. He opined on [13ASR2d4] the stand that Fuiava's delivery of the goods (subject to the invoice/agreement) to Dragon Light, Inc., a distinct and separate corporate entity, did not constitute a restitution by Fuiava to plaintiff Dragon Light Co. Ltd. Additionally, Chang argues that when he agreed to Fuiava's return of the goods, it was Fuiava's duty and responsibility to do the stock taking and to reconcile an accounting of his indebtedness to the plaintiff corporation.

Fuiava, on the other hand, testified that as far as he was concerned, his obligations to Chang and Dragon Light Co. Ltd. were settled, except for that which he owes on the goods he had sold less the installment payments which he had already made pursuant to the invoice/agreement. Chang, however, has never billed him.

Conclusions

We are in agreement with Fuiava's position that he is liable on account with Dragon Light Co. Ltd. and that the extent of his liability is for the goods he had sold or failed to return less the payments he had paid to Chang. In so concluding, we reject Chang's alternative and somewhat inconsistent theories: that the return of the inventory held by Fuiava did not vary the effect of the invoice/agreement, which remained in full force and effect; or that Fuiava was responsible for providing an accounting of the returned goods to Dragon Light Co. Ltd., and by failing to do so remains liable on terms of the invoice/agreement. Neither theory has any support in law or on the evidence. Further, Chang's resort to legal niceties about separate corporate identities in the attempt to get around the undisputed fact that Fuiava returned the goods is, at best, desperate and also thoroughly unconvincing. The parties in their dealings with each other and with the government licensing authorities had only so much respect for corporate formality as it suited their convenience. (3)

Finally, in terms of what is actually owed by Fuiava to Chang and Dragon Light Co. Ltd. , the evidence was just not there to permit the Court to make any meaningful finding. The evidence at its best [13ASR2d5] suggested that the loads delivered by Fuiava's wife constituted the bulk of the inventory listed in the invoice/agreement. (In view of the losses incurred by Dragon Light, Inc., there is hardly any mystery in what happened to these returned goods.) To attempt, however, to be any more specific with the ultimate division of the inventory among Chang and Fuiava would take us well within the realm of speculation.

Plaintiffs have simply failed in their burden to adduce sufficient proofs and judgment shall therefore enter accordingly.

It is so Ordered.

*********

1. The territorial licensing laws --A.S.C.A. §§ 27.0201 et seq,--- are in certain aspects parochial in effect. An applicant for a business license who is neither an American Samoan nor a "permanent" resident of the territory is subject to greater scrutiny and regulation, particularly if the activity for which licensure is sought is already adequately covered by local businesses.

2. The corporation, for purposes of the business licensing laws, would have been treated asa non-American Samoan given the stock issue contemplated by the articles of incorporation which designated the majority shares in non-American Samoans. See A.S.C.A, § 27.0207.

3. Indeed, if we accepted Chang's argument on corporate legalities, then we would also be required to question why Fuiava should not have the benefit of limited liability, since the invoice/agreement purported on its face to be a dealing between the Dragon Light Co. Ltd. and arguably the American Samoan corporate entity National Import Export Co., Inc. Fuiava signed as "Vice-President" rather than as proprietor.

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


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

SAMOA AVIATION, INC., an American Samoa
Corporation, dba SAMOA AIR, Defendant

High Court of American Samoa
Trial Division

CA No. 56-89

December 7, 1989

__________

Statute requiring that a specified provision shall be included in every contract of a particular class thereafter made is one that prescribes the legal operation of contracts, not one that affects factual interpretation; the provision must be given effect even though the parties know nothing of the statute and do not include the provision, and even though they know of it and expressly agree upon the exact contrary.

Courts have consistently treated statutes requiring that certain provisions shall be included in certain contracts not to invalidate nonconforming contracts, but to make them conform by operation of law; in effect, the courts read the words, "No contract shall omit provision x" to mean "Every contract shall include provision x."

Contracts falling afoul of the "No contract shall be entered into unless" formula should be treated as a special instance of the contract that is partly illegal but in some respects enforceable.

Not all unlawful agreements are ipso facto void; if the denial of relief is dispropol1ionately inequitable the right to recover will not be denied.

Where legislature has not specifically defined the consequences of a pal1icular kind of illegal contract, courts are left io a delicate balancing of factors for and against enforcement; unenforceability may not always deter or punish and may sometimes even reward the principal wrongdoer, and caution is necessary when so much of commercial life is governed by regulations which may easily be broken without wicked intent.

Court can excise the illegal portions of a contract and enforce the remainder, with or without compensating adjustments in the contractual obligations of the parties, or may modify an illegal term to make it conform to the law.

Lease agreement omitting inflation adjustment clause required by statute would be enforced, after modification to include such a clause, where: (1) the statute did not provide that contracts omitting the required term should be absolutely void; (2) the contract complied with all applicable laws and regulations but one; (3) the only "misconduct" in which the [13ASR2d66] lessee might be said to have engaged was to sign an apparently lawful agreement drafted by the lessor; (4) there was no evidence that the required clause was omitted by any reason but inadvertence; (5) the lessee had signed a covenant to obey all laws pertaining to the premises; (6) soon after being notified of the absence of the inflation adjustment clause, the lessee expressed its belief that it was in fact bound to pay the required adjustments; (7) the statute did not appear designed to punish conduct regarded as malum in se by effecting a forfeiture; (8) the statutory purpose of protecting the lessor could be accomplished by imposing on the lessee the obligation to pay the required adjustments; and (9) the record rather clearly showed that the absence of an inflation adjustment clause was not a genuine point of controversy between the lessor and lessee, but was one of a serious of technical grounds on which the lessor sought to evict the lessee in order to accommodate another prospective tenant. A.S.C.A. § 37.2020.

Territorial government has the statutory right to enforce against its lessee a provision satisfactory to it whereby rentals are adjusted at intervals for inflation, although such a clause was inadvertently omitted from the lease, but has no right to evict the lessee on account of such omission.

Assuming that deputy territorial registrar had the power to cancel the prior recordation of a lease had there been something genuinely wrong with it, an aggrieved party would have the right at any time to apply to the court for direction or redress, and the aggrieved party could exercise such right by alleging and proving in an action for eviction that the substantive bases for the cancellation were without merit. A.S.C.A. § 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 L. Ward II

On Motions for New Trial and Modification of Judgment:

Plaintiff American Samoa Government (hereinafter "ASG ") sued for the eviction of its lessee Samoa Aviation, Inc. (hereinafter "Samoa Air") from a parcel of ASG property including an aircraft hangar, alleging various flaws in the lease agreement. We denied the requested relief. 11 A.S.R.2d 144 (1989). ASG then moved for a new trial and Samoa Air, which had prevailed on all issues except its request for attorney fees, also moved for modification of the judgment.

We took these motions under advisement primarily in order to re-examine our holding that, where a lease agreement fails to include an inflation adjustment clause required by statute (A.S.C.A. § 37.2020) to be included in all such agreements, the lease should not be held invalid at the instance of the drafting party but should instead be subject to [13ASR2d67] reformation or construction to conform to the statutory requirement. The question is one of first impression in American Samoa and yet arises from a type-situation that must recur fairly often in places having greater numbers of people, contracts, and statutes. The summary nature of this eviction proceeding having caused our original opinion to be written without prior citation of authorities by either party, we requested post-judgment memoranda and argument on what remedy is appropriate where parties to a written contract have omitted a provision required by statute to be included.

On reconsideration it appears that this question is indeed one on which there has evolved a "majority rule." The rule, to which all or nearly all court facing the question have adhered, is stated by Corbin:

State legislatures have sometimes enacted that a specified provision
shall be included in every contract of a particular class thereafter made.
Such a statute is one that prescribes the legal operation of contracts, not
one that affects factual interpretation. If in exact obedience to the law,
the specified provision is integrated into a written contract in exact terms,
the provision must be... given effect... Exactly the same result is reached
even though the parties knew nothing of the statute and do not include the
provision, and even though they know of it and expressly agree upon the
exact contrary.

Corbin on Contracts § 551 at 200-01 (1951) (footnotes omitted). In reliance on this rule, courts have consistently treated statutes drafted according to the formula of A.S.C.A. § 37.2020 not to invalidate nonconforming contracts, but to make them conform by operation of law. In effect, the courts read the words, "No contract shall omit provision x" to mean, "Every contract shall include provision X." See Green v. Lehman, 544 F. Supp. 260 (D, Md. 1982), aff'd, 744 F.2d 1049 (4th Cir. 1984); (1) Board of School Commissioners v. Hahn, 22 So.2d 91 (Ala. [13ASR2d68] 1945); Bakker v. Aetna Life Ins. Co., 190 N.E. 327 (N.Y. 1934); (2) Sterling Engineering & Construction Co. v. Town of Burrillville Housing Authority, 279 A.2d 445 (R.I. 1971); (3) Jones v. Preferred Accident Ins. Co., 275 N. W, 897 (Wis. 1937). (4)

These opinions are generally premised on the idea that "the laws which subsist at the time and place of the making of a contract ...enter into and form a part of it, as if they were expressly referred to or incorporated in its terms." Von Hoffman v. Quincy, 71 U.S. (4 Wall.) 535, 550 (1866). As Corbin observes, this formal justification is a fiction and in most cases not even a very useful one, having little to do with why the provisions in question ought to be enforced. See Corbin § 551 at 197-98. It would seem more accurate to treat contracts falling afoul of the "No contract shall be entered into unless" formula as a special instance of the contract that is partly illegal but in some respects enforceable.

In the present case ASG seems to assume that if it can prove it violated the law by entering into its agreement with Samoa Air, it will automatically be entitled to walk away from the agreement. On the contrary, however, "it is not the case that all unlawful agreements are [13ASR2d69] ipso facto void. If the denial of relief is disproportion inequitable the right to recover will not be denied." Jackson Purchase Rural electric Cooperative Assoc. v. Local Union 816, 646 F .2d 294, 267 (6th Cir . 1981); see 14 Williston on Contracts § 1630A (3d ed. 1972). Nor is judicial enforcement of such agreements generated solely by a desire to avoid harsh results. As this Court has previously observed,

Except in those rare cases where the legislature has specifically
defined the consequences of a particular kind of illegal contract,
courts are left to "a delicate balancing of factors for and against
enforcement of the particular agreement." E. Farnsworth, Contracts
§ 5.1 at 328. Illegal conduct should of course be deterred and
punished, and judicial process should not be available to those who
seek only to consolidate or recover ill-gotten gains. But unenforceability
may not always deter or punish, and may sometimes even reward
the principal wrongdoer. Then, too, "caution...is... especially
necessary in these times when so much of commercial life is governed
by regulations of one sort or another, which may easily be broken
without wicked intent." St. Johns Shipping Corp. v. Joseph Rank
Ltd. [1957] Q.B. 267 (Devlin, J).

Enekosi v. Moaali'itele, 3 A.S.R.2d 81,83 (1986), aff'd, 6 A.S.R.2d 49 (1987).

Confronted with an agreement whose making was prohibited by statute but which, having been made, the statute does not declare to be void, a court finds itself in a conceptual hall of mirrors in which neither statutory interpretation nor contract law seems to yield an answer without one last reference to the other. The legislature is presumed to be aware of the usual tenets of contract formation, interpretation, and enforcement; although the legislature has the power to change these rules, it is more likely to want to preserve them insofar as such preservation is not inconsistent with the precise objective of a particular enactment. Similarly, contracting parties are presumed to know the law and, except in cases where a contrary intention clearly appears, to want their contract to conform thereto. Courts have therefore attempted to enforce the rule made by the legislature while avoiding unnecessary damage to adjacent principles such as fidelity to the intentions of the parties and the avoidance of forfeitures. [13ASR2d70]

Such damage cannot, however, be eliminated altogether; derogating from the common law is, after all, the main thing statutes do. See Pound, Common Law and Legislation, 21 Harv. L. Rev. 383 (1908). Courts declining to invalidate contracts made in contravention of some statute or public policy have done so by reference to a wide variety of traditional doctrines and techniques, some of them wrenched from their traditional contexts.

Thus, for instance, the majority rule discussed by Corbin deals with the absence of a required clause by declaring that the clause is really present after all, having been inserted automatically "as if. ..in bold print" by the very statute that might otherwise have rendered the contract illegal. Green v. Lehman, supra, 544 F .2d at 263; see generally cases cited herein at pages 67-68, supra.

Other courts have dealt with nonconforming contracts as we did in our original opinion, by extending the concept of "reformation" ---a term of art usually reserved tor provisions specifically agreed upon by the parties but inadvertently omitted or rendered incorrectly when the agreement was reduced to writing ---to cover situations in which the written contract faithfully recorded the agreement of the parties but inadvertently failed to include some provision or other formal requirement without which the law would deem the agreement unenforceable. See, e.g., Oatman v. Niemeyer, 278 P. 1043 (Cal. 1929); Gaylord v. Pelland, 47 N.E. 1019 (Mass. 1897).

Another approach is to interpret a statute as merely "directory" rather than "mandatory" where "it fails to provide a method for enforcement and does not. ...declare the consequences of a failure to comply...." Sullivan v. Credit River Township, 217 N. W.2d 502, 504 (Minn, 1974). (5) Yet another is to hold a government entity estopped to assert its own violation of its own laws as a means of avoiding its otherwise lawful obligations. See, e.g., United States v. Lazy FC Ranch, 481 F.2d 985 (9th Cir. 1973); Board of Education of Village of Estancia [13ASR2d71] v. Woodmen of the World, 77 F.2d 31 (3d Cir. 1935); Sullivan, supra, 217 N.W.2d at 507.

Finally, it is well settled that a court can excise the illegal portions of a contract and enforce the remainder, with or without other compensating adjustments in the contractual obligations of the parties; or may modify an illegal term to make it conform to the law. See, e.g., Alston Studios, Inc. I v. Lloyd V. Gress & Associates, 492 F. 2d 279 (1974) (covenant not to compete); Shantilal Brother, Ltd. I v. K.M.S.T. Wholesales, Inc. , 9 A.S.R.2d 62 (1988) (usurious interest rate).

Although each of these techniques may leave something to be desired from the standpoint of pure theory, together they comprise a regime under which courts can more effectively advance the legislative purpose underlying regulatory statutes ---not to mention the intentions of contracting parties and traditional notions of fair play ---than would be possible under a rule of absolute unenforceability. See Enekosi v. Moaali'itele, supra, 3 A.S.R.2d at 83, quoted at page 69 supra. In practice this regime allows the enforcement, albeit in part or as modified, of many if not most contracts made in contravention of statute or public policy:

Out of the welter of common law rules regarding illegality has
come the general principle that illegal contracts are unenforceable
only where (1) a stat~te explicitly provides that contracts
contravening it are void or (2) where "the interest in [the contract's]
enforcement is clearly outweighed in the circumstances by a public
policy against the enforcement of such terms. " Restatement (Second)
of Contracts § 320(1) at 53 (Tent. Draft No.12, March 1, 1977).

California Pacific Bank v. Small Business Administration, 557 F .2;d 218, 219 (9th Cir. 1977). The factors a court should consider in determining whether the interest in enforcement is outweighed by a strong public policy include "the justified expectations of the parties; the forfeiture that would result from non-enforcement of the agreement; any special public interest in enforcement; the strength of the public policy that the agreement violates, as shown by legislation or court decision; the likelihood that refusal to enforce will further that policy; and the seriousness of the misconduct." Jackson Purchase Rural Electric Cooperative Assoc. v. Local Union 816, supra, 646 F.2d at 267. [13ASR2d72]

In the present case almost all of these factors militate strongly against avoidance of the lease agreement. A.S.C.A, § 37.2020 prohibits the making of certain contracts but does not provide that such contracts shall be absolutely void. Even if we decline to follow the rule that the required language is deemed to be part of every contract by operation of law, we are left with a contract that complied with all applicable laws and regulations but one. The only "misconduct" in which Samoa Air may be said to have engaged was to sign an apparently lawful agreement drafted by ASG. There is no evidence that the required clause was omitted by any reason but inadvertence; Samoa Air did sign a covenant to obey all territorial laws pertaining to the premises; soon after being notified of the absence of the inflation adjustment clause, Samoa Air expressed its belief that it was in fact bound to pay the required adjustments. See Finding of Fact 24.

As we observed in our original opinion, A.S.C.A. § 37.2020 does not appear designed to punish conduct regarded as malum in se by effecting a forfeiture; rather, it is designed to protect the government in a specific way that can be accomplished at least as effectively by imposing on Samoa Air the obligation to pay the required adjustment as by declaring the whole agreement void. (6) This is particularly true under the circumstances of the present case, in which the record rather clearly shows that the absence of an inflation adjustment clause is not a genuine point of controversy between ASG and Samoa Air. Rather, this was one of a series of technical grounds on which ASG sought to evict Samoa Air in order to accommodate another prospective tenant. See Findings of Fact 9, 16, 17, 18, 19,21, 23, 24, 25. Nor does this preference seem to have been generated by the opportunity to negotiate a higher rent, a concern which would be arguably related to the statutory defect. On the contrary, it appears that ASG was at one point willing to surrender the hangar to the other prospective tenant for free. See Finding of Fact 25.

For these reasons it appears that our original decision on this question was correct, although in retrospect we regret the use of the word "reformation" to describe the enforcement of the lease agreement as modified by the requirement of A.S.C.A. § 37.2020. We reaffirm our judgment that ASG has the right to enforce, in accordance with [13ASR2d73] A.S.C.A. § 37.2020, "a provision satisfactory to the lessor whereby the rentals or lease price is adjusted upward or downward at intervals to adjust for inflation"; and that the lease is otherwise enforceable as written. To eliminate uncertainty about the appropriateness of any particular provision in this and other cases, the Court urges ASG to comply with the requirement imposed by A.S.C.A. § 37.2020 that it adopt a rule in accordance with the Administrative Procedure f\ct selecting particular "recognized indexes" of real property values for the purposes of this section.

ASG also argues that the lease was invalid because it was altered after being signed by the Governor but before being presented to Samoa Air, and also because of a purported retroactive "rejection" by the Deputy Territorial Registrar. We reject these, arguments for the reasons stated in our original opinion. The lease as presented to Samoa Air was "approved in writing by the Governor," who was free to arrange the internal affairs of his office as he saw fit. Assuming for the sake of argument that the Deputy Territorial Registrar would have bad power to cancel a previously recorded lease agreement had there been something genuinely wrong with it, an aggrieved party would have the right, "at any time, [to] apply to the High Court for direction or redress." A.S.C.A. § 4.1106. Samoa Air has exercised that right in this case, and the Deputy Registrar's action has been reversed on the ground that the substantial bases therefor were without merit.

With regard to Samoa Air's request for attorney fees, such awards are generally regarded as within the Court's discretion even where authorized by statute. While we have held ASG's position in this litigation to have been incorrect, we believe there was a genuine controversy between the parties and that an award of attorney fees is not appropriate.

Accordingly, the motions are denied.

It is so ordered.

*********

1. Green was a suit by a former midshipman contesting his dismissa1 from the Naval Academy and transfer to active duty as an enlisted man. The Navy relied on 10 U.S.C. § 6959, providing in pertinent part that "[e]ach midshipman... shall sign an agreement to complete the course of instruction at the Academy and that [a] midshipman who does not fulfill his agreement. may be transferred to active duty." Although the Navy "failed to produce an 'agreement' setting forth the specific language contemplated by § 6959," 744 F.2d at 1054, the Court of Appeals affirmed the trial court's holding that the provision required by § 6959 "is as much a term of the contract plaintiff had executed, as if it had appeared in bold print." 544 F.2d at 263.

2. This law is mandatory, and any insurance company which issues a policy without
this provision violates the law. Should the provision be omitted, the courts will read
into the policy the provision in order to give effect to this salutary regulation.
190 N.E. at 328.

3. While the record does not disclose the reason or reasons for the absence of the
required arbitration clause in the subject agreement, the legislative mandate cannot
be ignored. It is a fundamental rule that all contracts are made subject to any law
prescribing their effect or conditions to be observed in their performance. The statute
is as much a part of the contract as if the statute had been actually written into the
contract. This is so even though the parties knew nothing of the statute and did not
include the provision or even though they knew of the legislation and expressly
agreed upon the exact contrary.
279 A.2d at 447.

4. "Because that provision is required by statute, it is mandatory and obligatory.... and cannot be varied or waived by the private conventions of the parties." 275 N .W. at 898. A contract omitting the provision in question was therefore held to have the same legal effects as an otherwise identical contract that did contain such a provision.

5. In practice the "directory/mandatory" distinction appears to be conclusory rather than analytical. The court does not generally confine its inquiry to the language of the statute, but examines all the circumstances of the case to determine whether the contract should be enforced and then classifies the statute as mandatory or directory. One result of this technique is that some awfully mandatory-looking statutes get classified as merely directory. See, e.g., Sargo, II, Inc., v. City of Philadelphia, 488 F. Supp. 1045 (E.D. Pa. 1980); Sullivan, supra, 217 N.W.2d at 504, and cases cited therein.

6. A.S.C.A. § 37.2020 was enacted in 1978 by the Fifteenth Legislature of American Samoa as Public Law 15-69. The preamble to P.L. 15-69 noted that "inflation is a persistent problem which may not abate" and that it was therefore "deemed appropriate to fix policies which will assure that real property of the Government of American Samoa will be wisely used and that the market value thereof will be realized."

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. 34-89

November 27, 1989

__________

Extrinsic evidence tending to corroborate information provided by an informant might be important to bolster a relatively weak showing on either of the two principal factors considered by issuing magistrates in such cases ---the credibility of the informant and the basis of the informant's knowledge ---but is not necessary where neither of these factors needs bolstering. [13ASR2d50]

Judge was justified in finding probable cause to believe marijuana was present on premises, even without extrinsic corroborating evidence, where the police officer's affidavit stated persuasively and with particularity the grounds for the officer's belief that the informant was reliable and had a reliable basis for knowing whereof he spoke: that the officer had personally known the informant for over a year; that the informant had previously provided information which had proved reliable and trustworthy; that information provided by this informant had in fact been instrumental in securing more than one criminal conviction; and that the information provided to the officer was that the informant had not only been told about the existence and location of the substance by the defendant himself, but had also seen it personally and actually obtained samples.

Test by police officer of samples provided by informant, which showed the substance to be marijuana, tended to corroborate only part of the informant's story, and not the part tying the marijuana to the location in question; but if the officer had tried to corroborate that part of the story before applying for a warrant, defendant might well have been justified in complaining of a warrantless search.

Task of judge to whom officer had applied for a search warrant was to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, there was a fair probability that contraband or evidence of a crime would be found.

Duty of court in reviewing the decision of the judge who issued search warrant is not to try the question anew but simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

Before REES, Associate Justice.

Counsel: For Plaintiff, Jeff Buckner, Assistant Attorney General
For Defendant, William H. Reardon

On Motion to Suppress Evidence:

Defendant moves to suppress evidence seized pursuant to a search warrant. Counsel for defendant cites Illinois v. Gates, 462 U.S. 213 (1983), and Massachusetts v. Upton, 466 U.S. 727 (1984), for the proposition that a warrant grounded on information supplied by a confidential informant is constitutionally defective in the absence of "independent corroboration of the tip." Neither case stands for such a proposition; indeed, Upton specifically rejected an almost identical argument. See 466 U,S. at 730. It is true that extrinsic evidence tending to corroborate information provided by an informant might be important to bolster a relatively weak showing on either of the two principal factors considered by issuing magistrates in such cases: the credibility of the informant and the basis of the informant's knowledge. Gates, supra, 462 [13ASR2d51] U.S. at 227-28. In the present case, however, neither of these factors needed bolstering.

The police officer's affidavit stated persuasively and with particularity the grounds for the 'officer's belief that the informant was personally reliable and had a reliable basis for knowing whereof he spoke. The officer swore that he had personally known the informant for over a year; that the informant had previously provided information which had proved reliable and trustworthy; and that information provided by this informant had in fact been instrumental in securing more than one criminal conviction. The information provided to the officer, moreover , was that the informant had not only been told about the existence and location of the substance in question by the defendant himself, but had also seen it personally and actually obtained samples.

This showing would have been sufficient to justify the judge in finding probable cause to believe the substance was present at that location even if there had been no extrinsic corroborating evidence. In fact, however, the po1ice officer himself tested the samples provided by the informant and found them to be marijuana. This test tended to corroborate only part of the informant's story, and not the part tying the marijuana to the location in question; but if the officer had tried to corroborate that part of the story before applying for a warrant, defendant might well have been justified in complaining of a warrantless search. Instead, the officer went before a judge and told him why he believed that the informant (1) was trustworthy and (2) had a reliable basis for knowing the truth or falsehood of the information he had given to the officer .

The judge's task was to make "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him. ..there [was] a fair probability that contraband or evidence of a crime [would] be found...." Gates, supra, at 238. The duty of this Court in reviewing the issuing judge's decision is not to try the question anew but "simply to ensure that the magistrate had a substantial basis for. ..conclud[ing]' that probable cause existed." Id. at 238-39, quoting Jones v. United States, 362 U.S. 257,271 (1960). The judge's conclusion was clearly supported by the record.

The memorandum accompanying the present motion also alleges that the police officer's affidavit "contains material false and misleading statements" and that a statement given to the officers by the defendant [13ASR2d52] was not voluntarily made. No evidence in support of these contentions was adduced at the hearing on the motion.

Accordingly, the motion is denied.

It is so ordered.

*********

American Samoa Gov’t; Klauk v.


HELMUTH W. KLAUK, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT, Defendant

High Court of American Samoa
Trial Division

CA No. 44-89

November 29, 1989

__________

Territorial legislature has incorporated by reference the United States Internal Revenue Code, 26 U.S.C., for income taxation in American Samoa. A.S.C.A. § 11.0403.

Power of levy and distraint over a taxpayer's property may be invoked without intervention of judicial process, on the theory that the taxpayer has already had the opportunity to invoke administrative and judicial remedies. 26 U.S.C. § 6331(a).

High Court of American Samoa has i:xclusive and original jurisdiction over territorial income tax proceedings, sitting as a District Court in refund cases and a Tax Court in deficiency proceedings. A.S.C.A. § 11.0401, 11.0408.

Government must issue a statutory notice pf deficiency (90-day letter) by registered mail before assessing or collecting any deficiency, and is expressly prohibited from such assessment or collection until it has done so. 26 U.S.C. §§ 6212(a), 6213(a).

According to Tax Court rule, a 90-day notice must have been issued for the court to have jurisdiction in a deficiency proceeding initiated by a taxpayer. United States Tax Court Rule 13(a).

Deficiency proceedings, which allow a taxpayer to litigate the government's determination of a deficiency before paying such deficiency, are an essential part of the statutory scheme. 26 U.S.C. § 6213(a). [13ASR2d53]

Before the government can distrain and seize a taxpayer's property, it must validly assess a deficiency by preparing and sending a 90-day statutory notice to taxpayer before the statute of limitations expires. 26 U.S.C. § 62I2(a), 6501(a).

For a court to have jurisdiction over a suit to recover taxes erroneously or illegally assessed or collected, the government must have assessed such taxes and the taxpayer must have timely filed a refund claim with the Tax Office. 26 U .S.C. § 7422.

A taxpayer may sue and enjoin the government from levying on, distraining, or seizing property under the authority of purported deficiency assessment where the government did not issue a 90-day statutory notice of deficiency. 26 U.S.C. 6213(a).

Tax laws permitting the seizure and sale of property must be strictly construed.

Sovereign immunity docs not bar a taxpayer's suit to recover property seized by the government for unpaid taxes where the government failed to comply with the procedure of the Internal Revenue Code, because Congress deliberately waived sovereign immunity by providing for deficiency hearings and refund suits.

Government violates due process when it seizes a taxpayer's property for unpaid taxes without following the procedure mandated by the Internal Revenue Code for distraint and levy.

Where government failed to issue a 90-day statutory notice of deficiency before seizing plaintiff property for unpaid taxes, it was enjoined from depriving plaintiff of his right to due process, either by continuing to deprive him of his rights under the Internal Revenue Code to challenge and contest income tax deficiencies or by withholding the property it had seized from plaintiff, until it complied with the applicable Code provisions pertaining to distraint and levy.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, and OLO, Associate Judge. Counsel: For Plaintiff pro se
For Defendant Aitofele T. Sunia, Assistant Attorney General

Plaintiff taxpayer brings this action pro se to recover certain funds of his which the government seized for unpaid taxes by way of a levy on his bank account. Plaintiff denies owing any taxes and claims that the government's assessment of additional taxes and its collection thereof was" erroneous and illegal."

Facts

We find on the evidence that the Tax Office was, for a brief period between August 20 and October 12, 1984, active in the process [13ASR2d54] of examining plaintiff's returns for tax years 1981 and 1982. The examining agent assigned had proposed a disallowance of certain claimed deductions on the grounds that plaintiff had not provided substantiating records as requested of him. A copy of the agent's report explaining his proposed adjustments was sent to plaintiff together with a transmittal letter (30-day letter) dated September 26, 1984. Plaintiff did not respond to the options offered in the 30-day letter.

Quite surprisingly, the Tax Office did not thereafter process and mail out a statutory notice of deficiency (the 90-day letter). Except for a letter dated October 12, 1984, which demanded plaintiff's compliance with certain informational requests, there was nothing further done in these matters for the next two (2) years. (1)

On December 2, 1986, the Tax Office prepared and sent two notices to plaintiff. These notices contained the headings "FIRST NOTICE" and "STATEMENT OF TAX DUE." One notice was for tax year 1981 and it stated "assessed tax:" in the amount of $1,158.00, with penalty of $327.00 and interest at $538,37, for a total of $2,023.49. For tax year 1982, the other notice stated the "assessed tax" as being $1,438.00; penalty as $256.36; and interest at $368.91, totaling $7,063.27. When plaintiff received these notices, he simply wrote the Tax Office advising that he had paid his taxes for the tax years referenced.

On May 1, 1987, the Tax Office next sent out a further notice to plaintiff which contained the notation "FINAL NOTICE. " This notice demanded payment of the taxes claimed as due and owing from taxpayer , and it also cautioned that certain collection means, including the power to levy bank accounts, were, by statute, available to the government. Plaintiff, in turn, gave the Tax Office the same response he had given to the notices earlier sent.

On or about August 4, 1987, the government, after making further adjustments for additional penalties and interest, levied plaintiff's savings bank account and seized $4,256.46. [13ASR2d55]

Discussion

A. The Levy

For purposes of income taxation in the Territory, the Fono has simply incorporated by reference the United States Internal Revenue Code of 1954, hereafter referred to as the "Code." See A.S.C.A. § 11.0403. The power of levy and distraint over a taxpayer's property is provided in 26 U,S.C. § 6331(a), and may be invoked without the intervention of the judicial process, United States v. Eiland, 223 F,2d 118 (4th Cir. 1955), This power has been described as "a summary non-judicial process, a method of self-help authorized by statute which provides the [government] with a prompt and convenient method for satisfying delinquent tax claims." United States v. Sullivan, 333 F. 2d 100, 116 (3rd Cir. 1964). This broad administrative power is drastic, however, and as one commentator has explained:

it is based on the theory that the taxpayer has already had the
opportunity at this stage to invoke his administrative and judicial
remedies to redetermine or to set aside the asserted tax liability,
and that he is now at the stage where he owes a tax liability that
he refuses or neglects to satisfy.

Chommie, Federal Income Taxation 923 (2d ed. 1973).

In the present case, the evidence clearly demonstrates that the government simply ignored the administrative process mandated by the Code. In the normal course, the Tax Office is first required to mail the taxpayer a statutory notice of deficiency (the 90-day letter) by registered mail. See 26 U.S.C. § 6212(a). The Code further provides that within 90 days after the notice of deficiency is mailed, the taxpayer may file a petition with the Tax Court (2) for a redetermination of the deficiency. Until such a notice has been issued, the assessment or collection of any deficiency, whether by levying on or otherwise seizing a taxpayer's property, is expressly prohibited by the provisions of 26 U.S.C. § 6213(a). In view, therefore, of its omission in this case to issue the required deficiency notice pursuant to 26 U.S.C. § 6212(a), the [13ASR2d56] government not only lacked the power of self-help when it levied plaintiffs bank account, it violated a clear statutory prohibition against the use of self-help. It acted illegally.

A number of observations giving cause for concern may be made in the light of events. Firstly, the Court's jurisdiction in a deficiency proceeding initiated by taxpayer is dependent on the issuance of a 90-day notice, (3) and the statute providing for the 90-day notice (4) is as binding on the government as upon plaintiff. Maxwell v. Campbell, 205 F.2d 461 (5th Cir. 1953). The government's failure in this case to issue the 90-day notice had, therefore, effectively deprived plaintiff of his option to litigate the Tax Office's claim of deficiency as provided by 26 U.S.C. § 6213(a). This option was specifically given by Congress to overcome the potential hardship associated with having to first payout the Internal Revenue Service's determination of a deficiency before one is afforded the opportunity to litigate that determination. Laino v. United States, 633 F.2d 626 (2nd Cir. 1980). "[Section 6213(a) is an essential part of the whole statutory scheme of furnishing the taxpayer with an option. ..to apply for relief to the Tax Court, ...[and] was not enacted as mere idle gesture." Maxwell v. Campbell, 205 F.2d at 463.

Secondly, a distraint on and seizure of a taxpayer's property presupposes in the normal case that a prior and valid deficiency assessment has been made. 26 U.S.C. § 6212(a). In turn, a valid assessment presupposes that: (a) the government has prepared and sent the required 90-day notice to taxpayer; (5) and (b) the statute of limitations, 26 U.S.C. § 6501(a), has not run. (6) The outcome here has been a total disregard for the administration process provided by the Code ---that is, the government not only overlooked clear statutory directives, prohibitions, and [13ASR2d57] limitations with regard to its revenue powers, but it also clearly undermined taxpayer's statutory rights.

B. Recovery and sovereign immunity

Having said as much, the question remains, however, whether plaintiff can recover. It is one thing to say that the government has acted in excess of its tax collection powers, but it is quite another thing to say that government can therefore be sued. For instance, it has been said "that the right to sue the government is purely statutory, and that the right to recover back taxes wrongfully collected rests upon the same basis." Gotham Can Co. v. United States, 37 F.2d 793 (C.Cl. 1930), cert. den. 281 U.S. 706 (1930). That is, at issue is the doctrine of sovereign immunity and whether there has been a waiver of immunity. (7)

The Code does provide for refund suits against the government for the recovery of any tax alleged to have been erroneously or illegally assessed or collected. 26 U.S.C § 7422. Such an action, however, is not available in the situation presented here. The filing of a refund suit ensues certain detailed administrative proceedings. Unsurprisingly, the occurrence of certain steps in this administrative process are jurisdictional prerequisites to suit, including: the government's assessment of the tax owed, Hansen v. United States, 455 F. Supp. 1367 (W.D.Mo. 1938), and the taxpayer's timely filing of a refund claim with the Tax Office. U.S.C. § 7422(a). In the matter before us, an assessment of taxes owed had not been made by the government and, at the same time, the opportunity to file administratively for a refund did not arise. Given the circumstances of the levy, plaintiffs filing of a refund claim with the Tax Office would have been a meaningless exercise. The remedial provisions of 26 U.S.C. § 7422 are not apposite.

C. Immunity Waived

Taxation is a subject matter which has been extensively regulated. and in the process of that regulation Congress has come up with an elaborate statutory scheme which attempts to address two competing but fundamental interests: the government's need to raise and [13ASR2d58] collect taxes on the one hand, and the individuals right to own property free from undue government interference on the other. The Code has accordingly furnished the taxpayer with a remedial process designed not only to afford him with a number of protective measures but opportunities as well for judicial review and, therefore, statutory waiver of sovereign immunity. In the statutory scheme of things, his access to the courts is, as we have seen, a sequel to an administrative process which is as binding on the government as it is on the taxpayer. The government is such an integral part of that statutory scheme that without its envisaged cooperation that whole scheme can be effectively frustrated. (8)

In cases involving the seizure of real property, some courts hl1:ve been quite willing to find a waiver of sovereign immunity under 28 U.S.C. § 2410(a), which provides that the United States may be named as a party in a civil action to quiet title and to set aside sale. See, e.g., Aqua Bar & Lounge Inc. v. United States, 539 F.2d 935 (3d Cir. 1976); Yanicelli v. Nash, 354 F. Supp. 143 (D.N.J. 1972).

Yet in other cases, certain courts have, without any mention of § 2410 (or sovereign immunity), simply invalidated certain tax sales which were not undertaken in strict compliance with the requirements of the Code. Johnson v. Gartlan, 334 F. Supp. 438 (E.D. Va. 1971), cert. denied, 414 U.S. 865 (1973); Reece v. Scoggins, 506 F.2d 967 (5th Cir. 1975). The starting premise in these cases is the proposition that tax laws which permit the seizure and sale of property must be strictly construed. This is in recognition of the citizenry's inviolable right to property; it was noted by Chief Justice Marshall in 1821:

That no individual or public officer can sell, and convey a good title
to, the land of another, unless authorized so to do by express law, is
one of those self-evident propositions to which the mind assents, without
hesitation; and that the person invested with [13ASR2d59] such a
power must pursue with precision the course prescribed by law, or
his act is invalid, is a principle which has been repeatedly recognized
in this court.

Thatcher v. Powell, 19 U.S. (6 Wheat.) 119, 125 (1821). In Reece v. Scoggins, supra, the Fifth Circuit went on to suggest that:

[t]he reason for this notion of the inviolability of private ownership
*** [is that the power] of seizure and sale of land is one of the most
potent weapons in the government's arsenal. The consequences of
seizure and sale are often staggering and irreversible; this action not only
deprives a taxpayer of a sometimes significant capital investment but
also denies him a source of additional income. Seizure and sale are
therefore generally available only as a last resort. In recognition of the
Damoclean nature of this ultimate weapon, Congress has imposed
precise strictures on the seizure and sale of property to satisfy legitimate
tax deficiencies.

Id. at 971.

An explanation for jurisdiction in these and similar case is attempted by the concurring opinion in Aqua Bar & Lounge Inc. v. United States, supra, which involved a § 2410 action. The suggestion here made is that the elaborate and detailed seizure and sale provisions of the Code provide an implied waiver of sovereign immunity where it is alleged that the Internal Revenue Service has failed to comply with the Code:

It would appear axiomatic that whenever Congress directs in an
unambiguous, detailed manner prescribed, protective procedures to be
taken by a government agency, but fails to provide either sanctions or a
method of enforcement in the event its mandate is ignored, a waiver of
sovereign immunity necessarily must be inferred in order to enforce the
legislative will. If it were otherwise, Congressional mandates *** could
be treated not as obligatory but rather as mere recommendations which
the Internal Revenue Service could violate negligently or intentionally
behind the shield of sovereign immunity. [13ASR2d60]

Id. at 942.

The logic is compelling. Since Congress has deliberately waived sovereign immunity by providing deficiency hearings and refund suits, can it then be said that the government may perversely benefit by its very own wrongdoing which has, among other things, effectively thwarted taxpayer's access to the courts? Of course not. We note subject matter jurisdiction and conclude that sovereign immunity is not a bar to plaintiff's action here for relief. (9)

D. Due Process

However, these proceedings do not concern issues of taxation. We are not here concerned with the question of whether or not taxes are owed and payable, nor are we concerned with the merits of the Tax Office's claim of deficiency. Those issues come up properly for judicial review in the context of deficiency proceedings pursuant to 26 U .S.C. § 6212 or refund actions under 26 U.S.C. § 7422. As we have seen, those opportunities for review never arose because of the government's actions. To the contrary, the Court is accordingly confronted with questions of whether plaintiff.'s property interests were seized in accordance with "due process" of law. Compliance with the deficiency notice procedure satisfies due process requirements. Phillip. v. Commissioner of Internal Revenue, 283 U.S. 589, 597 (1931). We are here concerned with the question of whether the government complied with the detailed requirements of the law concerning seizure of taxpayer's property. We are here concerned with the question of whether or not the government has, in seeking to enforce the law, followed the enforcement steps detailed by Congress. Thatcher v. Powell, supra. For reasons given, the above questions must be answered in the negative.

An order will enter accordingly to enjoin the government from depriving plaintiff of his rights to due process:

The government is hereby enjoined from continuing to deprive plaintiff of his rights under the Code to challenge and contest any and all income tax deficiency as the government may determine as due and payable from plaintiff for income tax years 1981 and 1982. [13ASR2d61]

In compliance with this injunction the government is further enjoined from withholding all property it had seizure from plaintiff as aforesaid until it has complied with all the requirements of the Code pertaining to distraint and levy. (10)

It is so Ordered.

*********

1. The Court was given the explanation that an ongoing suit by plaintiff, which related to some dispute about his 1983 income tax return. had apparently distracted attention from the proceedings involving the 1981 and 1982 returns. To compound matters, the examining agent subsequently resigned and the returns in question were further overlooked.

2. The High Court has exclusive and original jurisdiction with respect to American Samoa income tax proceedings. A.S.C.A. § 11.0408. The High Court sits as a Tax Court in deficiency proceedings, and otherwise as a District Court when hearing refund cases. A.S.C.A. § 11.0401; Patu v. Westervell, 4 A.S.R. 818 (1974).

3. United States Tax Court Rule 13(a).

4. 26 U .S.C. § 6212(a).

5. An assessment is illegal and void if a 90-day letter has not been sent to the taxpayer. Steiner v. Nelson, 259 F.2d 853 (7th Cir. 1958); United States v. Williams, 161 F. Supp. 158 (E.D.N.Y. 1958).

6. This enactment requires that assessments be made within 3 years after the return was filed.

7. In tort, for example, an action for damages, allegedly arising from the wrongful seizure of property pursuant to a tax levy, would not lie against the government. The government's waiver of immunity under the Government Tort Liability Act, A.S.C.A. §§ 43.1201 el. seq., does not extend to any claims relating to the assessment or collection of any tax. See A.S.C.A. § 43.1203(b)(3).

8. Undoubtedly, Congress was cognizant of this possibility when it also waived sovereign immunity in the following circumstances. Generally no suit can be maintained to restrain the assessment or collection of any tax. 26 U.S.C. § 7421(a). Howcver, 26 U.S.C. § 6213(a) provides an exception to that general prohibition by granting the taxpayer the right to sue and enjoin the government from making any levy, seizure or distraint under the authority of purported deficiency assessments where the government has failed to give the 90-day notice of deficiency. See also Laino v. United States, 633 F.2d 626 (2nd Cir. 1980).

9. See also United States v. Hefner, 420 F.2d 209 (4th Cir. 1969), for the proposition that where a government agency fails to scrupulously observe its rules and regulations, its actions cannot stand and the courts will strike it down.

10. The government's ability to comply with the code's requirements at this point in time is not of concern to the Court. The Court here focuses on the constitutional requirement that any seizure meet the due process standard formulated in the Code.

Alaimalo; Sivia v.


SIVIA SIVIA, JR., BEN FALEAFAGA, and
FUATA PEPA, Objector/Plaintiffs

v.

ALAIMALO PEPINE HENRY PORTER and HEIRS,
Claimant/Defendants

High Court of American Samoa
Land and Titles Division

LT No. 88-81

December 18, 1989

__________

Claim to individual ownership of land in American Samoa requires proof of initial clearing of bush land and sustained use and occupation of the land thereafter.

Matai assigning or designating family land for the use of a particular member does not lose pule (authority) over such land.

Family member's continued right to use and occupy communal land is conditional upon his providing tautua to the matai.

Matai cannot alienate land without complying with certain statutory procedures, including the approval of the Governor of American Samoa. A.S.C.A. §§ 37.0201 et seq.

Offer to register certain land either as individual or communal property of claimants would be denied where: a prior suit held that land was owned communally by objectors to the registration; claimants cited two different theories of ownership in their offer of registration and at trial; and claimants' theories were inconsistent with both law and custom.

Where objectors to registration of land cited a prior case holding that the land belonged to them, but offered no surveys delineating the extent of their respective claims within the disputed area, the court would deny the offer of registration but would express no opinion with regard to the claims of the objectors beyond the holding in the prior case. [13ASR2d96]

Before KRUSE, Chief Justice, OLO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiff Sivia, Togiola T .A. Tulafono and Roger Hazell
For Plaintiffs Utu family, Utu Sinagege R.M. For Defendants, Charles V. Ala'ilima

In January 1981, Alaimalo Pepine Henry Porter surveyed a certain area of land which he then offered for registration as the individually owned and of "Alaimalo Pepine Henry Porter and his heirs." This offer prompted a number of objections from members of both the Utu family and the Paolo family of Amouli village in the County of Saole, Eastern District. The land, which the parties refer to as "Oloie," is located in Auasi towards the eastern outskirts of Amouli village. The objectors complain that Porter is attempting to claim their respective communal fami1y land. They point to an earlier title dispute which the Court resolved in favor of the Utu and Paolo families against certain people from Aunu'u who laid claim to a part of Oloie. Utu and Paolo v. Fonoti, 1 A.S.R. 208 (1907).

At the time of trial, claimant Porter aborted his claim of individual ownership. In lieu thereof, he sought to establish his family's stake as being one in communal ownership pertaining to the title "Alaimalo. " Mr. Porter has, since the commencement of this action, resigned from the title "Alaimalo" in favor of his daughter, Jane, who has joined in these proceedings as the Alaimalo title holder. The Porters are also members of the Utu family; however, they ground their claim to "Oloie" on the basis of an "assignment" of the land made by a former Utu to one Faimafili. They contend that this as assignment was in fact all outright transfer of ownership to Faimatili, a taute'ale'a (non.matai) who was at the time rewarded for tautua (traditional services) rendered to Utu. Faimafili is also the father of claimant Alaimalo Pepine Henry Porter .

The Porters further claim that the said Faimafili "created" for himself the matai title" Alaimalo" in 1941 with the blessings of the Utu. The conclusion one is invited to draw from the above is that Faimafili's new found matai status then somehow merged with his estate in the land "Oloie," giving the said land communal status appurtenant to his Alaimalo title, and, therefore, belonging to the Alaimalo family. (1) [13ASR2d97]

Counsel for the Paolo family objected strongly against permitting the claimant to suddenly change story in midstream. His clients were not alert to contest a communal ownership claim. Alternatively, counsel pointed out that the new allegations by the claimant, regarding an assignment by a former Utu, did not take anything away from the Paolo family's entitlement to "Oloie"as established in Utu and Paolo v. Fonoti, supra. Utu may not give away what is Paolo's. (2)

For the Utu family, the incumbent senior matai, Utu Sinagege R. Morris, who himself besides on "Oloie," also rejected the Porter's ownership claim and vigorously denied the asserted conveyance. He explained their presence on "Oloie" as stemming from the fact that they are members of the Utu family occupying Utu family property in accordance with custom. Utu further claims that Alaimalo is a lesser matai of the Utu family.

Discussion

The claim to ownership asserted by the Porters sadly lacked coherence and hence the rather uncertain manner in which their claim evolved in the course of these proceedings. Credibility was immediately at issue with claimant's change of theory. Among other things, a claim to "individual ownership is a claim to initial clearing of bushland as well as sustained use and occupation of the land thereafter. See, e.g., Lealaimatafao v. Noa, 9 A,S.R.2d 9 (1988). The initial clearing of bushland by claimant would, therefore, have been a necessary often of proof, for a claim in individual ownership. Such an offer of proof, however, would be a contradiction of Utu and Paolo v. Fonoti, supra. In these circumstances, it is difficult to resist the conclusion that claimam's change in theory was necessitated by the need to be consistent with the holding in Utu and Paolo v. Fonoti. [13ASR2d98]

The amended claim to communa1 ownership is, however , without foundation. The claim to an outright assignment, or surrender by Utu of his family's title to "Oloie," in return for services rendered, is not only inconsistent with law but also with custom. Firstly, a matai assignment or designation of family land for the use of a particular family member does not divest the matai of his authority or "pule" over the land. Toleafo v. Tiapula, 7 A.S.R.2d 117(1988), (aff'd 12 A.S.R.2d 56 (1989); Leapalga v. Masalosalo, 4 A.S.R. 868 (1962); Pisa v. Solita, 1 A.S.R. 520{1935); Levu v. Maluia, 1 A.S.R. 197 (1908), If it were otherwise, there would be very little communal land left, if any, in the territory.

Moreover, a family member's continued right to use and occupy communal land holdings is conditional upon his providing tautua to the matai. Toelefoa v. Tiapula, supra. If, as suggested by claimant, assignments could be construed as out and out grants, then there would be no further need for tautua, for matai, or indeed for a communal way of living and fa'a Samoa.

Finally, claimant's theory of assignment (of communal land) cannot be reconciled with the legislative prohibition against matai alienation of land without compliance with certain statutory procedures, including the approval of the Governor of American Samoa. A.S.C.A. §§ 37.0201 et seq. See also Teo v. Totoa,2 A.S.R. 243 (1947); Tuafili v. Taape, 2 A.S.R. 155 (1944).

We sustain the objections and accordingly deny the application by Alaimalo Pepine Henry Porter and his heirs to register title to the land "Oloie."

On the other hand, neither of the objecting families provided a survey delineating the exact extent of their respective claim for the Court's consideration. At the same time the objectors both agree and submit that "Oloie" is a much larger area of land than that considered in Utu and Paolo v. Fonoti, supra, and that surveyed by the Porter family. They also both lay claims to greater Oloie, whatever that might be. With regard, therefore, to the respective claims of the Utu and Paolo families, we intimate no opinion beyond this Court's holding in Utu and Paolo v. Fonoti.

Judgment accordingly. It is so Ordered.

*********

1. The offer to pursue his claim as one in "communal ownership as opposed to "individual ownership is in essence the same: attempt to register the land in favor of the Porter family to the exclusion of the extended Utu family. Registration of title to the land "Oloie" is sought in the name of the "Alaimalo" family. The "Alaimalo" family is none other than the Porter family as the title "Alaimalo" is claimed by the Porters as a creation of their grandfather, Faimafili, and, therefore, as the exclusive reserve of Faimafili's immediate descendants.

2. Notwithstanding the reasoned submission by counsel, curiosity nonetheless remains aroused with Paolo's admission that none of his family members had, within his time, occupied or maintained crops in the vicinity of Oloie.

Ah Ching v. Ah Ching,


LEIATAUA AH CHING, Petitioner

v.

OTILA AH CHING, Respondent

High Court of American Samoa
Trial Division

DR No. 47-88

November 3, 1989

__________

A collateral claim on behalf of carpenters who had built the marital home should not be entertained in the context of a divorce proceeding. especially where the pleadings did not alert anyone to anticipate the claim and therefore did not provide respondent with adequate notice and a meaningful opportunity to be heard. [13ASR2d35]

Dismissal of petitioner's claim against respondent in divorce action on behalf of carpenters who had built the marital home was without prejudice either to any claims which the petitioner might have to indemnification or to any claims which the carpenters themselves might have.

Petitioner's claim to reimbursement of proceeds from sale of his separate property, which had been spent partly to feed carpenters who were constructing the marital home, would be denied; although awarded to the respondent in the divorce proceeding, the marital home benefitted the petitioner during the marriage, and the parties were not entitled to be restored to their former positions as if the marriage had never occurred .

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

Counsel: For Petitioner, Charles V. Ala'ilima
For Respondent, Togiola T.A. Tulafono

On or about March 17, 1989 the Court found that the respondent/counter-petitioner had satisfactorily proven grounds for divorce and accordingly announced its findings and conclusions. With regard to ancillary issues, the proceedings were continued to allow the parties to discuss the division of marital assets and liabilities. These discussions have led to a mutual resolution (the Court was advised that appropriate stipulations would be reduced to writing and filed with the Clerk for the Court's approval and annexation to the decree of divorce) in all but two issues, which are here presented for the Court's determination.

Factual Background

The parties were married on or about February 23, 1987, and separated in January 1988. During the short period of cohabitation, the parties built a home on communal land of the respondent's family. They made a sizable home loan and engaged certain relatives of the petitioner to build the said home fa'a Samoa (the builders would be rewarded for their labor with presentations in accordance with Samoan custom). Respondent on her own accord arranged and made certain remunerative presentations for the builders in accordance with her perception of what was due under custom. Petitioner, on the other hand, feels that the builders were insufficiently rewarded. [13ASR2d36]

The parties have sensibly agreed that the marital home be awarded to respondent on the condition that she repay the home loan and indemnify petitioner accordingly. (1) Petitioner, however, also claims in addition a total of $9,500 from the respondent as set out below.

The Dispute

A. One claim is for $6,500 which petitioner feels should be additionally paid by the respondent to the carpenters. In his view a further payment of $6,500 would be fitting, given the extent of work undertaken. Petitioner seeks the said amount so that $5,000 may be given to a carpenter named Taito and $1,500 to the finishing carpenter named Lene.

B. Additionally, petitioner wants respondent to reimburse him the sale proceeds of his pickup truck. Petitioner claims that these mods were used by the respondent to provide food for the builders while they were working on the marital home. Petitioner testified that the truck (which he had purchased before the marriage) was sold to his son in Western Samoa for $4,000 and that his son turned over the proceeds to respondent. Although he admitted using $1,000 thereof, petitioner testified that the sale proceeds were earmarked for the purchase of another vehicle. While he further admitted that he did not know exactly how the remainder of the proceeds were used, he seeks $3,000 from respondent on the basis that the proceeds of the sale of his separate property would have benefitted the construction of the home.

Respondent, on the other hand, denied using all of the sale proceeds to feed the carpenters. She testified that she received the proceeds in installments and that the funds simply went into the overall household budget. As the family exchequer, she testified that she applied the first $1,000 to payoff an account which petitioner had incurred. The rest of the money was expended not only on food for the carpenters but also on petitioner's large extended household who lived with them. At the same time, the money was also used on such typically family expenses as fa'alavelave and village and church matters. [13ASR2d37]

Conclusions

A. At trial, we summarily denied petitioner's introduction of evidence on the first claim upon objection by counsel for respondent. We refused to entertain a collateral suit on behalf of the carpenters in the context of petitioner's divorce proceedings.

Counsel for petitioner argued in response to the objection that his client was not suing on behalf of the carpenters but merely seeking indemnification against possible claims by the carpenters. We rejected this argument. The evidence on the reasonableness of the carpenters' claim, which was objected to by respondent, clearly had nothing to do with indemnification against possible suit by the carpenters. Rather r petitioner sought a specific recovery for himself, asking for a judgment in the amount of $6,500. Such a claim is for a "liquidated" amount, which is hardly consistent with indemnification given the "contingent" nature of any claims the carpenters might have.

More importantly, the pleadings did not alert anyone to anticipate the claim as presented, and certainly respondent did not have adequate notice. The very fact that an argument arose regarding the extent of petitioner's claim (specific recovery versus indemnification) highlighted this lack of adequate notice.

We held the objection to be well founded. The respondent's entitlement to adequate notice and a meaningful opportunity to be heard is a right of constitutional dimensions. At the same time, our conclusions in this regard are without prejudice to any claims which the petitioner may have to indemnification, as well as to any claims which the carpenters may have relating to accord and satisfaction fa'a Samoa.

B. Petitioner's other claim (for reimbursement of proceeds) is totally without merit. This remarkable claim requires the Court to attempt a restoration of divorcing parties to their former positions as if the fact of marriage had never occurred. It would follow, on the logic of petitioner's claim, that respondent should also be reimbursed by petitioner for all monies she had earned from her separate rental car business and which she had contributed during the marriage to such matters as petitioner's upkeep, the upkeep of any members of petitioner's extended household, fa'alavelave involving petitioner's side of the family, petitioner's matai obligations to the village and church, and other similar expenditures. If petitioner had used any of respondent's rental vehicles [13ASR2d38]during the marriage, should he now be liable for rental charges since the marriage is now over?

If the proceeds from the sale of the pickup truck had been spent during the marriage on food for the carpenters, then the proceeds were, indeed, used for a marital purpose ---the marital home ---which undoubtedly benefitted the petitioner as well. Just because the marriage has legally ceased to exist does not mean that such a marital benefit has now somehow taken on the form of a post-marital detriment claimable at the option of one party from the other. During the marriage, a certain amount of water, so to speak, had flowed under the bridge. The Court cannot, in the course of divorce proceedings, turn back that flow of water.

Petitioner is denied relief on both claims.

It is so Ordered.

*********

1. In fact, since the filing of the petition and counter-petition, respondent has refinanced the home loan by taking out another in her name alone.