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20ASR2d

20ASR2d

Rosendahl Corp.; Patau v.


FUIFATU SEFO PATAU, Appellant

v.

ROSENDAHL CORP. and RALSTON PURINA CO., Appellees

High Court of American Samoa
Appellate Division

AP No. 11-91

March 12, 1992

__________

If a case has not been brought within the time limits of A.S.C.A. § 43.0120, summary judgment may be properly entered against plaintiff(s). [20ASR2d78]

Before GOODWIN,* Acting Associate Justice, MUNSON,** Acting Associate Justice, MALAETASI,*** Acting Associate Justice, MATA'UTIA, Associate Judge, and MAILO, Associate Judge.

Counsel: For Appellant, Togiola T.A. Tulafono

  For Appellees, Robert A. Dennison III

Goodwin, J.:

Fuifatu Sefo Patau appeals a summary judgment entered in favor of the defendants for failure to commence this personal injury action within the statutory period of limitations. We affirm the judgment.

On March 21, 1987, Patau suffered an amputation of his left forearm while working in the Samoa Packing Company plant in Pago Pago. He obtained counsel who negotiated a settlement with the packing company's compensation carrier. Then, throughSan Diego counsel, he attempted to bring an action in the United States District Court for the Southern District of California against the named defendants for damages. This action was dismissed because his counsel failed to allege diversity of citizenship and then failed to amend his pleading within a reasonable time.

On March 22, 1989, two years and one day after his accident, Patau filed this action against the named defendants.

Ralston moved for summary judgment on a number of grounds that we need not reach, because the trial court correctly determined that the case had not been brought within the time limit of A.S.C.A. § 43.0120. [20ASR2d79]

The trial court memorandum on the statute of limitations reads as follows:

Plaintiff asserts that his complaint was timely filed since the statutory period begins the day after the event. T.C.R.C.P. Rule 6. We disagree with plaintiffs conclusion and hold that his complaint was one day late since the limitation period expired at midnight March 21, 1989. See Jenkins v. Yoder, 324 N.E.2d 520 (Ind. 1975); 51 Am. Jur. 2d Limitation of Actions §§ 58-60.

A.S.C.A. § 43.0120 unambiguously provides in pertinent part:

Actions may be brought within the following times after their causes accrue, and not afterward, except where otherwise especially declared:
....
(2) actions founded on injuries to the person..., whether based on contract or tort, ...within two years.

(Emphasis added by trial court). While there are very specific statutory exceptions given that would toll the statute, see A.S.C.A. §§ 43.0124-43.0127, the facts here do not come within any of those exceptions.

We agree with the trial court. The judgment is AFFIRMED.

**********

* Honorable Alfred T. Goodwin, Senior Circuit Judge,United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable Alex R. Munson,ChiefJudge,United States District Court for theNorthern Mariana Islands, serving by designation of the Secretary of the Interior.

*** Honorable Malaetasi Togafau, District Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

Rocha v. Rocha,


JEANNETTE PENITUSI ROCHA, Appellant

v.

JOSE MANUEL B. ROCHA, Appellee

High Court of American Samoa
Appellate Division

AP No. 18-90

March 11, 1992

__________

A motion for a new trial is deemed filed when presented to the clerk for filing, absent valid reasons for rejecting it.

All assets of the marital estate, including assets held outside of the Territory, are subject to the court's jurisdiction, although the court may not have jurisdiction to enforce an award of real property in another forum.

Absent fraud, marital property does not include property that has been reasonably expended by one of the spouses for his or her own use or as a gift.

That one spouse transferred money to a parent, apparently motivated by the tiling of a divorce action, does not detract from the trial court's acceptance that the transfer was a bona fide gift.

The presumption that property owned at the time of divorce is not separate property may be negated by testimony concerning gifts during the marriage or transfers prior to the marriage.

Even if the trial court's decision concerning the value of the marital estate was perhaps mistaken in some particulars, it was not clearly erroneous.

The requirement of filing a motion for a new trial or reconsideration of judgment prior to an appeal is jurisdictional, A.S.C.A. § 43.0802(a).

In resolving issues of witnesses' credibility, motive, and character, the Appellate Division is limited to the trial court's transcripts and will presume their determinations to be correct, unless clearly erroneous, A.S.C.A. § 43.0801(b). [20ASR2d64]

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, MUNSON,** Acting Associate Justice, VAIVAO, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Appellant, Robert A. Dennison III

  For Appellee, Asaua Fuimaono

MUNSON, J.:

This is a direct appeal following trial from a decree of divorce issued by the High Court of American Samoa, Trial Division (Kruse, C.J.; Tauanu'u, C.A.J.; Mata'utia, A.J.) in favor of respondent and appellee Jose Manuel B. Rocha ("Jose") as to absence of desertion, and against petitioner and appellant Jeannette Penitusi Rocha ("Jeannette") as to adultery, habitual cruelty, and ill usage. Jeannette was awarded custody of their daughter born in 1985, $300 per month child support pendente lite, and $6,000 from the marital assets. She contests the equitable distribution of marital property and the predicate finding of fact as to the extent of the marital estate. Jose counters that the appeal is barred because Jeannette filed her motion for new trial one day beyond the ten days permitted, and on the merits argues that there is substantial evidence supporting the findings of fact and that the division is fair and equitable.

We conclude that we have jurisdiction over the appeal, and because the tactual finding that the marital estate consisted of $12,000 cash was not clearly erroneous, that the .judgment evenly dividing this property should be upheld.

Issues

1. Did Jeannette file her Trial Division motion for new trial or for reconsideration beyond the ten days permitted by T.C.R.C.P. 59(a) [20ASR2d65] and A.S.C.A. § 43.0802(a), thus depriving the Appellate Division of jurisdiction?

2. Did the Trial Division err in its fourth factual finding that the marital estate consisted of $12,000 cash?

3. Did the Trial Division err in its fifth conclusion of law that Jeannette was entitled to $6,000 from Jose as her equitable distribution share of the marital assets?

Procedural History

Jeannette filed for divorce on December 28, 1989, based upon allegations of desertion and lack of child support. Jose filed a counter-petition alleging adultery, habitual cruelty, ill usage, and infliction of emotional distress and mental anguish. The case was tried on June 15, 1990, and a ruling was announced from the bench. Jeannette filed a request for findings of fact and conclusions of law. She also filed a motion for new trial or for reconsideration pursuant to T.C.R.C.P .59(a) and A.S.C.A. § 43.0802(a). It was received by the Clerk's Office on June 25, 1990, file stamped June 26, 1990, and originally set for hearing on July 17, 1990. The court issued its decision and order containing findings of fact and conclusions of law on July 19, 1990. The hearing of the motion was continued to August 6, 1990, at which time it was denied. Jeannette filed her statement of issues pursuant to A.C.R. 10(b)(3) on August 16, 1990, and her appellant's brief on December 26, 1990. Jose tiled his appellee's brief on February 20, 1991. Jeannette filed her appellant's reply brief on February 28, 1991. The parties are represented by the. same counsel as at trial.

Facts

Jose is a Portuguese national employed during the marriage as a fisherman on a purse seiner vessel. He left Samoa on tour extended trips annually. Jose regularly sent money to his mother in Portugal. Jeannette used $10,000 to finance a trip to see her grandfather in Los Angeles and almost $7,000 to attend her sister's graduation. The marriage ended when Jeannette accused Jose of deserting her during a three month fishing voyage starting November 1988 and leaving inadequate money for support while gone. At this time Jose learned that she had been cohabiting with another man in his absence, renting a house with him with money Jose had left her. When Jose received service of this divorce action on December 29, 1989, he immediately transferred [20ASR2d66] $12,842 to his mother inPortugal.

At the time of trial, Jose had approximately $900 in a Portuguese bank account, the source of which is unknown. According to appellant, appellee's mother had between $10,000 -$15,000 in a Portuguese bank account held for his benefit, excluding the last minute transfer of $12,842. He held legal title to the apartment inPortugal where his parents, brother, and nephews live. He held $6200 cash and $646 at a bank account inAmerican Samoa, was owed $6500-$6800 in accrued earnings, and owned a motorcycle he kept aboard the fishing vessel.

Standard of Review

Under A.S.C.A. § 43.0801(b), we review the decision of the Trial Division under the clearly erroneous standard. All disputed issues of fact not addressed in the judgment are presumed to have been resolved in favor of the prevailing party. The issue concerning appellate procedure is a question of law which is therefore reviewed de novo.

Analysis

Appellate Jurisdiction

A.S.C.A. § 43.0802(a) provides: "Before filing a notice of appeal, a motion for new trial shall be filed within 10 days after the announcement of the judgment or sentence. " The requirement of a motion for new trial or reconsideration of .judgment is jurisdictional. Taulaga v. Patea, 17 A.S.R.2d 34 (App. Div. 1990). One of the purposes of the motion is to alert the trial court to possible errors or omissions in its opinion, so the reviewing court will not be left to speculate why the question was not addressed. Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146, 150 (App. Div. 1988).

The ten-day period commences with the oral "announcement" of the judgment or sentence from the bench, if that is done, notwithstanding any subsequent written opinion, notice, or correction short of a new judgment. Judicial Memorandum No.2-87, 4 A.S.R.2d 172 (1987).

At issue here is not when the judgment was "announced" or when the motion for new trial was due. The parties agree that the deadline was June 25, 1990. Rather, the point of contention is the meaning of the words "shall be filed" in A.S.C.A. § 43.0802(a). [20ASR2d67] Counsel for Jeannette states that the motion was delivered to the office of the clerk on June 25, 1990, which is reflected by the "received" stamp. If a document is timely presented for filing, and for no apparent reason it is untimely filed by the clerk the next day, it must be deemed filed when presented. To dismiss an appeal due to circumstances beyond a party's control and within the magisterial duties of the court would violate due process.

This issue was raised before the Trial Division, which implicitly rejected it by hearing the motion on its merits. The motion for new trial is deemed filed when presented to the clerk for filing, absent valid grounds for rejecting it, and the Appellate Division has jurisdiction over this appeal.

Marital Property

Jose confuses the issues and defends the court's determination that the marital property consisted of $12,000 cash by incorrectly arguing that theHigh Court of American Samoalacks jurisdiction over funds inPortugal, including $12,842 transferred to his mother upon receiving service of this divorce action. To the contrary, all assets of the marital estate are properly before the court and subject to its jurisdiction. While the court may not have jurisdiction to enforce an award of real property in another forum, such as an apartment in Portugal, so long as it has jurisdiction of the parties, it may make equitable distribution of the marital estate, taking into account the value of real and personal property belonging to the marriage, wherever located.

However, marital property does not include property which has been reasonably expended by one of the spouses for his or her own use or as a gift. Absent fraud, the $17,000 used by Jeannette for two trips to the mainland prior to this action and the $12,842 Jose transferred to his mother upon receiving service of this divorce proceeding are not marital property. Jeannette argues that the latter transfer was patently made to avoid inclusion in the estate, and must be disregarded. See Karr v. Karr, 628 P.2d 267, 278 (Mont. 1981).

Jose himself admitted that he transferred funds to keep Jeannette from getting them. He says that he was unable to save money while married, and seems to imply that Jeannette had spendthrift propensities. He also testified that the money was transferred to his mother as a gift.

In resolving issues of witnesses' credibility, motive, and [20ASR2d68] character, the Appellate Division is limited to the naked transcripts. "A written transcript is but a pallid reflection of what actually happened in court. It does not and cannot reflect demeanor, attitude, intonation, inflection, or personality." National Pac. Ins. Co. v. Oto, 3 A.S.R.2d 94, 94 (App. Div. 1986). Hence the presumption that such determinations by the Trial Division are correct unless clearly erroneous. A.S.C.A. § 43.0801(b); United States v. United States Gypsum Co., 333 U.S. 364 (1948).

In Karr, 628 P.2d at 278, the Montana Supreme Court, among numerous other contested factual questions, upheld a finding of the trial court that $12,000 taken out of a Montana bank account and placed in a Canadian bank certificate of deposit in the name of the couple's children on the date the husband received the summons and divorce petition was in fact still property of the marital estate. The trial court in Karr found the husband to be

a highly unreliable, untrustworthy, evasive, intentionally confusing, studiously misleading and, on occasion, patently perjurious witness. His testimony, given upon discovery or at trial, on material facts, was therefore approached with the greatest caution, accepted in full only where clearly substantiated by other evidence and weighed lightly in the face of conflicting evidence.

Karr, 628 P.2d at 269. No such finding adverse to Jose's credibility was made here. Indeed, Jeannette was found to be "at fault" in the marriage, which, although that does not bear directly on credibility as to this transfer, does reflect credibility findings as to other contested issues. Karr does not stand for the proposition that all last minute gift transfers must be disregarded. They very frequently will be, and Karr upheld the trial court in so doing under the facts of that case.(1) But here, the Trial Division apparently believed Jose had made a valid gift to his mother. That he was motivated by the prospect of seeing his soon to be ex-wife fritter it away on her own personal use, where he thought it would be lost to him in any event, does not detract from the court's acceptance that the transfer was a bona fide gift. [20ASR2d69]

Likewise, the court seems to have interpreted Jose's somewhat confusing testimony to the effect that the earlier transfers to Portugalwere gifts, even if he could theoretically get back some benefit from them if he returns to Portugalto live or when his parents die. That some of the money was used to pay the mortgage of the apartment where his family in Portugallives, but is held in his name, does not negate donative intent. The court did not address the approximately $900 in a Portuguese bank account Jose owned, but absolutely no testimony was given--Jose was not questioned--as to the timing or source of those funds. He did testify, however, that he had sent money home before being married. The presumption that property owned at the time of divorce is not separate property may be negated by testimony concerning gifts during marriage or transfers prior to the marriage.

The property held by Jose that the court seems to have decided to be property of the estate was the $6200 cash and $646 in an American Samoan bank account, $6500-$6800 in accrued earnings, and possibly the motorcycle kept aboard the boat. The court also took into account the $300 per month child support ordered pendente lite. While the assets arguably total at least $13,346-$13,646, taking into account this interim child support, the finding that the estate constitutes $12,000 is not clearly erroneous. Moreover, this finding of fact must be evaluated within the context of equitable property distribution.

Equitable Distribution

Consistent with the law in many jurisdictions, A.S.C.A. §§ 42.0209-.0210 authorizes the court to equitably distribute the property of either spouse, regardless of title, in a fair and just manner. Although the trial judge referred to "90 years of case law" as if under the impression an even split was mandatory, Jeannette has cited no American Samoan case law requiring a 50%-50% distribution. Nevertheless equity frequently dictates such a result.

The Trial Division did not dwell on it, but the record suggests that it found both parties somewhat lacking clean hands. Jeannette had spent $17,000 during the marriage on her trips to the mainland, used marital property to rent a house with another man and had been found "at fault" in the divorce. Unless the parties had been living separately for five years, the court was required to make a finding of fault. A.S.C.A. §§ 42.0201-.0208; Wray v. Wray, 5 A.S.R.2d 34, 47 n.6 (Trial Div. 1987). Jose's abrupt transfer of $12,842 at least appears improper. Yet in applying equity, the court had all the facts we have, [20ASR2d70] plus the benefit of seeing and hearing the witnesses. Even if some of the predicate factual findings were slightly erroneous, such as the fact that $900 in the Portuguese bank account was Jose's personal property, or the more significant amounts were not marital property, the court had an overall power and duty to arrive at a just result.

Perhaps the court was under a misapprehension as to its power over property in another country, but the record has not been cited to us for that point. Notwithstanding the possibility that these errors of law tainted the decision, the court was required to do equity. The division of property does not seem to us to be manifestly unfair.

Conclusion

The Trial Division did not err in considering Jeannette's motion for new trial or for reconsideration on the merits. We conclude that the Appellate Division has jurisdiction over the appeal because the motion was presented for tiling within the ten days set forth in T.C.R.C.P. 59(a) and A.S.C.A. § 43.0802(a). The factual finding that the marital estate consisted of $12,000 cash, while perhaps mistaken in some particulars, was not clearly erroneous. Even if this factual finding was in error, the equitable distribution of $6,000 from Jose to Jeannette was not manifestly unjust in view of the totality of the circumstances. The judgment of the Trial Division is AFFIRMED.

*********

* Honorable Alfred T. Goodwin, Senior Circuit Judge,United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable Alex R. Munson,ChiefJudge,United States District Court for theNorthern Mariana Islands, serving by designation of the Secretary of the Interior.

1. Although an issue was raised in the case as to whether the husband was subject to the personal jurisdiction of the Montana courts, Karr, 628 P .2d at 277-78, there was no doubt at all that the court had jurisdiction over the $12,000 moved toCanada, despite its location.

Samoa Air, Inc.; Solipo v.


VAEAO SOLIPO, ALAPATI TAUMATA, TOLOVAE POTOA'E,
TALI TUESE, MAUA TAOETE, FRANK VAITA and
LARRY TUILETA, Plaintiffs

v.

SAMOA AIR, INC., SAMOA AVIATION, OSCAR CIMAGALI,
DALE H. PETERSEN, AMERICAN SAMOA GOVERNMENT,
JOHN DOES 1-10 [Landowners], DOE CORPORATIONS 1-10,
and DOE GOVERNMENT AGENCIES 1-10, Defendants

CONTINENTAL INSURANCE CO., Intervenor

High Court of American Samoa
Trial Division

CA No. 57-89

November 12, 1991

__________

American Samoa's Workmen's Compensation Act was essentially modeled on the federal Longshoremen and Harbor Workers Compensation Act, 33 U.S.C. § 901; A.S.C.A. § 32.0501.

American Samoa's Workmen's Compensation Act does not explicitly provide for a right of subrogation where an employee receives compensation without a formal award and then recovers from a third pal1y, however, an employer has an equitable right of subrogation and is entitled to be reimbursed from an employee's net recovery, whether by judgment or settlement, from a third pm1y, A.S.C.A. § 32.0501

An employer, while entitled to reimbursement from employee's third-party recovery, is not required to bear a proportionate share of the litigation expenses and attorney's fees incurred by the employee.

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

Counsel: For Plaintiff, Roy J.D. Hall, Jr.

  For Defendant, Togiola T.A. Tulafono

  For Intervenor, William H. Reardon

Facts [20ASR2d38]

The plaintiffs were all injured when a Samoa Air aircraft crashed on Manu'a. Four of the plaintiffs were at the time working for the American Samoa Government. Two of the injured government employees, Alapati Taumata and Tolovae Potoa'e, have settled their claims against Samoa Air, for $210,000 and $17,000 respectively. Prior to the settlements, Continental 1nsurance Co., as the workmen's compensation carrier for the American Samoa Government, paid to $75,961.97 to Taumata and $1,329.92 to Potoa'e in the way of compensation benefits under the Workmen's Compensation Act (the Act), A.S.C.A. §§ 32.0501 et seq.(1) Continental has intervened in this action, claiming that it is subrogated to the rights of the plaintiffs in the amount of the payments it has made and that it is therefore entitled to be reimbursed in this amount from any recovery in this action.

Taumata and Potoa'e, on the other hand, argue that the insurer is not subrogated to their rights because they had not accepted "compensation under an award in a compensation order," as provided for under A.S.C.A. § 32.0669(a).(2) Alternatively, they claim that if the insurer does have a right to reimbursement, the insurer should be assessed a proportionate cost of the litigation expenses. In opposing [20ASR2d39] motions, these two plaintiffs and the insurer have moved for summary judgment on these issues.

Discussion

I. Subrogation

The Act was essentially modeled on the federal Longshoremen and Harbor Workers Compensation Act (LHWCA), 33 U.S.C. §§ 901 et seq.(3) Like its federal counterpart, the Act does not explicitly provide for a right of subrogation in the situation where an employee to whom compensation payments have been made without a formal award recovers damages from a third party. Although this subrogation issue appears to be one of first impression in the territory, the federal experience in this regard has been considerable.

The leading case is The Etna, 138 F.2d 37 (3d Cir. 1943). In that case, as in the present case, the employee recovered damages from a third party after receiving LHWCA benefits from his employer. The plaintiff in The Etna, again like the present plaintiffs, submitted that the employer had no right of subrogation because no compensation was paid "under an award in a compensation order" (quoting 33 U.S.C. § 933; 33 U.S.C. § 933(a) and (b) from the LHWCA counterpart of A.S.C.A. § 32.0669(a)).

The court held that the equitable right of subrogation was not statutorily precluded by the enactment of the assignment provision, 33 U.S.C. § 933(b). The court observed that:

the right to subrogation...under equitable principles, attaches where one, not acting officiously, pays money on account of a legal obligation resting upon him for the imposition whereof another is held pecuniarily responsible.

The Etna, supra, at 39. In light of the legal obligation imposed upon the employer by 33 U.S.C. § 914(a)-- the LHWCA counterpart of A.S.C.A. § 32.0660(a), whereby the employer is required to pay compensation promptly without an award unless it controverts liability --- the court concluded that equitable subrogation therefore applied to allow [20ASR2d40] reimbursement.

The Etna court further held that the assignment provision allows the employee to recover under either the LHWCA or a third-party action at common law, but it does not provide the option of recovering under both; this, the court stated, was an "implicit recognition that the employer has a right to reimbursement for his outlay under the Compensation Act out of his employee's adequate recovery from a third person in all cases," regardless of any "award in a compensation order." The Etna, supra, at 40. Thus, the employee does not receive a "double recovery" in the way of common-law damages plus worker's compensation, which was designed to replace common-law damages.

Although Congress has never added an explicit subrogation right for the employer when the employee sues, the interpretation, almost fifty years old, persists today in the federal courts. "The courts, at least since the Etna, 138 F.2d 37 (3d Cir. 1943), have uniformly held. .. that the employer has a subrogation right to be reimbursed from the worker's net recovery from a third party for the full amount of compensation benefits already paid." Peters v. North River Ins. Co., 764 F.2d 306, 312 (5th Cir. 1985). The United States Supreme Court, while noting that Congress has never provided an explicit reimbursement right when the employee recovers from the third party, recognized that lower courts had correctly understood that Congress had not contemplated "double recovery" by the employee and that the employer therefore did not lose the right to reimbursement by making compensation payments without an award in a compensation order. Bloomer v. Liberty Mutual Ins. Co., 445 U.S. 74, 79 (1980). The Bloomer Court, like the court, approved this reimbursement whether the recovery was from a judgment or a settlement. Id. at 75, 78.

The cases have in addition pointed to the legislative history of the LHWCA; "'an employer must be reimbursed for any compensation paid to the employee out of the net proceeds of the recovery.'" Id. at 81 (quoting S. Rep. No.428, 86th Cong., 1st Sess. 2 (1959)). Thus, both the courts and the legislature have recognized that, under the LHWCA, the employer is entitled to be reimbursed from the net recovery from a third party.

The federal interpretation, adopted by the courts and accepted by Congress, is compelling. First, the language of 33 U.S.C. § 933(a), (b) is virtually the language employed by the Fono in the enactment of [20ASR2d41] A.S.C.A. § 32.0669(a). Second, the Act incorporates the same underlying policy objectives found in the LHWCA. We conclude that the employer has an equitable right of subrogation and that the employer is entitled to be reimbursed from an employee's net recovery, whether by judgment or settlement, from a third party.

II. Litigation Expenses

In Bloomer v. Liberty Mutual Ins. Co., supra, the Supreme Court settled a split in the Circuits(4) and held that an employer is entitled to full reimbursement from an employee's net third party recovery without being required to bear a proportionate share of the litigation expenses and attorney's tees incurred by the employee. The Court pointed to the LHWCA's language, structure, and history (which it examined in detail) and rejected the employee's "common fund"(5) argument.

The Court noted that, although the LHWCA does not expressly provide for th distribution of amounts recovered by a suit brought by the employee, if the employer had sued the third party, it would be entitled to retain the reasonable costs of the suit (including attorney's fees) under 33 U.S.C. § 933(e). In its view,

[t]he unambiguous provision that the [employer] shall be reimbursed for all of his legal expenses if he obtains the recovery does...speak with considerable force against requiring him to bear a part of the [employee's] costs when the [employee] recovers on his own.

Id. at 78.

The Court was further concerned that by allowing an employee to deduct a portion of his attorney's fees from the employer's reimbursement, the employee would in effect he permitted to recover, [20ASR2d42] "solely by virtue of the compensation scheme, ...a greater sum than would be possible in an ordinary suit for damages." Id. at 80. Without the compensation scheme, the employee would have to bear all of the costs of the litigation, not just a "proportionate share." On the other hand, the employer would be paying a "proportionate share" of the litigation expenses but actually receiving no benefit from the suit because, as an innocent party, it is entitled to be fully reimbursed for the payments it has made. Instead, the employer would be losing the amount of the "proportionate share" of the litigation expenses. Likewise, the "proportionate share" would really be a windfall for the employee.

The same goals motivating the LHWCA are embodied in the Act, and we see no reason for not following the federal experience with the LHWCA. The employee should not receive a windfall, in the form of partial payment of litigation expenses, because of the existence of the workmen's compensation statute.

Conclusion

On the foregoing, we conclude that the insurer has an equitable subrogation right to be reimbursed from the movant employees' net recovery from Samoa Air for the full amount of compensation benefits paid without deduction for a "proportionate" share of the litigation expenses. Continental Insurance Co's. motion for summary .judgment is granted. Cross motions by plaintiffs Taumata and Potoa'e are denied. Judgment will enter declaring that the sum of $75,961.97 be fixed as intervenor Continental's compensation lien on the proceeds of plaintiff Taumata's settlement with defendant Samoa Air, and the sum of $1,329.92 be fixed as Continental's compensation lien on the proceeds of plaintiff Potoa'e's settlement with defendant Samoa Air.

It is so Ordered.

*********

1. A.S.C.A. § 32.0660(a) (emphasis added) provides:

Compensation [under the Act] must be paid periodically, promptly and directly to the individual entitled thereto, without an award, except where liability to pay compensation is controverted by the employer.

2. A.S.C.A § 32.0669(a) (emphasis added) reads:

If an individual entitled to such compensation determines that some individual other than the employer or an individual or individuals in his employ are liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person, but an acceptance of compensation under an award in a compensation order operates as an assignment to the employer of all rights of the individual entitled to compensation to recover damage against such third person within six months after such award.

3. See Haleck v. Scanlan, 4 A.S.R. 998, 1002 (1975).

4. Annotation, Longshoremen---Attorney's Fees, 46 A.L.R. Fed. 692, 697 (1980).

5. The "common fund" doctrine provides that a third person benefiting from litigation instituted by another may he required to bear a portion of the expenses of suit, including attorney's fees. Bloomer, supra, at 77.

Sa'aga v. Sa'aga,


OTILIA SA'AGA, Petitioner

v.

ETI SA'AGA, Respondent

High Court of American Samoa
Trial Division

DR No. 43-91

August 28, 1991

__________

Under circumstances of condonation the court is required to dismiss a petition for judicial separation, A.S.C.A. § 46.0206(6). [20ASR2d19]

It is generally unlawful to garnish more than 25% of an individual's disposable earnings, or to deduct earnings unless the employee has agreed in writing, 15 U.S.C, § 1673; A.S.C.A. § 32.0333.

The court, in its role as parens patriae, can inquire into a situation in which minor children were deprived of financial support due to deductions made from their father's paychecks.

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

Counsel: For Petitioner, Asaua Fuimaono

  For Respondent, Pro Se

  ForAmerican Samoa Government, Thomas E. Dow, Assistant Attorney General

  For America Samoa Government Federal Credit Union, Charles V. Ala'ilima

This matter came on regularly for hearing upon petitioner's petition for a decree of judicial separation, for separate maintenance and for child support. The evidence clearly showed condonation (as well as ongoing attempts at reconciliation) although the parties have been, and continue to remain, separated in fact. Under circumstances of condonation, we are required to dismiss the petition. A.S.C.A. § 46.0206(6).(1)

In the course of these proceedings, however, we discovered that the parties' minor children were necessarily left bereft of support owing to the fact that their respondent father, and breadwinner of the family, had, for several bi-weekly pay periods, taken home zero pay. This was the result of payroll deductions made by his employer, the government, on behalf of third-party creditors. Respondent's pay stub for the pay period ending July 20, 1991, revealed $430.00 in disposable income (that is, after taxes and other statutory deductions), of which the government [20ASR2d20] payroll office withheld $314.41 on behalf of the American Samoa Government Federal Credit Union (hereinafter "Union") and $100.00 on behalf of the Office of Communications (hereinafter" Communications"). In our role as parens patriae, we decided to look into these dire and rather unusual circumstances(2) on behalf of the minor children.

Initially, appropriate subpoenas duces tecum were issued to both creditors for information. Subsequently, they were joined in the proceedings and issued orders to show cause why they should not be enjoined from access to the first $400.00 of respondent's disposable income, to be set aside for the children's support.

At the show cause hearing, the Unionappeared with counsel but Communications did not, although its credit manager, who earlier responded to subpoena, did appear.  The evidence showed that the respondent, an employee of the judicial branch, American Samoa Government, was delinquent in the repayment of an outstanding loan he had taken out with the Union, as well as also being delinquent in the payment of his recent telephone bills.  However, neither the Union nor Communications was able to show cause,(3) and, accordingly, we [20ASR2d21] conclude that respondent's disposable income is thus available to at least provide for the minor children's minimum needs, which we fix in the amount of $200.00 per bi-weekly pay period. To ensure against further circumstances of destitution, an order will enter placing a charge against the disposable earnings of respondent Eti Sa'aga accordingly.(4)

It is hereby ordered:

1. The petition for judicial separation is dismissed and ancillary relief for petitioner's separate maintenance is, therefore, denied. (Respondent, appearing pro se, shall note that this does not mean that he is therefore relieved of his legal obligation to support his wife.)

2. TheAmerican SamoaFederal Credit Union and the Office of Communications are hereby enjoined from continuing to make the unlawful deductions from respondent's earnings as heretofore done to the detriment of the parties' minor children.

3. Until further order of the court, the sum of $200.00 per bi-weekly pay period shall be a charge: on the earnings of the respondent Eti Sa'aga, and the payroll office of the American Samoa Government is hereby authorized to make payroll deductions accordingly, payable to the Clerk of Courts. Such funds shall in turn be paid by the Clerk of Courts to petitioner Otilia Sa'aga on behalf of said minor children.

4. Copies hereof shall be served upon the parties as well as the payroll office of the American Samoa Government.

*********

1. Nor is a decree of judicial separation available upon stipulation of the parties, as respondent seems to think. In this territory, the grounds for judicial separation are exactly the same as those for dissolution of marriage. See A.S.C.A. § 42.0202. Unless one of those statutory grounds has been affirmatively proven, the petition must be dismissed. See A.S.C.A. 42.0206(a)(2); Chun v. Chun, 3 A.S.R.2d 23 (1986); T.C.R.C.P. 55(e).

2. Generally speaking, it is unlawful to make deductions from an employee's earnings---except for taxes and payments pursuant to order of court ---unless such deductions have been authorized in writing by the employee. A.S.C.A. § 32.0333. In addition, federal labor law applicable to the territory prohibits the garnishment of an individual's earnings beyond 25% of an employee's disposable earnings. 15 U.S.C. § 1673.

3. Neither could provide a lawful basis for withholding respondent's earnings in compliance with the local statute prohibiting wage deductions. See A.S.C.A. § 32.0333. Although Communications did present an assignment form (albeit poorly worded) signed by respondent, the assignment clearly pertained to a previous debt accruing last year. The instrument by its terms had not only lapsed, but the indebtedness thereby evidenced would have been discharged a long time ago, given the amount of the debt and the payroll bi-weekly deduction stipulated. TheUnion, on the other hand, presented two distinct wage assignments (again standard forms but sparse in content and incorporating incomprehensible coded language certain to invite dispute). Although one of these forms appears to have been signed by the respondent, its scope of authorization was for an amount than what was being deducted for theUnion. It further appears that some thoroughly misguided Union official decided to rectify this irregularity by preparing and signing another wage assignment on respondent's behalf- which was then presented to the government's payroll office as the authorization for making the increased deductions as aforesaid.

4. It is to be noted that an order for child support issued by a court of competent jurisdiction is one of the specific exceptions to the general federal restrictions on wage garnishments. See U.S.C. § 1673(b).

Thompson v. National Pacific Ins.,


ERNEST THOMPSON, Appellant

v.

NATIONAL PACIFIC INSURANCE, Appellee

High Court of American Samoa

Appellate Division

AP No. 25-90

March 12, 1992

__________

The appellate court reviews a grant of summary judgment.

Words used in an exclusionary clause in an insurance policy are to be given the meaning that common speech imports.

A court will not rewrite the terms of a contract if the parties' intent is evident.

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, MUNSON,** Acting Associate Justice, AFUOLA, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Appellant, Ellen A. Ryan

  For Appellee, John L. Ward II

GOODWIN, J.:

Ernest Thompson appeals from summary judgment in favor of National Pacitlc Insurance (NPI) denying coverage for damage resulting [20ASR2d86] to Thompson's pickup, which was driven by Thompson's intoxicated brother without Thompson's consent.

Thompson is the owner of a pickup truck which was insured by NPI. While visiting the island, Thompson's brother took the pickup truck without Thompson's knowledge and became involved in a single vehicle collision. Thompson's brother was cited and convicted of driving under the influence of alcohol and operating a vehicle without a valid driver's license. NPI denied coverage based on the following exclusionary clause in the policy:

THIS POLICY DOES NOT COVER --

4. Loss damage liability and/or compensation for damage *** caused whilst the Motor Vehicle --

(a) is being driven by *** any person under the influence of intoxicating liquor or of any drug provided that this exclusion shall not apply to indemnity and/or insurance provided on behalf of any other person or party if such other person or party proves that he did not consent to the Motor Vehicle being driven by or being in charge of the person when such person was under the influence of intoxicating liquor or of any drug.

The parties filed cross motions for summary judgment. There is no substantial dispute about the facts.

This court reviews a grant of summary judgment de novo, in the light most favorable to the non-moving party, to determine whether the trial court correctly found that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Water West. Inc. v. Entek Corp., 788 F.2d 627, 628-29 (9th Cir. 1986); Kraus v. County of Pierce, 793 F.2d 1105, 1106-07 (9th Cir. 1986), cert. denied, 480 U.S. 932 (1987).

The court construed the exclusionary clause of the policy as excluding property-damage coverage to any vehicle driven by a person under the influence of alcohol, whether or not the insured consented to [20ASR2d87] that individual driving the insured vehicle.

On appeal Thompson contends that the exclusionary clause is subject to two interpretations, and accordingly, must be construed in favor of the insured. Gustin v. Sun Life Assurance Co. of Canada, 152 F.2d 447 (6th Cir. 1946); Boal v. John Hancock Mutual Life Insurance Co., 27 N.E.2d 555 (Ill. 1940).

Thompson suggests that an alternative interpretation of the exclusionary clause is that coverage will be found where the insured can prove that he did not consent to the use of the vehicle by the intoxicated driver.

The meaning of the exclusionary clause is neither ambiguous nor subject to dual interpretation. The plain meaning of "other person or party" as used in the policy refers to third persons. By definition, an "other person or party" excludes the insured. The term "insured" is used throughout the policy. The "insured" and "the Company" are defined in the opening clause of the policy as the parties to the contract of insurance.

Words used in a contract shall be given the meaning that common speech imports. Aschenbrenner v. United States Fidelity & Guaranty Co., 292 U.S. 80, 85 (1934). As cited by NPI:

If there is no real doubt about what the parties to a contract intended, the rules of construction cannot be used to extend coverage beyond that reasonably and legitimately implied from the policy. The intent of the parties, if evident, must be enforced, and equitable considerations will not be employed to rewrite the terms of policy.

Fried v. North River Ins. Co., 710 F.2d 1022, 1025-26 (4th Cir. 1983). Despite Thompson's protestations, language specifically excluding the insured is not necessary to clarify the plain meaning of the clause "other person or party."

Thompson next contends that the phrase "consent to the motor vehicle being driven or being in the charge of the person" requires that the insured give consent to the vehicle being driven by another. Under this argument, the lack of consent by the insured would result in a type of coverage that the insurer did not agree to write. [20ASR2d88]

The trial court did not err in construing the exclusionary policy as limiting coverage to Thompson based on the fact that Thompson's brother was intoxicated, whether or not Thompson consented to the use of the pickup by his brother.

The intent of the policy to exclude property damage coverage for the insured's auto to intoxicated drivers is evident. This court declines to rewrite the terms of the contract. The judgment of the trial court is AFFIRMED.

*********

* Honorable Alfred T. Goodwin, Senior Circuit Judge,United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable Alex R. Munson,ChiefJudge,United States District Court for theNorthern Mariana Islands, serving by designation of the Secretary of the Interior.

Tala'i; Sagapolutele v.


SAGAPOLUTELE MALAEOLA ANTHONY on Behalf of Himself
as Senior Matai and on Behalf of the Sagapolutele
Family of Iliili, Plaintiffs

v.

TALA'I SAGAPOLUTELE and Family and
CHOO JIENG IM and Family, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 34-91

July 23, 1991

__________

[20ASR2d17]

Preliminary injunction was granted to a matai when a family member attempted to lease family land to a non-family member in a clear attempt to usurp the matai's pule.

A senior matai may assign a piece of family land for the use of individual family members, but such assignment does not terminate his control over the land.

Before KRUSE, Chief Justice; TAUANU’U, Chief Associate Judge; and BETHAM, Associate Judge.

Counsel: For Plaintiffs, Asaua Fuimaono

  For Defendant Sagapolutele, Gata E. Gurr

  For Defendant Choo, Togiola T.A. Tulafono

Plaintiff Sagapolutele is the senior matai of the Sagapolutele family of Iliili, American Samoa. Defendant Tala'i Sagapolutele is a member of the Sagapolutele family and as such she occupies a certain portion of family land known as "Vaiolef'ala" where she has maintained her residence and has raised subsistence crops. Lately, she entered into an agreement with a non-family member for the lease of her home at a monthly rental of $600.00. Her lessee is the defendant Choo Jieng Im who has set up his grocery business on the premises ---which incorporates customer parking frontage -- notwithstanding the senior matai's objections to any attempts to lease without his consent. After calling a family meeting on the proposed use of family property, and there being no resolution to the parties differences, the matai then filed a petition to enjoin any lease between the defendants and to restrain the continuance of the grocery business on Sagapolutele family property. The matai's concerns are, among other things, the establishment of a precedent to the effect that individual family members may unilaterally reassign family land to strangers.

We hold that the facts disclose circumstances for the proper granting of a preliminary injunction. It is trite law that the senior matai has pule or control over family lands and that in his or her capacity as the matai may assign or designate a piece of family land for the use of individual family members.(1) While he may so parcel out family land for individual use, his pule, however, over such land is not thereby terminated. Pisa v. Solaita, 1 A.S.R. 520 (1935). Thus in Lolo v. The

 [20ASR2d18] Heirs of Sekio, 4 A.S.R. 477, 481 (1964), the Court noted "that under Samoan custom family lands are under the jurisdiction of the matai, and [that] a young [untitled] man... has no authority to permit strangers to live on communal lands." Similarly, in Fagasoaia v. Fanene, 18 A.S.R.2d 72 (1991), the Court recently said that a "family member's right to live on family land does not include a right to build supermarkets, warehouses, and parking lots on it and rent these out to strangers." Id. at 73. The attempted lease here is clearly an attempt to usurp the matai's pule. See also Fagasoaia v. Fanene, 17 A.S.R.2d 91 (1990).(2)

Finally, the lease attempt here is not only in derogation of the matai's pule, but it is utterly ineffectual in view of the statutory prohibition against the lease of communal land without the Governor's approval. A.S.C.A. § 37.0221.

The matai's application for a preliminary injunction is granted.

It is so ordered.

**********

1. See, e.g., Lutu v. Fuimaono, 4 A.S.R. 450 (1964); Atualevao v. Masalosalo, 4 A.S.R. 868 (1962).

2. We necessarily reject defendants' argument that the subject matter of the lease is a house and not communal land.

Logoa`i; Ava v.


CHIEF AVA VILI for Himself and the AVA FAMILY OF 
PAVAIAI, Plaintiffs

v.

FOMA'I P. LOGOA'I, FAALJLIU P. LOGOAI 
and Her CHILDREN, Defendants

AVA V. AVA, Plaintiff

v.

MIKE MCDONALD, Defendant

High Court of American Samoa 
Land and Titles Division

LT No. 32-90 
LT No. 36-90

February 19, 1992

__________

A party's contention that a piece of land is communal brings into play the requirements of A.S.C.A. § 43.0302.

The requirement of a certificate of irreconcilable conflict by the Secretary of Samoan Affairs or his deputy is a procedural requirement and may be corrected by the later filing of a certificate.

A required certificate of irreconcilable conflict by the Secretary of Samoan Affairs or his deputy is a jurisdictional mandate without which an action should not proceed.

Before RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, and MAILO, Associate Judge.

Counsel: For Plaintiffs, Tauese Sunia

  For Defendants Foma'i P. LogoaiFaaliliu P. Logoai and Her Children, Asaua Fuimaono [20ASR2d52]

  For Defendant McDonald, William H. Reardon

Trial of this case took place January 16 and 17, 1992. The central issue is the resolution of plaintiffs Avas' contention that the land involved, approximately 2.69 acres of a tract called "LALOFUTU" in the village ofPavaiai, is Ava communal land--versus defendants Logoai's claim that this land is individually owned by Faaliliu Logoai and her children.

At the end of plaintiffs Avas' evidence-in-chief, defendants Logoai, joined by defendant McDonald, moved for dismissal on the grounds that: (1) a jurisdictionally required certificate of irreconcilable conflict by the Secretary of Samoan Affairs or his deputy was not on file with this court and (2) plaintiffs Ava lacked standing to sue. The motion was taken under advisement while defendants presented their evidence. At the conclusion of the evidence when the case was submitted for decision, defendant McDonald withdrew his motion to dismiss with respect to the lack of a certificate. However, defendant Logoai's motion to dismiss on this ground is still before the court.

Clearly, there is no certificate of irreconcilable conflict on tile in this case. The requirement of these certificates in controversies over communal lands is legislated at A.S.C.A. § 43.0302. While it may ultimately be determined that the land in question is individually owned by the defendants Logoai and her family, defendants Avas' assertion that this land is Ava communal land brings this statute into play.

Strictly, this action should not have been filed with this court without an accompanying certificate of irreconcilable conflict, but this requirement is procedural and may be corrected by the later filing of a certificate. The lack of a certificate however, is a jurisdictional mandate.

IT IS ORDERED that plaintiffs Ava file a certificate of irreconcilable conflict by the Secretary of Samoan Affairs or his deputy setting forth the events and the status of this controversy in conformance with A.S.C.A. § 43.0302(a) no later than 60 days after the date of this order.

This time period is established to afford sufficient opportunity to meet the 20 days notice of hearing required for each of the two (2) hearings that must be held to comply with A.S.C.A. § 43.0302(a). [20ASR2d53]

If plaintiffs fail to timely file the mandated certificate of irreconcilable conflict, their action must be dismissed. If the certificate is filed, the court will proceed with the decision in this matter.

The standing to sue issue remains to be determined.

*********

Lindgren v. Betham,


CARLTON and KATHERINE LINDGREN, Appellants

v.

ERNEST and MIRIAM BETHAM, Appellees

High Court of American Samoa 
Appellate Division

AP No. 12-91

March 13, 1992

__________

Creative interpretations of specific restrictions on the use of real property will be accorded little weight.

Damages for breach of a lease or a covenant in a lease, if any, must be proved according to general principles which determine the measure of damages on claims arising from breaches of other kinds of contracts.

In the absence of some proof of damages the court is not free to estimate what might be fair based upon the it's own knowledge of the rental market.

Courts are obligated to enforce a restrictive covenant in a lease, unless enforcement would be inequitable or contrary to pubic policy.

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, MUNSON,** Acting Associate Justice, AFUOLA, Associate Judge, and MAILO, Associate Judge.

Counsel: For Appellants, Togiola T.A. Tulafono

  For Appellees, Charles V. Ala'ilima [20ASR2d99]

GOODWIN, J.:

Carlton and Katherine Lindgren appeal from the judgment and order of the District Court of American Samoa, in favor of Ernest and Miriam Betham, finding that the Lindgrens were month-to-month tenants who used a personal residence and a refrigerator in the residence for commercial purposes and that the Bethams, as landlords, were entitled to an increase in rent to reflect the fair market rental value as commercial property.

The Lindgrens had a written lease for a residence owned by the Bethams, which terminated by its own terms in 1988. The lease restricted the use of the premises to residential purposes. After the expiration of the lease the Lindgrens continued to rent the residence on a month-to-month basis on the same terms and conditions as the original lease. The rental of the residence included a refrigerator. Because they had their own refrigerator, the Lindgrens did not use the Betham refrigerator in the kitchen. The Lindgrens operated a retail business and restaurant close to the residence. At various times the Lindgrens stored some of the perishables from their businesses in the Betham-owned refrigerator, first at the residence, and later in a storage facility. In addition to the storage of perishables in the refrigerator, the Lindgrens stored a few boxes of inventory from their business in the back of the rented house.

In February 1990, the Bethams went to the residence to survey the damage to the premises caused by Hurricane Ofa. On February 10, 1990, the Bethams notified the Lindgrens in writing that their tenancy was terminated immediately and that the refrigerator should be returned to the premises. The Lindgrens sent a letter acknowledging the termination of the tenancy and indicated that they would leave the premises at the end of thirty (30) days. The Lindgrens also requested some compensation for material used to protect the house during the hurricane. The Bethams responded with another letter demanding compensation for commercial use of the residence in violation of the original lease agreement.

The Lindgrens filed a claim with the small claims court and were awarded one half of their deposit. The Bethams then filed this action. The trial judge found that the Lindgrens had breached the terms of the original agreement by the use of the house to store and sort inventory. [20ASR2d100]

The court awarded the Bethams an additional $100 per month rental for the premises and $50 per month for the commercial use of the refrigerator for a term of twelve months. The judgment was for $1,800.00.

The Lindgrens raise four issues on appeal. (1) The evidence does not sustain a finding of a material breach of the restriction on the tenancy. (2) The evidence does not demonstrate a commercial use of the refrigerator. (3) Even if there was a breach, the evidence did not support a monetary award in excess of nominal damages. (4) The amount of the increased rent was arbitrary.

This court reverses the findings of the trial court only if they are clearly erroneous. Meusy v. Montgomerv Ward Life Ins. Co., 943 F.2d 1097 (9th Cir. 1991); Temengil v. Trust Territory of the Pac. Islands, 881 F.2d 647,649 (9th Cir. 1989), cert. denied, 496 U.S. 925 (1990). A finding is clearly erroneous when the entire record produces the definite and firm conviction that the court below made a mistake. Oxford Properties & Finance Ltd. v. Minor M. Engle, 943 F.2d 1150 (9th Cir. 1991); Miller v. United States, 587 F.2d 991, 994 (9th Cir. 1978).

The Lindgrens admitted that they occasionally used the premises to store and sort inventory for their business. Moreover, the trial court found that the Betham refrigerator was seen being returned to the premises soon after the Bethams sent a letter demanding that the refrigerator be returned. The Lindgrens argue that the prohibition against "commercial use" of the premises should not restrict a limited amount of commercial work within the premises and that the prohibition must be interpreted to reasonably accommodate the concerns of the landlord and the general right of the tenant to do as he pleases on the property. The Lindgrens do not cite authority for this creative interpretation of specific restrictions on the use of real property.

When presented with a violation of a restrictive covenant, courts are obligated to enforce the covenant unless the complaining party can show that enforcement would be inequitable or contrary to public policy. Hartford Elec. Light Co. v. Levitz, 376 A.2d 381 (Conn. 1977). Where there is no ambiguity the courts will ascertain and give effect to the intention of the parties. Gino's Pizza of East Hartford. Inc. v. Kaplan, 475 A.2d 305 (Conn. 1984); Hammonds v. Huddle House. Inc., 257 S.E.2d 508 (Ga. 1979). [20ASR2d101]

When the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed. Hays v. Ottis Watson, 466 S.W.2d 272 (Ark. 1971). The covenant contained in the Betham-Lindgren lease restricting the use of the premises to residential purposes only is not ambiguous. The Lindgrens had notice of the covenant and had within their control the ability to comply with the covenant.

The Lindgrens demonstrate nothing on appeal from which this court can determine that the trial court was clearly in error when it held that the restriction prohibited the Lindgrens from using the premises for anything other than residential purposes. The Lindgrens admitted that the premises were sometimes used for other than residential purposes. There was sufficient evidence to find that both the premises and the refrigerator were used contrary to the restrictive covenant.

The Bethams requested from the court an increase of $200 per month for the use of the premises and $100 per month for the commercial use of the refrigerator. However, counsel could direct this court to nothing in the record to support any specific liquidated damages figure.

Damages for breach of a lease or a covenant in a lease, if any, must be proved according to general principles which determine the measure of damages on claims arising from breaches of other kinds of contracts. The amount of damages sustained need not be proven to an exact certainty, but the figure cannot be left to guesswork or speculation. See Johnson v. Cayman Dev. Co., 108 Cal. App. 3d 977, 983, 167 Cal. Rptr. 29, 32 (1980).

In this case, a judgment of $1,800.00 might have been reasonable if the Bethams had offered any evidence of damages. The Lindgrens breached the covenant restricting the use of the premises to residential purposes. Some increase in rent could have been supported by evidence of a reasonable difference in value between residential and commercial use in the neighborhood. However, in the absence of some proof of damage the court is not free to estimate what might be fair based upon the court's own knowledge of the rental market. A judgment for a sum certain in money damages must be supported by some evidence in the record so a reviewing court will have something to review.

Given th circumstances of this case and the silence of the record on damages we are forced to conclude that the Bethams proved [20ASR2d102] only nominal damages. They are entitled to damages in the nominal sum of one dollar and their costs and disbursements in the trial court. No party is to recover costs on appeal.

AFFIRMED as modified.

*********

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable Alex R. Munson, Chief Judge, United States District Court for the Northern Mariana Islands, serving by designation of the Secretary of the Interior.

Iosia v. National Pacific Ins. Ltd.


LEUMA IOSIA, a Minor, by and through His Guardian
Ad Litem IOSOA FAUMUI, Appellant

v.

NATIONAL PACIFIC INSURANCE LTD.
and TONY MAGEO, Appellees

High Court of American Samoa
Appellate Division

AP No. 10-91

March 25, 1992

__________

The doctrine of res ipsa loquitur, when applicable, merely establishes a permissive inference of negligence which the fact finder is not required to adopt.

On appeal, a trial court's findings of fact are clearly erroneous only when the entire record produces a definite and firm conviction that a mistake has been made.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, MALAETASI,* Acting Associate Justice, LOGOAI, Associate Judge, and MAILO, Associate Judge.

Counsel: For Appellant, Gata E. Gurr

  For Appellees, Roy J.D. Hall, Jr.

KRUSE, C.J.: [20ASR2d124]

A six-year-old boy was injured after he had run out onto the street and collided with a moving vehicle. He sued the driver of the vehicle, alleging negligence. At the conclusion of trial the court announced its decision from the bench. After first noting that the plaintiff had the burden of proof, the court concluded that the evidence presented had failed to establish negligence. The minor appeals, assigning error on the part of the trial court for "not applying the principle of res ipsa loquitur, and for accepting a false statement by Tony Mageo as proof that Appellee was not negligent." Appellant's Brief at 1. The record, which is not lengthy, reveals that the accident occurred while appellee Tony Mageo was driving along the Pago Pago-Fagasa highway, apparently on his way to visit his brother. He testified that when he got to the vicinity of Peau's store, he saw two children run out onto the highway, one chasing the other; that he stopped but the child, Leuma Iosia, ran into his vehicle breaking the side reflector which is towards the front; that he saw the child fall to the ground and then get up and run away again; and that the child was shortly thereafter taken to the hospital in appellee's car. The record also reflects that when appellee was asked to estimate his speed, he testified that he was not in a hurry and that he was going uphill at 15 miles per hour .

The other eyewitness who testified was the injured child. However, it was rather obvious from the record that the child could not recall too much in the way of detail, save to the extent that he was being chased at the time by his older brother and that (depending on how counsel framed the question) he was either "hit by" or "collided with" appellee's vehicle.

Appellant's first contention is that there was sufficient evidence presented for the application of the doctrine of res ipsa loquitur and that the court's failure to apply the doctrine was error. Assuming for the sake of argument that res ipsa loquitur was applicable, and that, therefore, an inference of negligence could have been drawn from the proof of injury and the surrounding circumstances, it does not follow that the court as the trier of fact was thereby required to draw such an inference. "The great majority of American courts regard res ipsa loquitur as no more than one form of circumstantial evidence. ...The inference of negligence to be drawn from the circumstances is left to the jury. They are permitted, but not compelled, to find it." Prosser, Torts § 40 (5th ed. 1984). The Supreme Court noted in Sweeny v. Erving, 228 U.S. 233,240 (1912), that

res ipsa loquitur means that the facts of the occurrence [20ASR2d125] warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict.... When all the evidence is in, the question for the [trier of fact] is, whether the preponderance is with plaintiff.

See also Johnson v.United States, 333 U.S. 46 (1947). In other words, the doctrine, when applicable, merely establishes a permissive inference of negligence which the fact finder is not required to adopt.

The standard for review of the trial court's findings is clear error, A.S.C.A. § 43.0801(b), and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses, T.C.R.C.P. 52(a). A finding is clearly erroneous when the entire record produces a definite and firm conviction that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364 (1948), reh'g denied, 333 U.S. 869 (1948).

The evidence of surrounding circumstances pointed to by appellant are: an entry in the police investigation report stating that appellee's vehicle had "side wiped" [sic] the appellant; another entry in the same report estimating property damage at $20; a sketch drawn by the child (apparently before taking the stand) suggesting that he and his brother were in front of appellee's vehicle; the extent of injuries suffered (appellant categorizes his injuries as "serious" and he submits that such injuries "could have been caused only by being hit or thrown to the ground with violence, " Appellant's Brief at 4); and testimony that appellee had seen the children but had tailed, as found by the trial court, to stop.

This evidence is at best equivocal, if not tenuous and unreliable, and it seems that the court below gave it appropriate weight. We noted from the record that the two conclusionary entries contained in the police report remained unexplained and unsubstantiated (the "side swiped" entry appears to be the product of hearsay); that the pictorial produced by the minor and said to depict a frontal collision was not so explained, although the minor was called to testify (the court viewed the minor's testimony as tending to support the appellee's version of impact); and that [20ASR2d126] the extent of the evidence for the claim of "serious injuries" was the testimony of the injured minor's mother about miscellaneous lacerations about the facial area, some lost teeth, and a "broken" arm which was placed in a cast for "a week and three days."  We are unable to conclude clear error on the part of the court for failing to make the permissive inference of res ipsa loquitur in the light of this circumstantial evidence.

Appellant's other assignment of error is that the court relied upon a falsehood to arrive at its conclusion of no negligence. The argument is that the court had found that the appellant, contrary to his testimony, could not have come to a stop before the moment of impact; that since appellant had testified that he had seen the children beforehand, he had, in his failure to stop, also tailed to comply with his statutory duty to "exercise due care to avoid colliding with any pedestrian upon any roadway, and to give warning by sounding the horn when necessary, and to exercise proper precaution upon observing any child or obviously confused or incapacitated person upon a roadway." (Appellant's Brief at 4, Quoting A.S.C.A. § 22.0406). The immediate problem with this contention is that it necessarily presupposes, as a given fact, that appellant had the time to stop or take evasive action to avoid a collision. The record does not exactly reflect this; however, it is implicit in the trial court's decision that the occurrence arose suddenly before the driver had time to take evasive action. Certainly there was substantial evidence to sustain such a finding.

We cannot say that the record leaves with us a definite and firm conviction that a mistake has been made. Indeed, our review of the record leads us to the conclusion that the evidence taken as a whole provides substantial support for the trial court's finding of no negligence. We AFFIRM.

*********

* The Honorable Malaetasi Togafau, District Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

In re Matai Title “Fonoti”,


FAIPA TAALA, Claimant

v.

FONOMAITU O. FONOTI and PAUELI SATELE, 
Counter-Claimants

[In the Matter of the Matai Title "FONOTI" of Aunu'u]

High Court of American Samoa 
Land and Titles Division

MT No. 04-90

October 15, 1991

__________

Application for matai title was dismissed when the applicant failed to comply with requirements and showed no real interest in pursuing the title.

In order to register for a matai title under the absent resident provision, which requires that absence from the Territory in the year preceding the filing of matai claim or counterclaim was due to medical reasons, an applicant must produce more than a cursory and equivocal statement from a doctor, A.S.C.A. § 1.0404(b)(3).

Candidates who do not meet the residency requirements of A.S.C.A. § 1.0404 will be, at that time, ineligible to claim succession to a matai title.

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

Counsel: For Claimant, Roger Hazell

  For Counter-Claimant FonomaituTogiola T.A. Tulafono

  For Counter-Claimant PaueliTauese P.F. Sunia

On March 14, 1989, Faipa Ta'ala filed her application with the Territorial Registrar to be registered as the holder of the matai title Fonoti, attached to the village of Aunu'u. This attracted the respective objection and counter-claims of Fonomaitu Fonoti, filed March 17, 1989, and Paueli Satele, filed May 15, 1989. Ensuing family meetings to select a matai, both in the village and before the Office of Samoan Affairs pursuant to Title 43 A.S.C.A. Chapter 03, were unsuccessful. Hence [20ASR2d23] this litigation resulted.

When this matter came on for trial, we dismissed Faipa Ta'ala's claim for failure to comply with the requirements of T.C.R.I.T. 3. Not only had she failed to respond to the questionnaire made and provided for in these cases, but she has also shown no real interest in pursuing her claim.(1) Accordingly, we were left with the merits of the counter-claims.

Fonomaitu first presented his case. After he had rested, Satele moved to disqualify him on the grounds that he did not meet the residency requirements of A.S.C.A. § 1.0404. Anticipating the motion, the latter in his testimony claimed to be a resident of Aunu 'u, although at the same time he admitted that he has been living in California. However, Fonomaitu attributes his presence in California to his medical needs, and argues that he is, therefore, a resident of the territory within the contemplation of A.S.C.A. § 1.0404.(2) [20ASR2d24]

The law requires, among other things, that a claimant seeking to register or object to matai succession be a resident of the territory for a period of "one calendar year immediately preceding the date of claim or objection."A.S.C.A. § 1.0404(a). Here the evidence failed to show that Fonomaitu had in fact resided in the territory for the calendar year immediately preceding the filing of his objection and counter-claim. Rather, the evidence showed that, but for the period between 1983 to 1985, Fonomaitu had actually been living off-island since he first departed the territory in 1969 to join the armed forces. He has periodically visited Samoa. (3)

We turn to Fonomaitu's claim to permissible absence on the grounds of medical need. The law further provides that an absentee "bona fide" resident of the territory nonetheless remains eligible to claim or object to succession, if the reason for his absence comes within one of those enumerated grounds contained in § 1.0404(b)(1) through (5); and he has registered as an absent resident with the office of the Territorial Registrar in accordance with the provisions of A.S.C.A. § 1.0404(b) and (d).(4)

In support of his claim to permissible absence, Fonomaitu furnished a letter from his family doctor in Calitornia together with copies of his registration as an absent resident. Fonomaitu's name was recorded on the absent resident register on March 15, 1988, and then again on November 7, 1988. He has complied with that aspect of the [20ASR2d25] statute relating to absent resident registration.

The letter from his doctor, however, is at best equivocal on the other statutory requirement at issue; that is, whether Fonomaitu was absent from the territory during the year immediately preceding the filing of his objection/counterclaim (March 1988 to March 1989) by reason of "medical treatment and recuperation. " A.S.C.A. § 1.0404(b)(3). His doctor's letter, dated September 27, 1991, is a very brief, one-paragraph note, which hardly seems to have been prepared to specifically address the residency factors posed by the statute. The letter does not speak to any particular frame of time; it begins by alluding very generally to Fonomaitu being under the doctor's care for "multiple medical problems." It then essentially explains that because of a past gastrectomy (date of operation unspecitied), Fonomaitu has dumping syndrome "with other relative gastrointestinal problems" and that he gets his vitamin 812 by way of injections. Lastly, the letter mentions "arthritis and lower back syndrome" and concludes that Fonomaitu needs "continuous medical care."

The court is unable to conclude, on the extent of this evidence, that Fonomaitu was absent from the territory for the relevant calendar year period (March 1988 to March 1989) because of medical reasons. There is simply nothing to suggest that Fonomaitu's medical needs could not have been accommodated had he lived on-island at the time. Nor has there been anything to suggest that his VA (Veterans Administration) benefits(5) would have been prejudiced had he been living in the territory. Indeed, Fonomaitu quite candidly admitted on the stand that he is able to return to the territory and that the appropriate transfer of his V A records could be arranged. He further testified that if awarded the Fonoti title he would return to stay. On these tacts, we conclude that Fonomaitu Fonoti is, for the time being, ineligible to claim succession to the title Fonoti in that he tails to meet the residency requirements of A.S.C.A. § 1.0404.

On the other hand, the evidence does show that Satele meets the basic qualifications and is eligible to claim succession to the matai title Fonoti. On the foregoing, it is the judgment of the court that Paueli Satele shall be registered as the successor to the matai title Fonoti[20ASR2d26] attached to the village of Aunu'u. Certification to the Territorial Registrar pursuant to A.S.C.A. § 1.0409 shall be made accordingly.

It is so ordered.

*********

1. Faipa Ta'ala filed her application with the Territorial Registrar even before the family had met to address the appointment of a successor matai. She believes that the appointment of a Fonoti titleholder is within her gift and it seems that her application was motivated as an act of . She testified that she has pointed her finger to (and in support of) Fonomaitu.

2. A.S.C.A. § 1.0404 provides in pertinent part:

(a) Except as provided in subsection (b) and (c), no one is eligible to claim or object to the succession to a matai title unless he has resided in American Samoa for one calendar year immediately preceding the date of the claim or objection

(b) The territorial registrar shall keep a record of the names of those bona fide residents of American Samoa who are absent from the Territory for any of the following reasons:

...
(3) medical treatment and recuperation;...

(c) Any person on such record is eligible to claim or object to the succession to a matai title as if he actually resided in American Samoa. 
(d) A person's name shall be recorded upon the petition of 5 adult members of his family. The recording shall be effective for 2 years.

3. We reject counsel's submission to the effect that occasional visits to the territory coupled with the intent to some day return, constitute residency in American Samoa notwithstanding an extended absence. The statute in question talks of "bona fide residents," A.S.C.A. § 1.0404 (b), and permissible absences whereby an absentee may nonetheless file a claim or object to a succession "as if he actually resided in American Samoa."A.S.C.A. § 1.0404 (c) (emphasis added). Furthermore, the word "residence," as this Court has said before, "imports something of expected performance in way of personal presence." In re matai Title Fagaima, 4 A.S.R. 83, 86 (1973) (emphasis added).

4. Such registration is good only for a period of two years. A.S.C.A. § 1.0404(d).

5. Fonomaitu testitied that he had undergone his gastrectomy in 1972 while still in the armed forces. As a result he was discharged on full medical disability.

Fonoti; Taala v.


FAIPA TAALA, Claimant

v.

FONOMAITU O. FONOTI and PAUELI SATELE, 
Counter-Claimants

[In the Matter of the Matai Title "FONOTI" of Aunu'u]

High Court of American Samoa 
Land and Titles Division

MT No. 04-90

October 15, 1991

__________

Application for matai title was dismissed when the applicant failed to comply with requirements and showed no real interest in pursuing the title.

In order to register for a matai title under the absent resident provision, which requires that absence from the Territory in the year preceding the filing of matai claim or counterclaim was due to medical reasons, an applicant must produce more than a cursory and equivocal statement from a doctor, A.S.C.A. § 1.0404(b)(3).

Candidates who do not meet the residency requirements of A.S.C.A. § 1.0404 will be, at that time, ineligible to claim succession to a matai title.

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

Counsel: For Claimant, Roger Hazell

  For Counter-Claimant FonomaituTogiola T.A. Tulafono

  For Counter-Claimant PaueliTauese P.F. Sunia

On March 14, 1989, Faipa Ta'ala filed her application with the Territorial Registrar to be registered as the holder of the matai title Fonoti, attached to the village of Aunu'u. This attracted the respective objection and counter-claims of Fonomaitu Fonoti, filed March 17, 1989, and Paueli Satele, filed May 15, 1989. Ensuing family meetings to select a matai, both in the village and before the Office of Samoan Affairs pursuant to Title 43 A.S.C.A. Chapter 03, were unsuccessful. Hence [20ASR2d23] this litigation resulted.

When this matter came on for trial, we dismissed Faipa Ta'ala's claim for failure to comply with the requirements of T.C.R.I.T. 3. Not only had she failed to respond to the questionnaire made and provided for in these cases, but she has also shown no real interest in pursuing her claim.(1) Accordingly, we were left with the merits of the counter-claims.

Fonomaitu first presented his case. After he had rested, Satele moved to disqualify him on the grounds that he did not meet the residency requirements of A.S.C.A. § 1.0404. Anticipating the motion, the latter in his testimony claimed to be a resident of Aunu 'u, although at the same time he admitted that he has been living in California. However, Fonomaitu attributes his presence in California to his medical needs, and argues that he is, therefore, a resident of the territory within the contemplation of A.S.C.A. § 1.0404.(2) [20ASR2d24]

The law requires, among other things, that a claimant seeking to register or object to matai succession be a resident of the territory for a period of "one calendar year immediately preceding the date of claim or objection."A.S.C.A. § 1.0404(a). Here the evidence failed to show that Fonomaitu had in fact resided in the territory for the calendar year immediately preceding the filing of his objection and counter-claim. Rather, the evidence showed that, but for the period between 1983 to 1985, Fonomaitu had actually been living off-island since he first departed the territory in 1969 to join the armed forces. He has periodically visited Samoa. (3)

We turn to Fonomaitu's claim to permissible absence on the grounds of medical need. The law further provides that an absentee "bona fide" resident of the territory nonetheless remains eligible to claim or object to succession, if the reason for his absence comes within one of those enumerated grounds contained in § 1.0404(b)(1) through (5); and he has registered as an absent resident with the office of the Territorial Registrar in accordance with the provisions of A.S.C.A. § 1.0404(b) and (d).(4)

In support of his claim to permissible absence, Fonomaitu furnished a letter from his family doctor in Calitornia together with copies of his registration as an absent resident. Fonomaitu's name was recorded on the absent resident register on March 15, 1988, and then again on November 7, 1988. He has complied with that aspect of the [20ASR2d25] statute relating to absent resident registration.

The letter from his doctor, however, is at best equivocal on the other statutory requirement at issue; that is, whether Fonomaitu was absent from the territory during the year immediately preceding the filing of his objection/counterclaim (March 1988 to March 1989) by reason of "medical treatment and recuperation. " A.S.C.A. § 1.0404(b)(3). His doctor's letter, dated September 27, 1991, is a very brief, one-paragraph note, which hardly seems to have been prepared to specifically address the residency factors posed by the statute. The letter does not speak to any particular frame of time; it begins by alluding very generally to Fonomaitu being under the doctor's care for "multiple medical problems." It then essentially explains that because of a past gastrectomy (date of operation unspecitied), Fonomaitu has dumping syndrome "with other relative gastrointestinal problems" and that he gets his vitamin 812 by way of injections. Lastly, the letter mentions "arthritis and lower back syndrome" and concludes that Fonomaitu needs "continuous medical care."

The court is unable to conclude, on the extent of this evidence, that Fonomaitu was absent from the territory for the relevant calendar year period (March 1988 to March 1989) because of medical reasons. There is simply nothing to suggest that Fonomaitu's medical needs could not have been accommodated had he lived on-island at the time. Nor has there been anything to suggest that his VA (Veterans Administration) benefits(5) would have been prejudiced had he been living in the territory. Indeed, Fonomaitu quite candidly admitted on the stand that he is able to return to the territory and that the appropriate transfer of his V A records could be arranged. He further testified that if awarded the Fonoti title he would return to stay. On these tacts, we conclude that Fonomaitu Fonoti is, for the time being, ineligible to claim succession to the title Fonoti in that he tails to meet the residency requirements of A.S.C.A. § 1.0404.

On the other hand, the evidence does show that Satele meets the basic qualifications and is eligible to claim succession to the matai title Fonoti. On the foregoing, it is the judgment of the court that Paueli Satele shall be registered as the successor to the matai title Fonoti[20ASR2d26] attached to the village of Aunu'u. Certification to the Territorial Registrar pursuant to A.S.C.A. § 1.0409 shall be made accordingly.

It is so ordered.

*********

1. Faipa Ta'ala filed her application with the Territorial Registrar even before the family had met to address the appointment of a successor matai. She believes that the appointment of a Fonoti titleholder is within her gift and it seems that her application was motivated as an act of . She testified that she has pointed her finger to (and in support of) Fonomaitu.

2. A.S.C.A. § 1.0404 provides in pertinent part:

(a) Except as provided in subsection (b) and (c), no one is eligible to claim or object to the succession to a matai title unless he has resided in American Samoa for one calendar year immediately preceding the date of the claim or objection

(b) The territorial registrar shall keep a record of the names of those bona fide residents of American Samoa who are absent from the Territory for any of the following reasons:

...
(3) medical treatment and recuperation;...

(c) Any person on such record is eligible to claim or object to the succession to a matai title as if he actually resided in American Samoa. 
(d) A person's name shall be recorded upon the petition of 5 adult members of his family. The recording shall be effective for 2 years.

3. We reject counsel's submission to the effect that occasional visits to the territory coupled with the intent to some day return, constitute residency in American Samoa notwithstanding an extended absence. The statute in question talks of "bona fide residents," A.S.C.A. § 1.0404 (b), and permissible absences whereby an absentee may nonetheless file a claim or object to a succession "as if he actually resided in American Samoa."A.S.C.A. § 1.0404 (c) (emphasis added). Furthermore, the word "residence," as this Court has said before, "imports something of expected performance in way of personal presence." In re matai Title Fagaima, 4 A.S.R. 83, 86 (1973) (emphasis added).

4. Such registration is good only for a period of two years. A.S.C.A. § 1.0404(d).

5. Fonomaitu testitied that he had undergone his gastrectomy in 1972 while still in the armed forces. As a result he was discharged on full medical disability.

Fa'amaoni v. American Samoa Gov’t,


FALEFATU aka (FATU) FA'AMAONI, Appellant

v.

AMERICAN SAMOA GOVERNMENT, Appellee

High Court of American Samoa 
Appellate Division

AP No. 29-90

March 25, 1992

__________

The Chief Justice's rulemaking authority under A.S.C.A. § 46.0501 does not include the power to amend unambiguous legislative enactments setting out the prerequisites to appeal.

If there is no timely motion for reconsideration or new trial within the statutory ten-day deadline the court has no jurisdiction to entertain an appeal, regardless of any argument, equitable or otherwise.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, MALAETASI,* Acting Associate Justice, LOGOAI, Associate Judge, and MAILO, Associate Judge.

Counsel: For Appellant, Charles V. Ala'ilima

  For Appellee, Thomas E. Dow, Assistant Attorney General

KRUSE, C.J.:

Appellant, Falet'atu Fa'amaoni, was convicted of Sexual Abuse in the First Degree and sentenced to a term of imprisonment for a period of five years. Execution of sentence was suspended and the appellant was placed on probation for a period of five years, subject to a number of conditions. Contending that certain conditions of probation imposed upon him were illegal, appellant filed his motion for reconsideration of his sentence some 90 days after the announcement of sentence. [20ASR2d128] However, the territorial statute which governs appeals in criminal matters, A.S.C.A. § 46.2402, provides:

The following procedure shall apply to appeals taken to the appellate division of the High Court:

(a) Before filing a notice of appeal, a motion for a new trial shall be filed within 10 days after the announcement of the judgment or sentence.

(Emphasis added). The statutory language is very plainly mandatory and the requirement of a motion for new trial or reconsideration of judgment or sentence within ten days is jurisdictional.(1)

Notwithstanding, appellant cites H.C.R.Cr.P. 35, which provides that "[t]he court may correct an illegal sentence at any time," and he urges a reconciliatory reading of the statute. Appellant contends that "it would be bad precedent to read A.S.C.A. § 46.2402(a) so restrictively so as to defeat the purpose and policy behind rule 35 and the territorial legislature's desire that the local rules conform to the federal rules." Appellant's Brief at 3. The legislative desire alluded to is that embodied in A.S.C.A. § 46.0501. This enactment reads:

Except as otherwise enacted in this Code, by rules adopted by the Chief Justice, the criminal procedure in the High Court shall conform as nearly as may be practical to the Federal Rules of Criminal Procedure.

Although there is perhaps something to be said about the suggestion, it is quite clear that the Chief Justice's rule making authority under A.S.C.A. § 46.0501 does not include the power to amend unambiguous legislative enactments setting out the prerequisites to appeal. Secondly, A.S.C.A. § 46.0501, by its own terms, is limited to situations not "otherwise" covered by the Code. Thus, T.C.R.Cr.P. 35 is in conflict with the provisions of A.S.C.A. §§ 46.2402(a) and 43.0802(a). As correctly explained by the court below: [20ASR2d129]

Rule 35 was imported almost verbatim from the Federal Rules of Criminal Procedure. This is one of a number of instances in which it appears that the committee that compiled the American Samoarules did not notice a difference between the federal and territorial statutory schemes which may render such verbatim importation inappropriate or impossible. The federal equivalent of Rule 35 is appropriate in the federal system because the federal courts are not subject to the jurisdictional limitation imposed on the High Court of American Samoa by A.S.C.A. § 43.2402(a). There is no federal statutory requirement that a motion to reconsider a sentence be made within a certain number of days; rather, the federal rule itself, having been approved by Congress, defines the jurisdiction of the federal district courts with respect to reconsideration of sentences. In contrast, the American Samoa rules were promulgated by the sole authority of the Court and must therefore give way to territorial statutes defining the Court's jurisdiction unless the statutes themselves can be shown to be unconstitutional. See generally American Samoa Government v. Tile, 8 A.S.R.2d 120 (1988).

Since there was no timely motion for reconsideration or new trial within the statutory ten-day deadline, we have no jurisdiction to entertain this appeal--regardless of any arguments, equitable or otherwise. Judicial Memorandum No. 2-87, 4 A.S.R.2d 172, 174 (1987). We accordingly dismiss.

It is so ordered.

**********

* The Honorable Malaetasi Togafau, District Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

1. Seee.g.Taulaga v. Patea, 17 A.S.R.2d 34 (1990) (construing A.S.C.A. § 43.0802(a), which employs the exact language contained in A.S.C.A. § 46.2402(a); see also Judicial Memorandum No.2-87, 4 A.S.R.2d 172 (1987).

EW Truck & Equipment Co. v. Coulter,


EW TRUCK & EQUIPMENT COMPANY, INC., Appellant

v.

BOB COULTER, doing business as SOUTH PACIFIC 
EQUIPMENT & REPAIR, Appellee

High Court of American Samoa 
Appellate Division

AP No. 08-91

March 13, 1992

__________

An appellate court is not obliged to search the record for error.

An appellate court should not, and on unsubstantiated assertions of error cannot, substitute its judgment for that made by the trier of fact at the conclusion of trial.

The trial court did not commit manifest error when it refused to allow a proffered expert to testify in terms of a hypothetical, based upon test results of a person whose qualifications were never properly presented, particularly when the final decision could be a matter of life and death.

Where the trial court properly assessed that both parties breached their contract, its decision in equity requiring the parties to share expenses will be affirmed.

A trial court has broad discretion concerning the admissibility or exclusion of expert testimony.

A finding is "clearly erroneous" only when the entire record produces the firm and definite conviction that the trial court committed error. [20ASR2d89]

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, MUNSON,** Acting Associate Justice, MAILO, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Appellant, Robert A. Dennison III

  For Appellees, Roy J.D. Hall, Jr.

MUNSON, J.:

THIS MATTER is before the Court on appeal from the Trial Division.

Procedural History

This appeal stems from that portion of the judgment affecting one of two cases consolidated for trial, CA Nos. 59-90 and 62-90. Appeal was taken only from the judgment relating to CA No. 59-90, EW Trucking Company, Inc. v. Bob Coulter dba South Pacific Equipment and Repair,(1) which involved a contract for purchase of a boom truck to be used in electrical contracting work.

The case was tried before a three-judge panel April 29-30, 1991. The decision was announced from the bench at the conclusion of trial, and a written opinion and order was entered May 6, 1991.[20ASR2d90]

Shortly after entry of the judgment, appellant EW moved for a new trial or to amend the judgment to show that the boom truck was in fact sufficiently insulated to be used for its intended purpose, and thus, that the part of the judgment which required EW to have the truck insulated was in error and should be amended. After an evidentiary hearing held in late May, 1991, the trial court by written order filed June 3, 1991, held that the evidence presented failed to show that the truck was properly insulated and denied the motion for a new trial or to amend the judgment but extended to July 19,1991 the time for appellant to have the truck insulated.

Appellant EW filed a notice of appeal June 5, 1991.

Subsequently, in late June, 1991, appellant EW filed a motion for entry of final judgment and again attempted to show, this time through expert testimony, that the truck was properly insulated. An evidentiary hearing on this motion was held July 22, 1991, and the motion was denied.

On July 26, 1991, EW filed a motion for new trial or for reconsideration. Hearing on this motion was held August 6, 1991, and the motion was denied by order dated August 14, 1991.

Appellant EW filed a new notice of appeal August 16, 1991.

Facts

The two consolidated cases grew out of a contract for the sale and delivery of a boom truck to be used for electrical contracting work in American Samoa. In CA No.59-90, plaintiff-appellant EW Trucking Co., Inc. (EW) agreed to sell the truck to Bob Coulter (Coulter), doing business as South Pacific Equipment & Repair. Below, Coulter argued unsuccessfully that he was not the purchaser of the truck, but merely the agent for the actual purchaser, Coffin. The companion lawsuit involved a claim for shipping and storage of the truck.

The facts giving rise to the lawsuit are straightforward. The trial court found that Coulter had contacted EW to locate a boom truck and that, although EW knew that Coulter in turn intended to sell the truck to another person (Coffin, although EW never knew his identity), the contract for the truck was between EW and Coulter, and that Coulter [20ASR2d91] was obligated to pay the purchase price for the truck.(2) However, the court also found that a term of the contract between EW and Coulter was that the truck was to be insulated, since it was going to be used for electrical work in American Samoa.

After considering all the testimony and evidence, the trial court rendered its judgment, in relevant part, as follows:

1. In favor of EW against Coulter for the agreed-upon $37,000.60 purchase price of the truck, plus pre-judgment interest at six percent for a total of $41,501.90;

2. Against EW in favor of Coulter, requiring EW to satisfactorily insulate the boom truck within sixty days of judgment and, if EW failed to properly insulate the truck, allowing Coulter to rescind the contract;

3. In favor of Coulter against third-party defendant Coffin, the person who agreed to purchase the truck, in the amount of $54,975.43; and,

4. That execution of all money judgments would be stayed for sixty days, to allow EW time to insulate the truck.

In post-trial motions, appellant EW attempted to show that the judgment was in error in that the boom truck was already satisfactorily insulated for all its intended uses.

Issues

1. Did the trial court err in finding that appellant EW breached its contractual obligation to appellee Coulter [20ASR2d92] by supplying a bucket truck with an uninsulated or insufficiently insulated boom?

2. Did the trial court err by refusing to admit the testimony of the expert witness offered by appellant EW at the hearing on EW's motion for entry of final judgment?

3. Did the trial court err by holding that Coulter would be allowed to rescind the entire contract if EW did not satisfy that part of the judgment which required it to insulate the boom truck within sixty days of entry of judgment?

4. Should the trial court have awarded judgment in favor of appellant EW and against appellee Coulter for the full $2,500 storage costs, for EW's reasonable attorney fees, and for post-judgment interest at the legal rate?

Standard of Review

The trial division's factual determinations are reviewed for "clear error." A.S.C.A. § 43.0801(b); see also Temengil v. Trust Territory of the Pac. Islands, 881 F.2d 647, 649 (9th Cir. 1989) (citing United States v. McConney, 728 F.2d 1195, 1199-04 (9th Cir. 1984) (en banc), cert. denied, 469 U.S. 824), cert. denied, 496 U.S. 925 (1990).

A finding is "clearly erroneous" when the entire record produces the definite and firm conviction that the court below committed a mistake. South Seas v. Sablan, 525 F. Supp. 1033, 1037 (D.N.M.I. 1981), aff'd, 691 F.2d 508 (9th Cir. 1982) (mem.). The reviewing court accords particular weight to the trial judge's assessment of conflicting and ambiguous facts. Id.

A trial court has broad discretion concerning the admissibility or exclusion of expert testimony, and its action will be sustained unless it is shown to be manifestly erroneous. Reno-West Coast Distribution Co. v. Mead Corp., 613 F.2d 722 (9th Cir. 1979), cert. denied, 444 U.S.927.

Analysis 
[20ASR2d93]

1. Did the trial court err in finding that appellant EW breached its contractual obligation to appellee Coulter by supplying a bucket truck with an uninsulated or insufficiently insulated boom?

In its May 6, 1991, decision, the trial court found in part:

The evidence does not reflect, however, that (Coulter] knew or should have known that an uncertified truck was necessarily an uninsulated one. Indeed, it appears that both (Coulter] and EW assumed that the 1966 truck., was in fact insulated until about two months after it had arrived in American Samoa, when an inspection by the local power authority appears to have revealed the contrary.... The weight of the evidence is to the effect that the boom is not insulated but that it can be insulated.

Appellant attempts to show by evidence offered (or proffered and not admitted) at post-trial hearings that the trial court erred when it ruled at the conclusion of trial that appellant EW was obligated under the contract to provide an insulated truck.(3) Appellant argues that the factual findings in the trial court's May 6, 1991, decision were "clearly erroneous" because the testimony of both appellee and Coffin "was not credible" and that Coulter's testimony was based on inadmissible hearsay. As to the latter contention, appellant does not cite this Court to any timely objection made to the allegedly inadmissible testimony. An appellate court is not obliged to search the record for error. See generally United States v. Kline, 922 F.2d 610 (l0th Cir. 1990); Engdahl v. Department of Navy, 900 F.2d 1572, 1576 (Fed. Cir. 1990); National Commodity and Barter Assoc. v. Gibbs, 886 F.2d 1240, 1244 (10th Cir. 1989); Atwood v. Union Carbide Corp., 850 F.2d 1093 (5th Cir. 1988). As to the former assertion, the trial court is uniquely situated to determine credibility, having as it does the opportunity to observe the witnesses as they testify. This Court should not--and on these unsupported assertions of error cannot--substitute its judgment for that [20ASR2d94] made by the trier-of-fact at the conclusion of trial.

Appellant's claim of error is not persuasive.

2. Did the trial court err by refusing to admit the testimony of the expert witness offered by appellant EW at the hearing on EW's motion for entry of final judgment?

At the hearing on appellant's August 6, 1991, motion for new trial or for reconsideration, appellant sought to introduce, through its expert witness, Mr. Malcolm, that tests performed on the boom truck by a Mr. McCormick in June, 1991, proved that the truck was properly insulated. In declining to allow Mr. Malcolm to offer an expert opinion based on the tests conducted by Mr. McCormick, the court stated:

There was no evidence as to the qualifications of Mr. McCormick and the court is hesitant to allow a witness to determine safety certification of the insulated boom in this case by use of a hypothetical. It is important that the court have the opportunity in a case involving special expertise and knowledge to examine the qualifications of the expert witness and examine his methods of testing the insulation of a boom on a truck to determine whether or not the boom retains a high insulation quality within acceptable standards when used near high voltage lines.

The court also noted that appellant could have supplied such background information by memorializing it in deposition form when Mr . McCormick was present in American Samoa. The court expressly considered and rejected (and in our opinion rightly so) appellant's suggestion that the court be more flexible on this issue due to the general unavailability of expert witnesses in American Samoa.

We cannot say that the trial court committed manifest error by refusing to allow Mr. Malcolm to offer an expert opinion, couched in terms of a hypothetical question, and based upon test results of a person whose qualifications were never properly presented to the court. This is particularly so when the trial court knew that its final decision on the safety of the truck might literally be a matter of life and death.

3. Did the trial court err by holding that Coulter [20ASR2d95] would be allowed to rescind the entire contract if EW did not satisfy that part of the judgment which required it to insulate the boom truck within sixty days of entry of judgment?

In its decision, the trial court, after reviewing the facts and the law, stated:

Under these circumstances, and in the absence of any dimension of malice or wilfulness in either party's breach, the most appropriate remedy is to give each party the benefit of the bargain to which it agreed and was entitled. EW is entitled to the contract price...; [Coulter] is entitled to a truck that conforms to all terms of the contract, including the requirement of an insulated boom.

.....

Judgment will enter against plaintiff EW Truck & Equipment requiring it to insulate the boom on the truck within sixty days. If plaintiff EW should fail to comply with this part of the judgment, defendant Coulter will have the right to rescind the contract of sale.

19 A.S.R.2d 61, 64, 66 (1991).

Earlier, the trial court had noted that "[a]lthough we have no evidence of what it will cost to insulate the truck, we do have evidence that the cost will not be commercially unreasonable in relation to the contract price.” Id., at 64.

The trial court utilized a "substantial performance" analysis in rendering its decision, and the remedy it fashioned sought to give EW the benefit of its bargain (the contract price for the truck), minus an appropriate reduction for its breach regarding the insulation. See 3A Corbin, Contracts §§ 709, 710, 994 (1960). We find no error in this analysis. However, the court placed upon appellant the duty to prove the truck was adequately insulated and upon itself the responsibility for making the determination of whether or not the insulation was adequate. The buyer of the truck, who seems more properly the party to be concerned with the safety of the truck, was not to be involved in this determination. [20ASR2d96]

As a practical matter, we believe the burden of determining the safety of the truck should be placed on the party most directly interested and best able to ensure that the truck is indeed safe for its intended use: the buyer, Coulter. Therefore, we hereby remand this matter to the Trial Division for amendment of its judgment. Because the trial court found that the truck could be insulated in a commercially viable manner, it is our direction that the judgment be amended to require appellee Coulter , within sixty days of the amendment, to have the truck insulated to his satisfaction, and to deduct the reasonable charges of such work from the amount owing to appellant EW on the date of the trial division's initial judgment, that being $41,501.90.(4) This amendment also frees the trial court from having to make a decision requiring expertise perhaps not available to it despite the best efforts of appellant. Likewise, it frees appellant from the task of having to prove compliance with the court's judgment when appellant, too, might not have sufficient expertise available to it to make such a showing. Finally, it renders moot the question of rescission.

4. Should the trial court have awarded judgment in favor of appellant EW and against appellee Coulter for the full $2,500 storage costs, for EW's reasonable attorney tees, and for post-judgment interest at the legal rate?

Appellant argues that the trial court erred by ordering the parties each to pay half of the $2,500 storage fee for the truck, to pay their own attorney fees, and by not awarding post-judgment interest at the legal rate. Appellant maintains that the evidence at trial shows that it had a contractual right to attorney fees if it prevailed in any litigation against appellee and that the contract also requiredappellee to pay shipping and [20ASR2d97] all other costs, such as taxes and storage charges.(5)

Because we agree with the trial court's assessment that both parties breached their contract, we affirm its decision in equity requiring the parties to share equally the expense of storage and to pay their own attorney fees.

As to the award of post-judgment interest, appellant argues that the court awarded it verbally but failed to include it in the final judgment. The court' order of May 6, 1991, does include pre-judgment interest at the legal rate, but no mention is made of post-judgment interest. The record does not reflect any motion by appellant to amend the judgment. However, we order that the judgment also be amended to specifically include interest at the legal rate of six percent from the date of judgment, in accordance with A.S.C.A. § 28.1501(a).

Conclusion

FOR THE REASONS STATED ABOVE, the decision of the Trial Division is AFFIRMED, but the judgment will be amended 1) to require appellee Coulter to properly insulate the truck within sixty days of amendment, 2) to allow appellee Coulter to deduct the reasonable cost of insulating the truck from the amount owing appellant EW at the time of the Trial Division's original judgment, and 3) to award appellant post-judgment interest (on the judgment amount of $41,501.90, minus the amount reasonably necessary to insulate the truck, with interest again accruing on the latter figure from the date of the Trial Division's decision to the date of final payment by Coulter to EW) in accordance with the Trial Division's oral ruling and the law.

*********

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable Alex R. Munson, Chief Judge, United States District Court for the Northern Mariana Islands, serving by designation of the Secretary of the Interior.

1. In CA No. 62-90, South Seas Shipping Co. v. South Pacific Repair & Equipment Co., Inc. and EW Truck & Equipment Co., Inc., South Seas Shipping sued SPEAR and EW for payment of shipping and storage charges for the truck which was the subject of the lawsuit in CA No. 59-90. No appeal was taken from that portion of the Trial Division's decision which concerned liability to South Seas for shipping and storage charges.

2. By the time the truck arrived in American Samoa, Coffin's attempt to obtain financing had apparently fallen through and Coulter was claiming that he was merely an agent for the true purchaser, Coffin, and thus was not responsible to EW for payment of the purchase price. As a result, no one paid the shipping charges or the subsequent storage charges. This led to the second lawsuit (which plays no part in this appeal), in which the shipping and stevedoring companies sued for their unpaid charges.

3. This issue is separate and distinct from the issue of whether appellant was able to prove to the court's satisfaction in post-trial hearings that the truck was in fact insulated properly, which issue is addressed infra.

4. This appears to be the most equitable resolution, since it would be unfair to now require Coulter not only to insulate the truck but also to pay accrued interest for the time since the trial court's initial judgment. Post-judgment interest shall accrue on the new figure (i.e. $41,501.90 minus the reasonable cost of insulating the truck) from the date of the Trial Division's initial judgment to that of the final payment by appellee Coulter to appellant EW.

5. Appellee at the conclusion of its brief requests this Court to require appellant to reimburse appellee $12,168 for shipping charges appellee paid to South Seas Shipping. This matter is not properly before the Court and should have been the subject of a timely cross-appeal.

Ava v. McDonald,


CHIEF AVA VILI for Himself and the AVA FAMILY OF 
PAVAIAI, Plaintiffs

v.

FOMA'I P. LOGOA'I, FAALJLIU P. LOGOAI 
and Her CHILDREN, Defendants

AVA V. AVA, Plaintiff

v.

MIKE MCDONALD, Defendant

High Court of American Samoa 
Land and Titles Division

LT No. 32-90 
LT No. 36-90

February 19, 1992

__________

A party's contention that a piece of land is communal brings into play the requirements of A.S.C.A. § 43.0302.

The requirement of a certificate of irreconcilable conflict by the Secretary of Samoan Affairs or his deputy is a procedural requirement and may be corrected by the later filing of a certificate.

A required certificate of irreconcilable conflict by the Secretary of Samoan Affairs or his deputy is a jurisdictional mandate without which an action should not proceed.

Before RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, and MAILO, Associate Judge.

Counsel: For Plaintiffs, Tauese Sunia

  For Defendants Foma'i P. LogoaiFaaliliu P. Logoai and Her Children, Asaua Fuimaono [20ASR2d52]

  For Defendant McDonald, William H. Reardon

Trial of this case took place January 16 and 17, 1992. The central issue is the resolution of plaintiffs Avas' contention that the land involved, approximately 2.69 acres of a tract called "LALOFUTU" in the village ofPavaiai, is Ava communal land--versus defendants Logoai's claim that this land is individually owned by Faaliliu Logoai and her children.

At the end of plaintiffs Avas' evidence-in-chief, defendants Logoai, joined by defendant McDonald, moved for dismissal on the grounds that: (1) a jurisdictionally required certificate of irreconcilable conflict by the Secretary of Samoan Affairs or his deputy was not on file with this court and (2) plaintiffs Ava lacked standing to sue. The motion was taken under advisement while defendants presented their evidence. At the conclusion of the evidence when the case was submitted for decision, defendant McDonald withdrew his motion to dismiss with respect to the lack of a certificate. However, defendant Logoai's motion to dismiss on this ground is still before the court.

Clearly, there is no certificate of irreconcilable conflict on tile in this case. The requirement of these certificates in controversies over communal lands is legislated at A.S.C.A. § 43.0302. While it may ultimately be determined that the land in question is individually owned by the defendants Logoai and her family, defendants Avas' assertion that this land is Ava communal land brings this statute into play.

Strictly, this action should not have been filed with this court without an accompanying certificate of irreconcilable conflict, but this requirement is procedural and may be corrected by the later filing of a certificate. The lack of a certificate however, is a jurisdictional mandate.

IT IS ORDERED that plaintiffs Ava file a certificate of irreconcilable conflict by the Secretary of Samoan Affairs or his deputy setting forth the events and the status of this controversy in conformance with A.S.C.A. § 43.0302(a) no later than 60 days after the date of this order.

This time period is established to afford sufficient opportunity to meet the 20 days notice of hearing required for each of the two (2) hearings that must be held to comply with A.S.C.A. § 43.0302(a). [20ASR2d53]

If plaintiffs fail to timely file the mandated certificate of irreconcilable conflict, their action must be dismissed. If the certificate is filed, the court will proceed with the decision in this matter.

The standing to sue issue remains to be determined.

*********

Asifoa; Estate of Tuilesu v .


The Estate of MERCY TUILESU, PELEIUPU TUILESU, 
Individually and as the Guardian of the Estates of 
SOLO TUILESU, MATTHEW TUILESU, 
MICHELLE TUILESU, MICHAEL SIONE, and TUI SIONE, 
Minors, Plaintiffs

v.

LUAGIA ASIFOA, SOSENE ASIFOA, and 
NATIONAL PACIFIC INSURANCE, Defendants

High Court of American Samoa 
Trial Division

CA No. 71-90 
(AP No. 4-92)

March 6, 1992

__________

Where there is no good reason to doubt an eyewitness account the court will not speculate otherwise.

While motorists must be vigilant when encountering children, the fact that an injury occurred does not automatically give rise to strict liability without fault.

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

Counsel: For Plaintifts, John L. Ward II

  For Defendants, Robert A. Dennison III

On or about October 14, 1989, young Mercy Tuilesu died after she was run over by a bus. At th time of the accident, Mercy was only twenty-months-old. Her mother, Peleiupu Tuilesu, and her older siblings[20ASR2d61] who survived her have filed this action against the driver, owner, and insurer of the bus. Plaintiffs claim damages for wrongful death under A.S.C.A. § 43.5001 and A.S.C.A. § 43.5002; the mother also seeks recovery under a "negligent infliction of emotional distress" theory.(1)

The only eyewitness to the accident testified that he had been a passenger on the bus but that he had earlier disembarked further up the road from the scene of the accident.(2) He testified that he saw the bus stop to let off Mercy's mother (who was returning from a shopping trip to Fagatogo with her sister and another young relative) and that he then noticed a group of children running across the road to the rear of bus; however, one particular child went underneath the bus from its left side just ahead of its rear set of wheels. The witness recalled that Peleiupu was still in the bus at that time exchanging money with the driver, while her sister was standing by the roadside. (The sister was the first to alight to take hold of one child whom she said she had seen running towards the bus.) The witness further stated that he then started shouting, trying to catch somebody's attention, but his efforts were to no avail. He saw the bus pullout and then stop, and then he started running to the scene where he saw Mercy's lifeless body.

Notwithstanding this eyewitness account, plaintiffs ask the court to draw a conclusion of negligence on the part of the driver. The inference sought is premised on the contention that the location of blood stains towards the middle of the road indicates that the child was alongside the bus when it pulled out and that if the driver had been keeping a proper lookout, he would have, or should have, noticed the decedent.

The evidence simply does not support such a conclusion. The Court viewed the scene and found nothing remarkably telling from the location of the blood stains (apparently marked by the investigating police [20ASR2d62]officers) to suggest that the child may have been alongside the bus just before the accident. The accident occurred at a rather narrow part of the Aoloau/Aasu highway. We see no good reason to doubt the eyewitness' recount of the fatal day's events. Plaintiffs' contention only invites speculation and we refuse to draw the conclusion suggested.

Considering the evidence before us, we fail to see anything reliable on which to base a finding of negligent causation. The evidence suggests that the only way the accident would have been avoided was if the driver had first checked under his bus before moving it. But the evidence failed to show that the driver knew, or should have known with the exercise of reasonable caution, that there was an infant under his bus. Rather the evidence points in the opposite direction. The child went under the bus when it was stopped and while the driver was momentarily preoccupied with collecting fares, and, it may be reasonably assumed, ensuring that his passengers were safely off the bus before he could move on. His attention would thus have been directed to the right side of the bus while the child's perilous situation arose on the left, effectively outside of, and later hidden from, his view. In these circumstances we cannot conclude that there was a failure on the part of the driver to keep a proper look out.

We are mindful that the law imposes upon the motorist the duty to be extra vigilant when encountering children in order to prevent accidents, but at the same time, the law does not require the motorist to be an insurer of the safety of such children. The mere fact of injury does not give rise to strict liability without fault. Mataloo v. Penitusi, 4 A.S.R.2d 46 (1987); Lauoletolo v. Setenaisilao, 14 A.S.R.2d 37 (1990). In our view, plaintiffs have failed to meet their burden of proof to establish negligence together with proximate cause. Accordingly, the complaint is dismissed and judgment shall be entered in favor of the defendants.

It is so Ordered.

*********

1. The details of plaintiffs' claims were only learned at the time of trial. The complaint itself merely alleges negligent operation on the part of the driver and negligent entrustment on the part of the bus owner.

2. Although the witness testified that he was about 50 yards away from where the accident occurred, we noticed from our visit to the scene, after comparing the markings which the witness had made on a photograph of the vicinity produced in court, that he was more accurately about 200 yards away from the point of impact.

Asifoa; Estate of Tuilesu v.


The Estate of MERCY TUILESU, PELEIUPU TUILESU, 
Individually and as the Guardian of the Estates of 
SOLO TUILESU, MATTHEW TUILESU, 
MICHELLE TUILESU, MICHAEL SIONE, and TUI SIONE, 
Minors, Plaintiffs

v.

LUAGIA ASIFOA, SOSENE ASIFOA, and 
NATIONAL PACIFIC INSURANCE, Defendants

High Court of American Samoa 
Trial Division

CA No. 71-90

November 21, 1991

__________

In a summary judgment motion, the non-moving party is to be given the benefit of all reasonable inferences to be drawn from the evidence.

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

Counsel: For Plaintiff, Robert A. Dennison III

  For Defendant, John L. Ward II

Defendants Sosene Asifoa and National Pacific Insurance, seek summary judgment on the ground that the only eye-witness account of the accident, secured by way of deposition, negates plaintiffs' claim of actionable negligence. Defendants therefore contend the absence of any genuine issue as to material fact. T.C.R.C.P. Rule 56.

In these matters, the non-moving party is to be given the benefit of all reasonable inferences to be drawn on the evidence. Lokan v. Lokan, 6 A.S.R.2d 44 (1989). In this light, we view Officer [20ASR2d46]Faataumalama Fereti's affidavit about blood on the roadway(1) as indicating something in the way of a triable issue of fact---the position of the deceased child in relation to the bus as it moved away after discharging plaintiffPeleiupu Tuilesu. Plaintiffs' theory is failure on the part of the driver to keep a proper lookout for children; hence the deceased child's location at the critical time would seem to be a material issue.

The motion for summary judgment is, therefore, denied.

It is so Ordered.

*********

1. We note parenthetically that this observation of the scene was about all that this officer competently deposed to "from personal knowledge," as required by T.C.R.C.P. Rule 56(e).

Asi; Afoa v.


AFOA SANERIVE, Appellant/Appellee

v.

ASI KOKI, Appellee/Appellant

High Court of American Samoa 
Appellate Division

AP No. 22-90 
AP No. 23-90

March 12, 1992

__________

It is not the appellate court's function to decide factual issues.

The test for clear error is whether there is substantial evidence supporting the trial court's conclusions -not whether a dissatisfied litigant himself presented substantial evidence. [20ASR2d82]

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, MALAETASI,* Acting Associate Justice, LOGOAI, Associate Judge, and MAILO, Associate Judge.

Counsel: For Appellant/Appellee AfoaAsaua Fuimaono

  For Appellee/Appellant AsiTogiola T.A. Tulafono

  For Objector MeleiseaUtu Sinagege Morris

  For Objector Tulifua Family, Tauese P.F. Sunia

Afoa Sanerive surveyed 3.43 acres of land in the village of Taputimu and offered the same for registration as the communal property of the Afoa family. His claim attracted the objections of others in Taputimu, including theAsi family, the Meleisea family, and the Si'i family. The Asi family also surveyed their claim, which roughly incorporates about half of Afoa's claim. The resultant area of dispute between these two families encompasses an area of approximately 1.72 acres which is bisected by a secondary road referred to below as the Taputimu "loop road."

The trial court, while noting that "neither party had presented a particularly compelling case," slip op. at 3, found the evidence preponderating in favor of the Asi family with respect to that portion of the overlap west of the loop road's median line (referred to below as the "strip"), and in favor of the Afoa family with respect to the remainder. Afoa and Asi both appeal these conclusions. The court also rejected Afoa's claim insofar as it extended beyond that section of the loop road where it converges with the main Taputimu-Vailoa highway to the west- northwest. It appeared to the court that this part of Afoa's survey encroached onto land belonging to the Meleisea and/or Si'i family. Afoa additionally appeals this aspect of the decision.

These are essentially appeals on the court's findings of fact, which findings may not be set aside except for clear error. A.S.C.A. § 43.0801(b). Afoa contends that the decision below was clearly erroneous because the "preponderance of the evidence clearly favors [his] side," and that the trial court "failed to give proper consideration to a previous judicial determination." He claims that his testimony about the boundary [20ASR2d83]location was more "clearly" presented while Asi's key witness, his son Filiva'a, was, on the other hand, vague and uncertain.(1) Similarly, the Asi family assigns error--arguing that their side had given "accounts of plantations and cultivations" on the area west of the strip even prior to the time Afoa made use of the area; that this evidence demonstrates "original and continuous occupation," while Afoa, on the other hand, failed to produce such evidence. They further argue that the court's use of the loop road as a boundary between them and Afoa was arbitrary and without evidentiary foundation.

We first note that it is not the appellate court's function to decide factual issues de novo. Indeed, where credibility is at issue, due deference must of necessity be given to findings of the trial court who had the opportunity to observe and listen to live witnesses. T.C.R.C.P. 52(a); In re Matai title "Tauaisafune", 6 A.S.R.2d 59 (1987); National Pac. Ins. Co. v. Otto, 3 A.S.R.2d 94, 95 (1986). At the same time, the findings of the court, for which there is substantial evidence on the record, will not be disturbed although the record might also reflect that substantial evidence was given in support of the appellant's position. Suapilimai v. Faleafine, 9 A.S.R.2d 16 (1988). Thus, "[w]hether or not a dissatisfied litigant had himself presented substantial evidence is not . ..the test for clear error. Rather, the question is whether there was substantial evidence to support the trial court's conclusions." Moea'i v. Alai'a, 12 A.S.R.2d 91, 93 (1989).

After reviewing the record below, we are satisfied that there was substantial evidence on the record to support the trial court's findings. It seems clear from the judgment below that the court looked to corroborative indices of actual use and occupation given the contradictory testimony. Asi's version appeared to be more likely with regard to the strip; his family's claim to use and occupation was partly supported by the fact that the strip contained the curtilage of one of their family homes.(2) [20ASR2d84]

On the other hand, Atoa's claim to the remainder of the overlap--to the land east of the loop road--was corroborated by his acknowledged use of this area; he not only raised chickens in this vicinity but he also allowed a third party have a plantation in this area for a number of years. The attempts by the Asi family to explain this anomaly by way of permissive use was simply not convincing to the trier of fact. The court explained:

Although stranger things have happened, it does not impress us as very likely that Asi would have allowed another matai with plenty of his own land to build a chicken coop on Asi land....

Slip op. at 3. This is hardly clear error.

Additionally, Asi's complaint about the delineation of the boundary line along the loop road also fails to impress. The court's demarcation of the boundary as coinciding with the loop road is no more arbitrary than the Asifamily's own use of another part of the road to delimit their asserted claim. The line was drawn by the court according to the extent of each party's possession. There is substantial evidence on record to sustain such a conclusion.

Finally, with regard to the objections of Meleisea and Si'i, the court had substantial evidence to find that Atoa's possession extended only up to the edge of the main road. Among other things, Meleisea's understanding of the boundary was corroborated by the understanding of other matai of TaputimuAfoa's tavorable comparisons of his testimony against that of Chief Meleisea's also fails to impress.

We AFFIRM the judgment below.

It is so Ordered.

*********

* The Honorable Malaetasi Togafau, District Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

1. The senior matai of the Asi family, Asi Koki, was apparently infirm by the time of trial and not capable of testifying.

2. Afoa's reference to a "previous judicial determination," is, at best, desperate. The reference is to an interlocutory order of the land and titles division enjoining an Asi family member from the construction of a septic tank that "possibly... may be [sic] situated on [Afoa's] land." Afoa Sanerive v. Asi Sipusi, LT No.42-80, (Order entered Sept. 8, 1980) (emphasis added). This matter never went to trial but was dismissed without prejudice on June 22, 1989, upon Afoa's own motion.

In re a Minor Child (Juv. No. 95-91),


In re a MINOR CHILD

High Court of American Samoa
Trial Division

JUV No. 95-91

February 5, 1992

__________

Unless relinquishment of parental rights can be found to enhance a child’s best interests, the court is not permitted to grant the petition.

When a change in legal status is not in the child's best interest, customary Samoan adoption may continue to inure.

Before KRUSE, Chief Justice, VAIVAO, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Petitioner, Isa-Lei F. Iuli

The natural parents petition to terminate their parental rights to their three-year-old minor child so that she may be available for adoption by her paternal grandparents.

In these matters, we are required to inquire whether the relinquishing parents have been properly counseled and fully advised as to the consequences of their petition, A.S.C.A. § 45.0402(d) and (g), and [20ASR2d50] whether granting the petition would best serve the interests of all parties concerned, A.S.C.A. § 45.0402(e), (g). While there was a sufficient showing on the first statutory requirement, we found that the evidence presented on the second requirement focused largely on the adult parties' needs---the natural parents' love for the aging grandparents and the latter's need for filial companionship and care, the grandparents' desire to legally formalize a family tradition and their concern for the natural father's availability to attend to his duties as a matai of the family. The evidence, however, failed to adequately address the future needs and welfare of the very young child before the Court.

Unless relinquishment can be found to enhance a child's best interests, the court is not permitted to grant the petition. A.S.C.A. § 45.0102(a)(1); In re Two Minor Children, 12 A.S.R.2d 87 (1989). A relinquishment petition not only seeks the termination of parental rights but also the termination of a child's legal right to look to his or her parents for support. The court has therefore taken care to ensure that there be some "net benefit" to the minor before visiting upon him or her a change in legal status. In re Two Minor Children, 11 A.S.R.2d 108, 109 (1989); In re A Minor Child, 7 A.S.R.2d 115 (1988); In re A Minor Child, 13 A.S.R.2d 33 (1989); In re A Minor Child, 12 A.S.R.2d 15 (1989).

In the present matter the grandparents are leading citizens in the community and are financially well off. We are satisfied that they undoubtedly have the superior financial resources to care for the child's "present" needs. At the same time, we have no doubt about the strong love which they have for their grandchild. On the other hand, the natural parents are young and able-bodied; they are both gainfully employed and appear to be mature, responsible, and caring parents ---indeed, the child remains in their care and custody during the school days. They also acknowledge that in the natural course of things the child would be their responsibility when the grandparents are no longer able to provide for the child. In these circumstances, we conclude that from the child's point of view, her "future" needs would appear to be better secured by her remaining legally dependent on her own parents and that they remain legally obligated to provide for her.

This is not to say that adoption in accordance with Samoan custom may not continue to inure and that the grandparents may not continue to love and provide for the child. But a change in legal status is neither in the child's best interest nor necessary to facilitate customary adoption. The petition is dismissed. [20ASR2d51]

It is so Ordered.

*********

Rakhshan v. Am. Samoa Gov’t


DAVOUD RAKHSHAN, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT, ATTORNEY GENERAL,
CHIEF IMMIGRATION OFFICER SO'OSO'O TUIOLEMOTU,
SUITUPU SEVA'AETASI, TA'AVILI ULUGAONO,
LUPE TAGOA'I and DOES I to X, Defendants

DAVOUD RAKHSHAN, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT,
LBJ MEDICAL CENTER, DR. SALAMO LAUMOLI,
DON NOEL, and DOES I-X, in their Capacities as
LBJ EMPLOYEES and as PRIVATE INDIVIDUALS, Defendants

DAVOUD RAKHSHAN, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT,
ATTORNEY GENERAL AVIATA FA'ALEVAO,
TAUIVI TUINEI, COUNSEL FOR IMMIGRATION BOARD,
JOHN FAUMUINA, CHAIRMAN OF THE IMMIGRATION
BOARD, TAESALIALI'I LUTU, MEMBERS OF THE BOARD
and DOES I to XX, and as PRIVATE INDIVIDUALS, Defendants

CA No. 20-90
CA No. 103-90
CA No. 109-90
(AP No.14-91)

High Court of American Samoa

Trial Division

July 5, 1991

__________

Although a pro se complaint should be broadly construed in the interest of justice, the complaint must nonetheless state a claim upon which judicial relief can be granted.

An administrative claim is a jurisdictional prerequisite to a suit against ASG under the [20ASR2d2] Government Tort Liability Act. A.S.C.A. §§ 43.1201 et seq.

Suits for false arrest or imprisonment are outside the scope of the Government Tort Liability Act. A.S.C.A. §§ 43.1201 et seq.

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

Counsel: For Plaintiff, Pro Se

  For Defendant, Arthur Ripley, Jr., Assistant Attorney General

These matters were consolidated for trial. Plaintiff, a national of Iran, first entered the territory under a temporary visitor's permit on May 3, 1987. He has been preoccupied ever since in striving to remain in the territory on a more permanent basis. The local immigration authorities, on the other hand, have been trying to deport him since mid-1988. In the process, plaintiff has been arrested several times and detained at the Tafuna Correctional Facilities pending deportation efforts.(1) His repeated encounters with the immigration authorities can be attributed in no small measure to his curious flair for readily making and unmaking friends. As a result, he has had a remarkably high turnover of sponsors.(2)

Filing suit pro se, plaintiff seeks, in CA No.20-90 and CA No. 109-90, damages against the government and various immigration officials for alleged wrongful detainment; and in CA No.103-90, damages against the government (hospital) and certain of its dental personnel for their alleged wrongful failure to hire him.

FACTS [20ASR2d3]

Plaintiff came to the territory via the Republic of the Philippines, where he had attended school and gained a dentistry degree. After he arrived, plaintiff quickly befriended the hospital's then-director of dental services, Dr. Salamo Laumoli, in hope of securing employment. They became close friends. However, after being on-island for some two months, plaintiff’s expectations of employment had not materialized; at the same time, he was vaguely aware that his tourist status would lapse after 60 days.(3) He visited the Immigration Office on or about July 3, 1987, to inquire about extending his permit. He met with Chief Deputy Immigration Officer Robert Porter and informed him of pending employment with the hospital. Mr. Porter, in turn, advised plaintiff that government employment constituted permission to enter the territory but that plaintiff had to furnish proof of such employment.(4)

Faced with this need for proof, plaintiff turned to his friend Dr. Laumoli, who then produced a "To Whom It May Concern” letter in the name of "friendship." Dr. Laumoli testified that plaintiff not only requested the letter but also suggested its wording. The letter stated that the hospital "was in the process of hiring Dr. Davoud Rakhshan ...as a general practitioner dentist" and sought such assistance as might "expedite [plaintiffs] permit to reside here in American Samoa." In fact, the letter flagrantly misrepresented the facts and (not surprisingly) has since become a sorry source of embarrassment for its author. (Not only did Dr. Laumoli lack the singular authority to hire plaintiff, but also plaintiff could not even have been hired as "a general practitioner dentist," since the Health Services Regulatory Board had not licensed him to practice dentistry in the territory, as mandated by statute. A.S.C.A. §§ 31.1001 et seq. Indeed, Dr. Don Noel, a member of the Health Services Regulatory Board, testified that the board denied plaintiffs application for licensure because he failed to demonstrate qualification in accordance with applicable regulatory criteria.)

The letter, which plaintiff promptly delivered to Mr. Porter [20ASR2d4] personally, served its intended purpose. The Chief Deputy Immigration Officer accepted its representations and took no further action--plaintiff, in reality an overstayer, had managed to avert otherwise-certain deportation. See A.S.C.A. § 41.0616(15). There was, of course, no government job in the pipeline, although plaintiff kept up the ruse by regularly asking Deputy Chief Porter whether the Immigration Office had received the paperwork relating to his employment. At the same time, plaintiff maintained the overt appearance of imminent employment at the hospital's dental clinic, where he was daily permitted to "observe."

After a few more months had passed, and probably because the ruse of government employment could not be indefinitely continued, Dr. Lauilioli agreed to sponsor plaintiff and petition the Immigration Board to give him a work permit. Although the application(5) was dated September 27, 1987, it did not come before the board until March 11, 1988. Dr. Lauilioli had by that time withdrawn his offer of sponsorship since he and plaintiff had by then parted company. Notwithstanding, plaintiff had also by that time obtained a new patron, and on May 6, 1988, the board granted him a conditional(6) work permit for one year under the sponsorship of a Mr. Lautaimi Talailiaivao.

As soon as he obtained his permit, plaintiff again visited the Immigration Office to seek advice on how to change sponsors; this time, he was accompanied to the Immigration Office by a Mr. David Katina.(7) [20ASR2d5] The request, according to the testimony of Chief Immigration Officer So'oso'o Tuiolemotu, was referred to and approved by the Attorney General's Office.

Within a month plaintiff was in need of yet another sponsor. Mr. Katina complained to the Immigration Office that plaintiff was causing him trouble within his church and family and withdrew his sponsorship of plaintiff. Consequently, the Immigration Office gave plaintiff notice to depart the territory within ten days, as he was without a sponsor.(8)

Plaintiff, however, failed to depart the territory. As a result, he was subsequently taken into custody and detained at the Correctional Facilities pending deportation proceedings. He was arrested on July 12, 1988, but then released on July 16, 1988. The evidence was not very clear on the reason for plaintiffs release; however, Chief Deputy Immigration Officer Porter testified that he had received a call from Dr. Toeaso Tago (a relative of plaintiffs original sponsor, Mr. Talamaivao), who informed him that Mr. Talamaivao was returning to the territory and was willing to again sponsor plaintiff. Evidently, the matter was informally resolved with the return of Mr. Talamaivao, since deportation proceedings were discontinued and plaintiff ended up teaching at the TafunaHigh School.

In the following year, as his permit was about to expire, plaintiff again went before the Immigration Board and requested another change in sponsor because Mr. Talamaivao was again departing the territory indefinitely.(9) At this time a Mr. Dave Save presented himself before the board as plaintiff’s new prospective sponsor. The board, in its written decision dated June 30, 1989, denied this application and ordered plaintiff to depart the territory within ten days. [20ASR2d6]

Plaintiff appealed to the Appellate Division after unsuccessfully petitioning the board for reconsideration. The Court granted plaintiff's application for a stay. Rakhshan v. Immigration Board, 13 A.S.R.2d 25 (1989). Among other things, the Appellate Division found the record below to be inadequate for purposes of judicial review and remanded the matter back to the board for further hearing. The Court later observed, in Rakhshan v. Immigration Board, 15 A.S.R.2d 29, that the sketchy record produced suggested that the board could have deported plaintiff on a charge of "overstaying" because he had by then lost his teaching job; however, since it did not clearly articulate overstaying as a ground for deportation, that opportunity was only available to the board on rehearing as ordered. Id. at 31. As it turned out, the board never took that opportunity. Assistant Attorney General Tauivi Tuinei testified that instead he and plaintiff's then-counsel Charles Ala'ilima entered into settlement discussions about allowing plaintiff to depart voluntarily.(10) Tuinei also testified that he was under the impression from counsel that plaintiff was planning to travel to Australia and that he was, therefore, surprised when plaintiff visited him on or about January 3, 1990, and inquired about a date for the rehearing which the appellate court had ordered. Tuinei further testified that plaintiff denied having had any plans to depart the territory and that he later produced a tape of a secretly recorded conversation he had with Ala'ilima which he offered to discredit his (by then former) attorney. In the ensuing dialogue, Tuinei informed plaintiff that he would prepare to have him re-arrested, whereupon plaintiff quite literally took to the hills.

For almost two months, plaintiff eluded several search efforts; however, he was finally apprehended on February 28, 1990, pursuant to a warrant of arrest executed by Immigration Oftlcers Herota Satele and Tautooua Asoau. The officers found plaintiff hiding out in the hills behind Futiga and Pava'ia'i; they arrested him and took him to the Tafuna Correctional Facility.

The application for the warrant, which was sworn to by Officer Satele, charged plaintiff with a number of violations of the Immigration Act, namely: overstaying, tailing to furnish an annual report of address, failing to furnish a change in address, and being the subject of an [20ASR2d7] outstanding foreign warrant of arrest. On March 1, 1990, plaintiff was brought before the board to answer these charges. At this time he was represented by counsel Asaua Fuimaono. The board's record reveals that it first considered an application for bail set in the sum of $7,000, after being initially set at $10,000, and then took evidence over a two-day period. On March 23, 1990, the board issued its written decision which again ordered plaintiff deported.

On April 12, 1990, plaintiff filed his appeal to the Appellate Division and, at the same time, applied to stay execution of the deportation order and to be released upon surety in lieu of cash. The appellate court granted the application for release upon sufficient sureties and stayed only so much of the deportation order as required deportation to Iranas plaintiffs country of origin. Rakhshan v. Immigration Board, 15 A.S.R.2d 29. The Appellate Division's file further reveals that on or about May 19, 1990, the immigration authorities attempted to enforce the board's order, as modified by the Court, by deporting plaintiff to the Republic of the Philippines as his country of origin. The flight on which plaintiff was booked to depart was significantly delayed; when it was finally ready to leave, plaintiff failed to show. He fled again. This time, plaintiff managed to hide for almost a month until he was physically extracted by immigration officials from the attic of a residence in Sogi, Leone, pursuant to a search warrant.

DISCUSSION

These consolidated matters suffer a common feature--they border on the vexatious. If anything has been shown in these cases, it is that plaintiff confuses the court's "open doors" policy with something akin to an "open sesame" policy which commands access to judicial relief upon the mere ritualistic incantation of a few mystic phrases--"due process," "constitutional rights," "extreme emotional and mental anguish," "pain and suffering,” etc. These phrases were but some of the jargon counsel Asaua Fuimaono used in preparing the original complaint in CA No. 20- 90 and the administrative claim preceding CA No.109-90. Fuimaono's friendship has since become another made-and-unmade friendship, which ultimately ended in a lawsuit.(11) However, after parting company with [20ASR2d8] Fuimaono, plaintiff continued to fashion complaints by mindlessly parroting the jargon which counsel had employed in another context. The resulting "patchwork" nature of these complaints is unmistakable; therefore, the question which immediately arises is whether there are meritorious claims submitted.

I. CA No.109-90

This particular action, which required the defendants to defend a $1 million suit for "general" and "special" damages, is illustrative. The complaint here shamelessly depicts a haphazard effort at "cut and paste." Although mindful that a pro se complaint should be broadly construed in order to promote the interests of justice, see American Samoa Gov't v. Agasiva, 6 A.S.R.2d 32 (1987), we find that the complaint here says virtually next-to-nothing by way of noticing a claim upon which judicial relief may be framed. It recites, for instance (or more accurately, it lifts from another context), the timely filing of an administrative claim pursuant to the Government Tort Liability Act (hereinafter the "G.T.L.A."), whereas, in fact, nothing of the sort occurred.(12) But we are satisfied that this was not an attempt to deliberately mislead; instead, plaintiff was merely reproducing legal jargon from elsewhere without the slightest idea of what he was in fact doing. The complaint also mentions once (in conclusionary fashion) the word "negligence" as being the "proximate [cause]" of plaintiffs damages; but what comprised that negligence on the part of the defendants is neither to be gleaned from the complaint nor revealed, even remotely, on the evidence.(13) Additionally, the complaint, after quoting (inappropriately) from the Appellate Division's order entered May 4, 1990, in Rakhshan v. Immigration Board, 15 A.S.R.2d 29, further alleges that plaintiffs "constitutional rights" were being violated by his continued detention contrary to the terms of the said order, which [20ASR2d9] allowed plaintiff admission to bail on sureties. This is a gross misstatement of fact based upon only half of the story. The other half is that the Appellate Division subsequently vacated its said bail order and thereby returned plaintiff to custody after he had, on May 19, 1990, skipped bail and went into hiding for nearly a month.

While a few magic phrases have thus been recited in the complaint, there has been absolutely nothing in the way of evidence to sustain the allegations arising by the use of those phrases.

II. CA No.103-90

Here, plaintiff seeks $1 million in "general" and "special" damages against the hospital and Drs. Salamo and Noel for their failure to hire him as a dentist at the dental clinic. Plaintiffs claim is that Dr. Laumoli had promised him work which never materialized, although plaintiff ended up working five months for the hospital without pay. In support of his testimony to that effect, plaintiff submitted the aforementioned "To Whom it May Concern” letter.

Assuming arguendo that plaintiff had stated a cognizable claim for relief, such a claim is nevertheless thoroughly wanting in merit. As we noted above, no person may practice dentistry in the territory until he or she is duly licensed by the Health Services Regulatory Board. A.S.C.A. §§ 31.1001 et seq. .It simply follows that before one can be hired as a" dentist, " it behooves that person to demonstrate that he is in fact a dentist. Plaintiff could not provide the requisite proof before the Health Services Regulatory Board, nor has he attempted even in the slightest to show otherwise before this Court. According to Dr. Laumoli, the only documents plaintiff furnished him were copies of a diploma and transcripts of subjects and grades; he had advised plaintiff that he must furnish references as well as evidence of licensure in the Philippines before he, Dr. Laumoli, could make a recommendation to the hospital's medical executive committee, as well as to the Health Regulatory Board; plaintiff failed to provide those requirements.

Alternatively, plaintiff accuses Dr. Noel of discriminatory treatment by reason of his being denied a license to practice dentistry in the territory. This allegation of discrimination remains just that--an allegation without anything in the way of meaningful proofs. Rather, plaintiff seems to think, as far as we can gather from the extent of his attempted proofs together with his related questions put to Drs. Laumoli and Noel on the witness stand, that merely presenting a piece of paper, [20ASR2d10] albeit from an unfamiliar and unknown foreign institution, makes him a dentist. In the realm of medicine and public health care, it really takes no great imagination to appreciate why a regulatory authority would require something more in the way of establishing competence beyond a piece of paper submitted without foundation.(14)

III. CA No.20-90

Plaintiff bases this claim, also for $1 million in " general " and "special" damages, on his contention that he was unlawfully arrested on July 12, 1988, and unlawfully detained thereafter until July 16, 1988. He argues that, at the time of his arrest and detention, he was lawfully in the territory pursuant to the work permit which the board had granted on May 6, 1998.

The claim, if it sounds in tort, is outside the scope of the G.T.L.A. Specifically, A.S.C.A. § 43.1203(b)(5) unequivocally excludes, inter alia, any claim against the government based on "false arrest" or "false imprisonment. " In terms of an action based on the notion of false arrest or false imprisonment, the government remains immune from suit.

At the same time, we have searched for a constitutional dimension to plaintiffs claim; however, we are unable to conclude on the evidence that plaintiffs arrest on July 12, 1988, was otherwise than lawful. Rather, the evidence showed that he was an overstayer at the time of his arrest because he was effectively without a sponsor and therefore was only entitled to remain in the territory for a period of ten days following the revocation of sponsorship. See A.S.C.A. § 41.0408(i). He was duly warned by the Immigration Office, but he chose to ignore that warning; accordingly, he was arrested and taken into custody on July 12, 1988.

Notwithstanding the facts, plaintiff nevertheless argues that he was not an overstayer on the following simplistic reasoning: his file with the immigration office failed to disclose any paperwork relating to the termination of Talamaivao's sponsorship; therefore, Talamaivao was [20ASR2d11] always his sponsor; the corollary to this proposition is that Katina was never his sponsor and therefore was never in a position to make plaintiff an overstayer by withdrawing his sponsorship. This argument only serves to reinforce the suggestion of frivolity in these matters--plaintiff had already admitted to the Immigration Office that Talamaivao was leaving the territory for an indefinite term and that he would no longer be eligible to continue as his sponsor. See A.S.C.A. § 41.0408(f) (the indefinite departure of a person's sponsor is a ground for revoking that person's permit).

Plaintiff also questioned the lawfulness affine arrest made without the authority of a warrant issued by the Attorney General. Plaintiff, apparently under the impression that an arrest can only be made upon a warrant issued by the Attorney General, referred us to the provisions of A.S.C.A. § 41.0610 and A.S.A.C. § 41.0227. This impression is mistaken. In addition to A.S.C.A. § 41.0610, the code also authorizes warrantless arrests, provided that the person making the arrest applies immediately thereafter "to a member of the board for an order of arrest and commitment, until the board's next meeting..." A.S.C.A. § 41.0510(c). Furthermore, the regulation A.S.A.C. § 41.0227 (derived from Immigration Regulations effective prior to 1975) is no longer on the books as the result of subsequent amendments to the rules.

We find no merit in these matters.

On the foregoing, judgment will enter for the defendants and each of them.

It is so ordered.

**********

1. These efforts have been stayed by the Appellate Division of the High Court, although not for reasons attributable to any particular merit in plaintiff’s claim of entitlement to remain in the territory. Rakhshan v. Immigration Board, 15 A.S.R.2d 29 (1990).

2. A person who seeks to remain in American Samoa for any permissible extended length of time is required to have a local sponsor, who is, among other things, a guarantor of that person's public debts. A.S.C.A. § 41.0408.

3. A tourist or business visitor may remain in the territory for a period of up to 30 days, however, such period may be extended for an additional 30 days upon approval of the Attorney General or his designee. A.S.C.A. § 41.0502(a)(2)(D).

4. Government employees are merely required to supply proof of government employment and assignment to the territory in order to enter. A.S.C.A. § 41.0502(a)(5).

5. Dr. Lauilioli also testified that he merely signed and dated the application form and it was plaintiff who filled out the details.

6. The Board's Order stated in pertinent part: "Alien Rakshan [sic] is hereby authorized for employment, but only upon the showing that the job was advertised extensively and there is a shortage of employable qualified persons existing in American Samoa. A.S.C.A. § 41.0305(5). Such proof shall be submitted to the Immigration Department [sic] prior to actual employment."

7. It is to be noted that the Act, A.S.C.A. § 41.0408(h), does not permit the transfer of sponsorship from one person to another absent some "compelling reason in the public interest of the people of American Samoa." Just what was the "compelling reason" in plaintiff’s then-circumstances was not clear on the evidence. Plaintiff claims that he had to find another sponsor because Mr. Talailiaivao was at the time leaving the territory indefinitely; on the other hand, Mr. Katina testified at a deportation proceeding before the Immigration Board that plaintiff had sought out his sponsorship after accusing Mr. Talamaivao of certain mistreatment .

8. A.S.C.A. § 41.0408(i) provides that upon revocation of sponsorship, the person sponsored may remain in the territory for a period of up to ten days, unless the board earlier orders deportation.

9. Indefinite departure of a person's sponsor is a ground for revoking that person's permit. See A.S.C.A. § 41.0408(f).

10. There are significant practical differences between deportation and voluntary departure as defined in A.S.C.A. § 41.0601. For example, the former instance renders one an excludable person, A.S.C.A. § 41.0615(14); i.e., further entry into the territory is effectively prohibited.

11. See Rakhshan v. Fuimaono, 18 A.S.R.2d 77 (Trial Div. 1991). Fuimaono here testified that he filed CA No.20-90 largely as a tactical manoeuver intended to gain leverage with the immigration authorities, in view of the deportation issue then facing plaintiff, and that the more he investigated the case, the more convinced he had become that neither the law nor the facts favored his client. Id. at 79.

12. Such a claim is a jurisdictional prerequisite to any suit against the government pursuant to the provisions of the G.T.L.A., A.S.C.A. §§ 43.1201 et seq. Faoato v. Government of American Samoa, CA No. 36- 79 (1979); Gobrait v. Americana Hotels. Inc., CA No.12-78 (1978).

13. Even if negligence could be sustained on the evidence, we are without jurisdiction to entertain such a claim. Note 12

14. The requirements for licensure are to be found in the provisions of A.S.C.A. §§ 31.1001 et seq., and the regulations contained in A.S.A.C. §§ 31.0401 et seq.

Avegalio; Roman Catholic Diocese of Samoa Pago Pago v.


ROMAN CATHOLIC DIOCESE OF SAMOA PAGO PAGO,
Appellant

v.

A VEGALIO, LEALAIALOA, and AIGAMAUA FAMILIES,
Appellees

High Court of American Samoa
Appellate Division

AP No. 33-90

March 11, 1992

__________

[20ASR2d71]

Where an appellate court cannot say that a decision of the trial court was clearly erroneous, that decision will be allowed to stand.

On appeal, a trial court's factual determinations are reviewed for clear error, and questions of law or mixed questions of law and fact are reviewed.

If internally consistent, a trial court's findings based on its decision to give credibility to the testimony of a particular witness(es), each having told a coherent and facially plausible story not contradicted by extrinsic evidence, can virtually never be clear error.

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, MUNSON,** Acting Associate Justice, VAIVAO, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Appellant, Charles V. Ala'ilima

  For Appellees, Aitofele T. Sunia

MUNSON, J.:

This matter comes before the Court on appeal from the Land and Titles Division.

Procedural History

This appeal stems from the November 6, 1990, decision of a three-judge panel of the Land and Titles Division. The decision involved several consolidated quiet title lawsuits filed in the early 1980s, which concerned title to flat and sloped land in the Leone Valley.(1)Numerous long-standing boundary disputes between sundry parties were addressed [20ASR2d72] and resolved in those lawsuits; however, this appeal involves only that portion of the Land and Title Division's decision which awarded approximately one-third of an acre to appellees, the Avegalio, Aigamaua, and Lealaialoa communal families.(2) The decision was based on adverse possession principles, as codified in A.S.C.A. § 37.0120(a).

AppellantChurchintervened below when it learned that appellees were claiming a portion of the land which the Church believed it had acquired as a freehold land grant in 1896.

Facts

For purposes of this appeal, the following facts are relevant:

In 1896, the Roman Catholic Church acquired approximately three acres of land under a freehold award from the Apia Land Commission. This award was approved by the Supreme Court of Apia and, subsequently, by the United Stateswhen Tutuila was ceded to it in 1900.

The land came to be known as the "Sisters' land," because it was used by the Marist Sisters to help support a Catholic school in Leone village. During World War II a portion of the land was used as a rifle range by the U.S. Marines. Many coconut trees which had been planted prior to the war were cleared by the Marines, but some remained. Testimony at trial conflicted as to who used the land after the war, in the 1950s and 1960s.

Issue

1. Was there sufficient evidence to support the trial court's factual finding that appellees had acquired title to the disputed one-third acre by adverse possession?

Standard of Review
[20ASR2d73]

A trial court's factual determinations are reviewed for "clear error" and questions of law or mixed questions of law and fact are reviewed de novo. Temengil v. Trust Territory of the Pac. Islands, 881 F.2d 647, 649 (9th Cir. 1989), (citing United States v. McConney, 728 F.2d 1195, 1199-1204 (9th Cir.) (en banc), cert.denied, 469 U.S. 824 (1984)), cert. denied, 496 U.S. 925 (1990).

A finding is "clearly erroneous" when the entire record produces the definite and firm conviction that the court below committed a mistake. South Seas v. Sablan, 525 F. Supp. 1033, 1037 (D.N.M.I. 1981), aff'd mem., 691 F.2d 508 (9th Cir. 1982). The reviewing court accords particular weight to the trial judge's assessment of conflicting and ambiguous facts. Id. The "clearly erroneous" standard of review is "particularly appropriate" where the findings are based in part on the trial court's evaluation of conflicting evidence and live testimony. Enrici v. Commissioner of Internal Revenue, 813 F.2d 293 (9th Cir. 1987).

Analysis

Appellant argues that there was insufficient evidence produced at trial to support the trial court's determination that appellee families had met the statutory requirements for acquiring title by adverse possession.

In Part IV(D) of its November 6, 1990, decision, the trial court found that the only direct testimony with respect to the occupation of the area in dispute came from Chief Avegalio Pesamino, who testified on behalf of appellees. He stated that he and his family and the girls from the Catholic school cultivated the disputed land side-by-side during the 1950s, that relations between the people were friendly, and that both sides observed the boundary as it was reflected in the Avegalio survey (which showed a straight line, and not the meandering line shown on appellant's survey map).

Chief Avegalio left the island in 1957 and did not return until 1968. By the time he returned the school had closed and members of appellees' communal families had built houses on their land (although not on the piece at issue below) and were making use of all the land, including the disputed portion.

The trial court further found that the court's on-site inspection of the land, as well as a 1971 aerial photograph, confirmed that the boundary as shown by appellees reflected the actual boundary of their occupation of the land, at least for the statutory adverse possession period [20ASR2d74] of twenty years, and perhaps much longer. The court expressly stated that

[a] 1963 aerial photograph cited by [appellant] as evidence of a different boundary is very difficult to read and provides no support for either side.

The court held that although it was "possible" that appellees had not in fact occupied the land for the requisite twenty years, "the contrary testimony of Avegalio is credible as well as uncontradicted."

Appellant argues that the trial court erred in its decision because the evidence supported a finding that there was no adverse possession by appellees. Appellant relies primarily upon the testimony of a witness named So'oto. So'oto testified that the land in question (and adjacent land) was unoccupied in the 1950s and early 1960s and that everyone felt free to make use of the coconut trees found there. He further testified that it was not until the Kruse family (who are related to appellees) moved onto the land that definite boundaries were established. Appellant claims support for this position from the aerial photographs taken over the years, which do not show identifiable boundaries until the aerial photograph from 1971.  From this appellant argues that appellees had not occupied the land for the requisite twenty years(3) at the time this litigation commenced.

Appellees agree with the trial court that Chief Avegalio's testimony was undisputed. They note that he testified that appellees occupied and cultivated the disputed property without objection from any person from at least the time the Chief was a small boy and, according to oral family tradition, from the time of his grandparents. As to So'oto's seemingly contradictory testimony, appellees say that So'oto never testified about this particular piece of disputed land, but only about others.

Appellees also assert that the testimony of the elders of Legaoa was consistent with Chief Avegalio's testimony that appellant had never [20ASR2d75] had anything to do with the property, other than that occasionally girls from the school would go upon it to collect coconuts for cooking.

Finally, appellees note that appellant did not even send a representative when the court went to the land for an on-site viewing, and that this indicates that appellant really had no idea if it owned the land or not.

This court is limited in its review to a determination of whether or not the decision of the trial court was clearly erroneous. We cannot say that it was. The trial court had the opportunity to visit the land in question with the parties, and hear each party describe where that party believed the boundary should be, and why. The trial court was also uniquely situated to listen to the witnesses and hear testimony based upon their personal knowledge, to study their demeanor, and to judge their credibility. When a trial court's findings are based on the court's decision to credit testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error. Clady v. Los Angeles County, 770 F.2d 1421 (9th Cir. 1985), cert. denied, 475U.S. 1109 (1986). Finally, the trial court had before it all aerial photographs and was best able to determine the relative support the photographs gave to the position of each party.

We conclude that the decision of the trial court is supported by the evidence and is not clearly erroneous, and we therefore AFFIRM.

**********

1. The cases were consolidated and the court bifurcated the proceedings for ease of adjudication. There are at least two other appeals which grew out of this litigation: Siaumau v. Willis, AP No. 30-90, and Willis v. Fai'ivae Galea'i, AP No.31-90.

2. Appellees assert, and it does not appear to be contradicted, that appellee communal families "exist separate and distinct from one another in the traditional sense but their affairs and customary activities are administered by the same group of individuals, who are close blood relatives."

3. The adverse possession statute was amended in 1982 to change the former twenty-year possession requirement to the current thirty-year requirement. Under the former version of the statute, title could be acquired via adverse possession provided that occupancy began at least twenty years prior to the 1982 amendment's effective date.

Ava v. Logoa'i,


CHIEF AVA VILI for Himself and the AVA FAMILY OF
PAVAIAI, Plaintiffs

v.

FOMA'I P. LOGOA'I, FAALJLIU P. LOGOAI
and Her CHILDREN, Defendants

AVA V. AVA, Plaintiff

v.

MIKE MCDONALD, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 32-90
LT No. 36-90

February 19, 1992

__________

A party's contention that a piece of land is communal brings into play the requirements of A.S.C.A. § 43.0302.

The requirement of a certificate of irreconcilable conflict by the Secretary of Samoan Affairs or his deputy is a procedural requirement and may be corrected by the later filing of a certificate.

A required certificate of irreconcilable conflict by the Secretary of Samoan Affairs or his deputy is a jurisdictional mandate without which an action should not proceed.

BeforeRICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, and MAILO, Associate Judge.

Counsel: For Plaintiffs, Tauese Sunia

  For Defendants Foma'i P. Logoai, Faaliliu P. Logoai and Her Children, Asaua Fuimaono [20ASR2d52]

  For Defendant McDonald, William H. Reardon

Trial of this case took place January 16 and 17, 1992. The central issue is the resolution of plaintiffs Avas' contention that the land involved, approximately 2.69 acres of a tract called "LALOFUTU" in the village of Pavaiai, is Ava communal land--versus defendants Logoai's claim that this land is individually owned by Faaliliu Logoai and her children.

At the end of plaintiffs Avas' evidence-in-chief, defendants Logoai, joined by defendant McDonald, moved for dismissal on the grounds that: (1) a jurisdictionally required certificate of irreconcilable conflict by the Secretary of Samoan Affairs or his deputy was not on file with this court and (2) plaintiffs Ava lacked standing to sue. The motion was taken under advisement while defendants presented their evidence. At the conclusion of the evidence when the case was submitted for decision, defendant McDonald withdrew his motion to dismiss with respect to the lack of a certificate. However, defendant Logoai's motion to dismiss on this ground is still before the court.

Clearly, there is no certificate of irreconcilable conflict on tile in this case. The requirement of these certificates in controversies over communal lands is legislated at A.S.C.A. § 43.0302. While it may ultimately be determined that the land in question is individually owned by the defendants Logoai and her family, defendants Avas' assertion that this land is Ava communal land brings this statute into play.

Strictly, this action should not have been filed with this court without an accompanying certificate of irreconcilable conflict, but this requirement is procedural and may be corrected by the later filing of a certificate. The lack of a certificate however, is a jurisdictional mandate.

IT IS ORDERED that plaintiffs Ava file a certificate of irreconcilable conflict by the Secretary of Samoan Affairs or his deputy setting forth the events and the status of this controversy in conformance with A.S.C.A. § 43.0302(a) no later than 60 days after the date of this order.

This time period is established to afford sufficient opportunity to meet the 20 days notice of hearing required for each of the two (2) hearings that must be held to comply with A.S.C.A. § 43.0302(a). [20ASR2d53]

If plaintiffs fail to timely file the mandated certificate of irreconcilable conflict, their action must be dismissed. If the certificate is filed, the court will proceed with the decision in this matter.

The standing to sue issue remains to be determined.

*********

Amerika Samoa Bank v. Pacific Reliant Industries, Inc.,


AMERlKA SAMOA BANK, a Banking Corporation, Appellant

v.

PACIFIC RELIANT INDUSTRIES, INC., an Oregon
Corporation, Appellee

High Court of American Samoa
Appellate Division

AP No.19-90

March 13, 1992

__________

In de novo review, the appellate court must review the record in light of its own independent judgment without giving special weight to the prior decision.

The party opposing summary judgment has the burden, once movant has put forward a prima facie case, of showing that there exists genuine issues of material fact which render summary judgment inappropriate.

The Uniform Customs and Practice for Documentary Credits embodies an effort by international bankers at consensual regulation.

The Uniform Customs and Practice for Documentary Credits (UCP) 16(e) addresses only notice, and does not limit the issuing bank's liability to the party which actually presents the documents.

When an appellate court finds that a trial court's decision was correct and supported on one ground, it may not consider the alternative grounds upon which the decision was based.

Since the issuer of a letter of credit or its customer has the opportunity to draft any desired protections into the letter, a court will not infer added protections which were not clearly conveyed to the beneficiary.

The distinction between a standby letter of credit and a title guaranty is that the letter of credit is a direct obligation to pay upon presentation of specified documents showing a [20ASR2d103] default and the guaranty is a secondary obligation requiring proof of the fact of default.

The great weight of authority requires strict compliance {rather than substantial compliance) with the terms of a letter of credit.

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, MUNSON,** Acting Associate Justice, AFUOLA, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Appellant, William H. Reardon

  For Appellee, Roy J.D. Hall, Jr.

MUNSON, J.:

This matter comes before the Court on appeal from the Trial Division.

Procedural History

Appellee Pacific Reliant Industries, Inc. (PACREL) brought suit against Paradise Development Company, Inc. (PDC), the Government of American Samoa (Government), and appellant Amerika Samoa Bank (ASB or Bank) in the Trial Division on December 28, 1988. Appellee sued the Bank on an irrevocable standby letter of credit, and sued PDC and the Government for damages for non-payment of $300,000 worth of building materials.

Paradiseanswered January 18, 1989, denying that any money was owing. The Bank answered on January 27, 1989, asserting various defenses, including estoppel, fraud, payment, failure of a condition precedent, and laches. Appellant Bank counterclaimed against appellee Pacific Reliant for attorney's fees and costs stemming from a lawsuit [20ASR2d104] brought in Oregon, (1) and cross-claimed against Paradise Development. The claims against defendant Government have not yet been pursued.

Summary judgment was granted in Pacific Reliant's favor against the Bank on February 1, 1990. An order denying appellant Bank's motion for reconsideration was issued August 8, 1990.

Timely notice of appeal was filed by appellant Amerika Samoa Bank on August 13, 1990.

Facts

The trial court's statement of undisputed material facts is set forth below:

The parties are not in disagreement on the essential facts; they disagree on what legal result should follow. [Amerika Samoa Bank] established on behalf of its customer PARADISE DEVELOPMENT COMPANY (hereinafter P.D.C.), its "irrevocable standby letter of credit" in favor of PACREL [Pacific Reliant] "for the account of Paradise Development Company, Inc., to the extent of Three Hundred Thousand and No cents ($300,000 U.S.)." As is standard in such situations, the letter of credit enabled P.D.C. to purchase construction materials from PACREL in Oregon by relying on the bank's credit. The "standby" feature of the letter of credit means that the bank is not called upon to honor a draft until and unless, for some reason, the customer has failed to pay what it owes. Two virtually identical letters of credit were issued, the first on August 12, 1987, and the second on October 19, 1987. The second was apparently issued because the first letter of credit expired in December of 1987, and P.D.C. anticipated requiring the use of the [20ASR2d105] credit facility for a longer period. Accordingly, the second, or renewed, letter of credit contained the extended expiry date of March 15, 1988. Both instruments, which were drafted and signed by the A.S.B., contained the following provision: "This credit is subject to the uniform customs and practice for documentary credits (1983 Revision) International Chamber of Commerce Documents No.400." Plaintiffs Exhibits A and B. The Uniform Customs and Practice for Documentary Credits, customarily referred to as the UCP or Uniform Customs, embodies an effort by international bankers at consensual regulation. Prepared under the auspices of the International Chamber of Commerce, the UCP reduces to codified form the customs and practices of the mercantile world relating to letter of credit transactions. The business arrangement broke down early in 1988, when PACREL apparently did not receive payment for certain invoices. PACREL then attempted to fall back on the letter of credit, and on February 23, 1988 notified A.S.B. of the default on the invoices. It is unclear when exactly the first formal demand for payment was made to A.S.B. Exhibit E1, a telex to A.S.B. from the Hong Kong and Shanghai Banking corporation of Portland, Oregon (PACREL's bank, hereinafter the "Hongkongbank"), dated March 8, 1988, indicates that A.S.B. had received the documents by February 29, 1988. A.S.B.'s opposition to the motion for summary judgment claims that they were received on March 1, 1988. On March 9, 1988, the Hongkongbank telexed A.S.B. directing the latter's attention to the requirements of the UCP---quoting in part from Article 16(c), (d), and (e)---regarding the issuing bank's duty to timely notify refusal and reasons of refusal or otherwise be estopped thereafter from claiming any deficiencies with the documents. A.S.B. did not respond until March 10, 1988, when it telexed the Hongkongbank that it would not honor the letter of credit because PACREL had not complied with the terms of the letter of credit. The nature, however, of the non-compliance was not specified. On the following day, March 11, 1988, the Hongkongbank [20ASR2d106] informed A.S.B. by telex that it had received a letter by fax from P.D.C. (A.S.B.'s customer) accepting any and all discrepancies in the documents. On March 16, 1988, the day after the letter of credit expired, A.S.B.'s attorney wrote to Hongkongbank, in the "hope of clarifying the situation [presumably of dishonor] for your bank." The Court has reviewed the contents of this letter against the terms of the letter of credit and we are none the wiser as to the exact nature of the nonconformities giving rise to dishonor. However, in opposition to the motion for summary judgment A.S.B. has raised the claim that the documents presented by PACREL did not comply with the terms of the letter of credit in that a "copy" of the bill of lading was submitted when the "original" was required by the terms of the letter of credit. A.S.B. accordingly argues that a question of fact remains for trial. (If in fact the documents presented to A.S.B. conformed to the letter of credit requirements, then A.S.B. of course has no defense.) PACREL on the other hand submits that it must nonetheless prevail even assuming for the sake of argument that the documents were at variance with the terms and conditions of the letter of credit. It contends that under the terms of the UCP, which were expressly incorporated into the letter of credit by A.S.B.'s own draftsman, A.S.B. was precluded from claiming that the documents were not in accordance with the terms and conditions of the letter of credit because of its failure to assert non-compliance in the timely manner as required by the UCP. Such failure, it is further argued, constitutes A.S.B.'s acceptance of any deficiencies. Alternatively, PACREL also claims to prevail because A.S.B.'s customer P.D.C. accepted any deficiencies in its March 11, 1988 letter to Hongkongbank. To these claims, A.S.B. raises two defenses: 1) PACREL does not have standing to make a claim based on the UCP; and 2) P.D.C. could not waive the deficiencies for the bank.

14 A.S.R.2d 41, 42-44 (1990). [20ASR2d107]

Issues

1. Were there genuine issues of material fact, such that summary judgment in favor of appellee was inappropriate?

2. If there were not, did the trial court err in its application of the law?

Standard of Review

After a grant of summary judgment, the appellate court reviews the evidence and inferences de novo, in the light most favorable to the non-moving party, to determine whether the trial court correctly found that there was no genuine issue of material fact and that the moving party was entitled to .judgment as a matter of law. Water West. Inc. v. Entek, 788 F.2d 627, 628-629 (9th Cir. 1986); Kraus v. County of Pierce (Wash.), 793 F.2d 1105, 1106-07 (9th Cir. 1986), cert. denied, 480 U.S. 932 (1987).

In de novo review, the appellate court must review the record in light of its own independent judgment without giving special weight to the prior decision. United States v. Brian N., 900 F.2d 218 (10th Cir. 1990).

Summary Judgment Standard

Civil Procedure Rule 56 provides in part that a summary judgment

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

"[T]he plain language of Rule 56(c) mandates the entry of summary .judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986). There can be no "genuine issue of material [20ASR2d108] fact" if there is a complete failure of proof concerning an essential element of the non-moving party's case, since such a failure renders all other facts immaterial. Id. at 323.

"[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a [trier of fact] to return a verdict for that party.... If the evidence is merely colorable. ..or is not significantly probative.... summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). The mere existence of some alleged factual dispute is insufficient--there must be a genuine issue of material fact to preclude summary judgment. Id. at 248-49. "As to materiality, the substantive law will identity which facts are material. * * * That is, while the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are critical and which are irrelevant that governs." Id. at 248. Summary judgment is appropriate "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id. at 250.

Analysis

In its brief, appellant Bank argues both that there were genuine issues of material tact which precluded the grant of summary judgment and that the trial court misapplied the applicable law. The Court will address both contentions.

Alleged Factual Issues

Sprinkled throughout appellant's brief are claims that there were genuine issues of material tact which the trial court improperly weighed and evaluated at the motion. "[A]t the sunm1ary .judgment stage the .judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby Inc., supra, 477 U.S. at 249.

A review of appellant's brief reveals that it cites the following as genuine issues of material tact: that although it was clear that appellant typed the letter of credit, it was not clear who actually drafted its terms; that appellee committed fraud; that despite the fact that the letter of credit was dubbed an irrevocable standby letter of credit, it was more in the nature of a commercial guaranty; that original hills of lading were required to he presented, not photocopies; that the invoice amount claimed was excessive; and, whether or not appellee was entitled to the [20ASR2d109] full $300,000 amount of the letter of credit. The Bank's claims are not supported with specific citations to the record or to any materials offered at the summary judgment hearing below.

Appellant's assertions can be dealt with quickly. The party opposing summary .judgment has the burden, once movant has put forward a prima facie case, of showing that there exists genuine issues of material tact which render summary judgment inappropriate. Appellant failed to do this. Rather, it is only now on appeal that appellant argues strenuously that genuine issues of fact existed. However, appellant does not direct the Court to specific areas of support in the record below where these purported issues were raised in opposition to the motion. As stated above, summary .judgment law is now clear: once movant has met its burden, the non-moving party cannot either rest on its pleadings or hold back evidence or argue that such evidence will develop at trial. See, e.g., First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253,289-90 (1968).

Appellant's assertions of genuine issues of material fact find no support in the record. In fact, appellant concedes those facts upon which the trial court based its decision. Such facts as may have been in dispute were not material to the motion and were unnecessary to the decision below.

Applicable Law

As a preliminary matter, we will address appellant's contention that under UCP 16(e) appellee lost standing to sue on the dishonored letter of credit when its bank, rather than appellee itself, submitted the documents to appellant for payment. The trial court held that the mere fact that appellee's bank had submitted the documents to appellant did not result in appellee's bank's thereby replacing appellee as the proper claimant. The court held, properly, that UCP 16(e) addresses only notice, and does not limit the issuing bank's liability to the party which actually presents the documents. Also, as appellee notes, as an actual party to the letter of credit it certainly has standing to sue.

The October 19, 1987, document from appellant to appellee was typed on appellant's letterhead and was titled "Irrevocable Standby Letter of Credit No. 87-1007." It stated, in pertinent part, the following:

Gentlemen, [20ASR2d110]

We establish our irrevocable standby letter of credit in
your favor for the account of Paradise Development
Company, Inc., to the extent of... $300,000 available
by your draft(s) at sight on Amerika Samoa Bank without
protest to be accompanied by the following documents:

"Beneficiary's signed statement,

Notice of default of invoice to Amerika Samoa Bank,
P.O. Box 3790, Pago Pago,American Samoa."

Partial drawings will be allowed.

* * * Letter of credit is subject to the following provisions:
15 days after arrival of materials, presentation of invoices,
and corresponding Bills of Lading or delivery order through
Bill of Lading with copy of charter party. This irrevocable
letter of credit is transferable and assignable.

* * *

This credit expires March 15, 1988.

This credit is subject to the uniform customs and practices
for documentary credits (1983 revision) International
Chamber of Commerce Documents No. 400. We hereby
agree with the drawers endorsers and bona fide holders of
drafts drawn under and in compliance with the terms of the
credit that such drafts will be duly honored upon due
presentation to the drawee.

The trial court found that appellant had failed to comply with UCP Article 16, subsections (c), (d), and (e), which were incorporated by reference into the letter of credit.

These subsections provide:

(c) The issuing bank shall have a reasonable time in which to examine the documents and to determine as above whether to take up or refuse the [20ASR2d111] documents.

(d) If the issuing bank decides to refuse the documents, it must give notice to that effect without delay by telecommunication or, if that is not possible, by other expeditious means, to the bank from which it received the documents (the remitting bank), or to the beneficiary, if it received the documents directly from him. Such notice must state the discrepancies in respect of which the issuing bank refuses the documents and must also state whether it is holding the documents at the disposal of, or is returning them to, the presenter (remitting bank or beneficiary, as the case may be). The issuing bank shall then be entitled to claim from the remitting bank refund of any reimbursement which may have been made to that bank.

(e) If the issuing bank tails to act in accordance with the provisions of paragraphs (c) and (d) of this article and/or fails to hold the documents at the disposal of, or to return them to, the presenter, the issuing bank shall be precluded from claiming that the documents are not in accordance with the terms and conditions of the credit.

The trial court held that appellant had run afoul of subsections (c) and (d), which gave appellant bank a reasonable time to examine the documents presented to it by appellee in support of its demand for payment and, if appellant decided that the presented documents did not conform with the requirements of the letter of credit, to notify appellee of its decision not to honor the demand and to state with particularity the reasons for its decision.

The trial court found that appellant did not consider the documents and relay its decision to accept or decline them in a "reasonable time," as required by subsection 16(c). The UCP being silent on what constitutes a "reasonable time,” the lower court relied on case law that provides that when the UCP is silent or ambiguous, analogous Uniform Commercial Code (UCC) provisions may be utilized. The UCC provides three banking days for an issuer of a letter of credit to honor or reject the request for payment. Here, the undisputed facts were that appellant received the demand for payment no later than March [20ASR2d112] 1, 1988, but did not telex its rejection until March 10th. The trial court found as a matter of law that this rejection was not done in a "reasonable time,” thus preventing appellee from attempting to cure any legitimate deficiencies appellant Bank claimed. This common sense analysis was based on the fact that the "clock keeps ticking" in these situations, and the issuing bank must act in a reasonable amount of time to afford the party deemed not to be in compliance an opportunity to cure any specified deficiencies.

The trial court further found that appellant violated subsection 16(d) because its rejection failed to specify the claimed discrepancies and to state whether the documents were being returned to appellee or were being held until further directions from appellee. The trial court based its decision on these two failures by appellant.

However, the court also found that these failures by appellant would have precluded it from claiming non-compliance under 16(e) and that appellant's customer, PDC, could waive any claimed deficiencies, thus obligating appellant to pay the $300,000 to appellee even if there were legitimate deficiencies in the documents presented for payment.

Because we believe the trial court's decision on the first stated ground was correct and provided ample support for its decision, we AFFIRM, and do not consider the alternative grounds upon which the decision was based.

While it is true that an agreement which is ambiguous on its face is not appropriate for summary judgment, IBEW. Local 47 v. Southern California Edison Co., 880 F .2d 104, 107 (9th Cir. 1989), this agreement was not ambiguous. The letter of credit clearly and concisely set forth the conditions to be met by appellee before appellant was obligated to pay. Even if the agreement was unclear, ambiguities in a letter of credit are resolved against the drafter. Banque Paribas v. Hamilton Indus. Int'l. Inc., 767 F.2d 380 (7th Cir. 1985). Appellant offered nothing in support of its claim that someone other than itself actually drafted the letter of credit. Further, since the issuer of a letter of credit or its customer has the opportunity to draft any desired protections into the letter, a court will not infer added protections which were not clearly conveyed to the beneficiary.  Atari. Inc. v. Harris Trust and Sav. Bank, 599 F. Supp. 592 (N.D. Ill. 1984), aff'd in part, rev'd in part and remanded, 785 F.2d 312 (7th Cir. 1986).

A standby letter of credit does not call upon the bank to honor [20ASR2d113] a draft until and unless the bank's customer has failed to pay what it owes or otherwise has defaulted on its underlying contract with the beneficiary. Temtex Products. Inc. v. Capital Bank & Trust Co., 623 F. Supp. 816 (D.C. La. 1985), aff'd 788 F.2d 1563 (5th Cir. 1986). Here, the uncontradicted evidence below shows that appellee had sought payment from PDC, appellant's customer, and had not received payment within fifteen days after the arrival of materials, and the presentation of invoices and corresponding bills of lading by appellee to PDC. At that point, appellant was obligated to honor the draft or state its reasons for not honoring it.

A standby letter of credit requires only that the presenter deliver the correct documentation; it does not require actual proof of default. Security Fin. Group. Inc. v. Northern Ky. Bank and Trust. Inc., 858 F.2d 304 (6th Cir. 1988), as amended, 875 F.2d 529 (1989). Here, the letter of credit required from appellee beneficiary only a signed statement and a notice of default of invoice to appellant, both of which were submitted by appellee. Once appellee provided these documents, appellant was obligated to pay "without protest" the amount of the invoices up to $300,000. (2)

The distinction between a standby letter of credit and a true guaranty is that the letter of credit is a direct obligation to pay upon presentation of specified documents showing a default and the guaranty is a secondary obligation requiring proof of the fact of default. American Nat'l Bank & Trust Co. of Chicago v. Hamilton Indus. Int'l. Inc., 583 F. Supp. 164 (N.D. Ill. 1984), rev'd on other grounds sub nom. Banque Paribas v. Hamilton Indus. Int'l. Inc., 767 F.2d 380 (7th Cir. 1985). There can be no serious dispute that the "irrevocable standby letter of credit" was anything other than what it purported to be. Not only was it denominated as such, but its terms made it clear that appellant would honor it "without protest" upon presentation by appellee of the proper documents--a characteristic attribute of such letters.

The distinguishing feature of a letter of credit is the principle of the independence of the obligations under the letter of credit from any [20ASR2d114] obligations stemming from the underlying transaction. Enterprise Int'l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F .2d 464 (5th Cir. 1985). The issuer of a letter of credit cannot look to the underlying transaction to supplement or interpret the terms of the letter of credit. Ward Petroleum Corp. v. Federal Deposit Ins. Corp., 903 F.2d 1297, 1300 (l0th Cir. 1990). Likewise, the issuer cannot look to a course of dealing or performance to justify dishonoring a facially conforming demand. Id. To the extent that appellant claims the course of dealings between the parties supports its position that this was not truly an irrevocable standby letter of credit, or that original bills of lading were required, those arguments find no support in the case law.

Where provisions of the UCP are expressly incorporated into a letter of credit, the bank which issued the letter is required to state all its reasons for dishonoring the credit when it is first presented. McGee Chem. Corp. v. Federal Deposit Ins. Corp., 872 F.2d 971,974 (11th Cir. 1989). If the bank fails to do so, it will be estopped from subsequently asserting other grounds.Id. Here, the UCP provisions were expressly incorporated into the letter of credit. Even appellant agrees that it failed to state any reasons for its decision to dishonor the credit. Although it is not necessary for deciding this appeal, we agree that the trial court's decision could have rested on this ground as well.

The provisions of the UCP which preclude a bank from making an untimely claim that documents presented to it were not in compliance with the letter of credit are intended to give the presenter a chance to cure any curable defects. Lease America Corp. v. Norwest Bank Duluth, N.A., 940 F.2d 345, 349 (8th Cir. 1991). Here, appellant bank never specified the manner in which it found the documents not in conformity with the letter of credit. Even if it had stated its objections with specificity, it did so in such a manner as to prevent appellee from timely curing any defects.

In conclusion, the great weight of authority requires strict compliance (rather than substantial compliance) with the terms of the letter of credit. Id. (numerous citations). Requiring strict compliance with the terms of a letter of credit is not unfair:

Courts in this area are not dealing with widows and orphans.... There is no reason to bend the law of credits out of shape and to destroy an efficient commercial device to protect careless, less than diligent professionals. If they do not know the rules, let them [20ASR2d115] eat the cake of compliance.

Dolan, Strict Compliance with Letters of Credit: Striking a Fair Balance, 102 Banking L.J. 18, 29 (1985).

FOR THE FOREGOING REASONS, the decision of the Trial Division is AFFIRMED in all respects.

*********

*The Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

**The Honorable Alex R. Munson,ChiefJudge,United States District Court for theNorthern Mariana Islands, serving by designation of the Secretary of the Interior.

1. Pacific Reliant originally brought suit in the United States District Court for the District of Oregon on April 21, 1988. That lawsuit was dismissed for lack of jurisdiction on December 5, 1988. The United States Court of Appeals for the Ninth Circuit affirmed the dismissal by order dated April 11, 1990. See Pacific Reliant Industries, Inc. v. Amerika Samoa Bank, 901 F.2d 735 (9th Cir. 1990).

2. It is undisputed that at the time the invoices were presented to appellant bank, the amount due was approximately $400,000. Thus, there is no question that appellant was obligated to pay to appellee the entire $300,000, and appellant's argument that appellee is obligated to prove its damages need not be addressed.

American Samoa Gov ’t v . Whitney,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

SCOTT WHITNEY, Defendant

High Court of American Samoa
Trial Division

CR No. 26-91

January 29, 1992

__________

When a defendant makes a request for discovery and disclosure of exculpatory information, the prosecutor's responses are inadequate when the prosecutor does not make a diligent inquiry from all relevant branches of government, as he or she must answer for the government as a whole.

In responding to a defendant's request for discovery and disclosure of exculpatory information, the prosecutor must identify specifically by category the reason for which an item is not produced.

Once the potential for an unfair trial has been cured, no violation is possible. Since is premised on the right to a fair trial. [20ASR2d47]

Before KRUSE, Chief Justice, LOGOAI, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Plaintiff, Thomas E. Dow, Assistant Attorney General

  For Defendant, Robert A. Dennison III

The defendant moved to compel discovery and disclosure of exculpatory information. This led to an order directing the government to respond to the defendant's requests within a certain number of days; accordingly, the prosecutor submitted written responses. Claiming that the prosecutor's responses were inadequate, the defendant moves to dismiss the case based on violations of the rule of Brady v. Maryland, 373 U.S. 83 (1963), and T.C.R.C.P. 16.

The Court finds that the prosecutor's responses to the defendant's Motion for Discovery and Disclosure were inadequate in the following ways:

(1) The response to the requests states that most of the requested items are "not in the custody or control of the prosecutor or [are] immaterial." Government's Response to Defense Request for Exculpatory Evidence, at 2 (filed July 31, 1991). This statement is insufficient. The responses to many of the discovery requests, that no such items are "in the possession of the prosecutor and subject to disclosure," Government's Response to Defendant's Demand for Discovery, at 1-2 (filed July 31, 1991), are equally insufficient. The prosecutor must make a duly diligent inquiry of all other relevant branches of the government for the requested information. United States v. Smith, 552 F.2d 257, 261-62 (8th Cir. 1977). The prosecutor must then answer for the government, not just the prosecutor's office.

(2) Those same responses are also inadequate because they are ambiguous. For potential material, the prosecutor must identify specifically whether each requested item is not produced because it is not in the possession of the government or because it is immaterial. See United States v. Agurs, 427 U.S. 97, 106 (1976). For potential Rule 16 material, the items may be discoverable if they are intended for use in the prosecution's case-in-chief, if they are "material to the preparation of the defense," or if they belong to the defendant; the prosecution's answer blurs these individual categories into one compound category, and does [20ASR2d48] not address them all. The alternative answer given by the Government to the Brady request, that the items either are not in the prosecutor's possession or are immaterial, does not identify the reason for nondisclosure with sufficient particularity, and the compound response given to the discovery requests does not rule out each category individually. Some disputes over materiality may need to be resolved in camera, see id.; accordingly, both the court and the defendant need to know which items the government does not possess, and which are claimed to be immaterial.

The court finds that the following allegations by the defendant do not constitute or discovery violations:

(1) The alleged instructions by Mr. Buckner that witnesses not talk with the defendant's attorney. Any possible violation in this regard has been cured, as even the defendant's affidavits show, by the letter issued by the prosecutor. Brady is not a penalty for prosecutorial misconduct, Agurs, 427 U.S. at 110; once the potential for an unfair trial has been cured, no Brady violation is possible, since Brady is premised on the right to a fair trial. Brady, 373 U.S. at 87; United States v. Moore, 439 F.2d 1107, 1108 (6th Cir. 1971).

(2) Alleged government "obstructionism" with the CPS psychiatrist. This interference is, at most, a refusal by the government to affirmatively investigate or create exculpatory information, which the Brady rule has never required of the Government. United States v. Beaver, 524 F.2d 963 (5th Cir. 1975), cert. denied, 425 U.S. 905 (1976); United States v. Sukumolachan, 610 F.2d 695 (9th Cir. 1980).

(3) The Government's late production of the police report. Any potential Brady violation was cured by the production of the report in time for the defendant to use it effectively at trial. Brady, 373 U.S. at 86; United States v. McKinny, 758 F.2d 1036, 1050 (5th Cir. 1985).

(4) All of the "discovery requests," with the exception of any existing reports or results of tests, do not tall within the specifically delineated categories for criminal discovery under Rule 16. These items are therefore not discoverable under Rule 16, but may be subject to disclosure if they fall within the parameters of Brady. The government should therefore respond to these as Brady requests as well as discovery requests.

The remaining claims by the defendant have not yet risen to the [20ASR2d49] level of Brady violations, but may rise to that level if the prosecutor fails to provide responses sufficient to ensure a fair trial.

It is ordered that the government answer each request, specifically and on behalf of the government, from each of the several documents requesting disclosure to the defendant, within 10 days of date of entry hereof.

It is further ordered that defendant's Motion to Dismiss is denied.

*********

American Samoa Gov ’ t v. Whitney,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

SCOTT WHITNEY, Defendant

High Court of American Samoa
Trial Division

CR No. 26-91

November 19, 1991

__________

If the police are able to identify witnesses through independent investigation, the fact that the witnesses were also identified by illegally-seized evidence will not bar their testimony.

If there is insufficient proof to show that a witness would have been discovered without using illegally-seized evidence, that witness's testimony will be excluded.

Before KRUSE, Chief Justice, TAUANU’U, Chief Associate Judge, and BETHAM, Associate Judge.

Counsel: For Plaintiff, Thomas E. Dow, Assistant Attorney General

  For Defendant, Robert A, Dennison III

The defendant seeks to suppress testimony by Ben Hur Skelton (aka Penehuro Skelton), Saio Ualesi, Pita Falaniko, and Osoimalo Samoa, alleging that the identities of these witnesses were discovered by the police through use of illegally-seized photographs. The defendant argues that the testimony of these witnesses must, therefore, be excluded as "fruits of the poisonous tree" under Wong Sun v. United States, 371 U.S. 488 (1963).

The government, on the other hand, claims that Skelton, Saio, and Samoa, were actually located not through use of the photographs but through information gained from other sources. The government contends that they are, therefore, competent witnesses under the "independent source" doctrine enunciated in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). In the case of Pita Falaniko, the government concedes that the police were indeed led to this witness as [20ASR2d44] a result of the photographs, but nonetheless claims that Falaniko would have been inevitably found in the course of the then-ongoing and independent lines of police investigation. The submission is that Falaniko's testimony is not excludable under the "inevitable discovery" doctrine (evidence is not inadmissible under the fruit of the poisonous tree doctrine where it inevitably would have been discovered even without the unlawful seizure). Nix v. Williams, 467U.S. 431 (1984).

A hearing was held on these factual issues. On the evidence, we find that the police did not rely on the illegally seized photographs when they learned of Skelton, Ualesi, and Samoa. Rather, the police found out about these witnesses through pursuit of independent investigatory leads given to them by third-party informants. The "fruit of the poisonous tree" doctrine, which had "its genesis"(1) in Silverthorne Lumber v. United States, 251 U.S. 385 (1920), has no application in these circumstances.(2) In the instant matter, the evidence was clear that the discovery of these three witnesses had nothing to do with the photographs. There are simply no "fruits" to be spoken of here. We conclude that there was no violation by the police of Rev'd Const. Am. Samoa, Art. 1, § 5, and that Ben Hur Skelton (aka Penehuro Skelton), Saio Ualesi and Osoimalo Samoa are, therefore, competent witnesses.

With regard to Pita Falaniko, he was discovered by the police directly through exploitation of the photographs. The evidence, however, was not sufficient to sustain the government's claim that Falaniko would have been "inevitably discovered" through independent ongoing investigation. We accordingly conclude that Pita Falaniko in not a competent witness and that his testimony must be excluded as fruit of the poisonous tree.

It is so Ordered.

*********

1. Nix v. Williams, 467U.S. 431, 441 (1984).

2. The Silverthorne holding extended the exclusionary rule to apply also to evidence derived through exploitation of the primary evidence illegally seized. Wong Sun v. United States, 371 U.S. 471, 484 (1963).

American Samoa Gov’ t v. Whitney,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

SCOTT WHITNEY, Defendant

High Court of American Samoa
Trial Division

CR No. 26-91

November 1, 1991

__________

The overlap of the statutes defining sodomy and deviate sexual assault does not violate a criminal defendant's due process. A.S.C.A. § 46.3611 and A.S.C.A. § 46.3612.

There is no need for application of the rule of lenity, where two statutes that overlap do not possess internal conflict or ambiguity.

When the statutes in question clearly define the conduct proscribed and the punishment [20ASR2d30] available under each, due process is satisfied.

In passing both a sodomy and a deviate sexual assault statute, the Fono has indicated that a prosecutor has the discretion to chose between charging a Class B or Class C felony for the same conduct, A.S.C.A. § 46.3611, § 46.3612

As each of two statutes has its own penalty provisions, neither a prosecutor nor a defendant is free to choose among various sentencing provisions.

It is unclear to what extent equal protection apples in American Samoa, because the Revised Constitution of American Samoa contains no equal protection clause.

Before KRUSE, Chief Justice, LOGOAI, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Plaintiff, Thomas E. Dow, Assistant Attorney General

  For Defendant, Robert A. Dennison III

FACTS

The defendant Scott Whitney ("Whitney") has moved to dismiss the information, claiming "ambiguity" in the Sodomy statute under which he has been charged. He argues that the elements of the crimes of Sodomy and Deviate Sexual Assault impermissibly overlap, since either crime could be charged under the American Samoa Code when a person has deviate sexual intercourse with a person aged 14 or under, as Whitney allegedly did, or without the consent of the other person.(1) [20ASR2d31]

Whitney contends that the overlapping statutes are ambiguous because the potential maximum penalties for Sodomy, a Class B felony, and Deviate Sexual Assault, a Class C felony, vary widely (15 or 7 years respectively; Defendant's Brief, at 2). He claims that this overlap violates due process because it fails to notify the defendant of the conduct proscribed and the penalty imposed. Accordingly, he argues that the information charging him is defective and should be dismissed. Alternatively, he asserts that he must be sentenced only under the lesser penalty available for Deviate Sexual Assault, if he is found guilty as charged.

For reasons given below, we hold that the overlap in the statutes do not violate due process, and that the motion for dismissal is denied. The arguments tendered by Whitney are the very sort of arguments that were addressed and rejected by the United States Supreme Court in the case United States v. Batchelder, 442 U.S. 114 (1979).

DISCUSSION

I. Batchelder

This case dealt with two overlapping provisions (one in Title IV, one in Title VII) of the Omnibus Crime Control and Safe Streets Act of 1968 (Omnibus Act). Both statutes prohibit a convicted felon from receiving firearms, but they authorize different maximum penalties. Id. at 116. The defendant in Batchelder was convicted under the statute with the longer sentence.

The Court of Appeals below had held that only the lesser penalty provision could be applied. In reversing this decision, the Supreme Court reasoned that the Court of Appeals' analysis had erroneously relied on three principles of statutory construction: the rule of lenity, implied repeal, and avoidance of constitutional issues. [20ASR2d32]

The Court of Appeals had also suggested three possible constitutional violations: due process, through lack of notice; equal protection, through selective enforcement; and equal protection, through delegation of a legislative power (fixing available sentences) to the executive. These suggestions were similarly dismissed by the Supreme Court.

A. Statutory Construction

The Supreme Court first considered the rule of lenity: that "ambiguities in criminal statutes must be resolved in favor of lenity." Id. at 121. The Court stated that, while this principal of construction applied to sentencing as well as to substantive law, it saw no ambiguity in the provisions of the Omnibus Act in question. The Court went on to note that

[r]espondent unquestionably violated § 922(h), and § 924(a) unquestionably permits five years' imprisonment for such a violation. That § 1202(a) provides different penalties for essentially the same conduct is no .justification for taking liberties with unequivocal statutory language.

Id. at 122. Thus, the Court concluded, "[w]here ...'Congress has conveyed its purpose clearly, ...we decline to manufacture ambiguity where none exists."' Id. (quoting United States v. Culbert, 435U.S. 371, 379 (1978). Here, contrary to Whitney's arguments, we find no "internal conflict and uncertainty" existing in the present case necessitating resort to rules of statutory construction. The defendant's application of the rule of lenity is misplaced since there is no ambiguity presented in the statutory language under consideration.

B. Constitutional Issues

1. Due Process

The Batchelder Court next considered whether the statutes concerned were void for vagueness. The Court noted that a "criminal statute is [void for vagueness] ...if it 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.'" Id. at 123 (quoting United States v. Harriss, 347 U.S. 612, 617 (1954). Again, the Court stated that this doctrine also applied to vague sentencing provisions. But in applying this doctrine to the Omnibus Act, the Court [20ASR2d33] concluded that

[t]he provisions in issue here, however, unambiguously specify the activity proscribed and the penalties available upon conviction.
[cite omitted] That this particular conduct may violate both Titles does not detract from the notice afforded by each. Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments.

Id. at 123. Likewise, the American Samoa Code provisions at issue clearly define the conduct proscribed and the punishment available under each statute. Although the statutes considered in Batchelder did pose some uncertainty "as to which crime may be charged and therefore what penalties may be imposed,” this is not the uncertainty with which the Due Process Clause is concerned.

2. Unfettered Discretion

The Batchelder Court also dismissed as "factually and legally unsound" the claim of the .defendant that the differing provisions permitted the prosecutor "unfettered discretion" and thus implicated due process and equal protection concerns. Id. at 124. The Court noted that selective enforcement is subject to constitutional constraints, but held that the choice between two statutes enacted by the legislature does not constitute "unfettered discretion". Id. at 125, cited with approval in American Samoa Government v. Macomber, 8 A.S.R.2d 182, 185 (1988) aff'd, 12 A.S.R.2d 29 (1989). The government may exercise discretion to choose the statute under which to prosecute when an act violates more than one criminal statute, so long as it does not discriminate against a class of defendants. Batchelder, supra, at 123-24; Macomber, supra, at 185 (the legislature may discriminate against the conduct of driving with a license suspended for drunk driving, as opposed to all other suspensions). As the Supreme Court further explained,

there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements.... [20ASR2d34] ...The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause.

Batchelder, supra, at 125.

Thus, if a defendant had deviate sexual intercourse by forcible means, the prosecution would have the discretion to charge either Sodomy, which explicitly includes force as an element, or Deviate Sexual Assault, even though it does not mention force. The Supreme Court's explanation shows that there is no difference between this discretion and the discretion available in deciding to prosecute under the Sodomy statute or the Deviate Sexual Assault statute when the defendant has allegedly had deviate sexual intercourse with someone 14 years of age and under.

A prosecutor also has the discretion to charge a Class B or a Class C felony for Deviate Sexual Assault if the perpetrator inflicts serious bodily injury or displays a deadly weapon. Thus, contrary to Whitney's claims, the Fono did indicate "that the prosecution should have discretion in deciding to charge a Class B or Class C felony for the same prohibited conduct." Defendant's Brief, at 5.

Furthermore, it is unclear to what extent equal protection applies in American Samoa, because the Revised Constitution contains no equal protection clause. However, as this Court has previously held, "[i]f any equal protection clause applies to this case it is the one construed definitively in Batchelder." Macomber, supra, at 188.

3. Delegation of Legislative Power

Finally, the Court discussed the alleged delegation of the legislative power to fix penalties to the executive branch, but quickly concluded that th legislature had fixed the range of penalties by passing the statutes, having the executive to choose within these fixed boundaries. Batchelder, supra, at 126.

II. Distinguishing Batchelder?

Whitney alternatively submits that Batchelder is distinguishable by arguing that the statutes here considered are part of a "comprehensive scheme" while the Batchelder statutes are "independent statutes" and thus could not have "internal uncertainty." Defendant's Brief, at 5. The [20ASR2d35] argument alludes to certain discussion in the Batchelder opinion regarding Congressional intent "to enact two independent gun control statutes... [as] is confirmed by the legislative history of the Omnibus Act." Id. at 119 (emphasis added).

We think the reliance is misplaced. As noted above, the Court of Appeals had held that Congress had intended that all defendants convicted under either of the statutes should be sentenced under the statute with the lesser penalty.(2) In light of this holding, the Supreme Court was establishing that "each Title unambiguously specifies the penalties available to enforce its substantive proscriptions," Id., and that Congress clearly understood that the prosecution could not pick and choose among the sentencing provisions available under the Omnibus Act. Id. at 121.(3) In other words, each statute had its corresponding penalties, and the links between them were not interchangeable. The American Samoa statutes in question likewise each have their own penalty provisions, showing that neither the prosecutor nor the defendant is free to pick and choose among the various sentencing provisions. Batchelder is therefore not distinguishable on this basis.

Also noteworthy is the fact that the federal statutes were, if not "enacted as a whole," at least enacted as part of the same Omnibus Act in 1968.(4) Both the House and the Senate briefly considered the relationship between Title IV and Title VII just before passing Title VII, and both were reassured that the two would complement one another. Id. at 119. This history indicates that there would be nearly the same [20ASR2d36] potential for "internal conflict and uncertainty" as in the American Samoa Code sections, and yet the Supreme Court regarded the statutes as independent for the purposes of its Batchelder analysis. Again, this interpretation emphasizes that the "independence" at issue meant only that each provision was complete, with its own sentencing provision.

Even if a distinction exists, it is a distinction without a difference. The uncertainty created by such a "comprehensive scheme" would be no more than that of" a single statute authorizing various alternative punishments," Id. at 123, which was approved by the Supreme Court in Batchelder.

CONCLUSION

The defendant may be charged under either Sodomy or Deviate Sexual Assault, and he may be sentenced (if found guilty) under the sentencing provisions corresponding to the charged offense. Motion to dismiss is denied.

It is so Ordered.

*********

1. § 46.3611 Sodomy:

(a) A person commits the crime of sodomy if:

(1) he has deviate sexual intercourse with another person to whom he is not married without that person's consent or by the use of forcible compulsion; or
(2) he has deviate sexual intercourse with another person who is 14 years of age or less.

§ 46.3612 Deviate Sexual Assault: (a) A person commits the crime of deviate sexual assault if he has deviate sexual intercourse with another person to whom he is not married without consent or who is incapacitated or who is 14 years of age or less.

The statutes do differ in some details. Only Deviate Sexual Assault may be charged when a person has deviate sexual intercourse with an incapacitated person, and only Sodomy expressly includes in the definition having deviate sexual intercourse by use of forcible compulsion.

2. In Batchelder, the lesser penalty was the lesser prison sentence; See footnote 7 of the opinion, which discusses the anomalies caused by this construction of these two statutes, because the statute with the shorter prison sentence also has the larger fine.

3. Footnote 7 of the opinion clarifies this even further: "The anomalies created by the Court of Appeals' decision further suggest that Congress must have intended only the penalties specified in § 924(a) to apply to violations of § 922(h)." Batchelder, 442 U.S. at 121 n.7.

4. "Four months after enacting the Omnibus Act, the same Congress amended and re-enacted Titles IV and VII as part of the Gun Control Act of 1968." Batchelder, 442U.S. at 120, n.6. Thus, they were eventually "enacted as a whole," and this Gun Control Act, too, "treats the provisions of Titles IV and VII as independent and self-contained."

American Samoa Gov’t v. Whitney,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

SCOTT WHITNEY, Defendant

High Court of American Samoa
Trial Division

CR No. 26-91

July 17, 1991

__________

When both a search warrant and its supporting affidavit are overbroad as to items may be seized, the warrant is deficient even if construed in reference to the affidavit.

Descriptions in a warrant must be specific enough to enable the person conducting the search to reasonably identify the things authorized to be seized.

Warrants reciting generic categories and criminal statutes, without more, do not usually give enough guidance as to what items may be seized -although a warrant's reference to a particular statute may, in certain circumstances not present here, satisfy the Fourth Amendment.

When the only limitation contained in a warrant was that the items seized be somehow connected to listed activities and statutes, the warrant was far too broad.

Warrants lacking in particularity are particularly troubling when the items to be seized have presumptive First Amendment protection.

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

Counsel: For Plaintiff, Thomas E. Dow, Assistant Attorney General

  For Defendant, Robert A. Dennison III

Defendant has moved for an order returning items seized pursuant to a search warrant and suppressing the use of such items against him. He argues, inter alia, that the warrant was detective because it does not describe the premises to be searched or the items to be seized with the particularity required by the Fourth Amendment of the United States Constitution; Art. I, § 5 of the Revised Constitution of American Samoa; and T.C.R.Cr.P. 41. We agree. [20ASR2d13]

Clearly the warrant alone cannot pass constitutional muster since it fails to even name the places to be searched. However, the government argues that a supporting affidavit was attached to the warrant, thus adding the requisite particularity. Traditionally, a warrant that is too general cannot be cured by the specificity of an underlying affidavit, United States v. Johnson, 541 F.2d 1311, 1315 (8th Cir. 1976), but an affidavit may sometimes cure a defective warrant if the warrant plus affidavit limited the discretion of the officers executing the search and informed, the person whose property was seized what the officers were entitled to take. Rickert v. Sweeney. 813 F .2d 907, 909 (8th Cir . 1987).

Most circuits have held that a search warrant may sometimes be construed along with its supporting affidavit to satisfy the particularity requirement, U.S. v. Maxwell, 920 F.2d 1028, 1031 (D.C.Cir. 1990), but differ as to what circumstances are needed to construe the warrant with reference to the affidavit; The Ninth Circuit allows an affidavit to supply the particularity lacking in a warrant only if it accompanies the warrant and the warrant uses suitable words of reference which incorporate the affidavit. United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir. 1982); United States v. Spilotro, 800 F.2d 959, 967 (9th Cir. 1986); United States v. Luk, 859 F.2d 667,675 (9th Cir. 1988); Center Art Galleries-Hawaii. Inc. v. United States, 875 F .2d 747, 750 (9th Cir. 1989); and United States v. Stubbs, 873 F.2d 210,212 (9th Cir. 1989). Other circuits have applied the criteria of attachment and incorporation- by-reference less rigidly. U.S. v. Luk, 859 F.2d at 676 n.8 and cases cited therein; U.S. v. Maxwell, 920 F.2d at 1032 n.2 and cases cited therein.

The warrant herein does not expressly incorporate the underlying affidavit; under the Ninth Circuit test it stands alone and does not have the particularity required by the Fourth Amendment. However, we need not decide here under what circumstances a warrant in American Samoa can be construed to be in reference to a supporting affidavit -both the warrant and affidavit in question are so overbroad and unparticularized as to may be seized that the warrant would be deficient even if construed in reference to the affidavit.

The warrant authorized the executing agents to seize:

[¶ 1] books, magazines, booklets, receipts, pictures, photographs, medicines, narcotics or narcotics paraphernalia [20ASR2d14] and automobiles;

[¶ 2] Said properties are possessed in violation of the laws ofAmerican Samoaand constitute evidence of commission of criminal offenses, in violation of § 46.3611 [sodomy], 46.3612 [deviate sexual assault], 46.3615 [first degree sexual abuse], 46.4402 [first degree promoting pornography], 46.4613 [false impersonation], 13.1020 [dispensing controlled substance], 13.1022 [possession of controlled substance] A.S.C.A.

The supporting affidavit of the investigating officer used the identical language of ¶ 1, but instead of' ¶ 2 noted that these items "is/are property that constitutes evidence of a criminal offense and/or contraband, the fruits of a crime, or otherwise criminally possessed; and/or property designed or intended for use or which is or has been used as the means of committing a criminal offense." As grounds for his belief that these items were at the places named in the affidavit, the officer said that the complaining minor had told him that, following the alleged criminal acts, the minor had seen a medicine cabinet "full of medicines," video tapes and a box of "pornographic magazines" in defendant's bedroom; and that another juvenile had also said that defendant had shown her "pornographic movies" that he took from his bedroom.

Even if we assumed that the warrant and/or affidavit showed probable cause that the cited statutes had been violated and demonstrated a sufficient nexus between the items to be seized and the alleged crimes, the wording of both documents falls far short of the particularity required to meet constitutional standards and is unconstitutionally overbroad. A description in a warrant must be specific enough to enable the person conducting the search reasonably to identify the things authorized to be seized. United States v. Spilotro, 800 F.2d at 963. The warrant does not even purport to limit the discretion of the executing officers except by reference to the statutes cited. Although a warrant's reference to a particular statute may in certain circumstances limit the scope sufficiently to satisfy the particularity requirements of the Fourth Amendment, U.S. v. Maxwell, 920 F.2d at 1033, we hold that it does not do so here, since warrants reciting generic categories and criminal statutes, without more, [20ASR2d15] do not usually give the executing officers guidance to determine what items to seize. United States v. Spilotro, 800 F.2d at 965; States v. Storage Spaces Designated Nos. 8 & 49, 777 F.2d 1363, 1369 (9th Cir. 1985) (citing United States v. Cardwell, 680 F.2d 75 (9th Cir. 1982) (limiting search to records that are evidence of violation of certain statute generally not enough)).

Nor does the affidavit provide more guidance, since it does not specify the items to be seized. In determining whether a description is sufficiently precise, courts have focused on: (1) whether probable cause exists to seize all items of a particular type described in a warrant; (2) whether the warrant sets out objective standards by which executing officers can distinguish items subject to seizure from those which are not; and (3) whether the government could have described the items more particularly in light of the information available to it at the time the warrant was issued. U.S. v. Stubbs, 873 F.2d at 211 (quoting Spilotro). If the government was (as it now argues) seeking certain items as evidence of the "means" of committing the crimes of sodomy and promotion of pornography, the alleged victims should have been able to provide the detail to enable the government to describe the items sought with the particularity required by the Fourth Amendment. As it stands, the only limitation in the warrant and affidavit on the broad categories of items to be seized is that they somehow be connected to the listed statutes and activities. Even if we construed the warrant and affidavit together to limit the seizure to "pornographic" materials used as a means of committing the alleged criminal acts, the warrant would be invalid. See 8B J. Moore, Moore's Federal Practice ¶ 41.05 at 41-55 (2d ed. 1985) (warrant authorizing search and seizure of 'all obscene materials' located in particular place would impart impermissible discretion to executing officer, lack particularity, lack probable cause as to obscene nature of material subject to seizure, and infringe First Amendment rights).

The lack of particularity is especially troublesome in light of the fact that the items to be seized (books, magazines, booklets, pictures, and photographs) are presumptively protected by the First Amendment, since in such cases the particularity requirement of the Fourth Amendment must be applied with "scrupulous exactitude." United States v. Hale, 784 F.2d 1465, 1468 (9th Cir. 1986) (quoting Maryland v. Macon, 472 U.S. 463, 468 (1985). The items were purportedly seized (at least regarding [20ASR2d16] the sodomy charge) not for the ideas they contained, but for their use as a "means" of committing a criminal act. However, the "scrupulous exactitude" standard has been applied to similar items seized pursuant to a more detailed warrant seeking items evidencing the receipt by mail of child pornography. United States v. Hale, 784 F.2d 1465, 1469 (9th Cir. 1986) (seized magazine suppressed because first part of warrant did not specifically describe it and second part too general to support seizure of material arguably, at time of seizure, protected by First Amendment). The same standard has also been applied to a seizure of documents that were not sought for the ideas they contained, but for the associations they demonstrated, since freedom of association was a right protected by the First Amendment. United States v. Apker, 705 F.2d 293, 300-01 (8th Cir. 1983). When we consider that the defendant has a constitutional right to possess obscenity for personal use in his home, see Stanley v. Georgia, 394 U.S. 557 (1969), and that the only limitation on the items to be seized was that they be "pornographic" and somehow connected to sodomy or promotion of pornography, we find his First Amendment rights implicated. Thus, the standard of particularity to be applied should be "scrupulous exactitude." The warrant and affidavit fail to meet this standard. The motion is granted. Accordingly, the evidence seized must be returned to defendant and its use against him prohibited.

It is so ordered.

*********

American Samoa Gov’t; Utu v.


FOLASA UTU, Grandmother TEMU UTU, ESTATE of
SAMUELU UTU, and ESTATE of SIBLINGS, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT and
GALO ULUGALU, Defendants

High Court of American Samoa
Trial Division

CA No. 83-90

February 24, 1992

__________

Negligence, without contribution is found on the part of the government when they allowed an eleven-year-old to ride on the doorway steps of an overcrowded bus with a faulty door and allowed the child to bound off and on the bus as it made its stops.

At least for purposes of the wrongful death statute, the court has consistently applied the common law rule to determine who was next of kin, A.S.C.A. § 43.5001 et seq.

Under the wrongful death statute. siblings with requisite injury may recover along with their parents. A.S.C.A. § 43.5001 et seq.

The wrongful death statute did not envision granting relief to every relative who can claim some parental role in the decedents lifetime while there are surviving parents with compensable loss.

The wrongful death statute is not to be read as allowing recovery for every relative who has a claim to loss of love and affection.

Although a claim under the survival statute was not plead with specificity, the liberal rules of pleading allows the claim when the cause of action was sufficiently noticed. [20ASR2d54]

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

Counsel: For Plaintiff, Charles v. Ala'ilima

  For Defendant, Richard D. Lerner, Assistant Attorney General

Eleven-year-old Samuelu Utu died on May 25, 1989, as the result of injuries sustained from an accident involving a school bus owned and operated by the American Samoa Government (hereinafter "ASG"). The decedent is survived by his mother, grandmother, two brothers, and a sister. They have filed suit for wrongful death under A.S.C.A. §§ 43.5001 et seq. (hereinafter the "Act"), alleging actionable negligence on the part of ASG and its employee/driver Galo Ulugalu. ASG, on the other hand, claims that Samuelu himself was negligent and that his own negligence gave rise to his injuries. Alternatively, ASG argues that only the decedent's mother is entitled, as the "next of kin" (to the exclusion of the grandmother and siblings), to any recovery under the Act.(1)

From the evidence, we find that at all relevant times, Samuelu was a student at Tula Elementary school and that he traveled to and from school on an ASG-owned school bus. Since there were, at the time, more school children than available bus seats (ASG could only provide one bus to serve the needs of the Tula Elementary children), school bus officials allowed a number of acknowledged safety rules to be seriously compromised in an apparent effort to minimize the problem of [20ASR2d55] stranded children. The Tula school bus was thus loaded beyond capacity,(2) even to the extent of allowing the children to ride on the doorway steps. Additionally, the particular vehicle involved had a faulty door which would not close, although the driver had previously reported this defect to his superiors.

On the day of the accident, Samuelu was one of those children riding homeward on the doorway steps. The testimony also revealed that when the bus stopped at each village to let off children, those riding in the doorway area, including Samuelu, would give way by getting off themselves, and then re-board again for the continuing journey home. When the bus reached Samuelu's village and as it neared its usual stopping place, the decedent, apparently anticipating that the bus would come to rest on the highway as it normally did, jumped off the bus while it was still in motion. Unfortunately the driver, who was unaware of Samuelu's actions, was at the same time making a sharp turn inland off the highway. In the process, Samuelu got caught under the bus' right set of rear wheels. He was immediately rushed to the hospital but died the following day, having sustained major injuries in the pelvic area.

On the evidence, we find negligence on the part of ASG to be abundantly clear. On the other hand, we see no basis for the claim of negligence on the part of the decedent. In terms of "proximate cause," we find that the real negligence behind Samuelu's conduct was the negligence of relevant school officials. They allowed an eleven-year-old boy to ride on the doorway steps with the door left open and to bound off and on the bus as it stopped at each village; they had thereby, in our view, effectively fostered in Samuelu a contempt for the dangers of the situation which was actually confronting him; they effectively instilled in him a false sense of security. Furthermore, if the door of the bus had been closed, as it should have been, the accident would never have occurred. We conclude that ASG is liable without contribution.

The next question then is who may benefit under the Act? According to ASG, neither the siblings nor the grandmother may benefit under the statute because the decedent left a surviving parent. As we understand ASG's argument, it is based on the contention that the phrase "next of kin," employed in the Act, A.S.C.A. § 43.5001(b), indicates an [20ASR2d56] order of exclusive priorities among potential beneficiaries and that qualified claimants in a given case can be determined by reference to the territory's inheritance laws. Otherwise, ASG argues, "[t]he possibilities [as to beneficiaries] would be endless." Defendant's Post-Trial Memorandum, at 6.

We have a number of problems with this submission. A construction of the Act as incorporating the statute of descent and distribution, A.S.C.A. § 40.0201 et seq., hardly seems justifiable when the Act by its very terms empowers the court to designate the beneficiaries of a wrongful death action. A.S.C.A. § 43.5001(b) ("[a]n action... must be brought on behalf of the surviving spouse, parents, children or other next of kin, if any, of the decedent as the court may direct.... " (emphasis added)). As noted in Semaia v. Hartford Fire Ins. Co., 6 Samoan Pacific L.J. 66, 73 (1980): "Among those designated classes of persons [listed in the statute], the court is at liberty to direct who shall be entitled to recovery." Similarly, in In re Estate of Ah Mai, 14 A.S.R.2d 32 (1990), the court, rejecting the notion of exclusive priorities among wrongful death claimants, observed that,

[t]he class of beneficiaries encompassed within the term "next of kin" for wrongful death purposes does not appear to designate
only those persons who are first in line to inherit the decedent's real or personal property; if it did, the phrase "as the court may direct" would be superfluous and possibly mischievous.

Id. at 35; see also Logoa'i v. South Pac. Island Airways, 6 A.S.R.2d 28, 29-30 (1987) (approval of distribution of settlement for wrongful death and survival actions sought by surviving spouse and children; this distribution, although disapproved for other reasons, repudiated the idea of exclusive priorities); Galo v. American Samoa Gov't, 10 A.S.R.2d 94 (1989); Continental Ins. Co. v. Ching Sam, CA No.53-89 (1990).

In the context of surviving children, the court has also rejected this suggested reading of the Act on the reasoning that such a construction "would lead to absurd and unjust consequences." Saufo'i v. American Samoa Gov't, 16 A.S.R.2d 71, 75 (1990). The court expressed the concern that if an exclusive priorities requirement were read into the Act and "applied across the board, this construction would mean that a decedent's children could not recover if he had a parent living, since 'parents' are listed [in the Act] before 'children.'" Id. [20ASR2d57]

Furthermore, ASG's thesis is in turn dependent on the assumption that, for purposes of inheritance, the applicable rule in the territory for determining "next of kin" is the "civil law rule" as opposed to the "common law rule."(3) The descent and distribution statute is silent on this issue, Ah Mai, supra, but even if ASG's position can be sustained, it would seem that at least for purposes of the Act, the court has consistently applied the common law rule to determine who was next of kin. The long-standing practice in the territory has been to allow brothers and sisters to recover along with parents in wrongful death cases. Saufo'i v. American Samoa Gov't, 14 A.S.R.2d 51, 52 (1990) ("Practice in the High Court has been to include brothers and sisters along with parents as plaintiffs in wrongful death actions where the decedent has left no surviving spouse or descendants."); Saufo'i, supra, 16 A.S.R.2d at 75 ("We believe that siblings are ordinarily entitled to recover for wrongful death even though a parent may be living, provided that they can show the requisite injury."); Ah Mai, supra, 14 A.S.R.2d at 35 ("Whether or not a decedent's brothers and sisters are as closely related to him as his parents for inheritance purposes, they have frequently been allowed to recover along with parents in wrongful death actions.") (citing Galo v. American Samoa Gov't, 10 A.S.R.2d 94 (1989) and Continental Ins. Co. v. Ching-Sam, CA No.53-89 (1990)); Galo v. American Samoa Gov't, 10 A.S.R.2d 94, 97 (1989) ("we believe that the parents are entitled to a larger share than the [siblings] ...because they are likely to have suffered more by [the decedent's] death" (emphasis added)).

We see no good reason to depart from the court's prior treatment and interpretation of the Act allowing brothers and sisters with "requisite injury," Saufo'i v. American Samoa Gov't, 16 A.S.R.2d at 75, to recover along with their parents. This approach is consistent with that of "other .jurisdictions whose wrongful death statutes limit recovery to the 'next of kin.'" Ah Mai, supra, 14 A.S.R.2d at 35 (citing Fountain v. Chicago, R.I. & P. Ry. Co., 422 S.W.2d 878 (Ark. [20ASR2d58] 1968); Crystal v. Hubbard, 324 N.W.2d 869 (Mich. 1982); Karr v. Sixt, 67 N.E.2d 331 (Ohio 1946); Annotation, Brothers and Sisters of Deceased as Beneficiaries Within State Wrongful Death Statute, 31 A.L.R.3d 379, 390-95 (1970)).

With regard to the grandmother's claim, the case which she has presented to establish entitlement under the Act is primarily framed on the contention that she was in certain respects standing in loco parentis vis-a-vis the decedent. Thus she seeks not only damages for loss of society and companionship under A.S.C.A. § 43.5001(c)(1), but also damages for loss of filial care and attention under A.S.C.A. § 43.5001(c)(3). Counsel for the grandmother invites us to view her situation within "the context of Samoan families." Defendants' Memorandum on "Siblings and Grandmother's Standing to Pursue Wrongful Death Action," at 3.

We exercise our discretion, given us by A.S.C.A. § 43.5001(b), against allowing this claim. It is in essence no different from the claim being made by the decedent's mother; they both seek the statutory remedy which the legislature had fashioned with surviving "parents" in mind. In our opinion, the Act does not envisage granting relief to every relative who can claim some parental role in the decedent's lifetime while there are surviving parents with compensable loss. Otherwise, the idea of "endless possibilities,” alluded to by ASG, would indeed become very much apparent when viewed against the realities of a Samoan extended household. Furthermore, if we allowed the grandmother to benefit under the Act in her own right, we would necessarily be reading the Act so as to allow recovery for relative who has a claim to "loss of love and affection." A.S.C.A. § 43.5001(c). That is clearly not the purport of the Act.

The complaint also alludes to "severe physical and emotional pain" suffered by the decedent. The Act, A.S.C.A. § 43.5002, provides for a survival action which may be brought by the decedent's representative. However, ASG argues that this cause of action was not pled by plaintiffs, who had only filed for recovery under the wrongful death statute, A.S.C.A. § 43.5001, and that the pain and suffering referenced in the complaint is not a recoverable item of damages under the wrongful death statute, A.S.C.A. § 43.5001. Although the pleadings leave something to be desired, we think that the complaint sufficiently notices a cause of action under the survival statute as well. The complaint not only refers to plaintiff Folasa Utu as being the decedent's personal representative, but it also alludes to pain and suffering, as well [20ASR2d59] as praying for damages, for the "physical and emotional distress" suffered by the child before he died. In light of the liberal rules of pleading, ASG's protest that the complaint omits to specifically mention the survival statute fails to impress. See Fa'avae v. American Samoa Power Auth., 5 A.S.R.2d 53, 58 (1987); Tevaseu v. American Samoa Gov't, 5 A.S.R.2d 10, 12 (1987). Not only are we satisfied that a case has been stated under the survival statute, we find from the testimony of Dr. Vaiula Tuato'o that the decedent endured great pain and suffering subsequent to his injuries.

We turn to the question of damages. The Act provides for damages as the court considers "fair and .just compensation with reference to pecuniary injury and loss of love and affection, including . ..loss of society, companionship, comfort, consortium, or protection; [and] loss of filial care and attention." A.S.C.A. § 43.5001(c). Additionally, the Act allows the decedent's estate to recover "reasonable expenses of [the decedent's] last illness and burial." A.S.C.A. § 43.5001(b).

Although Samuelu was only a very young lad at the time of his death, he had played a very significant role within his family. Despite his eleven years of age, he was the senior male member of his household. With his mother working as the family's breadwinner, he was very much involved with his elderly grandmother in the day-to-day requirements of the household. The grandmother, with the onset of age, was in turn very much dependent on the decedent and she referred to her grandson as having been her right hand. The decedent's various duties included looking after his younger siblings, purchasing groceries, paying the bills, and assisting in the preparation of meals as well as the family's customary obligations towards the matai and faifeau (the village pastor). Finally, as the eldest male member of a matriarchal household, the role of provider would have naturally devolved upon the decedent.

With these considerations in mind, we assess the mother's damages for loss of society, companionship, comfort, and possible future support, care, and attention, at $20,000. We assess damages for the surviving siblings, for loss of society, companionship, comfort, and protection, in the sum of $6,000 to be distributed equally among them. The estate's claim for funeral expenses is denied for lack of showing. For the decedent's pain and suffering we award the sum of $5,000 payable to the decedent's personal representative for distribution according to the statute of descent and distribution, A.S.C.A. § 40.0201. [20ASR2d60]

Judgment will enter accordingly.

It is so Ordered.

*********

1. A.S.C.A. § 43.5001(b) provides:

An action for wrongful death must be brought on behalf of the surviving spouse, parents, children or other next of kin, if any, of the decedent as the court may direct, except that the deceased's legal representatives may recover, on behalf of the estate, the reasonable expenses of the deceased's last illness and burial.

2. The supervisor for school buses spoke of departmental policy regarding a properly loaded bus as being three students to a seat with everyone seated.

3. According to the civil law rule, the mother is one degree from the decedent while the siblings and grandmother are two. See Ah Mai, supra. In contrast, the common law rule has both the mother and siblings one degree from the decedent, while the grandmother is two. Thus under the civil law rule, only the mother would quality as the "next of kin," while under the common law rule, both the mother and the siblings would quality; the grandmother would never quality as the next of kin so long as the mother is still alive.

American Samoa Gov’t; Sala v.


MICHAEL R. SALA, Petitioner,

 

v.

AMERICAN SAMOA GOVERNMENT, DEPARTMENTS

OF PUBLIC SAFETY, HUMAN RESOURCES, and

LEGAL AFFAIRS, Respondents.

 

High Court of American Samoa

Appellate Division

 

AP No. 03‑92

 

March 12, 1992

__________

 

[1] An interlocutory appeal of an agency action or ruling is available only if review of the final agency decision would not provide an adequate remedy.  A.S.C.A. ' 4.1040(c).

 

Before: RICHMOND, Associate Justice, GOODWIN*, Acting Associate Justice, MUNSON**, Acting Associate Justice, MAILO A., Associate Judge, and BETHAM, Associate Judge

 

Counsel: For Petitioner, John L. Ward II

  For Respondents, Jennifer L. Joneson, Assistant Attorney General

 

Per curiam:

 

This petition is an interlocutory appeal in the midst of a continuing administrative process.  On February 25, 1992, the Director of Human Resources wrote to petitioner Michael Sala, telling him that he is to be terminated from his job as Deputy Commissioner of the Department of Public Safety, effective March 28, 1992, and that he has been suspended until that date.  Through his attorney, Sala then requested a hearing before the Personnel Advisory Board, which was granted on March 4, 1992, and is scheduled to be heard on March 16, 1992.

 

Sala raises numerous objections to the procedures leading up to his termination.  These need not be addressed by the Court at this time, however, because of our determination that we do not have jurisdiction over this appeal.

 

[1] An interlocutory appeal of an agency action or ruling is available only under A.S.C.A. ' 4.1040(c), which permits such review "only if review of the final agency decision would not provide an adequate remedy."

 

Judicial review of the final decision of the Personnel Advisory Board will provide Sala with the "adequate remedy" required by A.S.C.A. ' 4.1040(c).  Thus, this appeal is unripe, and the Court has no jurisdiction to decide the merits of the case at this time.  The petition is therefore

 

DISMISSED.

 

**********

 

 



* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable Alex R. Munson, Chief Judge, United States District Court for the Northern Mariana Islands, serving by designation of the Secretary of the Interior.

Fonoti; In re Matai Title


FAIPA TAALA, Claimant

v.

FONOMAITU O. FONOTI and PAUELI SATELE,
Counter-Claimants

[In the Matter of the Matai Title "FONOTI" of Aunu'u]

High Court of American Samoa
Land and Titles Division

MT No. 04-90

October 15, 1991

__________

Application for matai title was dismissed when the applicant failed to comply with requirements and showed no real interest in pursuing the title.

In order to register for a matai title under the absent resident provision, which requires that absence from the Territory in the year preceding the filing of matai claim or counterclaim was due to medical reasons, an applicant must produce more than a cursory and equivocal statement from a doctor, A.S.C.A. § 1.0404(b)(3).

Candidates who do not meet the residency requirements of A.S.C.A. § 1.0404 will be, at that time, ineligible to claim succession to a matai title.

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

Counsel: For Claimant, Roger Hazell

  For Counter-Claimant Fonomaitu, Togiola T.A. Tulafono

  For Counter-Claimant Paueli, Tauese P.F. Sunia

On March 14, 1989, Faipa Ta'ala filed her application with the Territorial Registrar to be registered as the holder of the matai title Fonoti, attached to the village of Aunu'u. This attracted the respective objection and counter-claims of Fonomaitu Fonoti, filed March 17, 1989, and Paueli Satele, filed May 15, 1989. Ensuing family meetings to select a matai, both in the village and before the Office of Samoan Affairs pursuant to Title 43 A.S.C.A. Chapter 03, were unsuccessful. Hence [20ASR2d23] this litigation resulted.

When this matter came on for trial, we dismissed Faipa Ta'ala's claim for failure to comply with the requirements of T.C.R.I.T. 3. Not only had she failed to respond to the questionnaire made and provided for in these cases, but she has also shown no real interest in pursuing her claim.(1) Accordingly, we were left with the merits of the counter-claims.

Fonomaitu first presented his case. After he had rested, Satele moved to disqualify him on the grounds that he did not meet the residency requirements of A.S.C.A. § 1.0404. Anticipating the motion, the latter in his testimony claimed to be a resident of Aunu 'u, although at the same time he admitted that he has been living in California. However, Fonomaitu attributes his presence in California to his medical needs, and argues that he is, therefore, a resident of the territory within the contemplation of A.S.C.A. § 1.0404.(2) [20ASR2d24]

The law requires, among other things, that a claimant seeking to register or object to matai succession be a resident of the territory for a period of "one calendar year immediately preceding the date of claim or objection." A.S.C.A. § 1.0404(a). Here the evidence failed to show that Fonomaitu had in fact resided in the territory for the calendar year immediately preceding the filing of his objection and counter-claim. Rather, the evidence showed that, but for the period between 1983 to 1985, Fonomaitu had actually been living off-island since he first departed the territory in 1969 to join the armed forces. He has periodically visited Samoa. (3)

We turn to Fonomaitu's claim to permissible absence on the grounds of medical need. The law further provides that an absentee "bona fide" resident of the territory nonetheless remains eligible to claim or object to succession, if the reason for his absence comes within one of those enumerated grounds contained in § 1.0404(b)(1) through (5); and he has registered as an absent resident with the office of the Territorial Registrar in accordance with the provisions of A.S.C.A. § 1.0404(b) and (d).(4)

In support of his claim to permissible absence, Fonomaitu furnished a letter from his family doctor in Calitornia together with copies of his registration as an absent resident. Fonomaitu's name was recorded on the absent resident register on March 15, 1988, and then again on November 7, 1988. He has complied with that aspect of the [20ASR2d25] statute relating to absent resident registration.

The letter from his doctor, however, is at best equivocal on the other statutory requirement at issue; that is, whether Fonomaitu was absent from the territory during the year immediately preceding the filing of his objection/counterclaim (March 1988 to March 1989) by reason of "medical treatment and recuperation. " A.S.C.A. § 1.0404(b)(3). His doctor's letter, dated September 27, 1991, is a very brief, one-paragraph note, which hardly seems to have been prepared to specifically address the residency factors posed by the statute. The letter does not speak to any particular frame of time; it begins by alluding very generally to Fonomaitu being under the doctor's care for "multiple medical problems." It then essentially explains that because of a past gastrectomy (date of operation unspecitied), Fonomaitu has dumping syndrome "with other relative gastrointestinal problems" and that he gets his vitamin 812 by way of injections. Lastly, the letter mentions "arthritis and lower back syndrome" and concludes that Fonomaitu needs "continuous medical care."

The court is unable to conclude, on the extent of this evidence, that Fonomaitu was absent from the territory for the relevant calendar year period (March 1988 to March 1989) because of medical reasons. There is simply nothing to suggest that Fonomaitu's medical needs could not have been accommodated had he lived on-island at the time. Nor has there been anything to suggest that his VA (Veterans Administration) benefits(5) would have been prejudiced had he been living in the territory. Indeed, Fonomaitu quite candidly admitted on the stand that he is able to return to the territory and that the appropriate transfer of his V A records could be arranged. He further testified that if awarded the Fonoti title he would return to stay. On these tacts, we conclude that Fonomaitu Fonoti is, for the time being, ineligible to claim succession to the title Fonoti in that he tails to meet the residency requirements of A.S.C.A. § 1.0404.

On the other hand, the evidence does show that Satele meets the basic qualifications and is eligible to claim succession to the matai title Fonoti. On the foregoing, it is the judgment of the court that Paueli Satele shall be registered as the successor to the matai title Fonoti, [20ASR2d26] attached to the village of Aunu'u. Certification to the Territorial Registrar pursuant to A.S.C.A. § 1.0409 shall be made accordingly.

It is so ordered.

*********

1. Faipa Ta'ala filed her application with the Territorial Registrar even before the family had met to address the appointment of a successor matai. She believes that the appointment of a Fonoti titleholder is within her gift and it seems that her application was motivated as an act of . She testified that she has pointed her finger to (and in support of) Fonomaitu.

2. A.S.C.A. § 1.0404 provides in pertinent part:

(a) Except as provided in subsection (b) and (c), no one is eligible to claim or object to the succession to a matai title unless he has resided in American Samoa for one calendar year immediately preceding the date of the claim or objection

(b) The territorial registrar shall keep a record of the names of those bona fide residents ofAmerican Samoawho are absent from the Territory for any of the following reasons:

...
(3) medical treatment and recuperation;...

(c) Any person on such record is eligible to claim or object to the succession to a matai title as if he actually resided in American Samoa.
(d) A person's name shall be recorded upon the petition of 5 adult members of his family. The recording shall be effective for 2 years.

3. We reject counsel's submission to the effect that occasional visits to the territory coupled with the intent to some day return, constitute residency in American Samoa notwithstanding an extended absence. The statute in question talks of "bona fide residents," A.S.C.A. § 1.0404 (b), and permissible absences whereby an absentee may nonetheless file a claim or object to a succession "as if he actually resided in American Samoa." A.S.C.A. § 1.0404 (c) (emphasis added). Furthermore, the word "residence," as this Court has said before, "imports something of expected performance in way of personal presence." In re matai Title Fagaima, 4 A.S.R. 83, 86 (1973) (emphasis added).

4. Such registration is good only for a period of two years. A.S.C.A. § 1.0404(d).

5. Fonomaitu testitied that he had undergone his gastrectomy in 1972 while still in the armed forces. As a result he was discharged on full medical disability.

Estate of Tuilesu v. Asifoa ,


The Estate of MERCY TUILESU, PELEIUPU TUILESU,
Individually and as the Guardian of the Estates of
SOLO TUILESU, MATTHEW TUILESU,
MICHELLE TUILESU, MICHAEL SIONE, and TUI SIONE,
Minors, Plaintiffs

v.

LUAGIA ASIFOA, SOSENE ASIFOA, and
NATIONAL PACIFIC INSURANCE, Defendants

High Court of American Samoa
Trial Division

CA No. 71-90
(AP No. 4-92)

March 6, 1992

__________

Where there is no good reason to doubt an eyewitness account the court will not speculate otherwise.

While motorists must be vigilant when encountering children, the fact that an injury occurred does not automatically give rise to strict liability without fault.

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

Counsel: For Plaintifts, John L. Ward II

  For Defendants, Robert A. Dennison III

On or about October 14, 1989, young Mercy Tuilesu died after she was run over by a bus. At th time of the accident, Mercy was only twenty-months-old. Her mother, Peleiupu Tuilesu, and her older siblings [20ASR2d61] who survived her have filed this action against the driver, owner, and insurer of the bus. Plaintiffs claim damages for wrongful death under A.S.C.A. § 43.5001 and A.S.C.A. § 43.5002; the mother also seeks recovery under a "negligent infliction of emotional distress" theory.(1)

The only eyewitness to the accident testified that he had been a passenger on the bus but that he had earlier disembarked further up the road from the scene of the accident.(2) He testified that he saw the bus stop to let off Mercy's mother (who was returning from a shopping trip to Fagatogo with her sister and another young relative) and that he then noticed a group of children running across the road to the rear of bus; however, one particular child went underneath the bus from its left side just ahead of its rear set of wheels. The witness recalled that Peleiupu was still in the bus at that time exchanging money with the driver, while her sister was standing by the roadside. (The sister was the first to alight to take hold of one child whom she said she had seen running towards the bus.) The witness further stated that he then started shouting, trying to catch somebody's attention, but his efforts were to no avail. He saw the bus pullout and then stop, and then he started running to the scene where he saw Mercy's lifeless body.

Notwithstanding this eyewitness account, plaintiffs ask the court to draw a conclusion of negligence on the part of the driver. The inference sought is premised on the contention that the location of blood stains towards the middle of the road indicates that the child was alongside the bus when it pulled out and that if the driver had been keeping a proper lookout, he would have, or should have, noticed the decedent.

The evidence simply does not support such a conclusion. The Court viewed the scene and found nothing remarkably telling from the location of the blood stains (apparently marked by the investigating police [20ASR2d62] officers) to suggest that the child may have been alongside the bus just before the accident. The accident occurred at a rather narrow part of the Aoloau/Aasu highway. We see no good reason to doubt the eyewitness' recount of the fatal day's events. Plaintiffs' contention only invites speculation and we refuse to draw the conclusion suggested.

Considering the evidence before us, we fail to see anything reliable on which to base a finding of negligent causation. The evidence suggests that the only way the accident would have been avoided was if the driver had first checked under his bus before moving it. But the evidence failed to show that the driver knew, or should have known with the exercise of reasonable caution, that there was an infant under his bus. Rather the evidence points in the opposite direction. The child went under the bus when it was stopped and while the driver was momentarily preoccupied with collecting fares, and, it may be reasonably assumed, ensuring that his passengers were safely off the bus before he could move on. His attention would thus have been directed to the right side of the bus while the child's perilous situation arose on the left, effectively outside of, and later hidden from, his view. In these circumstances we cannot conclude that there was a failure on the part of the driver to keep a proper look out.

We are mindful that the law imposes upon the motorist the duty to be extra vigilant when encountering children in order to prevent accidents, but at the same time, the law does not require the motorist to be an insurer of the safety of such children. The mere fact of injury does not give rise to strict liability without fault. Mataloo v. Penitusi, 4 A.S.R.2d 46 (1987); Lauoletolo v. Setenaisilao, 14 A.S.R.2d 37 (1990). In our view, plaintiffs have failed to meet their burden of proof to establish negligence together with proximate cause. Accordingly, the complaint is dismissed and judgment shall be entered in favor of the defendants.

It is so Ordered.

*********

1. The details of plaintiffs' claims were only learned at the time of trial. The complaint itself merely alleges negligent operation on the part of the driver and negligent entrustment on the part of the bus owner.

2. Although the witness testified that he was about 50 yards away from where the accident occurred, we noticed from our visit to the scene, after comparing the markings which the witness had made on a photograph of the vicinity produced in court, that he was more accurately about 200 yards away from the point of impact.

Estate of Tuilesu v. Asifoa,


The Estate of MERCY TUILESU, PELEIUPU TUILESU,
Individually and as the Guardian of the Estates of
SOLO TUILESU, MATTHEW TUILESU,
MICHELLE TUILESU, MICHAEL SIONE, and TUI SIONE,
Minors, Plaintiffs

v.

LUAGIA ASIFOA, SOSENE ASIFOA, and
NATIONAL PACIFIC INSURANCE, Defendants

High Court of American Samoa
Trial Division

CA No. 71-90

November 21, 1991

__________

In a summary judgment motion, the non-moving party is to be given the benefit of all reasonable inferences to be drawn from the evidence.

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

Counsel: For Plaintiff, Robert A. Dennison III

  For Defendant, John L. Ward II

Defendants Sosene Asifoa and National Pacific Insurance, seek summary judgment on the ground that the only eye-witness account of the accident, secured by way of deposition, negates plaintiffs' claim of actionable negligence. Defendants therefore contend the absence of any genuine issue as to material fact. T.C.R.C.P. Rule 56.

In these matters, the non-moving party is to be given the benefit of all reasonable inferences to be drawn on the evidence. Lokan v. Lokan, 6 A.S.R.2d 44 (1989). In this light, we view Officer [20ASR2d46] Faataumalama Fereti's affidavit about blood on the roadway(1) as indicating something in the way of a triable issue of fact---the position of the deceased child in relation to the bus as it moved away after discharging plaintiff Peleiupu Tuilesu. Plaintiffs' theory is failure on the part of the driver to keep a proper lookout for children; hence the deceased child's location at the critical time would seem to be a material issue.

The motion for summary judgment is, therefore, denied.

It is so Ordered.

*********

1. We note parenthetically that this observation of the scene was about all that this officer competently deposed to "from personal knowledge," as required by T.C.R.C.P. Rule 56(e).

Coulter; EW Truck & Equipment Co. v.


EW TRUCK & EQUIPMENT COMPANY, INC., Appellant

v.

BOB COULTER, doing business as SOUTH PACIFIC
EQUIPMENT & REPAIR, Appellee

High Court of American Samoa
Appellate Division

AP No. 08-91

March 13, 1992

__________

An appellate court is not obliged to search the record for error.

An appellate court should not, and on unsubstantiated assertions of error cannot, substitute its judgment for that made by the trier of fact at the conclusion of trial.

The trial court did not commit manifest error when it refused to allow a proffered expert to testify in terms of a hypothetical, based upon test results of a person whose qualifications were never properly presented, particularly when the final decision could be a matter of life and death.

Where the trial court properly assessed that both parties breached their contract, its decision in equity requiring the parties to share expenses will be affirmed.

A trial court has broad discretion concerning the admissibility or exclusion of expert testimony.

A finding is "clearly erroneous" only when the entire record produces the firm and definite conviction that the trial court committed error. [20ASR2d89]

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, MUNSON,** Acting Associate Justice, MAILO, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Appellant, Robert A. Dennison III

  For Appellees, Roy J.D. Hall, Jr.

MUNSON, J.:

THIS MATTER is before the Court on appeal from the Trial Division.

Procedural History

This appeal stems from that portion of the judgment affecting one of two cases consolidated for trial, CA Nos. 59-90 and 62-90. Appeal was taken only from the judgment relating to CA No. 59-90, EW Trucking Company, Inc. v. Bob Coulter dba South Pacific Equipment and Repair,(1) which involved a contract for purchase of a boom truck to be used in electrical contracting work.

The case was tried before a three-judge panel April 29-30, 1991. The decision was announced from the bench at the conclusion of trial, and a written opinion and order was entered May 6, 1991. [20ASR2d90]

Shortly after entry of the judgment, appellant EW moved for a new trial or to amend the judgment to show that the boom truck was in fact sufficiently insulated to be used for its intended purpose, and thus, that the part of the judgment which required EW to have the truck insulated was in error and should be amended. After an evidentiary hearing held in late May, 1991, the trial court by written order filed June 3, 1991, held that the evidence presented failed to show that the truck was properly insulated and denied the motion for a new trial or to amend the judgment but extended to July 19,1991 the time for appellant to have the truck insulated.

Appellant EW filed a notice of appeal June 5, 1991.

Subsequently, in late June, 1991, appellant EW filed a motion for entry of final judgment and again attempted to show, this time through expert testimony, that the truck was properly insulated. An evidentiary hearing on this motion was held July 22, 1991, and the motion was denied.

On July 26, 1991, EW filed a motion for new trial or for reconsideration. Hearing on this motion was held August 6, 1991, and the motion was denied by order dated August 14, 1991.

Appellant EW filed a new notice of appeal August 16, 1991.

Facts

The two consolidated cases grew out of a contract for the sale and delivery of a boom truck to be used for electrical contracting work inAmerican Samoa. In CA No.59-90, plaintiff-appellant EW Trucking Co., Inc. (EW) agreed to sell the truck to Bob Coulter (Coulter), doing business as South Pacific Equipment & Repair. Below, Coulter argued unsuccessfully that he was not the purchaser of the truck, but merely the agent for the actual purchaser, Coffin. The companion lawsuit involved a claim for shipping and storage of the truck.

The facts giving rise to the lawsuit are straightforward. The trial court found that Coulter had contacted EW to locate a boom truck and that, although EW knew that Coulter in turn intended to sell the truck to another person (Coffin, although EW never knew his identity), the contract for the truck was between EW and Coulter, and that Coulter [20ASR2d91] was obligated to pay the purchase price for the truck.(2) However, the court also found that a term of the contract between EW and Coulter was that the truck was to be insulated, since it was going to be used for electrical work inAmerican Samoa.

After considering all the testimony and evidence, the trial court rendered its judgment, in relevant part, as follows:

1. In favor of EW against Coulter for the agreed-upon $37,000.60 purchase price of the truck, plus pre-judgment interest at six percent for a total of $41,501.90;

2. Against EW in favor of Coulter, requiring EW to satisfactorily insulate the boom truck within sixty days of judgment and, if EW failed to properly insulate the truck, allowing Coulter to rescind the contract;

3. In favor of Coulter against third-party defendant Coffin, the person who agreed to purchase the truck, in the amount of $54,975.43; and,

4. That execution of all money judgments would be stayed for sixty days, to allow EW time to insulate the truck.

In post-trial motions, appellant EW attempted to show that the judgment was in error in that the boom truck was already satisfactorily insulated for all its intended uses.

Issues

1. Did the trial court err in finding that appellant EW breached its contractual obligation to appellee Coulter [20ASR2d92] by supplying a bucket truck with an uninsulated or insufficiently insulated boom?

2. Did the trial court err by refusing to admit the testimony of the expert witness offered by appellant EW at the hearing on EW's motion for entry of final judgment?

3. Did the trial court err by holding that Coulter would be allowed to rescind the entire contract if EW did not satisfy that part of the judgment which required it to insulate the boom truck within sixty days of entry of judgment?

4. Should the trial court have awarded judgment in favor of appellant EW and against appellee Coulter for the full $2,500 storage costs, for EW's reasonable attorney fees, and for post-judgment interest at the legal rate?

Standard of Review

The trial division's factual determinations are reviewed for "clear error." A.S.C.A. § 43.0801(b); see also Temengil v. Trust Territory of the Pac. Islands, 881 F.2d 647, 649 (9th Cir. 1989) (citing United States v. McConney, 728 F.2d 1195, 1199-04 (9th Cir. 1984) (en banc), cert. denied, 469 U.S. 824), cert. denied, 496 U.S. 925 (1990).

A finding is "clearly erroneous" when the entire record produces the definite and firm conviction that the court below committed a mistake. South Seas v. Sablan, 525 F. Supp. 1033, 1037 (D.N.M.I. 1981), aff'd, 691 F.2d 508 (9th Cir. 1982) (mem.). The reviewing court accords particular weight to the trial judge's assessment of conflicting and ambiguous facts.Id.

A trial court has broad discretion concerning the admissibility or exclusion of expert testimony, and its action will be sustained unless it is shown to be manifestly erroneous. Reno-West Coast Distribution Co. v. Mead Corp., 613 F.2d 722 (9th Cir. 1979), cert. denied, 444 U.S.927.

Analysis
[20ASR2d93]

1. Did the trial court err in finding that appellant EW breached its contractual obligation to appellee Coulter by supplying a bucket truck with an uninsulated or insufficiently insulated boom?

In its May 6, 1991, decision, the trial court found in part:

The evidence does not reflect, however, that (Coulter] knew or should have known that an uncertified truck was necessarily an uninsulated one. Indeed, it appears that both (Coulter] and EW assumed that the 1966 truck., was in fact insulated until about two months after it had arrived in American Samoa, when an inspection by the local power authority appears to have revealed the contrary.... The weight of the evidence is to the effect that the boom is not insulated but that it can be insulated.

Appellant attempts to show by evidence offered (or proffered and not admitted) at post-trial hearings that the trial court erred when it ruled at the conclusion of trial that appellant EW was obligated under the contract to provide an insulated truck.(3) Appellant argues that the factual findings in the trial court's May 6, 1991, decision were "clearly erroneous" because the testimony of both appellee and Coffin "was not credible" and that Coulter's testimony was based on inadmissible hearsay. As to the latter contention, appellant does not cite this Court to any timely objection made to the allegedly inadmissible testimony. An appellate court is not obliged to search the record for error. See generally United States v. Kline, 922 F.2d 610 (l0th Cir. 1990); Engdahl v. Department of Navy, 900 F.2d 1572, 1576 (Fed. Cir. 1990); National Commodity and Barter Assoc. v. Gibbs, 886 F.2d 1240, 1244 (10th Cir. 1989); Atwood v. Union Carbide Corp., 850 F.2d 1093 (5th Cir. 1988). As to the former assertion, the trial court is uniquely situated to determine credibility, having as it does the opportunity to observe the witnesses as they testify. This Court should not--and on these unsupported assertions of error cannot--substitute its judgment for that [20ASR2d94] made by the trier-of-fact at the conclusion of trial.

Appellant's claim of error is not persuasive.

2. Did the trial court err by refusing to admit the testimony of the expert witness offered by appellant EW at the hearing on EW's motion for entry of final judgment?

At the hearing on appellant's August 6, 1991, motion for new trial or for reconsideration, appellant sought to introduce, through its expert witness, Mr. Malcolm, that tests performed on the boom truck by a Mr. McCormick in June, 1991, proved that the truck was properly insulated. In declining to allow Mr. Malcolm to offer an expert opinion based on the tests conducted by Mr. McCormick, the court stated:

There was no evidence as to the qualifications of Mr. McCormick and the court is hesitant to allow a witness to determine safety certification of the insulated boom in this case by use of a hypothetical. It is important that the court have the opportunity in a case involving special expertise and knowledge to examine the qualifications of the expert witness and examine his methods of testing the insulation of a boom on a truck to determine whether or not the boom retains a high insulation quality within acceptable standards when used near high voltage lines.

The court also noted that appellant could have supplied such background information by memorializing it in deposition form when Mr . McCormick was present inAmerican Samoa. The court expressly considered and rejected (and in our opinion rightly so) appellant's suggestion that the court be more flexible on this issue due to the general unavailability of expert witnesses inAmerican Samoa.

We cannot say that the trial court committed manifest error by refusing to allow Mr. Malcolm to offer an expert opinion, couched in terms of a hypothetical question, and based upon test results of a person whose qualifications were never properly presented to the court. This is particularly so when the trial court knew that its final decision on the safety of the truck might literally be a matter of life and death.

3. Did the trial court err by holding that Coulter [20ASR2d95] would be allowed to rescind the entire contract if EW did not satisfy that part of the judgment which required it to insulate the boom truck within sixty days of entry of judgment?

In its decision, the trial court, after reviewing the facts and the law, stated:

Under these circumstances, and in the absence of any dimension of malice or wilfulness in either party's breach, the most appropriate remedy is to give each party the benefit of the bargain to which it agreed and was entitled. EW is entitled to the contract price...; [Coulter] is entitled to a truck that conforms to all terms of the contract, including the requirement of an insulated boom.

.....

Judgment will enter against plaintiff EW Truck & Equipment requiring it to insulate the boom on the truck within sixty days. If plaintiff EW should fail to comply with this part of the judgment, defendant Coulter will have the right to rescind the contract of sale.

19 A.S.R.2d 61, 64, 66 (1991).

Earlier, the trial court had noted that "[a]lthough we have no evidence of what it will cost to insulate the truck, we do have evidence that the cost will not be commercially unreasonable in relation to the contract price.” Id., at 64.

The trial court utilized a "substantial performance" analysis in rendering its decision, and the remedy it fashioned sought to give EW the benefit of its bargain (the contract price for the truck), minus an appropriate reduction for its breach regarding the insulation. See 3A Corbin, Contracts §§ 709, 710, 994 (1960). We find no error in this analysis. However, the court placed upon appellant the duty to prove the truck was adequately insulated and upon itself the responsibility for making the determination of whether or not the insulation was adequate. The buyer of the truck, who seems more properly the party to be concerned with the safety of the truck, was not to be involved in this determination. [20ASR2d96]

As a practical matter, we believe the burden of determining the safety of the truck should be placed on the party most directly interested and best able to ensure that the truck is indeed safe for its intended use: the buyer, Coulter. Therefore, we hereby remand this matter to the Trial Division for amendment of its judgment. Because the trial court found that the truck could be insulated in a commercially viable manner, it is our direction that the judgment be amended to require appellee Coulter , within sixty days of the amendment, to have the truck insulated to his satisfaction, and to deduct the reasonable charges of such work from the amount owing to appellant EW on the date of the trial division's initial judgment, that being $41,501.90.(4) This amendment also frees the trial court from having to make a decision requiring expertise perhaps not available to it despite the best efforts of appellant. Likewise, it frees appellant from the task of having to prove compliance with the court's judgment when appellant, too, might not have sufficient expertise available to it to make such a showing. Finally, it renders moot the question of rescission.

4. Should the trial court have awarded judgment in favor of appellant EW and against appellee Coulter for the full $2,500 storage costs, for EW's reasonable attorney tees, and for post-judgment interest at the legal rate?

Appellant argues that the trial court erred by ordering the parties each to pay half of the $2,500 storage fee for the truck, to pay their own attorney fees, and by not awarding post-judgment interest at the legal rate. Appellant maintains that the evidence at trial shows that it had a contractual right to attorney fees if it prevailed in any litigation against appellee and that the contract also required appellee to pay shipping and [20ASR2d97] all other costs, such as taxes and storage charges.(5)

Because we agree with the trial court's assessment that both parties breached their contract, we affirm its decision in equity requiring the parties to share equally the expense of storage and to pay their own attorney fees.

As to the award of post-judgment interest, appellant argues that the court awarded it verbally but failed to include it in the final judgment. The court' order of May 6, 1991, does include pre-judgment interest at the legal rate, but no mention is made of post-judgment interest. The record does not reflect any motion by appellant to amend the judgment. However, we order that the judgment also be amended to specifically include interest at the legal rate of six percent from the date of judgment, in accordance with A.S.C.A. § 28.1501(a).

Conclusion

FOR THE REASONS STATED ABOVE, the decision of the Trial Division is AFFIRMED, but the judgment will be amended 1) to require appellee Coulter to properly insulate the truck within sixty days of amendment, 2) to allow appellee Coulter to deduct the reasonable cost of insulating the truck from the amount owing appellant EW at the time of the Trial Division's original judgment, and 3) to award appellant post-judgment interest (on the judgment amount of $41,501.90, minus the amount reasonably necessary to insulate the truck, with interest again accruing on the latter figure from the date of the Trial Division's decision to the date of final payment by Coulter to EW) in accordance with the Trial Division's oral ruling and the law.

*********

* Honorable Alfred T. Goodwin, Senior Circuit Judge,United StatesCourt of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable Alex R. Munson,ChiefJudge,United StatesDistrict Court for theNorthern Mariana Islands, serving by designation of the Secretary of the Interior.

1. In CA No. 62-90, South Seas Shipping Co. v. South Pacific Repair & Equipment Co., Inc. and EW Truck & Equipment Co., Inc., South Seas Shipping sued SPEAR and EW for payment of shipping and storage charges for the truck which was the subject of the lawsuit in CA No. 59-90. No appeal was taken from that portion of the Trial Division's decision which concerned liability toSouth Seas for shipping and storage charges.

2. By the time the truck arrived inAmerican Samoa, Coffin's attempt to obtain financing had apparently fallen through and Coulter was claiming that he was merely an agent for the true purchaser, Coffin, and thus was not responsible to EW for payment of the purchase price. As a result, no one paid the shipping charges or the subsequent storage charges. This led to the second lawsuit (which plays no part in this appeal), in which the shipping and stevedoring companies sued for their unpaid charges.

3. This issue is separate and distinct from the issue of whether appellant was able to prove to the court's satisfaction in post-trial hearings that the truck was in fact insulated properly, which issue is addressed infra.

4. This appears to be the most equitable resolution, since it would be unfair to now require Coulter not only to insulate the truck but also to pay accrued interest for the time since the trial court's initial judgment. Post-judgment interest shall accrue on the new figure (i.e. $41,501.90 minus the reasonable cost of insulating the truck) from the date of the Trial Division's initial judgment to that of the final payment by appellee Coulter to appellant EW.

5. Appellee at the conclusion of its brief requests this Court to require appellant to reimburse appellee $12,168 for shipping charges appellee paid to South Seas Shipping. This matter is not properly before the Court and should have been the subject of a timely cross-appeal.

Betham; Lindgren v.


CARLTON and KATHERINE LINDGREN, Appellants

v.

ERNEST and MIRIAM BETHAM, Appellees

High Court of American Samoa
Appellate Division

AP No. 12-91

March 13, 1992

__________

Creative interpretations of specific restrictions on the use of real property will be accorded little weight.

Damages for breach of a lease or a covenant in a lease, if any, must be proved according to general principles which determine the measure of damages on claims arising from breaches of other kinds of contracts.

In the absence of some proof of damages the court is not free to estimate what might be fair based upon the it's own knowledge of the rental market.

Courts are obligated to enforce a restrictive covenant in a lease, unless enforcement would be inequitable or contrary to pubic policy.

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, MUNSON,** Acting Associate Justice, AFUOLA, Associate Judge, and MAILO, Associate Judge.

Counsel: For Appellants, Togiola T.A. Tulafono

  For Appellees, Charles V. Ala'ilima [20ASR2d99]

GOODWIN, J.:

Carlton and Katherine Lindgren appeal from the judgment and order of the District Court of American Samoa, in favor of Ernest and Miriam Betham, finding that the Lindgrens were month-to-month tenants who used a personal residence and a refrigerator in the residence for commercial purposes and that the Bethams, as landlords, were entitled to an increase in rent to reflect the fair market rental value as commercial property.

The Lindgrens had a written lease for a residence owned by the Bethams, which terminated by its own terms in 1988. The lease restricted the use of the premises to residential purposes. After the expiration of the lease the Lindgrens continued to rent the residence on a month-to-month basis on the same terms and conditions as the original lease. The rental of the residence included a refrigerator. Because they had their own refrigerator, the Lindgrens did not use the Betham refrigerator in the kitchen. The Lindgrens operated a retail business and restaurant close to the residence. At various times the Lindgrens stored some of the perishables from their businesses in the Betham-owned refrigerator, first at the residence, and later in a storage facility. In addition to the storage of perishables in the refrigerator, the Lindgrens stored a few boxes of inventory from their business in the back of the rented house.

In February 1990, the Bethams went to the residence to survey the damage to the premises caused by Hurricane Ofa. On February 10, 1990, the Bethams notified the Lindgrens in writing that their tenancy was terminated immediately and that the refrigerator should be returned to the premises. The Lindgrens sent a letter acknowledging the termination of the tenancy and indicated that they would leave the premises at the end of thirty (30) days. The Lindgrens also requested some compensation for material used to protect the house during the hurricane. The Bethams responded with another letter demanding compensation for commercial use of the residence in violation of the original lease agreement.

The Lindgrens filed a claim with the small claims court and were awarded one half of their deposit. The Bethams then filed this action. The trial judge found that the Lindgrens had breached the terms of the original agreement by the use of the house to store and sort inventory. [20ASR2d100]

The court awarded the Bethams an additional $100 per month rental for the premises and $50 per month for the commercial use of the refrigerator for a term of twelve months. The judgment was for $1,800.00.

The Lindgrens raise four issues on appeal. (1) The evidence does not sustain a finding of a material breach of the restriction on the tenancy. (2) The evidence does not demonstrate a commercial use of the refrigerator. (3) Even if there was a breach, the evidence did not support a monetary award in excess of nominal damages. (4) The amount of the increased rent was arbitrary.

This court reverses the findings of the trial court only if they are clearly erroneous. Meusy v. Montgomerv Ward Life Ins. Co., 943 F.2d 1097 (9th Cir. 1991); Temengil v. Trust Territory of the Pac. Islands, 881 F.2d 647,649 (9th Cir. 1989), cert. denied, 496 U.S. 925 (1990). A finding is clearly erroneous when the entire record produces the definite and firm conviction that the court below made a mistake. Oxford Properties & Finance Ltd. v. Minor M. Engle, 943 F.2d 1150 (9th Cir. 1991); Miller v. United States, 587 F.2d 991, 994 (9th Cir. 1978).

The Lindgrens admitted that they occasionally used the premises to store and sort inventory for their business. Moreover, the trial court found that the Betham refrigerator was seen being returned to the premises soon after the Bethams sent a letter demanding that the refrigerator be returned. The Lindgrens argue that the prohibition against "commercial use" of the premises should not restrict a limited amount of commercial work within the premises and that the prohibition must be interpreted to reasonably accommodate the concerns of the landlord and the general right of the tenant to do as he pleases on the property. The Lindgrens do not cite authority for this creative interpretation of specific restrictions on the use of real property.

When presented with a violation of a restrictive covenant, courts are obligated to enforce the covenant unless the complaining party can show that enforcement would be inequitable or contrary to public policy. Hartford Elec. Light Co. v. Levitz, 376 A.2d 381 (Conn. 1977). Where there is no ambiguity the courts will ascertain and give effect to the intention of the parties. Gino's Pizza of East Hartford. Inc. v. Kaplan, 475 A.2d 305 (Conn. 1984); Hammonds v. Huddle House. Inc., 257 S.E.2d 508 (Ga. 1979). [20ASR2d101]

When the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed. Hays v. Ottis Watson, 466 S.W.2d 272 (Ark. 1971). The covenant contained in the Betham-Lindgren lease restricting the use of the premises to residential purposes only is not ambiguous. The Lindgrens had notice of the covenant and had within their control the ability to comply with the covenant.

The Lindgrens demonstrate nothing on appeal from which this court can determine that the trial court was clearly in error when it held that the restriction prohibited the Lindgrens from using the premises for anything other than residential purposes. The Lindgrens admitted that the premises were sometimes used for other than residential purposes. There was sufficient evidence to find that both the premises and the refrigerator were used contrary to the restrictive covenant.

The Bethams requested from the court an increase of $200 per month for the use of the premises and $100 per month for the commercial use of the refrigerator. However, counsel could direct this court to nothing in the record to support any specific liquidated damages figure.

Damages for breach of a lease or a covenant in a lease, if any, must be proved according to general principles which determine the measure of damages on claims arising from breaches of other kinds of contracts. The amount of damages sustained need not be proven to an exact certainty, but the figure cannot be left to guesswork or speculation. See Johnson v. Cayman Dev. Co., 108Cal. App. 3d 977, 983, 167Cal. Rptr. 29, 32 (1980).

In this case, a judgment of $1,800.00 might have been reasonable if the Bethams had offered any evidence of damages. The Lindgrens breached the covenant restricting the use of the premises to residential purposes. Some increase in rent could have been supported by evidence of a reasonable difference in value between residential and commercial use in the neighborhood. However, in the absence of some proof of damage the court is not free to estimate what might be fair based upon the court's own knowledge of the rental market. A judgment for a sum certain in money damages must be supported by some evidence in the record so a reviewing court will have something to review.

Given th circumstances of this case and the silence of the record on damages we are forced to conclude that the Bethams proved [20ASR2d102] only nominal damages. They are entitled to damages in the nominal sum of one dollar and their costs and disbursements in the trial court. No party is to recover costs on appeal.

AFFIRMED as modified.

*********

* Honorable Alfred T. Goodwin, Senior Circuit Judge,United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable Alex R. Munson,ChiefJudge,United States District Court for theNorthern Mariana Islands, serving by designation of the Secretary of the Interior.

C.B.T. Lumber, Inc. v. Pacific Reliant Industries, Inc.,


C.B.T. LUMBER, INC., Plaintiff

v.

PACIFIC RELIANT INDUSTRIES, INC., Defendant

High Court of American Samoa
Trial Division

CA No. 06-90

October 29, 1991

__________

Where there is a fundamental variance between what the court finds to be promised performance, and performance made, there is a breach of contract.

A plaintiff in a breach of contract action has a duty to mitigate damages.

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

Counsel: For Plaintiff, Charles V. Ala'ilima

  For Defendant, Roy J.D. Hall, Jr.

Plaintiff, a local corporation, was at all relevant times in the business of selling builder's supplies. Defendant, a foreign corporation, was at all relevant times exporting lumber and other building material to the territory. Defendant had apparently shipped a quantity of building material to another on-island builder's supplies dealer, Pacific Paradise [20ASR2d27] Development Company, who could not pay.(1) Consequently, defendant sought out interested third-party buyers.

Findings of Fact

In its efforts to find third-party buyers, defendant managed to sell some lumber and nails to plaintiff. This transaction took place around April 1988. Later on, around June 1988, defendant's Mr. James Nava (hereinafter "Nava") approached plaintiffs Mr. Beaver Ho Ching (hereinafter "Ho Ching") regarding a concrete block making machine (hereinafter "block machine") which the defendant had also landed on island and wanted to sell. The block machine had been shipped disassembled, as "block machine parts, " and at the time, it was still in its shipping container among other assorted items. After a series of inquiries from plaintiff and assurances from the defendant to the effect that the block machine was working and in good condition, plaintiff purchased the block machine for $25,000.00.

As it turned out, the block machine was in no condition to manufacture blocks--which prompted Ho Ching to ask for the return of his company's money. Nava, on other hand, proposed to Ho Ching that he get the block machine working and that they would subsequently work out "something" between them in the way of sharing the cost of parts. Ho Ching was then given the name of the machine's manufacturer, located inVancouver, to contact for parts and repairs; which he did. The block machine did indeed prove to require extensive refitting and repairs. For parts and accessories alone, the total bill was in excess of $35,000; the block machine had apparently been sitting unused and deteriorating for many years somewhere inMinnesota before it was purchased by defendant. Eventually the block machine was restored to working order by plaintiff, and in January 1989, it finally started to manufacture concrete blocks.

The "something" which plaintiff had expected to be worked out on the cost of parts was not; hence this litigation. Plaintiff here seeks reimbursement for the cost of parts required to fix the block machine as well as damages for four months of lost profits while the block machine was being fixed. Defendant, on the other hand, denies liability by arguing an "as is" sale of "a [shipping] container containing a list of [20ASR2d28] specific machinery and accessories that represented a 10AB Columbia Concrete Machine." Defendant's Trial Memorandum, at pages 1-2.

Conclusions of Law

We find it difficult to believe, and hence reject the claim, that defendant had merely offered to sell plaintiff (and that plaintiff had in turn intended to spend $25,000.00 to buy) a miscellaneous assortment of concrete block machine parts. Rather, we find on the evidence that while defendant had offered to sell plaintiff a concrete block machine which it had represented, and thus expressly warranted, to be in good working condition, it had in actuality sold plaintiff an assortment of parts or remnants of a 10AB Columbia Concrete Machine. There was therefore, in our view, a fundamental variance between the performance promised and that made. We conclude breach of contract on the part of defendant.(2)

As to damages, however, the evidence also shows that plaintiff now effectively has an asset, the restored block machine, worth significantly in excess of purchase price and cost of parts and accessories. A dealer in these types of machines, a Mr. Bill Stewart, testified to this effect. At the same time, Ho Ching had also testified that his company had purchased another block machine which they have been using, and that the block machine in question has since been dismantled and placed in storage. It is thus apparent that, for some time now, the block machine in question has been available for sale and disposition and that plaintiff should have thus made attempts to sell the machine in accordance with its duty to mitigate damages.

In the circumstances, we conclude that the only losses which may be appropriately considered are those relating to plaintiffs claim of lost sales opportunities while the block machine in question was being repaired. In this regard we assess, on the evidence presented, damages resulting from lost sales opportunities directly attributable to defendants breach of contract in the amount of $20,000, and direct that judgment be [20ASR2d29] entered accordingly.(3)

It is so ordered.

*********

1. This gave rise to other suits. See Pacific Reliant Industries v. Amerika Samoa Bank, 14 A.S.R.2d 41 (1990).

2. We are also satisfied that a second agreement was also concluded, and breached by defendant, resulting from defendant's offer to share costs for parts and plaintiffs resulting forbearance from taking immediate action.

3. The proofs presented in this regard left something to be desired. The comparative sales picture presented for the months immediately preceding the period involved with repair work could have been more precise. Rather, Ho Ching testified, it seems from recollection, that production for the month of January 1989 was around six to eight hundred blocks per day, which he translated into a sales picture of $8,000 to $10,000 for the month. He further testified that sales then steadily increased, reaching a figure of $22,000.00 per month. Notwithstanding, we are satisfied that the range of sales figures presented arc' not without credible foundation. These were heyday times for the building industry following rebuilding and recovery efforts from the effects of hurricane Tusi in the Manu'a group. However, in our conclusion, we have necessarily held plaintiff to the quality of its proofs and given appropriate weight accordingly.

Rakhshan v. Am. Samoa Gov’t


An appeal that raises no legal issues is an abuse of process and if brought by a lawyer would violate his or her duty not to bring a frivolous appeal.

A mere disagreement with a trial court's factual findings does not raise a legal issue.

Parties who decline to tile an appellees' brief risk having their positions go unrecognized by the court. [20ASR2d116]

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, MUNSON,** Acting Associate Justice, MAILO, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Appellant, Pro Se

  For Appellees, Aitofele Sunia, Assistant Attorney General

MUNSON, J.:

This is a direct appeal following trial, from a judgment issued by the High Court of American Samoa, Trial Division (Kruse, C.J.; Tauanu'u, C.A.J.; Mata'utia, A.J.) in favor of appellees American Samoa Government, LBJ Medical Center, Dr. Salamo Laumoli, and Dan Noel (collectively "A.S.G."(1)) and against appellant Davoud Rakhshan ("Rakhshan") on his claim of wrongful failure to hire or breach of a prospective employment contract.

Rakhshan contends that there was a valid contract between Dr. Salamo Laumoli, who is an employee/agent ofLBJMedicalCenter, and himself, to hire him as a dentist at the dental clinic, and that A.S.G. breached this agreement.

We conclude that the factual finding that there was no such contract was not clearly erroneous and that the judgment should be upheld.

ISSUE
[20ASR2d117]

Did the Trial Division err in its finding that there was no breach of a prospective employment contract?

PROCEDURAL HISTORY

Three pro se cases filed by Rakhshan, CA Nos. 20-90, 103-90, and 109-90, were consolidated for trial. The action from which this appeal is taken, CA No.103-90, is based upon allegations of wrongful failure to hire; the other two cases involved alleged wrongful detention by immigration officials. The court issued its opinion and order on July 5, 1991, finding no merit to Rakhshan's claims. Rakhshan filed a motion for new trial or for reconsideration pursuant to T.C.R.C.P. 59(a) and A.S.C.A. § 43.0802(a) on July 15, 1991. The motion came before the court for hearing on July 29, 199J (Kruse, C.J.; Mata'utia, A.J.; Logoai, A.J.), and was denied on that date. No appeal was taken from CA Nos. 20-90 and 109-90. Rakhshan filed his appellant's brief in AP No.14-91, appealing from CA No.103-90, on October 17, 1991. No appellee briefs were filed by any party before or after the November 18, 1991, response date.

FACTS

The facts in this matter have been extensively set forth in the comprehensive consolidated opinion Rakhshan v. American Samoa Government, 20 A.S.R.2d 1 (Trial Div. 1991); see also Rakhshan v. Fuimaono, 18 A.S.R.2d 77 (Trial Div. 1991) (suit against former attorney); Rakhshan v. Immigration Board, 15 A.S.R.2d 29 (App. Div. 1990) (stay of deportation to Iran); Rakhshan v. Immigration Board, 13 A.S.R.2d 25 (App. Div. 1989) (stay of deportation); Rakhshan v. Immigration Board, 12 A.S.R.2d 72 (App. Div. 1989) (denial of ex parte petition for stay), so a brief summary will suffice.

Rakhshan is a national of Iran who first arrived in American Samoa under a temporary visitor's permit on May 3, 1987, from the Philippines, where he had earned a degree in dentistry. In an attempt to remain in the Territory after the expiration of his permit he befriended Dr. Laumoli, Chief of Dental Services at LBJ Medical Center, and got him to sign a short letter on official letterhead for the purpose of securing an immigration permit. The letter falsely stated, "We are in the process of hiring Dr. Davoud Rakhshan to work here inAmerican Samoa as a general practitioner dentist."

On that basis, along with the facts that he was permitted to [20ASR2d118] "observe" at the clinic for five months without pay, and that he had various other contacts with the parties, Rakhshan contends that there was a valid offer of employment which was not honored. A.S.G. denied that any such offer was made, and the trial court did not believe Rakhshan.

STANDARD OF REVIEW

Under A.S.C.A. § 43.0801(b), we review the decision of the Trial Division under the clearly erroneous standard. A trial court's findings of fact for which there is substantial evidence are not clearly erroneous and will not be disturbed on appeal, even though there is also substantial evidence in the record that would have supported a contrary finding by the trial court. Suapilimai v. Faleafine, 9 A.S.R.2d 16, 19 (App. Div. 1988). An appellant who seeks to overturn the trial court's findings of fact on appeal bears the heavy burden of showing that these findings were clearly erroneous in light of the record. Toleafoa v. Tiapula, 12 A.S.R.2d 56, 57 (App. Div. 1989).

An appeal that raises no legal issues is an abuse of process. If brought by a lawyer, such an appeal would violate his or her duty not to bring a frivolous appeal. Leomiti v. Pagofie, 2 A.S.R.2d 97 (App. Div. 1986).

ANALYSIS

In an attempt to raise issues of law, Rakhshan breaks his appeal into four sub-issues concerning the non-existent contract: (1) offer/acceptance, (2) exchange of promises and formation of a contract, (3) breach of that contract by A.S.G., and (4) the trial court's failure to acknowledge the existence of the contract. Quite simply, however, these "legal" issues are a reflection of the fact that the trial court did not believe Rakhshan's testimony that he was offered a job, notwithstanding the letter to that effect and other evidence.

A mere disagreement with a trial court's factual findings does not raise a legal issue. If an attorney had filed a frivolous appeal such as this one, he or she would be subject to monetary sanctions. However , because appellant is a pro se litigant who we believe is under a pending deportation order, it would not be appropriate to impose further punishment on him for abuse of process.

Parties such as A.S.G. who decline to file an appellees' brief risk having their positions go unrecognized by the court. However, here [20ASR2d119] the appellees evidently decided the appeal was so unmeritorious that it was not worth the time and effort to rebut. In this instance they were correct.

CONCLUSION

The function of an appellate court is to correct errors of law, and such errors of fact as are "clearly erroneous." A trial court may give conflicting testimony and evidence such weight as it deems fit. The determination by the trial court that it does not believe Dr. Rakhshan is not the proper subject of an appeal. The judgment is AFFIRMED.

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* Honorable Alfred T. Goodwin, Senior Circuit Judge,United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable Alex R. Munson,ChiefJudge,United States District Court for theNorthern Mariana Islands, serving by designation of the Secretary of the Interior.

1. Because the fictitious "Doe" defendants were not identified prior to trial, they have been stricken from the caption and are dismissed as defendants.

American Samoa Gov’t; Moors v.


MISIMOA MOORS JR., a Minor by MISIMOA MOORS,
His Guardian Ad Litem, Appellant

v.

AMERICAN SAMOA GOVERNMENT, Appellee

High Court of American Samoa
Appellate Division

AP No. 9-91

March 12, 1992

__________

Damage awards are subject to wide variation between jurisdictions, therefore American Samoan courts need not be bound by awards rendered in other American jurisdictions.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, MALAETASI,* Acting Associate Justice, LOGOAI, Associate Judge, and MAILO, Associate Judge.

Counsel: For Appellant, Gata E. Gurr

  For Appellee, Richard D. Lerner, Assistant Attorney General

The sole issue on appeal is whether the trial court's award of damages, in the sum of $20,000 for the loss of vision in one eye, is inadequate. Appellant's principal contention is "that the value of an eye should not be dependent on the cost of living in the place of residence of the injured... it should be the same for everybody anywhere in the world." Appellant's Brief at 3-4. Appellant argues that the trial court should have been guided by awards rendered in other American jurisdictions, and he cites a selective number of cases from state jurisdictions.

This is a normative argument. Not only have the damages [20ASR2d77] awards in lost vision cases varied notably from case to case, see e.g., Annotation, Excessiveness or Adequacy of Damages - Awarded for Injures to, or Conditions Induced in, Sensory or Speech Organs and Symptoms, 16 A.L.R.4th 1127, 1211 (1982), but "factors affecting damages are subject to wide variations between (sic) jurisdictions." Leoso v. Seumalo, AP No. 37-84, slip op. at 2 (1984). As the Court recently explained in Kim v. Star-Kist Samoa, 8 A.S.R.2d 146, 151 (1988):

The disparity [in damage awards] from place to place is accounted for by many factors, including variations in the amount of goods and services that money can buy and in social attitudes toward pain. That trial judges in American Samoa tend to award lesser sums than those in Texas or California no more suggest that awards in Samoa should be higher than that those in Texas should be lower.

Looking at the individual circumstances of the case before us, we cannot say that the award for the particular injuries suffered by appellant's son and their effect upon him, was an abuse of the court's discretion as the trier of fact. We AFFIRM.

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* The Honorable Malaetasi Togafau, District Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

American Samoa Gov’t; Fa'amaoni v.


FALEFATU aka (FATU) FA'AMAONI, Appellant

v.

AMERICAN SAMOA GOVERNMENT, Appellee

High Court of American Samoa
Appellate Division

AP No. 29-90

March 25, 1992

__________

The Chief Justice's rulemaking authority under A.S.C.A. § 46.0501 does not include the power to amend unambiguous legislative enactments setting out the prerequisites to appeal.

If there is no timely motion for reconsideration or new trial within the statutory ten-day deadline the court has no jurisdiction to entertain an appeal, regardless of any argument, equitable or otherwise.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, MALAETASI,* Acting Associate Justice, LOGOAI, Associate Judge, and MAILO, Associate Judge.

Counsel: For Appellant, Charles V. Ala'ilima

  For Appellee, Thomas E. Dow, Assistant Attorney General

KRUSE, C.J.:

Appellant, Falet'atu Fa'amaoni, was convicted of Sexual Abuse in the First Degree and sentenced to a term of imprisonment for a period of five years. Execution of sentence was suspended and the appellant was placed on probation for a period of five years, subject to a number of conditions. Contending that certain conditions of probation imposed upon him were illegal, appellant filed his motion for reconsideration of his sentence some 90 days after the announcement of sentence. [20ASR2d128] However, the territorial statute which governs appeals in criminal matters, A.S.C.A. § 46.2402, provides:

The following procedure shall apply to appeals taken to the appellate division of the High Court:

(a) Before filing a notice of appeal, a motion for a new trial shall be filed within 10 days after the announcement of the judgment or sentence.

(Emphasis added). The statutory language is very plainly mandatory and the requirement of a motion for new trial or reconsideration of judgment or sentence within ten days is jurisdictional.(1)

Notwithstanding, appellant cites H.C.R.Cr.P. 35, which provides that "[t]he court may correct an illegal sentence at any time," and he urges a reconciliatory reading of the statute. Appellant contends that "it would be bad precedent to read A.S.C.A. § 46.2402(a) so restrictively so as to defeat the purpose and policy behind rule 35 and the territorial legislature's desire that the local rules conform to the federal rules." Appellant's Brief at 3. The legislative desire alluded to is that embodied in A.S.C.A. § 46.0501. This enactment reads:

Except as otherwise enacted in this Code, by rules adopted by the Chief Justice, the criminal procedure in the High Court shall conform as nearly as may be practical to the Federal Rules of Criminal Procedure.

Although there is perhaps something to be said about the suggestion, it is quite clear that the Chief Justice's rule making authority under A.S.C.A. § 46.0501 does not include the power to amend unambiguous legislative enactments setting out the prerequisites to appeal. Secondly, A.S.C.A. § 46.0501, by its own terms, is limited to situations not "otherwise" covered by the Code. Thus, T.C.R.Cr.P. 35 is in conflict with the provisions of A.S.C.A. §§ 46.2402(a) and 43.0802(a). As correctly explained by the court below: [20ASR2d129]

Rule 35 was imported almost verbatim from the Federal Rules of Criminal Procedure. This is one of a number of instances in which it appears that the committee that compiled the American Samoarules did not notice a difference between the federal and territorial statutory schemes which may render such verbatim importation inappropriate or impossible. The federal equivalent of Rule 35 is appropriate in the federal system because the federal courts are not subject to the jurisdictional limitation imposed on the High Court of American Samoaby A.S.C.A. § 43.2402(a). There is no federal statutory requirement that a motion to reconsider a sentence be made within a certain number of days; rather, the federal rule itself, having been approved by Congress, defines the jurisdiction of the federal district courts with respect to reconsideration of sentences. In contrast, the American Samoarules were promulgated by the sole authority of the Court and must therefore give way to territorial statutes defining the Court's jurisdiction unless the statutes themselves can be shown to be unconstitutional. See generally American Samoa Government v. Tile, 8 A.S.R.2d 120 (1988).

Since there was no timely motion for reconsideration or new trial within the statutory ten-day deadline, we have no jurisdiction to entertain this appeal--regardless of any arguments, equitable or otherwise. Judicial Memorandum No. 2-87, 4 A.S.R.2d 172, 174 (1987). We accordingly dismiss.

It is so ordered.

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* The Honorable Malaetasi Togafau, District Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

1. See, e.g., Taulaga v. Patea, 17 A.S.R.2d 34 (1990) (construing A.S.C.A. § 43.0802(a), which employs the exact language contained in A.S.C.A. § 46.2402(a); see also Judicial Memorandum No.2-87, 4 A.S.R.2d 172 (1987).

Alofipo v. Va,


PAULO ALOFIPO, Plaintiff

v.

MOANANU VA, Defendant

High Court of American Samoa
Trial Division

CA No. 32-91

March 25, 1992

__________

Both motorists and pedestrians have a duly to exercise care on the roadway. A.S.C.A. §§ 22.0403, 22.0406, 22.0701.

Under A.S.C.A. § 43.5101, contributory negligence does not bar recovery, but damages are reduced in proportion to the extent of negligence attributable to the injured person.

Before RICHMOND , Associate Justice, MATA'UTIA, Associate Judge, and MAILO, Associate Judge.

Counsel: For Plaintiff, Charles V. Ala'ilima

  For Defendant, Gata E. Gurr

This is an action for damages for personal injuries. The [20ASR2d120] action was brought against both the American Samoa Government and Moananu Va. Defendant American Samoa Government's motion to dismiss for failure to state a claim was granted and trial proceeded against defendant Moananu Va only.

FINDINGS

The accident at issue in this action occurred on May 2, 1989, between 5:45 and 6:00 a.m., on the main public road immediately adjacent to the driveway into the old A & A Pizza restaurant in Malaeimi,American Samoa. The weather was clear and dry. It was after daybreak but it was not yet full daylight.

Plaintiff Paulo Alofipo, age 31, and his brother Kenny Alofipo, age 22, were jogging along the roadway at a moderately fast pace. Plaintiff was on the pavement at the right of the road. His brother was on the pavement at the left edge of the road, approximately 20 feet ahead of plaintiff.

They began jogging from the gymnasium at the Mormon Church to the west of the accident scene and were headed in an easterly direction. They jogged together regularly, starting at this point, turning southerly onto the unpaved road into Ottoville east of the accident location, and through Ottoville to the plaintiffs home--at the time behind Christina's nightclub near the airport runway.

Defendant Moananu Va, age 56, was driving an Isuzu Trooper, legislature vehicle No.6, in an easterly direction. He testified that he first saw plaintiff about 30 feet in front of his vehicle jogging on the right side of the pavement and plaintiffs brother jogging a few feet further ahead on the left side of the pavement. His headlights were not turned on. His speed was 15 to 20 miles per hour, and he did not slow down after observing plaintiff and his brother. He did not sound his horn.

Defendant testified that he moved his vehicle left towards the center of the road, there being no oncoming traffic, to avoid plaintiff and his brother. He further testified that when he was tour or five feet from plaintiff, plaintiff suddenly started to cross the road in front of his vehicle. Plaintiff denies making any movement to his left at this point in the events.

Defendant's vehicle, at 15 to 20 miles per hour, was moving 22 to 29.33 feet per second. Given this speed it is improbable that plaintiff [20ASR2d121] moved in front of the vehicle when he was only four to five feet ahead. Whether or not defendant moved his vehicle towards the center of the road upon first seeing plaintiff, his vehicle remained close to the right edge of the pavement and the right front headlight area struck plaintiffs left backside.

The blow uplifted plaintiff onto the hood of defendant's vehicle. He then collided with the vehicle's windshield and fell to the road. He was carried forward to the vicinity of plaintiffs brother, who had stopped when he became aware of his brother's predicament.

There is conflicting evidence on plaintiffs final exact location on the road and the relationship of this location to plaintiffs brother and defendant's vehicle. This spot, however, has minimal probative value. It may have resulted from numerous factors, unrelated and speculative to the relative locations between plaintiff and defendant's vehicle at the moment of impact. Witness credibility is not resolved on this basis.

The impacts rendered plaintiff unconscious. He was taken to the Government medical center at Fagaalu several miles away by defendant. While in defendant's vehicle, plaintiff said "Thank God I'm still alive" perhaps twice, and once apologized for not looking behind. However, he was dazed and in pain, and does not recall making these statements.

He next recalled being at the medical center at Fagaalu, feeling pain in right portions of his head, eye, brow and upper cheek, both knees, right rib and shoulder areas, and left thigh and left side of his back.

Plaintiffs scratches and bruises healed in about one month. He has permanent upper body scars. Muscle aches lasted, with therapy at the medical center once a week, until September 1989, when he was able to jog normally again. Inner right eye trauma took longer to heal and at times he still experiences blurred and double vision in this eye. His eyesight was normal before the accident.

A medical eye examination 45 days after the accident revealed a right eye cataract which may have resulted from the accident injuries. However, this consequence after 45 days is inconclusive. The examination did reveal vision impairment in both eyes.

Plaintiff’s medical expenses under the territorial health care program were $24. [20ASR2d122]

CONCLUSIONS

Several statutory standards of due care are applicable to the facts of this case. Driving a motor vehicle upon a public road in a "careless and imprudent manner without due regard for the width, grade, curves, corners, traffic, or other attending circumstances" is prohibited by A.S.C.A. § 22.0701. "Every driver of a motor vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway," and "shall give warning by sounding the horn when necessary." A.S.C.A. § 22.0406.

Pedestrians, on the other hand, are admonished, where there are no sidewalks, and when practicable, to "walk only on the left side of the roadway or its shoulder, facing traffic which may approach from the opposite direction." A.S.C.A. § 22.0403.

Defendant has breached the standard of due care stated in the first two of these statutes. Viewed as a whole, the preponderance of the evidence establishes that defendant was inattentive to plaintiff’s presence on the road until it was too late to take effective evasive action. It was light but not full daylight. His headlights were off. He failed to sound his horn. The affirmative evidence on the speed of his vehicle indicates he had less than one second to react after noticing plaintiff. Movement of his vehicle to the left may have been instinctive, but it was too little and too late. Defendant was negligent in operating his vehicle at the time and place of the accident.

Plaintiff was also negligent when he breached the third statutory standard of due care as he jogged on the right side of the road with his back turned to oncoming traffic.

But for the negligence of both parties, plaintiff’s injuries would not have occurred. Thus, the negligence of both parties proximately caused plaintiff’s injuries. Under A.S.C.A. § 43.5101, contributory negligence does not bar recovery, but damages are reduced in proportion to the extent of negligence attributable to the injured person. Applying the doctrine of comparative negligence in this case, the assessment of responsibility is placed on defendant at 75 percent and on plaintiff at 25 percent.

Special damages for medical expenses are $24. General damages, including pain and suffering and disfigurement, are $16,000. Apportioning the parties' respective responsibility, plaintiff is awarded [20ASR2d123] judgment against defendant for damages in the amount of $12,018.

It is so Ordered.

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Afoa v. Asi,


AFOA SANERIVE, Appellant/Appellee

v.

ASI KOKI, Appellee/Appellant

High Court of American Samoa
Appellate Division

AP No. 22-90
AP No. 23-90

March 12, 1992

__________

It is not the appellate court's function to decide factual issues.

The test for clear error is whether there is substantial evidence supporting the trial court's conclusions -not whether a dissatisfied litigant himself presented substantial evidence. [20ASR2d82]

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, MALAETASI,* Acting Associate Justice, LOGOAI, Associate Judge, and MAILO, Associate Judge.

Counsel: For Appellant/Appellee Afoa, Asaua Fuimaono

  For Appellee/Appellant Asi, Togiola T.A. Tulafono

  For Objector Meleisea, Utu Sinagege Morris

  For Objector Tulifua Family, Tauese P.F. Sunia

Afoa Sanerive surveyed 3.43 acres of land in the village of Taputimu and offered the same for registration as the communal property of the Afoa family. His claim attracted the objections of others in Taputimu, including the Asi family, the Meleisea family, and the Si'i family. The Asi family also surveyed their claim, which roughly incorporates about half of Afoa's claim. The resultant area of dispute between these two families encompasses an area of approximately 1.72 acres which is bisected by a secondary road referred to below as the Taputimu "loop road."

The trial court, while noting that "neither party had presented a particularly compelling case," slip op. at 3, found the evidence preponderating in favor of the Asi family with respect to that portion of the overlap west of the loop road's median line (referred to below as the "strip"), and in favor of the Afoa family with respect to the remainder. Afoa and Asi both appeal these conclusions. The court also rejected Afoa's claim insofar as it extended beyond that section of the loop road where it converges with the main Taputimu-Vailoa highway to the west- northwest. It appeared to the court that this part of Afoa's survey encroached onto land belonging to the Meleisea and/or Si'i family. Afoa additionally appeals this aspect of the decision.

These are essentially appeals on the court's findings of fact, which findings may not be set aside except for clear error. A.S.C.A. § 43.0801(b). Afoa contends that the decision below was clearly erroneous because the "preponderance of the evidence clearly favors [his] side," and that the trial court "failed to give proper consideration to a previous judicial determination." He claims that his testimony about the boundary [20ASR2d83] location was more "clearly" presented while Asi's key witness, his son Filiva'a, was, on the other hand, vague and uncertain.(1) Similarly, the Asi family assigns error--arguing that their side had given "accounts of plantations and cultivations" on the area west of the strip even prior to the time Afoa made use of the area; that this evidence demonstrates "original and continuous occupation," while Afoa, on the other hand, failed to produce such evidence. They further argue that the court's use of the loop road as a boundary between them and Afoa was arbitrary and without evidentiary foundation.

We first note that it is not the appellate court's function to decide factual issues de novo. Indeed, where credibility is at issue, due deference must of necessity be given to findings of the trial court who had the opportunity to observe and listen to live witnesses. T.C.R.C.P. 52(a); In re Matai title "Tauaisafune", 6 A.S.R.2d 59 (1987); National Pac. Ins. Co. v. Otto, 3 A.S.R.2d 94, 95 (1986). At the same time, the findings of the court, for which there is substantial evidence on the record, will not be disturbed although the record might also reflect that substantial evidence was given in support of the appellant's position. Suapilimai v. Faleafine, 9 A.S.R.2d 16 (1988). Thus, "[w]hether or not a dissatisfied litigant had himself presented substantial evidence is not . ..the test for clear error. Rather, the question is whether there was substantial evidence to support the trial court's conclusions." Moea'i v. Alai'a, 12 A.S.R.2d 91, 93 (1989).

After reviewing the record below, we are satisfied that there was substantial evidence on the record to support the trial court's findings. It seems clear from the judgment below that the court looked to corroborative indices of actual use and occupation given the contradictory testimony. Asi's version appeared to be more likely with regard to the strip; his family's claim to use and occupation was partly supported by the fact that the strip contained the curtilage of one of their family homes.(2) [20ASR2d84]

On the other hand, Atoa's claim to the remainder of the overlap--to the land east of the loop road--was corroborated by his acknowledged use of this area; he not only raised chickens in this vicinity but he also allowed a third party have a plantation in this area for a number of years. The attempts by the Asi family to explain this anomaly by way of permissive use was simply not convincing to the trier of fact. The court explained:

Although stranger things have happened, it does not impress us as very likely that Asi would have allowed another matai with plenty of his own land to build a chicken coop on Asi land....

Slip op. at 3. This is hardly clear error.

Additionally, Asi's complaint about the delineation of the boundary line along the loop road also fails to impress. The court's demarcation of the boundary as coinciding with the loop road is no more arbitrary than the Asi family's own use of another part of the road to delimit their asserted claim. The line was drawn by the court according to the extent of each party's possession. There is substantial evidence on record to sustain such a conclusion.

Finally, with regard to the objections of Meleisea and Si'i, the court had substantial evidence to find that Atoa's possession extended only up to the edge of the main road. Among other things, Meleisea's understanding of the boundary was corroborated by the understanding of other matai of Taputimu. Afoa's tavorable comparisons of his testimony against that of Chief Meleisea's also fails to impress.

We AFFIRM the judgment below.

It is so Ordered.

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* The Honorable Malaetasi Togafau, District Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

1. The senior matai of the Asi family, Asi Koki, was apparently infirm by the time of trial and not capable of testifying.

2. Afoa's reference to a "previous judicial determination," is, at best, desperate. The reference is to an interlocutory order of the land and titles division enjoining an Asi family member from the construction of a septic tank that "possibly... may be [sic] situated on [Afoa's] land." Afoa Sanerive v. Asi Sipusi, LT No.42-80, (Order entered Sept. 8, 1980) (emphasis added). This matter never went to trial but was dismissed without prejudice on June 22, 1989, upon Afoa's own motion.