21ASR2d

21ASR2d

Stevens v. Stevens,


FA'ALELEIAIGA STEVENS, Petitioner

v.

CHARLES STEVENS, Respondent

High Court of American Samoa
Trial Division

DR No. 72-91

May 27, 1992

__________

A foreign divorce decree was not recognized when (1) the decree was not properly authenticated, (2) the foreign jurisdiction lacked a legitimate interest in the parties' marital status, (3) the sole purpose of seeking a divorce in a foreign court was to evade American Samoa's laws, and (4) the divorce proceedings were ex parte and did not give reasonable notice to the defendant.

Acts of marital misconduct committed after separation may afford grounds for divorce.

Other things being equal, children of tender years should remain together and their custody given to the mother; other factors are a good home, congenial surroundings, and intelligent attention and direction in matters affecting the health, education, growth and development of the children.

Before RICHMOND, Associate Justice, MATA 'UTIA, Associate Judge, and LOGOAI, Associate Judge. [21ASR2d77]

Counsel: For Petitioner, William H. Reardon
For Respondent, Mary Frances Hackshaw

Findings of Fact and Conclusions of Law:

The above-entitled cause came on regularly for trial on April 27, 1992. The Court heard testimony and received other evidence, and the cause was submitted for decision. The Court, having considered the evidence, finds as follows:

FINDINGS OF FACT

1. Both parties have been bona fide and continuous residents of American Samoa for at least one year next preceding the commencement of this action on October 4, 1991.

2. The parties were married on May 27, 1983, and they have continued to be husband and wife since that date. Apparently, respondent did obtain a divorce from petitioner on January 20, 1992, in the State of Tabasco, Republic of Mexico. We presume for discussion that this divorce was valid under the laws of Tabasco. However, it cannot be recognized in American Samoa for several reasons.

First, the decree has not been properly authenticated. It lacks a final certification of the genuineness of the signature and official position of the court clerk who purportedly signed the decree, as required by the Rules of Evidence, Rule 902(3).

Second, it does not appear that Tabasco or Mexico had any legitimate interest in the marital status of the parties. The Tabasco decree does not show the physical presence of either party in Mexico, let alone Tabasco, which is in the lower southeast part of Mexico. Respondent testified to spending two days in Tijuana, Mexico, where he arranged for the divorce. Tijuana is in the extreme northwest corner of Mexico. Both parties are clearly bona fide residents of American Samoa. Residents cannot step across an international boundary as casual visitors and bring back a divorce decree worthy of any consideration here. McElhatten v. McElhatten, 159 Cal. App. 2d 136, 323 P .2d 500 (1958). [21ASR2d78]

Next, recognition of a foreign divorce decree should not be permitted when the sole purpose of seeking the divorce in a foreign court is to evade the laws of American Samoa. See the concurring opinion in Scott v. Scott, 51 Cal. 2d 249,331 P.2d 641 (1958). Respondent obtained the Mexican divorce after this action was filed, after this Court issued orders pendente lite, and while he was admittedly committing adulterous conduct. He ostensibly remarried immediately. His evasive purpose is evident.

Lastly, also very important, recognition of a foreign divorce decree should be withheld when the divorce proceedings are held ex parte without reasonable notice to the defendant. See Scott v. Scott, supra (concurring opinion). There may have been service of process over petitioner under the laws of Tabasco, but the nature of that service is not set forth in the decree. There is no evidence that petitioner received actual or legitimate constructive notice of the Mexican proceedings, participated in them, or had any real opportunity to do so.

3. The parties separated in February 1991, and they have not lived together as husband and wife since their separation.

4. Three children are the issue of the marriage:
Jerry Stevens, male, born March 26,1984;
Charles Stevens, Jr., male, born March 6, 1986;
Popi Stevens, male, born January 25, 1988.

5. Petitioner testified to respondent's admission to her of committing adultery before the parties separated. Respondent testified to committing adultery in August 1991 and in January and February 1992. Acts committed after separation may afford grounds for divorce. Palmanteer v. Palmanteer, 11 Cal. 2d 570, 81 P.2d 910 (1938). We find that respondent committed adultery both before and after the parties' separation. We also find that the evidence is insufficient to establish respondent's allegations of adultery and habitual cruelty or ill usage by petitioner .

6. Both parties are fit and proper persons to have the care, custody and control of the minor children of the parties. However , other things being equal, children of tender years should remain together and their custody given to the mother. The mother is the natural custodian of her young. There is no satisfactory substitute for her love. Washburn v. Washburn, 49 Cal. App. 2d 581, 122 P.2d 96 [21ASR2d79] (1942). Other things to be weighed and considered are a good home, congenial surroundings, and intelligent attention and direction in matters affecting the health, education, growth and development of the children. Bemis v. Bemis, 89 Cal. App. 2d 80,200 P.2d 84 (1948). The children of the parties, who are ages 8, 6 and 4, respectively, will have equal advantages in the home of petitioner, who has demonstrated her ability and willingness to perform her maternal duties properly. Thus, the care, custody and control of the children should be given to petitioner, subject to respondent's visitation rights at all reasonable times.

7. Petitioner and the minor children of the parties need support. We have analyzed petitioner's financial statement and respondent's financial records and tax returns for the business carried on by The Record Store, Inc. , which he manages, as well as both parties' testimony, to determine a reasonable level of support. It is clear that petitioner's accustomed standard of living for herself and the children cannot be maintained. Accordingly, we have made some downward adjustments to the monthly budgetary amounts set forth in her financial statement. Assuming respondent continues to make the mortgage payments on the family home, loan payments on the vehicle used by petitioner, and the children's tuition at a private school, as he has been doing, we find that a reasonable amount of support is $370 per week. Taking into account petitioner's net weekly salary from her employment with Hawaiian Airlines of approximately $70, respondent must pay $300 per week to make up the difference. Petitioner also has attorney's fees and costs to pay in this action. At the time of trial, her attorney's fees were $1,700, which is a reasonable amount.

Since respondent's income is dependent upon the sales made by his business, which necessarily varies from time to time, his ability to pay support is not as susceptible to such precise analysis. However, the growth of his business has averaged about 5 percent per year, setting aside the first year of the business, which he opened in 1978, and an operational loss in 1991. Business this year through March 31 has been reasonably good. His annual salary is $26,000. The business provides the additional funds to make the house loan, vehicle loan and tuition payments. We find that respondent has the ability to provide $300 per week for the support of petitioner and the minor children, and to pay petitioner's attorney's fees and costs in this action. [21ASR2d80]

Child support should be separately stated at $75 per week per child, and spousal support at $75 per week.

8. Property at issue in this action includes the family home in Ili'ili, American Samoa; a 1991 Ford Explorer motor vehicle; shares of stock in The Record Store, Inc. ; a bank account at the Bank of Hawaii, American Samoa Branch, into which insurance proceeds covering damage to the family during Hurricane Val in December 1991 were deposited; furniture and furnishings; and clothing and other personal effects.

The family home should be transferred to petitioner to provide a home for herself and the minor children of the parties.

The Record Store, Inc. is the registered owner of the 1991 Ford Explorer. However, since this is closely held family business and petitioner needs the vehicle for the transportation of herself and the minor children, this vehicle should be transferred to petitioner as the registered owner at this time and as the legal owner when the loan for its purchase is fully paid.

Since petitioner no longer has any operational interest in The Record Store, Inc. , except to the extent successful operation of the business is essential for the support of herself and the minor children of the parties, her shares of stock of the corporation should be transferred to respondent.

The funds in the bank account should be used for their intended purpose of repairing the family home. If any funds remain after the repairs are completed, they should be used to reduce the principal amount of the mortgage on the family home.

Each party should retain the furniture and furnishings and the clothing and personal effects now in their respective possession as the owner of such property.

9. The debts of the parties include the mortgage on the family home and the purchase loan on the 1991 Ford Explorer motor vehicle. The tuition of the minor children of the parties must also be paid, so long as the children are enrolled in a private school. Respondent should be required to continue making the two loan payments and to hold petitioner harmless from these debts. He should also be required to continue making the tuition payments. [21ASR2d81]

10. Petitioner's maiden name is Mapo Niko.

CONCLUSIONS OF LAW

From the foregoing facts the Court concludes:

1. Petitioner is entitled to a divorce from respondent on the ground of respondent's adultery.

2. Petitioner is entitled to the care, custody and control of the minor children of the parties, subject ti respondent's visitation rights at all reasonable times.

3. Petitioner is entitled to receive from respondent $75 each week for the support of the three minor children of the parties and $75 each week as spousal support, a total of $300 per week, on Friday of each week, commencing May 29, 1992.

4. Petitioner is entitled to payment by respondent of her attorney's fees in the sum of $1,700 and costs in this action.

5. The property itemized in the Finding of Fact is subject to be divided between the parties by the Court and is divided as follows:

To petitioner: the family home in Ili'ili, American Samoa, 1991 Ford Explorer motor vehicle, furniture and furnishing in her possession, and clothing and other personal effects in her possession .

To respondent: Petitioner's shares of stock in The Record Store, Inc., furniture and furnishing in his possession, and clothing and other personal effects in his possession .

The bank account at the Bank of Hawaii, American Samoa Branch, should and shall be expended on repairs to the family home . Any funds remaining upon completion of the mortgage on the family home.

6. Respondent should ans shall be ordered to pay the mortgage loan on the family home and the purchase loan on the 1991 Ford Explorer motor vehicle, and to hold petitioner harmless therefrom, and to pay the tuition of the minor children of the parties, so long as they are enrolled at a private school. [21ASR2d82]

7. Petitioner is entitled to the restoration of her maiden name Mapo Niko upon entry of the decree of divorce.

It is ordered that judgment will be entered accordingly.

*********

21ASR2d71


RUMINA SUAFOA SESEPASARA, Petitioner

v.

MALEPELEPE SESEPASARA, Respondent.

High Court of American Samoa
Trial Division

DR No. 11-92

May 21, 1992

__________

Before RICHMOND, Associate Justice, MATA`UTIA, Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Petitioner, Robert A. Dennison III
For Respondent, Afoa L. Su`esu`e Lutu

The above-entitled cause came on regularly for trial on April 27, 1992. The Court heard testimony and received other evidence, and the cause was submitted for decision. The Court, having considered the evidence, finds as follows:

FINDINGS OF FACT

1. Both petitioner and respondent have been bona fide and continuous residents of American Samoa for at least one year next preceding the commencement of this action on January 27, 1992. [21ASR2d72]

2. The parties were married on December 24, 1981, in Reno, Nevada, and they have continued to be husband and wife since that date.

3. The parties separated on January 26, 1992, and they have not lived together as husband and wife since that date.

4. Three children are the issue of the marriage:

Francis Sesepasara, male, born March 19, 1982
Faatuiese Sesepasara, female, born March 22, 1983
Malepelepe Sesepasara, Jr., male, born April 30, 1986

5. Respondent committed adultery in the fall of 1991, from which he contracted and transmitted to petitioner a venereal disease. Later, in December 1991, petitioner committed adultery during an off-island business trip. On December 15, 1991, respondent physically assaulted petitioner when she admitted her adulterous conduct. Sexual relations resumed thereafter, but ceased after respondent physically assaulted petitioner again on January 28, 1992. A third such assault occurred on March 8, 1992. Taken as a whole, this conduct also constituted habitual cruelty or ill usage towards petitioner. These ultimate facts are fortified by other events during the marriage.

When respondent committed adultery, this marriage had been under progressive stress and deterioration over a substantial period of time. This state of the marriage is indicated by such events as another physical assault by respondent against petitioner in 1986. Use of alcoholic beverages was involved in that incident, and it appears respondent was excessively intemperate during that era of the marriage. Throughout the marriage, petitioner, who is a civil engineer, has been the steady breadwinner of the family, while respondent has been unemployed for substantial periods. This reversal of traditional roles in a Samoan family has taken its toll of the marriage over time.

Two issues emerge. First, petitioner may have condoned respondent's misconduct. A.S.C.A. § 42.0207 provides: "Condonation may be presumed in all matrimonial actions and proceedings by the voluntary cohabitation of the parties with the knowledge of the offense charged." Renewed sexual intercourse is a strong indication of condonation. However, the key elements are genuine forgiveness of the misconduct and intent to start afresh. Passage of time is often quite significant. Wright v. Wright, 153 Neb. [21ASR2d73] 18, 43 N.W.2d 424 (1950). When condonation exists, earlier misconduct cannot be grounds for divorce. Kinek v. Kinek, 331 Mich. 54, 49 N.W.2d 58 (1951). Nonetheless, if the wrongdoer continues or revives his or her misconduct, condonation may be vitiated. Rentel v. Rentel, 39 Wash. 2d 729, 238 P.2d 389 (1951).

Under the rapidity of events from respondent's adultery in the fall of 1991 until the parties separated in January 1992, and his following misconduct, especially in a marriage moving towards, if not already at, the breaking point, we find that petitioner did not condone respondent's adultery, and certainly not the habitual cruelty or ill usage as the combined result of his adultery, disease transmittal, and three episodes of physical abuse in short order.

Second, the parties' respective acts of adultery may constitute mutual recrimination requiring denial of both the petition and counter petition for divorce. A.S.C.A. § 42.0206(a)(5); Lea'e v. Lea'e, 3 A.S.R.2d 51 (Tr. Div. 1986).

From a social viewpoint, recrimination as an absolute bar to divorce, as a sort of punishment for sins, is unjustified when the parties' conduct shows that continuation of the marriage will not result in a successful marital relationship.(1) The prospect of reconciliation, effect of the marital conflict on the parties and others, and comparative guilt are legitimate considerations in deciding how to apply the doctrine of recrimination. DeBurgh v. DeBurgh, 39 Cal. 2d 858, 250 P.2d 598 (1952). The provocative effect of one spouse's conduct on the other spouse's conduct may also be relevant. Steiger v. Steiger, 4 Utah 2d 273, 293 P.2d 418 (1956).

We find that the prospect of reconciliation in this marriage is very slight at best. Continued physical violence seems inevitable. The children will unduly suffer under these circumstances. The [21ASR2d74] marriage is essentially discredited. The gravity of respondent's adultery and recent pattern of physical violence substantially outweighs the seriousness of petitioner's singular adulterous incident. It appears his adultery even provoked her misconduct. There is no justifiable basis for applying the doctrine of recrimination to prevent dissolution of this marriage.

The DeBurgh decision, similarly to judicial decisions or legislative action in many American jurisdictions, H. Clark, Law of Domestic Relations, § 12.12 (1968), interjected judicial discretion to determine just results when both spouses are guilty of grounds for divorce. However, Deburgh involved interpretation of the phrase "in bar" in a statute providing that "[d]ivorces must be denied upon * * * a showing by a defendant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause of divorce " (emphasis added), as requiring judicial determination of whether misconduct by a petitioning spouse should prevent dissolution of a marriage. DeBurgh also pointed out that striking "in bar" would show clear legislative intent to make recrimination an absolute defense.

A.S.C.A. § 42.0206(a)(5) requires denial of a divorce if upon the evidence the Court finds "that the petitioner is guilty of any of the grounds for divorce." This is the language of an absolute defense as recognized by DeBurgh.

As much as we consider A.S.C.A. § 42.0206(a)(5) out of step with sound public policy, we are bound to apply its directions as written. Any change in this law is the province of the Legislature of American Samoa. Thus, we find that both parties are barred by recrimination from obtaining a divorce from each other.

6. Although territorial law precludes the grant of a divorce to either party in this case, the Court has authority in equity to issue orders on the care, custody and control of the minor children of the parties, and on both child and spousal support while the parties are separated. Atwood v. Atwood, 229 Minn. 333, 39 N.W.2d 103 (1949); Subrt v. Subrt, 275 Wis. 628, 83 N.W.2d 122 (1957); Sovereign v. Sovereign, 354 Mich. 65, 92 N.W.2d 585 (1958). Custody and support in this case do not involve and, therefore, do not derogate the territorial juvenile justice laws, A.S.C.A. § 45.0101 et seq. The statutory provisions on custody and support when a divorce is granted, A.S.C.A. §§ 42.0209 and 42.0210, also do not prohibit such orders when a divorce is not granted. See Sovereign v. [21ASR2d75] Sovereign, supra. We find that it is necessary to provide for these matters in this action.

7. Both parties are fit and proper persons to have the care, custody and control of their minor children, who as of the date of trial were ages 10, 9 and 5 respectively. Respondent has had substantial opportunity, particularly during the periods of his unemployment, to care and control the children and has performed these responsibilities reasonably well. Petitioner has also provided a suitable home, and intelligent attention and direction in matters affecting the health, education, and growth and development of the children. Other things being equal, as they are in this case, younger children should remain together with their mother. There is no satisfactory substitute for a mother's love at the stage of development of the children in this case. We find that it is in the best interests and welfare of these children to place their custody with petitioner, subject to respondent's visitation rights at all reasonable times.

8. Petitioner is a professional engineer and is reasonably capable of supporting herself. Respondent has been gainfully employed and is reasonably capable of supporting himself. Thus, neither party requires spousal support by the other party.

The minor children of the parties need support by both parties. Respondent is reasonably capable of providing support for his children in the amount of $100 per child per month, a total of $300 per month.

Both parties are reasonably capable of paying their respective attorney's fees and costs in this action.

From the foregoing facts, the Court concludes:

CONCLUSIONS OF LAW

1. Neither petitioner nor respondent is entitled to divorce from the other party.

2. Petitioner is entitled to the care, custody and control of the minor children of the parties, and respondent is entitled to reasonable visitation rights. [21ASR2d76]

3. Petitioner is entitled to receive from respondent $100 each month for the support of the minor children of the parties, a total of $300 per month, commencing in June 1992.

4. Neither party is entitled to spousal support from the other party.

5. Neither party is entitled to attorney's fees or costs from the other party.

**********

1. Recrimination originated as a property rule in Roman law dealing with dowry rights on dissolution of a marriage. Later, in English law at a time when only legal separation and not divorce was recognized, it was extended to govern spousal support issues. American divorce statutes and interpretations of ecclesiastical law as part of the common law of divorce transformed recrimination from a defense in separation actions into a bar to absolute divorce. H. Clark, Law of Domestic Relations, § 12.12 (1968).

Luki; American Samoa Gov’ t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

FAGAVAO LUKI, aka FUNKY, and AZIZA PRITCHARD, 
aka CHEEZE, Defendants

High Court of American Samoa 
Trial Division

CR No. 15-92 
CR No. 16-92

May 28, 1992

__________

A defendant was not illegally taken into custody without a warrant when he voluntarily agreed to a police officer's request to go to the station for questioning. [21ASR2d85]

A bill of information using the language of the criminal statute is sufficient as long as the statute sets forth all of the elements constituting the offence.

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

Counsel: For Plaintiff, Donald M. Sheehan, Assistant Attorney General 
For Defendant Luki, Barry I. Rose, Assistant Public Defender 
For Defendant Pritchard, Robert A. Dennison III

On Motion to Suppress, Dismiss and Sever:

Defendant Aziza Pritchard moves to suppress "defendant's statements, scientific evidence or test results and other evidence obtained as a result of an illegal search, detention and/or arrest of the defendant"; to dismiss the information for want of specificity; and to sever (T.C.R.Cr.P 14).

I. Motion to Suppress

The grounds for this motion are twofold: 1) that on March 8, 1992, the defendant was illegally taken in to custody by Police Officer Analoi Suamataia without a warrant and that, therefore, the statements which he subsequently gave at the police station shortly thereafter were fruits of that unlawful seizure and excludable under Rev. Const. Am. Samoa Art. I, §5;(1) and 2) that these statements were obtained from the defendant in violation of his right to counsel. [21ASR2d86]

The evidence did not bear out a situation of arrest. Rather , the defendant acceded, in the presence of family members, to Officer Suamataia's request to go with him to the station for questioning. We find no Art. I, § 5 basis to the motion.

Defendant also argues that he had invoked his right to counsel and that Officer Suamataia should therefore not have questioned him until counsel was present.(2) Assuming arguendo that a situation constituting "custodial interrogation," within the rule of Miranda v. Arizona, 384 U.S. 436 (1966), had arisen at the police station, we find nothing on the evidence to suggest that the defendant had ever requested counsel. Rather, the evidence showed that before the defendant had left with officer Suamataia, the latter was advised by the defendant's sister that their family either had a lawyer or were going to obtain a lawyer for the defendant. At the station, officer Suamataia first gave the defendant the Miranda warnings, and the defendant then signed a written waiver of his rights. Subsequently he gave a statement. In these circumstances, we are not satisfied that the right to counsel was invoked. See Moran v. Burbine, 475 U.S. 412 (1986). The motion is denied.

II. Motion to Dismiss

The information charges the defendant with, among other things, the crimes of Sodomy, a violation of A.S.C.A § 46.3611, and Sexual Abuse in the First Degree, a violation of A.S.C.A. § 46.3615. The defendant argues that the information fails to state the "specific act or acts" the defendant is alleged to have committed which constitute "deviate sexual intercourse" or "sodomy" within A.S.C.A. § 46.3611, and which constitutes "sexual contact" within the meaning of A.S.C.A. § 46.3615. The information is couched in the language of the respective statutes. [21ASR2d87]

This very same motion was addressed by the court in Government of American Samoa v. Afamasaga, 17 A.S.R.2d 145 (Trial Div. 1990). There the Court said:

That a criminal charge is couched in the language of the statute, is
not, of itself, grounds for the dismissal of an information. It is settled 
law that an information using only statutory language is quite permissible
as long as the statute sets forth "fully, directly and expressly, without 
any uncertainty or ambiguity,... all the elements necessary to constitute
the offence intended to be punished." Hamlin v. United States, 418 
U.S. 87, 117-18 (1974). Furthermore, Rule 7(c) "does not mean that
the indictment must set forth facts and evidentiary details necessary to
establish each of the elements of the charged offence." United States 
v. Williams, 679 F.2d 504, 508 (1982), cert. denied 459 U.S. 1111.
There is a distinction between "a defendant's constitutional right to know
what offense he is charged with and his desire to know the evidentiary 
details of the prosecution's case." Id. at 509. See also United States v.
Crow, 824 F.2d 761 (1987).

Afamasaga, 17 A.S.R. 2d at 149-50. For reasons given in Afamasaga, we deny the motion to dismiss.

III. Motion to Sever

We exercise our discretion against the motion and thus deny the same.

It is so ordered.

**********

1. Rev. Const. Am. Samoa Art. I, §5, reads in pertinent part:

The right of the people to be secure in their persons... against unreasonable...
searches and seizures shall not be violated, and no warrants shall issue, but 
upon probable cause, supported by oath or affirmation,.... Evidence obtained
in violation of this section shall not be admitted in any court.

(emphasis added.)

2. In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the Supreme Court held that a suspect in custody must be informed of his right to remain silent and the right to confer with an attorney before or during interrogation. The Court's holding was premised on the Fifth Amendment's privilege against self-incrimination. The Court further held that if a suspect requests an attorney, the interrogation must cease until counsel is present. Id. at 474; see also Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

Luki; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

FAGAVAO LUKI, aka FUNKY, and AZIZA PRITCHARD, 
aka CHEEZE, Defendants

High Court of American Samoa 
Trial Division

CR No. 15-92 
CR No. 16-92

May 28, 1992

__________

Generally, an arrest, whether with or without a warrant, must be supported by probable cause. Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. § 46.0805(3).

A confession will be suppressed if the government fails to meet its burden of showing that probable cause for a warrantless arrest existed when it was made. Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. § 46.0805(3).

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

Counsel: For Plaintiff, Donald M. Sheehan, Assistant Attorney General 
For Defendant Luki, Barry I. Rose, Assistant Public Defender 
For Defendant Pritchard, Robert A. Dennison III

On Motion to Suppress: [21ASR2d83]

Defendant Fagavao Luki moves to suppress his confession made at the Fagatogo police station to Police Officer Analoi Suamataia on the morning of March 8, 1991. Among other things, Luki contends that he was arrested without a warrant and that his confession was obtained while he was unlawfully detained, in violation of his constitutional rights under Rev. Const. Am. Samoa Art. I, § 5.(1) The government relies on the provisions of A.S.C.A. § 46.0805(3), which authorizes a warrantless arrest "of persons found near the scene of a felony and suspected of committing it, where such suspicion is based on reasonable grounds and the arrest follows the crime by a short time."

The evidence shows that the defendant was taken into custody on the morning of March 8, 1992, and then later questioned. Officer Paulo Leuma testified that he and two other fellow officers from the village of Leone were instructed by Commander Poa'i Ripley to pick up the defendant, who is also a Leone villager. The officers did not have a warrant when they picked up the defendant, whom they found asleep at home. After he was first verbally warned of his Miranda rights, the defendant was then transported to the Tafuna sub-station where he was questioned by other officers.

Generally, an arrest whether with or without a warrant must be supported by probable cause. Giordenello v. United States, 357 U.S. 480 (1958); Wong Sun v. United States, 371 U.S. 471, (1963); see also Gerstein v. Pugh, 420 U.S. 103 (1975). The terms "probable cause" and "reasonable grounds" have been said, in the context of arrests, to be substantially equivalent in meaning. Draper v. United States, 358 U.S. 307 (1959). Furthermore, probable cause for a warrantless arrest must exist when the arrest is made, see United States v. Simon, 409 F.2d 474,475 (7th Cir. 1969), cert. denied, 396 U.S. 829; Washington v. United States, 414 F.2d 1119, 1122 (D.C. Cir. 1969); United States v. Rivera, 321 F .2d 704, 708 (2d Cir. 1963), and the government has the burden of showing probable cause. Wong Sun, supra; United States v. Rivera, supra, at 708.[21ASR2d84]

On the extent of the showing before us, we cannot say that [here was either probable cause or reasonable grounds for arresting the defendant. Save for Officer Leuma's statement that he had heard from someone at the sub-station that the complainant had been raped, the Court was not told anything about the circumstances leading up to this particular defendant's arrest. The decision to arrest the defendant was made by the ranking officer of the watch, Commander Ripley, not the arresting officer, Leuma. Commander Ripley was not called to testify and explain his reasons for ordering the defendant's arrest.

On the foregoing, we hold that defendant Luki's statements made to Lt. Suamataia at the Fagatogo police station on the morning of March 8, 1992, must be excluded, since the government has failed to show that the defendant was, at the time he made the statements in question, arrested and detained upon "probable cause," within the meaning of Rev. Const. Am. Samoa Art. I, § 5, or "reasonable grounds," within the meaning of A.S.C.A. § 46.0805(3). Won Sun, supra. Motion to suppress is granted.

It is so ordered.

*********

1. This provision--proscribing unreasonable searches and seizures-- tracks the language of the Fourth Amendment to the United States Constitution; however, it differs from its federal counterpart in that it additionally provides that "[e]vidence obtained in violation of this section shall not be admitted in any court."

Leiato v. Personnel Advisory Bd.,


TOLEAFOA T.V. LEIATO, Appellant

v.

PERSONNEL ADVISORY BOARD of
AMERICAN SAMOA GOVERNMENT, Appellee

High Court of American Samoa
Appellate Division

AP No. 15-90

April 29, 1992

__________

An agency's head may only reassign an employee involuntarily with the concurrence of the Director of Human Resources and with a finding that the reassignment be in the best interests of the government; failure to follow the regulatory standard is arbitrary and an error of law. A.S.C.A. § 4.1044(6); A.S.A.C. § 4.0804(b).

ASG regulations which set out those situations in which non-competitive procedures are applicable do not supersede the mandatory statutory requirement relating to the utilization of an applicant supply-file system for the hiring and promotion of government employees. A.S.C.A. §§ 7.0204(b), 7.0205(b), 7.0206; A.S.A.C. § 4.0303(b).

The Attorney General's Office may not simultaneously act as both counsel and legal advisor to a government agency. A.S.C.A. § 4.1034. [21ASR2d26]

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

Counsel: For Appellant, Togiola T .A. Tulafono
For Appellee, Arthur Ripley, Jr., Assistant Attorney General

This is an appeal from a decision of the Personnel Advisory Board (hereinafter the "PAB"), an administrative agency of the American Samoa Government.

FACTS

The facts giving rise to this dispute are as follows: Subsequent to a change in administration, the new Commissioner of Public Safety, Tuilefano Vaela'a, (hereinafter the "commissioner") issued on March 31, 1989, a memorandum styled "Personnel Order No, 13-89," which essentially reshuffled and reassigned 22 departmental employees ranging from the deputy commissioner to certain office secretaries. With respect to appellant, a career officer of some 34 years' standing, the memorandum stated that he was "relieved of his duties as DPS Advisor and ....reassigned as Commander for the Community Services Unit." The memorandum further stated that appellant was placed under the direct supervision of the Deputy Commissioner of Operations," one of two new management positions created and filled as the result of the subject memorandum. The new management posts were "Deputy Commissioner for Operations," and "Deputy Commissioner for Administration." The former was assigned to Commander Douglas Jessop, a career officer, while the latter position was assigned to Michael Fuiava, a training coordinator with the Territorial Emergency Management Coordinating Office.

The memorandum's operative effect on appellant was to place him one step down the department's organizational ladder. Whereas he previously reported directly to the commissioner, he was now to report to an intermediary deputy commissioner for operations. The reorganization, however, did not affect his police rank of commander nor his salary grade (GS-14, Step 10). [21ASR2d27]

PROCEDURAL HISTORY

After receiving a copy of the reorganizing memorandum, appellant filed his grievance letter with the commissioner on April 5, 1989. He protested, among other things, his being "demoted ...to a lower assignment," his reporting to a supervisor over which he had senior status, and the creation and filling of two new managerial positions in violation of the merit-system law, which regulates job advancement in the government career service.

After a departmental grievance-review committee had decided that it could not objectively arrive at a resolution to the grievance, the Director of Human Resources (hereinafter the "director") took up the matter pursuant to A.S.A.C. § 4.0903(b)(2). In a letter dated June 26, 1989, to appellant's counsel, the director documented his decision. He rejected appellant's demotion contention since the Administrative Code, A.S.A.C. § 4.0233, defined "demotion" in terms of a cut in pay; he upheld the commissioner's reorganization of the department, resulting in appellant's reassignment, as being "in compliance with the [sic] ASAC 4.0804 which gives the Agency head the right to reassign or to move any employee involuntarily from one position to another"; he dismissed appellant's complaint about reporting to an officer over which he had seniority as being without any legal foundation; and he found that appellant's allegation of political victimization was unsupported by the evidence. On the third aspect of the grievance, the director also declined to "question the Commissioner's decision in the creation of the additional Deputy Commissioner position [sic] as a result of the new DPS reorganization" and upheld the filling of the position of deputy commissioner for operations by Commander Jessop as being consistent with the non-competitive promotions procedure set out in A.S.A.C. § 4.0303(b). However, with regard to the appointment of Michael Fuiava, the director stated that he was "rescinding" this appointment since it was not in accordance with requirements of A.S.C.A. § 7.0206 and A.S.A.C. § 4.0304. By separate letter dated July 6, 1989, the director notified the commissioner accordingly.

Appellant, pursuant to A.S.A.C. § 4.0903(b)(3), appealed to the P AB on the issues of his "practical demotion" and the advancement of Commander Jessop. The PAB hearing record before us appears to be that of a second proceeding reconvened on advice from the Attorney General's Office (hereinafter the" Attorney General"). It seems that the Attorney General developed doubts as to whether the initial proceedings had satisfied the requirements of A.S.C.A. § 4.1026, relating to [21ASR2d28] appellant's right to be heard, and he recommended that the matter be reopened. These procedural due process concerns of the Attorney General acted an additional procedural due process challenge from the appellant. The second hearing opened with a motion by appellant objecting to the Attorney General's continuing representation of the director while it was, at the same time, acting as legal advisor to the PAB. The presiding chairman ruled against the motion, stating that the PAB, like every other executive board, had the attorney general as its legal advisor. On the issues, the PAB: 1) affirmed the director on the demotion issue but recommended a clarification to the department's organizational chart to more clearly depict appellant's position; 2) concluded that the commissioner's reorganization of the department, and hence appellant's reassignment, was lawfully done in accordance with the provisions of A.S.A.C. § 4.0804; 3) concluded that the filling of the new of director for operations was consistent with the Administrative provisions dealing with the non-competitive filling of vacancies; and 4) affirmed the director's ruling that the position of deputy commissioner for administration had to be filled through competitive procedures.

Appellant, pursuant to the Administrative Procedures Act, A.S.C.A. § 4.1040, filed for judicial review of certain aspects of the PAB's decision .

DISCUSSION

Appellant's first argument is that the PAR's decision was erroneous in that it had failed to address whether his reassignment "was with the best interests of the government as the primary objective," a requirement of A.S.A.C. § 4.0804(b). Alternatively, appellant contends that withstanding A.S.A.C. § 4.0804(b), he was "demoted to a lesser " or was "operationally reduced to a position of lower rank," in violation of policy objectives of the career-service laws.

We find appellant's demotion argument to be without foundation, and we agree with the PAB that appellant was "reassigned" (1) and not [21ASR2d29] "demoted." (2) However, we are also satisfied that the PAB's conclusion on reassignment was premised on a misreading of applicable regulation. This conclusion reads in pertinent part:

[Appellant's] reassignment. ..was legally done in accordance
with Section 4.0804 entitled "Involuntary Reassignment, "
ASAC. This section empowers any agency head/Director to
move any employee involuntarily, without the right of appeal,
provided that no reduction in grade or rate of compensation
is involved.

In the Matter of the Appeal of Toleafoa T.V. Leiato, PAR (1989) "Findings of Facts, Conclusions and Order,", at 3 (entered Nov. 4, 1989) (emphasis added). Contrary to the PAB's view, A.S.A.C. § 4.0804 does not purport to grant the commissioner, nor any other agency (3) head for that matter, the singular authority to reassign employees involuntarily. Rather, involuntary reassignment requires the concurrence of the "director," A.S.A.C. § 4.0804(b), which term is defined in A.S.A.C. § 4.0237 as "the director of the office of manpower resources [now known as the department of human resources, see A.S.C.A. § 4.0301(a)(11)]. " Furthermore, the Administrative Code talks elsewhere about the "lateral movement" of employees in terms of a "reassignment" or "transfer." See A.S.A.C. 4.0313(b). This regulation further provides that "[a]11 lateral movements of personnel must be approved by the director [of human resources].... " Id. (emphasis added).The movement of personnel, therefore, is not within the exclusive province of an agency head such as the commissioner. Thus, the PAB's conclusion regarding appellant's involuntary reassignment was affected by error of law. A.S.C.A. § 4.1044(4).

Additionally, the "involuntary reassignment" of any employee is not without limitation. A.S.A.C. § 4.0804(b) requires that such an assignment be made with "the best interests of the government as the primary objective. " This regulation effectively sets out the standard for [21ASR2d30] involuntary reassignment; yet the PAB did not address this requirement, and it accordingly failed to make a finding on whether or not appellant's reassignment was consistent with "the best interests of the government as objective." Id. Since the PAB arrived at its decision upholding the director without regard to this regulatory standard, its decision was also necessarily arbitrary. A.S.C.A. § 4.1044(6). This, too, was an error of law. The regulations are quite clear; the commissioner's authority with regard to the "involuntary reassignment" of an employee is neither singular nor untrammelled.

Appellant's next argument is yet another attempt at his demotion .He claims that the reassignment regulations are somehow repugnant to the overall objectives of the merit-system law because they can be used as the commissioner did here, to circumvent "procedural and substantive rights" statutorily provided. Appellant alludes to A.S.C.A. §§ 7.0801 through 7.0806. These enactments, however, set out the procedural requirements applicable in cases relating to demotion, suspension, and termination, but not reassignment. Appellant was not demoted since he did not receive a cut in salary, see A.S.A.C. § 4.0233, and obviously he cannot invoke the procedural safeguards attendant to actions by simply calling his "reassignment" a "demotion."

On the advancement of Commander Jessop, the PAB ruled that the newly created post of deputy commissioner for operations was filled through non-competitive filling procedures and that Commander Jessop was lawfully promoted in accordance with the provisions of A.S.A.C. § 4.0303(b). These regulations, however, touch on only one aspect of the statutory scheme relating to government hiring objectives.

The Fono has declared "that all appointments and promotions to positions in the career service shall be made solely on the basis of merit, fitness, and , length and quality of previous service." See A.S.C.A. §7.0204(a). Whenever practical, the criteria of "merit and fitness" are to be ascertained "by competitive examinations," but at the same time due "recognition is to be given "to practical experience...and probable aptitude for learning while on the job. " A.S.C.A. § 7.0204(b). Where competitive examinations are not practical, A.S.C.A. § 7.0206(c) provides that "applicants for employment shall be subject to an applicant supply file system established and administered by the director of manpower resources." (emphasis added). In such instances where competitive examinations are not given, the director, "upon receipt of an request from a department head....to fill a vacancy in the service on a permanent basis[,] ...shall certify to the [requesting [21ASR2d31] department head] ...5 candidates. ..from an applicant supply file whom the director of manpower resources considers to be best qualified by virtue of experience and/or training." A.S.C.A. § 7.0206(d) (emphasis added). The statute further provides that "[i]n no instance will a government official allow an employee to enter on duty unless he has been assured by the director of manpower resources. ..that the appointment action has been approved." A.S.C.A. § 7.0206(e).

The regulations which the PAB exclusively relied upon, A.S.A.C. § 4.0303(b), merely set out those situations in which non-competitive procedures are applicable. In other words, the subject regulations attempt to identify certain situations where competitive examinations are to be considered "not practical." A.S.C.A. §§ 7.0204(b), 7.0205(b). The regulations, however, do not and cannot supersede the mandatory statutory requirement relating to the utilization of an applicant supply-file system for the hiring and promotion of government employees. See A.S.C.A. § 7.0206. It seems clear that the PAB read these regulations out of context and, in so doing, it entirely overlooked other applicable statutory considerations in assessing the propriety of Commander Jessop's promotion. We accordingly conclude that the PAB's decision supporting the advancement of Commander Jessop was affected by error of law.

Appellant's final contention is that he was deprived of his procedural due-process rights before the PAB since its legal advisor, the Attorney General, was also counsel for the director. We agree. A.S.C.A. § 4.1034 statutorily prohibits such dual representation. The statute specifically states that

[n]o officer, employee, or agent engaged in the performance
of any investigative or prosecuting function of an agency in a
contested case may, in that ...case, participate or advise in
any final or recommended agency decision.

Clearly, by acting as the PAB's legal advisor, the Attorney General violated this proscription.

For reasons given, we conclude that appellant's substantive rights have been prejudiced, and in accordance with A.S.C.A. § 4.1044, we remand the matter to the Personnel Advisory Board for further proceedings consistent with this opinion. [21ASR2d32]

It is so ordered.

*********

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

1. A.S.A.C. § 4.02114 defines "reassignment" as the "movement of an employee from one position to another position in the same class or grade or from one position to another position in a different class at the same grade."

2. A.S.A.C. § 4.0233 defines "demotion" as the "change of an employee from a position in 1 class to a position in another class having a lower salary range."

3. The term "agency" includes government departments. See A.S.A.C. § 4.0209.

In re Matai Title “Fonoti”,


TAFA'IFA FONOTI MALAU'ULU, Claimant

v.

FOFO LOKENI, FIATOA FIATOA, JR., Counter-Claimants

[In the Matter of the Registration of the 
Matai Title "FONOTI" of the Village of Tafuna]

High Court of American Samoa 
Land and Titles Division

MT No. 7-91

June 30, 1992

__________

A sister of the last titleholder was a generation ahead of his daughter and so prevailed on the hereditary-right criterion under the Sotoa rule.

Before KRUSE, Chief Justice, T AUANU'U , Chief Associate Judge, VAIVAO, Associate Judge, LOGOAI, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Claimant, Asaua Fuimaono 
For Counter-Claimant Fofo, Afoa L. Su'esu'e Lutu

The parties before the Court are Tafa'ifa F. Malau'ulu and Fofo Lokeni; candidate Fiatoa Fiatoa Jr. had passed away before the time of trial. (1) With regard to the four criteria set forth in A.S.C.A. § 1.0409(c), the Court makes the following findings:

I. Hereditary Rights

Tafa'ifa Fonoti Malau'ulu (hereafter "Tafa'ifa") and Fofo Fonoti Lokeni (hereafter "Fofo") are respectively the daughter and sister of the last titleholder, Fonoti Aufata. Fonoti Aufata succeeded his father Fonoti Vili, whose connection to the title was through [21ASR2d114]marriage. In these circumstances, we hold that Fofo prevails on this criterion since she is a generation ahead of Tafa'ifa. See In re Matai Title "Sotoa", 2 A.S.R.2d 15 (Land & Titles Div. 1984).

II. Support of the Clans

The parties agree that there are two customary clans of the Fonoti family--Saveuteuga and Siauloto. While the evidence established that each candidate had some clan support, the evidence does not preponderate in favor of a conclusion that either had secured a majority of clan support. A very large number of family members supported the claim to succession filed with the Territorial Registrar by the decedent, Fiatoa Fiatoa, Jr. Although the decedent's sister, Tapunu'u F. Ah Soon, testified that she and her siblings were in support of their aunt Fofo's bid to succession, the evidence was not clear on the wish of those other remaining family members who supported Fiatoa's candidacy. We find that neither candidate prevails on this criterion.

III. Forcefulness, Character, Personality, and Knowledge of Samoan Custom

On the third criterion, we find Tafa'ifa to be the more forceful personality. At 49 years of age, Tafa'ifa is young and ambitious; she has also led an active and leading role in the affairs of the church. Fofo, now 76 years of age, and her husband are now enjoying a well-earned retirement after a long and dedicated ministry in Western Samoa. Although both candidates have displayed a good knowledge of family history, Tafa'ifa shows the more detailed familiarity with Samoan customs and traditions. On balance, we have rated Tafa'ifa ahead of Fofo with respect to this criterion.

IV. Value to Family, Village, and Country

The Court is satisfied that both candidates have in various ways rendered valuable service to the family and past matai and that they have each contributed significantly to village and country. However, we find that Tafa'ifa has the stronger credentials for family leadership. We have already found that she has the more forceful personal characteristics, and while Fofo possesses the experience for judgment that comes with maturity, Tafa'ifa nonetheless has a sufficiently sound background of learning, both in terms of formal education and in terms of first-hand experience with family matters [21ASR2d115] and communal assets-among other things, Tafa'ifa was involved throughout her late father's protracted efforts to fend-off third-party claims to Fonoti-family lands.

From the foregoing, we hold that Tafa'ifa is qualified to succeed the title Fonoti. Although Fofo has the better hereditary claim to entitlement, Tafa'ifa prevails on the third and fourth criteria, with both parties being roughly equal on the second. The Territorial Registrar shall accordingly register the title Fonoti in candidate Tafa'ifa Fonoti Malau'ulu, in accordance with the requirements of A.S.C.A. §1.0409(b).

It is so ordered.

**********

1. We denied a motion by Mrs. Tapunu'u F. Ah Soon, the decedent's sister, seeking to intervene on behalf of her side of the family.

In re Matai Title “Atiumaletavai”,


TOVEA A. TAELEIFI GALEA'I TUPA'I, Claimant

v.

SUAFALA TAVAI, FAOATO FUA TUPUA, and 
ATOA S. SIPILI, Counter-Claimants

[In the Matter of the Matai Title "ATIUMALETAVAI" 
of the Village of Pago Pago]

High Court of American Samoa 
Land and Titles Division

MT No. 9-91

May 28, 1992

__________

The High Court will make findings of fact on the statutory criteria in awarding a matai title when the family had an opportunity to reach a consensus but failed to do so. A.S.C.A. § 1.0409.

Before RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, MATA'UTIA, Associate Judge, LOGOAI, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Tovea A. Taeleifi Galea`i Tupa`i, Afoa L.S. Lutu
For Suafala Tavai, Tauese P. Sunia 
For Faoato Fua Tupua, Gata E. Gurr
For Atoa S. Sipili, Aitofele T. Sunia

"Atiumaletavai" is a matai title in the village of Pago Pago, Ma`oputasi County, American Samoa.

Tovea A. Taeleifi Galea`i Tupa`i (Tovea) offered the title for registration by the Territorial Registrar in her name. Three counterclaims were filed by Suafala Tavai, Faoato Fua Tupua, and Atoa S. Sipili. The matter was referred by the Registrar to the Office of Samoan Affairs and thence to the High Court.

The trial in this matter was heard by the Court May 12-14, 1992. The judges deliberated for three days on the evidence and arguments presented. The Court finds as follows: [21ASR2d89]

FINDINGS OF FACT

At trial, there was some concern reflected in the testimony over the matter of a candidate filing for registration of the title as the family was still trying to reach consensus. It was clearly indicated in the testimony of all candidates, however, that the family did indeed gather on two separate occasions for discussions prior to registration, and at the end of the second meeting no consensus was reached. In fact, this second meeting of the family broke up in complete disarray with open outbursts of candidate declarations from the various factions of the family present. The Court is satisfied, from the evidence presented, that the Atiumaletavai family had a complete opportunity to reach consensus at their second family gathering but obviously were not able to do so.

Although the Court is not persuaded on the merits of all the reasons stated by the filing candidate for registering the title immediately following the second family meeting, filing for registration when the family could not reach consensus is a sufficient reason on its own.

Pursuant to the considerations set forth in A.S.C.A. § 1.0409, the Court makes the following findings of fact regarding the four candidates for the "Atiumaletavai" title:

1. The best hereditary right.

The Court is convinced, from the evidence presented, that each of the candidates is of the fifth generation of a direct blood line tracing back to one common ancestor, Manu, who was the offspring of a holder of the title "Atiumaletavai."

Therefore, the Court cannot find that any candidate prevails over the others in this regard.

2. The wish of a majority or plurality of the clans.

While the number or names of clans listed in the questionnaires vary from one to three, it is apparent that each candidate has some clan support from a combination of two or three of them. Thus, candidate Tovea, supported by clans Simaie and Sitai with her list of over 160 names, prevails over the others in this regard. [21ASR2d90]

3. The forcefulness, character, and personality of the candidates 
and their knowledge of Samoan custom.

The Court finds that candidate Tovea clearly prevails in this regard. Her testimony at trial showed her knowledge of Samoan customs, and her career service record and involvement in community organizations, as well as her unselfish participation in activities that serve the public's interest at large, show her superior qualities of forcefulness, character, and personality.

4. The value of the holder of the title to the family, village, and country.

Here again, candidate Tovea prevails over the others. Her proven active participation in the family affairs, especially during the reign of the last two title holders, her genuine concern and open willingness to bear some major financial responsibilities on matters pertaining to the good health as well as some of the off-island medical expenses of the late title holder, and her continued support and maintenance of the family sa`o's `monotaga' in the village of Pago Pago, amply display the highest degree of devotion to her family. The fact that she has continually served the family and resided in Gataivai on "Atiumaletavai" communal land, and the leadership role she has played consistently on behalf of the "Atiumaletavai" family in village and government affairs, plus her 22 years of dedicated service to the American Samoa Government, clearly speak well of her high value to the family, village, and country.

CONCLUSIONS

Based on the foregoing findings, the Court concludes:

Tovea Tupa`i prevails over the other candidates on issues (2), (3), and (4), and she is therefore selected to be the title holder of the title "Atiumaletavai." The Territorial Registrar is directed to so register the title.

It is so ordered.

**********

Holland v. Haleck's Island Motors,


JACK and JOAN HOLLAND, Appellants

v.

HALECK'S ISLAND MOTORS and 
ROYAL INSURANCE COMPANY, Appellees

High Court of American Samoa 
Appellate Division

AP No. 6-91

June 16, 1992

__________

In a breach of bailment suit, a plaintiff must make a prima facie case that the bailed object was delivered and not returned; the burden then shifts to the defendant to show why the bailed object was not returned.

When the defendant stated that a prudent man would have obtained fire insurance for bailed property and when such insurance is custom in the industry, a duty to obtain such insurance existed, and the trial court committed clear error in finding that the bailee's failure to obtain insurance did not violate the prudent-man standard.

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

Counsel: For Appellants, Robert A. Dennison III 
For Appellees, John L. Ward II

GOODWIN, J.: [21ASR2d107]

This matter comes before the Appellate Division on an appeal from the Trial Division.

The Appellants ("the Hollands") left their car at Haleck's Island Motors ("Haleck's") for servicing. While the car was stored at Haleck's, a fire broke out, completely destroying the building and its contents. The Hollands' car V(as consumed by the fire as well.

The Hollands sued Haleck's, only to discover that Haleck's liability insurance was written to indemnify Haleck's for damages and loss caused by Haleck's negligence. The case went to trial on the Hollands' claims of negligence in allowing a fire to break out, in storing the car, and in failing to procure bailee insurance. The Hollands also sued on a breach of bailment theory. Royal Insurance Company ("Royal") was joined as a defendant after the Hollands learned that Royal was denying coverage for this particular claim.

After the Hollands rested, Haleck's moved for dismissal. The Trial Division denied that motion because the Hollands had proved a prima facie case. The court entered judgment for Haleck's, however, by an Opinion and Order of January 23, 1991, finding no negligence. The Hollands appeal that decision.

The Hollands have raised three issues to be reviewed: (1) whether the trial court wrongly applied the burden of proof; (2) whether the trial court's finding that Haleck's was not negligent was clearly erroneous; and (3) whether the trial court's finding that there was no duty to insure was clearly erroneous.

A. The Burden of proof

It is undisputed that the Hollands' prima facie case for breach of bailment was made when they showed that the car was delivered to Haleck's and that it was not returned. The burden then shifts to Haleck's to show why the car was not returned.

The Hollands argue that after they made their prima facie case, Haleck's had to prove that they were tree from negligence. Whether the bailor must show negligence or the bailee must show non-negligence is an unsettled area of the law. See generally Annotation, Presumption and Burden of Proof Where Subject of Bailment is Destroyed or Damaged by Fire, 44 A.L.R.3d 171 (1972). [21ASR2d108]

Haleck's case tended to prove that the cause of the fire was not electrical in origin and the cause remains unknown. Its case further showed that the fire spread exceptionally rapidly and that water was unavailable. A finding of non-negligence with reference to the fire was not clearly erroneous.

If the trial division had placed the burden of proving negligence on the Hollands once Haleck's had proved a "no-fault" fire, the Hollands failed to show that the rapid spread of the fire, the lack of water, or the unknown origin were a result of Haleck's negligence. Using either standard, the record would support a finding that the fire was not caused by Haleck's negligence.

B. The Finding of No Negligence

The standard used by the trial division in imposing liability on Haleck's for the loss of the property was the prudent-man standard, "that measure of care which 'ordinarily prudent men, as a class, would exercise in caring for their own property under like circumstances.' Garcia v. Galea'i, CA No. 41-87." The issue before the Court on this point was whether an ordinarily prudent man would have taken the precaution of insuring his own property against fire.

One might well expect an ordinarily prudent repairman to at least insure his customers' cars against fire on his premises. Haleck's failure to provide insurance suggests that Haleck's was not acting as an ordinarily prudent man. Nothing in the trial-division record satisfactorily explains why there was no insurance protection for property left with Haleck's.

A departure from the prudent-man standard is strongly suggested by the deposition testimony of Mr. Haleck, who testified to the following:

Q (by Mr. Dennison): Did you feel it was necessary for you as 
a prudent man to purchase insurance to 
cover this sort of loss? 
A (By Mr. Haleck): Yes.

In light of this testimony, the trial court's finding cannot be said to be well-supported, and we are left with a definite and firm conviction that a mistake has been made. When the defendant himself states that a[21ASR2d109] prudent man would have secured fire insurance for bailed property, it is clear error to find that the bailee's failure to secure insurance does not violate the prudent-man standard.

C. The Duty to Insure

There is no duty on the part of a bailee to insure bailments absent a statutory obligation, an agreement to that effect or some custom or usage of trade. The trial division found that there were none of these. This finding, however, does not have support in the record. As noted, Mr. Haleck himself admitted, in effect, that he had a duty to insure. Indeed, he thought he had purchased the kind of insurance that would have protected his customers. This was fairly substantial proof of a custom and usage of prudent bailees to carry fire insurance for their bailors.

The trial division did not reach the question of duty to insure. Bailee insurance, however, is so prevalent that it can safely be said to be custom in the industry- not just in the repair industry but in virtually all service businesses. A consumer's belief that a repair shop has insurance is entirely reasonable; in fact, it is unreasonable to put a duty on a consumer to inquire whether a repair shop, where the consumer leaves his valuable possessions, has insurance. No body of law compels a contrary result. See Annotation, Bailee's Duty to Insure Bailed Property, 28 AL.R.3d 513 (1969).

For this reason, we are left with the conclusion that there was error. To hold otherwise would be to allow repair businesses to take consumer's property free of any realistic responsibility for that undertaking.

CONCLUSION

Though the fire may not have been preventable, the failure to obtain insurance was preventable. Two theories support a finding that Haleck's was negligent in not providing no-fault fire insurance. First, the subjective belief of the business owner was that he should have obtained that kind of insurance. This created a duty on the part of Haleck's, the breach of which supports a finding of negligence. Second, because it is customary, prudent, and virtually universal to secure one's business customers against fire loss, the requisite custom and usage of trade to insure customers' cars create a duty on the part of the bailee. [21ASR2d110]

For these reasons, the decision of the trial division is REVERSED, and the cause is REMANDED to the trial division to determine damages.

The motion for reconsideration is denied, except for the necessary correction in the statement of facts.

*********

*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.

Fofoagaitotoa v. Faleafine,


TITI FOFOAGAITOTOA, Plaintiff

v.

MUSU FALEAFINE, Defendant

High Court of American Samoa 
Trial Division

CA No. 118-91

June 17, 1992

__________

A good-faith improver, whose possession of land was under a claim or color of title, is entitled to equitable relief to compensate for improvements; the measure of compensation is the lesser of (1) the actual cost of the improvements or (2) the amount by which the improvements enhanced the value of the property.

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

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

This action stems from certain attempts by the parties to conclude a land deal, which they never quite managed to get off the ground. As a result, the plaintiff, Titi Fofoagaitotoa, filed suit, claiming restitution and damages, as well as punitive damages, from the defendant, Musu Faleafine. [21ASR2d111]

In early August 1990, plaintiff approached the defendant about the possibility of buying some land from him, and in their ensuing discussion, the parties agreed to a sale and purchase of a half-acre for $50,000, payable in monthly installments of $500. After accepting a cash deposit of $1000, the defendant then immediately took plaintiff and showed him a certain area which he could begin to cultivate. A week or so later, plaintiff gave the defendant another $2,000; however, the defendant also informed plaintiff that he had to be relocated onto an alternative site. The latter acquiesced, and while making his next succeeding monthly payments, he also undertook a number of improvements on this new location in the way of clearing, leveling, planting, and fencing. All of this was happening, however, before the parties had even identified in metes and bounds the subject matter of the purchase.

In the process of plotting the area shown to plaintiff, it was apparently discovered by the defendant that if he only sold to plaintiff the designated area, he would then be effectively left with useless bits and pieces of unsold surrounding areas. Consequently, the defendant proposed to plaintiff that he purchase these additional areas as well. The latter agreed. Again, before the subject matter of the agreement was finalized in the way of a survey, plaintiff began immediately to work and improve the additional areas which he gathered was the extent of the new agreement. Shortly thereafter, the parties had a falling-out. The defendant demanded that plaintiff quit the land, which plaintiff eventually did, but not without making his own demand upon the defendant for the return of monies paid and the recoupment of efforts to improve the land. The matter thus found its way to court.

As we understand the defendant's position, it is that plaintiff had failed to prove a contract for the sale and purchase of land, since the subject matter of the agreement was never defined; hence, there was no contract from which damages can arise to be breached.

We find that we need not address the issues raised by the defense. At trial, plaintiff advised the Court that the deposit and various installments which he paid towards purchasing the land-- totaling $6,600--had been refunded, and that the extent of his claim was for the value of improvements which he had made to the land. To this end, plaintiff claims the sum of $7,354 as hereinafter set out.

On the evidence, we conclude that plaintiff was a" good-faith " improver whose possession of the improved land was under a claim or [21ASR2d112] color of title derived from the defendant himself. As such, plaintiff is entitled to equitable relief in the way of compensation for the improvements which he had made to the land. See Faleatua v. Tauiliili, 19 A.S.R.2d 122 (1991); Fonoti v. Fagaima, 5 A.S.R.2d 158 (1987); Roberts v. Sesepasara, 8 A.S.R.2d 124 (1988). "The measure of compensation is the lesser of two amounts: (1) the actual cost of the improvements or (2) the amount by which they have enhanced the property." Leapagatele v. Nyel, 17 A.S.R.2d 201, 204-05 (1990). This measure of compensation arises from the fact that the duty to compensate is derived from the "unjust enrichment of the land owner, not the impoverishment of the improver." Roberts v. Sesepasara, supra, at 131.

Plaintiff sets out his claim for improvements as follows: 24 loads of fill, $1,080; Backhoe rental, $90; 2 rolls of fencing wire, $136; 5 bags of cement, $23.25; iron posts for fence, $100; labor for setting up posts, $250; labor for clearing land from July, 1990, $1,000; 4500 tiapula (taro tops) at $15 per hundred, $675; and projected income from crops left on the land, $4,000. We find all but the last item of the claim to be, reasonable and within the realm of compensable improvements. The last item, projected income, must necessarily be discounted since the "actual cost of improvements," not the amount which they have enhanced the property value, is the applicable measure of compensation on the evidence before us--"the lesser of two amounts." Leapagatele v. Nyel, supra. We hold that plaintiff is accordingly entitled to be compensated for the value of improvements which he has made to the defendant's land, in the amount of $3,354.25.

Finally, plaintiff also prays for punitive damages. We find that the evidence tails to support and warrant an award of punitive damages.

Accordingly, judgment shall enter in favor of the plaintiff, Titi Fofoagaitotoa, and against the defendant, Musu Faleafine, in the amount of $3,354.25.

It is so ordered.

*********

Crispin v. American Samoa Gov’t,


PETER CRISPIN and HENRY JAMISON, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT and DOES I-V, 
Defendants

High Court of American Samoa 
Trial Division

CA No.3-91

May 21, 1992

__________

Claims against the American Samoa Government for personal injury or property damage must be administratively submitted under the Government Tort Claims Act to the Attorney General for resolution before judicial action is instituted. A.S.C.A. § 43.1205.

The High Court looks to the Federal Rules of Civil Procedure for guidance and must conform to them as closely as practicable. A.S.C.A. § 43.0201(a).

The standard of proof on a motion to dismiss at the conclusion of a plaintifrs evidence is a preponderance of the evidence; the court is not obliged to rule on the motion at that point but may defer judgment until the close of all the evidence.

An owner or possessor of land has a duty to cause no unreasonable risk of harm to others in the vicinity and so is liable for creating or maintaining dangerous artificial conditions.

Negligence of a landowner or land occupier is not a substantial factor proximately causing harm if the harm would have occurred despite the negligence of the landowner or land occupier.

Before RICHMOND, Associate Justice, LOGOAI, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Plaintiffs: Roy J. D. Hall, Jr.
For Defendants: Richard Lerner, Assistant Attorney General [21ASR2d61]

This is an action by which plaintiffs Peter Crispin and Henry Jamison seek damages against American Samoa Government for property damage.

FINDINGS

Plaintiffs jointly own a 26 foot Sea Ray Express motorboat. Plaintiff Crispin is also a co-owner of the Tool Shop, Inc., which has business premises on land in the Sen. Daniel K. Inouye Industrial Park at Tafuna, American Samoa, leased from defendant. Facilities of the Maintenance and Operations Division (M & O) of defendant's Department of Public Works are on land immediately adjacent to the northern boundary of the Tool Shop area. The two areas are separated by a 6-foot chainlink fence.

On Saturday, February 3, 1990, the motorboat was parked on a trailer at the westerly end of the Tool Shop building next to the separating fence. It had been there for approximately two to three months in need of repair due to a blown head gasket. The trailer axle was also in disrepair. Thus, the motorboat was not readily movable from this location on this date. The motorboat had been parked at this point on many occasions before when it was taken out of the water.

Across from the motorboat, there was a shed that was next to the fence on the M & O premises. The shed covered various equipment parked in this area by defendant. Defendant constructed the shed in June or July 1988. Plaintiff Crispin told the workers that he thought the quality of the construction was not good work. They laughed. He also informed the head of the M & O Division about his opinion on the quality of the shed construction. However, no alterations were made to the structure.

A storm with strong winds began to impact American Samoa on Friday, February 2, 1990. Plaintiff Crispin had heard by Friday evening that the storm might reach hurricane proportions. The Tool Shop opened for business Saturday morning, February 3. However, the storm was growing in strength, with strong gusts of wind, and all employees had been allowed to go home by noon.

Plaintiff Crispin and his wife remained at the premises past noon. Bill Maxey, a business person then operating at the Lumanai Corporation warehouse a short distance to the east in the Industrial Park, and his wife stopped by some time between noon and 12:30[21ASR2d62] p.m. At approximately 1:00 p.m., while the two couples were having coffee in the second floor office of the Tool Shop at the west end of the building, Maxey and plaintiff Crispin saw the roof of the shed blown by the wind in one piece off the shed and into and over the fence onto the motorboat.

At the time the shed roof was blown onto the motorboat, the winds generally came from a northeasterly direction. However, the Tool Shop building did not offer much protection to the area where the motorboat was located. The roof was still on the motorboat when plaintiff Crispin checked about 11:00 p.m. Saturday night. Another check between 2:00 and 3:00 a.m. Sunday, February 4, revealed the roof was then blown off the motorboat.

While on the motorboat, the wind was banging the roof up and down against the motorboat. Plaintiff Crispin inspected the damage on Monday, February 5, 1990. It was extensive. Both starboard windows and their top and side frames were broken. One port window was also broken. The top awning and frame were destroyed. The cabin doors were damaged, and substantial interior water damage occurred. The front hatch was broken. The stern handrail was also broken, and other handrails were bent. The gel coat on the hull was extensively chipped. The estimated cost of repair is $4,300.

Akapo Akapo of the U.S. National Weather Service provided the official records of wind strength taken at the nearby Pago Pago International Airport during this storm, designated Hurricane Ofa. The winds were recorded until the Weather Service lost power about 6:00 p.m. on Saturday, February 3, 1990. The highest recorded wind on Saturday was 93 knots or approximately 107 miles per hour at 2:19 p.m. Between 12:30 and 1:30 p.m., the winds ranged from a low of 15 knots, or 17.25 miles per hour, to the strongest gust at 77 knots, or 88.55 miles per hour.

David Gianni, General Manager of the Architect and Engineering Division (A & E) of the Department of Public Works of defendant Government, testified to community building standards. At the time of Hurricane Ofa, the Uniform Building Code, Short Form, 1964 edition, was in effect. The shed would be rated under the Code as a "J" occupancy structure, which is a non-human occupied building with the least restrictions applicable to its construction. There would be no wind resistance restrictions. He had seen the shed before the storm and did not observe any violations of applicable construction [21ASR2d63] standards in the Code or generally accepted standards in the community. The shed would not withstand the winds of Hurricane Ofa. He would have designed, if he had been involved in that phase, a more substantial shed for its intended purposes, which would have withstood 80 to 90 mile per hour winds, in light of safety considerations for adjoining property.

Hurricane Ofa caused severe damage throughout the Tafuna area. The Lumanai Development Corporation building housing Bill Maxey's business suffered extensive wall and roof damage at some point after the shed roof was deposited on the motorboat. Paul Dumas, a defendant Government employee with the Department of Education and a resident at the Government housing complex about one-half mile to the east of the Tool Shop, testified to serious damage to units there. The winds were at their peak in that area late Saturday night and early Sunday morning. There was both structural damage, particularly to roofs, and considerable water damage inside the housing units.

Andy Smith, who is presently the Deputy Director of Public Works and was General Manager of the Civil Division when Hurricane Ofa struck, testified to several inspections during and after the storm. He inspected north shore areas of the Island of Tutuila on Friday, February 2, where severe wave surge damage occurred. During the morning of Saturday, February 3, he checked on crews working at various damaged areas. These inspections were slowed by obstacles on the road requiring removal for vehicles to pass.

He returned to the M & O compound at Tafuna at 1:30 p.m. on Saturday, February 3. While there, this area was being struck by periods of heavy rains with intermittent strong winds. When he left for home about 3:00 p.m., he observed a large section of the roof blown off the Burns Philp lumber yard building, which is southerly across the street from the Tool Shop, into the adjacent Spencer Company warehouse. Banana trees and a breadfruit tree were blown down near his Government quarters in the Tafuna housing area. The storm was then intensifying. By dark that evening, mango and other larger trees were down in this area.

After the storm, he observed extensive damage in the Tafuna area. Power poles were snapped and lines down. In the Industrial Park, the CBT Lumber warehouse had collapsed. Portions of the Burns Philp roof were blown away. Roofs at the Tropical Millwork[21ASR2d64] buildings were off. Metal skin at the GHC Reid facility was gone; likewise at the South Pacific Recycle premises. The McConnell-Dowell building had roof damage. The Ice, Inc. facility was severely damaged, as was the T & T compound. All of these structures are located in the vicinity of the Tool Shop.

Towards the Pago Pago International Airport, the Tafuna High School gymnasium had collapsed. Roofs of the airport shops were gone. One hangar was virtually destroyed, as were several warehouses. The Government's Office of Procurement facility in this area suffered severe skin and roof damage.

At the east end of the Industrial Park, there was substantial roof damage at the Vocational-Technical School adjacent to the Government housing area. The roof of one Government housing unit was destroyed. Other units had significant wind damage. Roofs and fences at the nearby Government Correctional Facility were seriously damaged.

The M & O compound was also heavily damaged. The heavy equipment shop skin was gone. The second floor of the materials laboratory was blown away.

He did not see any damage to the Tool Shop. The Lumanai Development Corporation warehouse was still intact Saturday afternoon, February 3. He believes most of the serious destruction in the Tafuna area occurred after 3:00 p.m. that afternoon and into the early morning the next day.

He also believes the CBT warehouse collapsed as a result of a rocking motion. He does not know whether faulty construction or strong winds, or both factors, caused or contributed to this action.

He has no personal knowledge of the manner of construction of the shed. He estimated its size at 35 to 40 feet long and 10 to 15 feet wide. However, he only saw it from a distance before the hurricane.

DISCUSSION AND CONCLUSIONS

1. Administrative Claim Prerequisite. [21ASR2d65]

Claims against the American Samoa Government for personal injury or property damage must be administratively submitted under the Government Tort Claims Act to the Attorney General for resolution before judicial action is instituted. A.S.C.A. § 43.1205. This prerequisite to suit is clearly jurisdictional by its own terms.

In this case, the pleadings implicitly show that plaintiff Crispin filed an administrative claim, which was rejected by the Attorney General. However, defendant Government's answer to the complaint denies this Court's jurisdiction over plaintiff Jamison's claim for lack of a prior administrative claim. The Court sought but did not receive any specific details about plaintiff Crispin's administrative claim, specifically a copy of the claim and denial, to make an informed decision on the issue of plaintiff Jamison's standing based on the form and content of plaintiff Crispin's administrative claim.

A.S.C.A. § 43.1205 is an essentially precise counterpart of 28 U.S.C.A. § 2675 in the federal Tort Claims Act. While there is no territorial implementing rule to A.S.C.A. § 43.1205 known to the Court, the federal rule at 28 C.F.R. § 14.3 provides:

§ 14.3 Administrative claim; who may file. 
(a) A claim for injury to or loss of property may be presented 
by the owner of the property, his duly authorized agent, or legal 
representative.
* * * *
(e) A claim presented by an agent or legal representative shall 
be presented in the name of the claimant, be signed by the agent 
or legal representative, show the title or legal capacity of the 
person signing, and be accompanied by evidence of his authority 
to present a claim on behalf of the claimant as agent, executor, 
administrator, parent, guardian, or other representative.

Federal court decisions make applicable policy considerations clear. The administrative claim prerequisite, while jurisdictional, is not an arbitrary standard. One basic purpose is to focus the government on settling claims without litigation when settlement is appropriate. Another is not to obstruct judicial determinations on technicalities when the government is adequately apprised of the claim [21ASR2d66] it must face. See, as examples of claims involving representative capacities, Locke v. United States, 351 F. Supp. 185 (D.C. Haw. 1972); Coe v. United States, 502 F. Supp. 881 (D.C. Or. 1980); Sky Harbor Air Service, Inc. v. United States, 348 F. Supp. 594 (D.C. Neb. 1972); see generally Annotation, When is Claim Properly Presented to Federal Agency, Under 28 U.S.C.S. § 2675(a), for Purposes of Satisfying Prerequisite to Subsequent Suit Under Federal Tort Claims Act, 73 A.L.R. Fed. 338 (1985).

Applying these principles in this case, the Court only knows, by way of evidence, that plaintiffs are in some legal manner co-owners of the motorboat, and that plaintiff Jamison allegedly failed to file an administrative claim. Neither the claim or claims by plaintiffs nor the denial or denials by defendant, as the case may be, nor any other affirmative evidence on this issue, was presented. Thus, the Court declines to rule on the legal sufficiency or insufficiency of plaintiff Crispin's administrative claim on plaintiff Jamison's behalf.

On the other hand, defendant was aware of the plaintiffs co-ownership of the motorboat and was adequately prepared to defend this action. In this case at least, the interests of final determination of the issues with respect to all litigants outweigh the legal niceties of plaintiff Crispin's representative capacity for administrative claim purposes. Therefore, we accept jurisdiction over plaintiff Jamison's claim. We also expect defendant to support more vigorously any asserted defects in the administrative claim process in the future if it truly wants to rely on such defects in defense.

2. Motion to Dismiss under T.C.R.C.P. 41(b).

Defendant moved, pursuant to T.C.R.C.P. 41(b), for dismissal when plaintiffs completed presentation of their evidence on the ground that upon the facts and the law plaintiffs had shown no right to relief. The Court opted to decline to render any judgment until the close of all the evidence.

T.C.R.C.P. 41(b) is precisely the same as Rule 41(b) of the Federal Rules of Civil Procedure (F.R.C.P.).(1) This Court looks to[21ASR2d67] the F.R.C.P. for guidance and must conform to them as closely as practicable. A.S.C.A. § 43.0201(a). The standard of proof on a motion to dismiss at the conclusion of a plaintiff's evidence is that plaintiff must prevail by a preponderance of evidence. Willis v. Fai`ivae, 10 A.S.R.2d 121, 141 (1989); J. Moore, J. Lucas, & J. Wicker, 5 Moore's Federal Practice ¶ 41.13[4], at 41-177 to 41-179 (1985); C. Wright & A. Miller, 9 Federal Practice and Procedure: Civil § 2371, at 224-25 (1971).

However, the Court is not obliged to rule on the motion at this point and may defer judgment until the close of all the evidence. This procedure amounts to no more than a refusal to enter judgment when a plaintiff completes his case-in-chief, and does not preclude a later determination not altogether strictly consistent with postponement of the ruling. J. Moore, J. Lucas, & J. Wicker, supra, ¶ 41.13[4], at 41-179 to 41-180 (1985); C. Wright & A. Miller, supra, § 2371, at 222-23 (1971).

Having in its discretion elected to defer judgment until the close of all the evidence, the Court now turns to its decision based on the law applicable to the findings of fact above.

3. Defendant's Negligence.

This case embraces the rights and obligations in tort by owners or other occupiers of land to persons outside of the premises. This area of the law has historically been slower to accommodate to the needs of modern society, or put otherwise, to balance the privilege to freely use one's land with due regard for others who may be adversely affected by those uses. W. Prosser & W. Keeton, The Law of Torts § 57 (5th ed. 1984); Restatement (Second) of Torts § 363 et seq. (1984); B. Witkin, Summary of California Law, Torts § 898 et seq. (9th ed. 1988); see also the informative discussion in Sprecher v. Adamson Cos., 30 Cal. 3d 358, 636 P. 2d 1121 (1981). [21ASR2d68]

Today it is widely accepted, however, in the context of the facts of this case, that a landowner or possessor of land is liable for creating or maintaining dangerous artificial conditions. Restatement (Second) of Torts §§ 364, 365; B. Witkin, supra, § 898. Defendant's duty is to cause no unreasonable risk of harm to others in the vicinity. W. Prosser & W. Keeton, supra, §57.

There is no serious issue under the evidence in this case that defendant vicariously knew, through its employees responsible for the shed's construction, including at least one senior official, that the shed was of inferior quality. However, it is equally clear that the quality of the shed's construction met the minimum statutory building requirements applicable to this type of structure. Therefore, it is concluded that defendant did not breach any duty owed to plaintiffs and was not negligent with respect to the construction of the shed.

Even if it was concluded that the shed was negligently constructed, perhaps due to a higher standard of care in light of the proximity of the shed to plaintiffs' adjacent premises and/or defendant's knowledge of the destructive force of hurricanes, liability does not follow. The evidence shows that a shed of this type reasonably constructed to withstand greater wind forces, under architect Gianni's design, probably would not have repelled hurricane winds in excess of 80 to 90 miles per hour. Recorded Hurricane Ofa winds reached 88.55 miles per hour in velocity at or about the time the shed's roof was blown onto plaintiffs' motorboat. Negligence of a landowner or land occupier is not a substantial factor proximately causing harm if the harm would have occurred despite the negligence of the landowner or land occupier. Restatement (Second) of Torts § 432(1). Thus, any negligence by defendant in the construction of the shed was not a proximate cause of plaintiffs' property damage.

We conclude that defendant was not negligent and Hurricane Ofa was the legal proximate cause of plaintiffs' property damage. Judgment will be entered in defendant's favor.

It is so ordered.

**********

1The operative provisions of F.R.C.P. 41(b) have recently been transferred to F.R.C.P. 52(c) with a new name: judgment on partial findings. This change is largely organizational, placing all provisions dealing with findings of fact and conclusions of law in a non-jury trial in one rule. However, it also broadens the scope of the rule in two respects. First, the motion is available to a plaintiff as well as a defendant. Second, it can be made at any time after the opposing party has been fully heard on an issue. It continues to give the court broad discretion to require issues to be tried in a particular sequence before having legal sufficiency tested by this motion.

Vollrath; Sa v.


AKE HALE SA, Plaintiff

v.

CECILIA VOLLRATH, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 47-91

May 11, 1992

__________

Once a grantee has received and registered a deed to land, a subsequent deed has no effect, and so an injunction properly enjoined a later purchaser from interfering with the prior grantee's use and enjoyment of the land.

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

Counsel: For Plaintiff, Tauese P.F. Sunia
For Defendant, Gata Eo Gurr

Plaintiff recently returned from an off-island visit to find that her neighbor, the defendant, had erected a barbed-wire fence which virtually [21ASR2d38] ran up against one side of her house. The fence effectively barred anyone from attempting to exit through the back door. Plaintiff filed suit seeking injunctive relief.

The defendant, it seems, had recently entered into a verbal agreement with one Isumu Leapaga to purchase an adjacent strip of land for which she immediately tendered the agreed purchase price of $2,000. However, she subsequently discovered, when attempting to reduce the subject of her purchase to metes and bounds, that what she had given money for had previously been conveyed by Leapaga to plaintiff. The latter possessed a warranty deed of conveyance from Leapaga dated November 14, 1988, concerning a certain parcel of land located in the village of Tafuna bounded and described as follows:

Beginning at an iron pin which has coordinates of X =245055.62,
Y=291341.65 based on American Samoa Datum of 1962 run
thence on azimuth 171 degree 53'00" 73.79 feet to an iron pin
thence on azimuth 254 degree 02'01 ", 73.79 feet to an iron pin,
thence on azimuth of 351 degree 53'00", 73.79 feet to an iron pin
thence on azimuth 74 degree 02'01",73.79 feet to the point of
beginning. Containing an area of 0.125 acres more or less.

The said deed recites a consideration of $7,500.00 and it shows execution and attestation in the presence of a Notary Public. The deed further reflects registration, in accordance with the provisions of A.S.C.A. §§ 37.0101 et seq. , with the Territorial Registrar on November 5, 1988 (in Land Transfer, vol. 5, at 234).

Leapaga also claims surprise by the course of events as they had unfolded; he testified that plaintiff, with the aid of the surveyor involved, had helped herself to more land than that which he had agreed to sell and had actually pointed out to her. He further testified that what the surveyor had done was extremely impertinent ("tautalaititi"), and he seems to think that he nonetheless has ownership rights to the disputed strip, notwithstanding the deed which he had ensealed and delivered. On this basis, the defendant asserted her claim to better entitlement and consequently took self-help measures to enforce that claim by setting up the barbed-wire fence.

We grant the relief sought. The facts here are not unlike those in Moon v. Falemalama, 4 A.S.R. 836 (1975). The dispute there also [21ASR2d39] involved adjoining landowners who also acquired their respective interests from a common grantor. The court held that when the plaintiff grantee received a deed and registered it before the defendant grantees' deed was delivered,

title to the property described in [plaintiffs] instrument passed
to her and the grantor lost all of his interest therein.... Under
[A.S.C.A. §§ 37.0210] the defendant [grantees] are held to
have had notice of the contents of plaintiffs duly registered, i.e.
recorded, deed at the time they accepted delivery of their own.
Their subsequent deed, therefore, has no effect on plaintiffs
ownership of the property described in her instrument."

Id. at 839. As between the plaintiff and defendant, plaintiffs title to the disputed area is not defeasible.(1)

Accordingly, an order will enter enjoining the defendant Cecilia Vollrath and those claiming by, through, or under her from interfering with plaintiff Ake Hale Sa's use and enjoyment of that land described above.

It is so ordered.

*********

 

1. We intimate no position whatsoever on any rights which Leapaga may have against plaintiff.

Asifoa v. Faoa,


SOSENE ASIFOA and LEFOTU TUILESU, Appellants

v.

LUALEMAGA E. FAOA, Appellee

High Court of American Samoa
Appellate Division

AP No. 20-90

June 8, 1992

__________

A collateral attack of an in rem judgment is permissible if notice in the first case was defective.

Absent compelling proof to the contrary, the court will assume that the Territorial Registrar record a land title only after complying with his legal obligations, including notice requirements. A.S.C.A. § 37.0103.

Court may disregard land-title registrations when the failure to give the require notice affirmatively appears in the registration itself.

The land-registration statutes do not require a certification or an affidavit by the Territorial Registrar or the High Court that notice was given for the required period. A.S.C.A. .§§ 37.0103(c), 37.0104(b)

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

Counsel: For Appellants, Charles V. Ala'ilima
For Appellee, Afoa L. Su'esu'e Lutu [21ASR2d92]

RICHMOND, J.:

This appeal is from a decision of the Land and Titles Division holding that a 1969 registration of land by Lualemaga was valid and that the appellee was therefore entitled to judgment against the appellants for eviction and trespass. The trial court also found that the appellants had not proved that they had adversely possessed the land. Execution of the eviction order was stayed pending this appeal.

The land in question, located on the boundary between A'oloau and A'asu, was part of a tract originally proposed for registration by Lualemaga Faoliu of the Village of A'asu in 1961. An objection was raised, so the matter was referred to the High Court for resolution. Asu Village Chiefs v. Village of Asu, CA No.40-1961 (Aug. 10, 1961) (the "1961 case"). The only objection was withdrawn, so the court ordered the land registered; this was not done. In 1969, before a new judge, it was "brought to the attention of the court" that the Registrar had not registered the land in accordance with the earlier court order. After reviewing the transcript of the earlier hearing, the court again ordered the Registrar to register the land, and this time, the land was registered. The appellants, chiefs of the Village of A'oloau, now seek to register the land as theirs, claiming that the registration was invalid because the land is located in A'oloau, not A'asu, and that A'oloau never received the required notice of the proposed registration in accordance with Chapter 18, Section 905 of the Code of American Samoa (now A.S.C.A. § 37.0103).

The appellants first assert that they have standing to raise the issue of defective notice in the registration. They are correct. The fact that the registration was ordered by the court, rather than done strictly by the Registrar, does not bar the appellants from claiming that notice was defective in the 1961 case. A collateral attack of an in rem judgment is permissible if notice in the first case was defective. Scott v. McNeal, 154 U.S. 34, 14 S. Ct. 1108, 1112 (1894); see also 47 Am. Iur. Judgmellts § 1071 (2d ed. 1969). Appellants are also not barred by res judicata, because they were not parties to the 1961 case. See Nalnu v. Satele, 15 A.S.R.2d 141 (1990). Thus, they may attempt to show that the notice given for this registration was defective.

Next, appellants claim that the notice was defective. In order to prove this, appellants must meet a heavy burden. Ifopo v. Siatu'u, 12 A.S.R.2d 24, 28 (App. Div. 1989) (emphasis added), established [21ASR2d93] the applicable standard: "the Court must assume--and, absent compelling proof to the contrary, must conclude--that the Registrar recorded a title only after complying with his obligations under the law." The court also noted that "[c]ourts can and do disregard registrations...in which the failure to afford the required notice affirmatively appears in the record of the registration itself. " Id. (citing Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988)) (emphasis added).

Appellants claim that the blank "affidavit of notice" in the Registrar's files constitutes affirmative proof of the failure to afford the required notice in the record of the Lualemaga registration. The appellants also rely on the file's lack of responses from several pulenu'us of villages surrounding the land to a letter from the clerk of the court requesting the pulenu'us to certify that notice was given in their villages, including A'oloau, in the 1961 case. These two factors, combined with the testimony from a witness, Aimalefoa Lefotu Puletu, that she does not remember any notices or announcements regarding this land nor does she remember her father's ever mentioning a notice's being posted, have led the appellants to claim that they have shown "compelling proof" that the notice was defective. Their primary argument is that "[t]here was no affirmative evidence of any posting," including no affirmative statement by either judge in the 1961 and 1969 hearings or by the Registrar that the statutory notice was given. Appellants' Brief at 10. The Ifopo standard, however, does not require that there be affirmative evidence of posting in the registration, but affirmative proof in the record of the registration itself of the failure to post notice in accordance with the statute.

Appellants rely on Vaimaona v. Tuitasi, 18 A.S.R.2d 88 (App. Div. 1991), to establish that the blank "affidavit of posting" meets the Ifopo burden . In Vaimaona, the court remanded the case for an evidentiary hearing on the issue of notice because the "affidavit of posting" was defective on its face. That case significantly differs from the present case, however, because the affidavit in Vaimaona showed statutory deficiencies on if.5 face. The affidavit was filled out, but only alleged posting for 33 days instead of the required 60 days. It was also subscribed to on the first day of posting, which was obviously before the posting took place, so it was prepared without personal knowledge by the subscriber; several other deficiencies that are not relevant to this case were also noted. [21ASR2d94]

This facial deficiency is significant because in the present case, no affidavit was filled out. If such an affidavit were required by the statute, this might constitute a facial deficiency sufficient to meet the Ifopo burden, but no such affidavit is required. In Namu v. Satele, supra, 17 A.S.R.2d at 144, the court correctly noted that "the 'affidavit of posting' is an administrative convenience (albeit a salutary one) rather than a statutory requirement. " The statute merely requires that "[i]f no notice of adverse claim is filed within the 60-day period, and all the requirements of this chapter have been complied with, the territorial registrar shall register the title to such land in the name or names of the applicant or applicants." A.S.C.A. § 37.0103(c) (emphasis added). (1) If an adverse claim is filed, as occurred in the 1961 case, A.S.C.A. § 37.0104(b) directs that "[u]pon adjudication of the matter by the High Court, the territorial registrar shall register the land as directed by the court. " Neither statute requires a certification or an affidavit by the Registrar or the court that notice was given for the required period. Likewise, the clerk of the court's request to the pulenu'us for certification was not a statutory requirement. This absence of required certifications is precisely the reason that the Ifopo standard requires that compelling proof of defective notice appear affirmatively in the registration itself. Under Ifopo, the court presumes that the Registrar--or, as in this case, the earlier court--only caused the land to be registered after complying with the registration statutes, including the notice statute, as A.S.C.A. § 37.0103(c) requires. The lower court thus correctly applied this presumption.

Moreover, two other factors in the 1961 case strengthen this presumption by leading to a strong inference that notice was given: the letter in the 1961 case from the clerk of the court to the pulenu'us of several villages near the land leads to the inference that notice was given, even though it is not further substantiated by "certification " from several of the pulenu'us; and the presence of Fuirnaono, the principal matai of A'oloau, at the 1961 hearing. (2) [21ASR2d95]

Appellants have not met the burden established by Ifopo. The valid registration by Lualemaga precludes the court from questioning the boundary established by that registration. We therefore AFFIRM the trial court's decision .

*********

* 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. The statutes in effect at the time of the 1961 case had the same requirements as the present statutes; the present statutes are used for ease of reference.

2. It is true that "actual knowledge of the proposed conveyance does not vitiate the importance of notice [in accordance with the statute], because other interested persons might have had some objection to registration of title," Vaimaona v. Tuitasi, 18 A.S.R.2d at 95, but such knowledge may lend itself to an inference that proper notice was given.

Aoelua Family; Aoelua v.


AOELUA SA'OFETALAI, Appellant

v.

AOELUA FAMILY, Appellee

High Court of American Samoa 
Appellate Division

AP No.32-90

April 8, 1992

__________

Active service for the matai and the family is necessary to have the requisite standing to petition for a matai's removal for cause; however, only family membership is necessary to have standing to petition for the removal of a matai who has been absent from American Samoa for more than one year. A.S.C.A. §§ 1.0411, 1.0412.

Having the discretion to permit an absent matai to retain his title, a court may, but is not required to, consider the wishes of family members actively serving the matai. A.S.C.A. §§ 1.0412.

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

Per RICHMOND, J.:

This appeal is from a decision of the Land and Titles Division granting appellees' petition to remove the matai title "Aoelua" from [21ASR2d2] appellant. The appellees, members of the Aoelua communal family, sought the removal based on A.S.C.A. § 1.0411, which provides for removal of matai titles for cause, and A.S.C.A. § 1.0412, which provides for removal of matai titles for absence from American Samoa for more than one year.

The appellant was awarded the title in 1985 by the Land and Titles Division of the High Court, inAoelua v. Tagoa'i, MT No. 01-85 (1985), aff'd, AP No. 20-85 (1986). He then went through a title investiture ceremony in which he and Manu Lealai were presented to the village council as joint titleholders, even though appellant alone was selected as the sole and legitimate titleholder.

Since 1987, the appellant has resided in Tacoma, Washington. The appellant has testified that he left the territory in pursuit of his wife's education in order for her to qualify as a registered nurse. The appellant estimates that this education will take between two and four years to complete, but he admits that she has not yet begun the schooling and will not begin until they earn sufficient funds for the tuition.

The trial court found that Aoelua had been absent from the territory for more than one year. The court then examined the reasons for this absence and the wishes of the family, in order to determine whether to exercise its discretion, available to the court under A.S.C.A. § 1.0412(a), to permit the matai to retain the title despite his absence. The court also considered the appellant's acquiescence with the illegal investiture and use of the title by Manu Lealai. The trial court decided not to exercise its discretion, and ordered the removal of the title.

The appellant now argues both that the appellees did not have standing to petition the court for his removal because they did not prove that they were actively serving the matai and family, and that he has not been "absent" from the territory for more than one "continuous" year because he has returned to American Samoa at least once every year.

The appellant's contention that the appellees did not have standing to bring the petition must fail. This requirement of active service is necessary to petition for removal for cause, under A.S.C.A. § 1.0411.(1) While the appellees did petition for removal under this [21ASR2d3] provision, they also petitioned under A.S.C.A. § 1.0412,(2) which only requires that the petitioner be a "member of the family of the absent matai." The petition was granted by the trial court pursuant only to the latter statute; the court made no findings or decisions with regard to the former statute. The trial court did find that petitioner Samuelu Aoelua is a member of the Aoelua family, and the appellant did not contest this finding on appeal. Thus, appellee Samuelu Aoelua, who filed the petition on behalf of appellees, had standing to bring the petition under A.S.C.A. § 1.0412.(3)

The appellant also argues that the trial court should not have weighed the wishes of the appellees when considering the "wishes of the family actively serving the matai," A.S.C.A. § 1.0412(a), in the court's decision on whether to exercise its discretion to permit the appellant to retain his title. Instead, the appellant asserts that the support of other family members, who are actively serving him, should have been considered. The appellant's claim that none of the appellees are actively serving the matai is, as the trial court stated, unjustified. His residence thousands of miles from the village makes traditional service to him by the family as a whole virtually impossible. The trial court did find that a substantial number of the appellees are actively participating in family affairs, which the trial court found sufficient to warrant its consideration.

Yet, even if the appellant were correct, we could not say that the trial court abused its discretion. The statute says that the court "may consider" (emphasis added) the wishes of the family actively serving the matai. This is not a mandate, but merely the opportunity for the court [21ASR2d4] to consider these wishes, if it believes the situation warrants its discretion. For the trial court not to have considered these wishes cannot be an abuse of its discretion.

Finally, the appellant argues that he was never "absent" from American Samoa for one "continuous" year. The statute states that "any matai absent from American Samoa for more than 1 year" may be removed upon petition. A.S.C.A. § 1.0412(a). "Absent" is generally defined as "not present; away." New Webster's Dictionary of the English Language at 6 (college ed. 1974). Within the context of A.S.C.A. § 1.0412, this logically means away from American Samoa. The appellant testified to voting by absentee ballot and to being registered as an absent resident. While these acts may show that the appellant is still a resident of American Samoa, neither supports his argument that he was not "absent"; to the contrary, they lend support to the idea that he was away from the territory.

A.S.C.A. § 1.0404, which governs eligibility to claim or object to matai title succession, provides useful guidance by analogy to a court attempting to determine whether or not to exercise it discretion to permit the matai to keep the title despite his absence. That section provides that, to be eligible to claim or object to the succession, a person must have resided in American Samoa for one calendar year preceding the claim or objection. The section goes on to permit a bona fide resident who is absent from the territory for specifically listed reasons to register as an absent resident and thus be treated for the purposes of that statute "as if he actually resided in American Samoa." One such reason is "attendance at an education institution." These reasons for absence may guide a court when determining whether to use its discretion.

The trial court's refusal to exercise its discretion was not an abuse of discretion, however, even though appellant's claimed reason for the absence is the education of his wife.(4) First, these reasons, which are not mandated by the relevant statute, A.S.C.A. § 1.0412, are merely guidelines for the court, not a requirement that any matai who meets them must be permitted to keep his title. Second, appellant has not met these guidelines, which specify "attendance at an educational institution," [21ASR2d5] because appellant's own testimony indicates that his wife has not yet begun to attend an educational institution.(5)

The trial court also correctly considered the effect of the appellant's absence. In his absence, an unregistered coholder has been permitted to hold himself out as Aoelua. Appellant's acquiescence to this illegal use of a matai title would presumably continue until the legitimate matai returned, but even if it did not continue, its occurrence in the first place is an appropriate factor for the court to weigh.

Lastly, the statute does not require one "continuous" year of absence, but merely "more than 1 year." This statute is based on the needs of both the matai and the family to remain in close touch.(6) The trial court accurately stated:

The Fono's enactment of A.S.C.A. § 1.0412(a) merely highlights 
the self-evident truth that a matai's place is with his family and that 
the meaningful exercise of his duties demands his continuing 
presence in the territory.

While the appellant may have returned for short, occasional visits during his residency in Washington, the trial court decided, as a factual matter, that these visits did not constitute a "continuing presence" sufficient to meet the purpose of the statute. We are unable to say that such a decision is clearly erroneous, and we therefore AFFIRM.

**********

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 District of the Northern Mariana Islands, serving by designation of the Secretary of the Interior.

1A.S.C.A. § 1.0411(a) provides:

A matai may be removed by the High Court upon a petition 
for removal filed in the High Court by 25 blood members of 
the matai's family, over 18 years of age, who at the time of 
the petition are all serving the matai and family according to 
Samoan custom.

2A.S.C.A. § 1.0412(a) provides that: "Any matai absent from American Samoa for more than 1 year may be removed of his title upon petition filed in the High Court by any member of the family of the absent matai." (emphasis added)

3This Court does not decide whether petitioners would have standing under the other portion of their petition.

4The Court makes no findings here that the education of a spouse qualifies as a reason for absence under A.S.C.A. §1.0404(b) for the purposes of either A.S.C.A. § 1.0412 or A.S.C.A. § 1.0404.

5This seems to indicate that appellant was incorrectly registered as an absent resident, because he did not meet the statutory requirements. This matter is not before the Court at this time, however.

6See, e.g., Galu v. Mariota, 1 A.S.R. 461, 463 (1932) ("the court does not feel the interests of the family can be well served by a matai who does not live in the Village where the family of which he is the matai has its situs").

Willis; Taeleifi v.


TAELEIFI MANE, Appellant

v.

TONY WILLIS on Behalf of Himself and
the HEIRS OF AMELIA VA, Appellees

TONY WILLIS on Behalf of Himself and
the HEIRS OF AMELIA VA, Appellants

v.

OLO LETULI, TAELEIFI MANE, AVEGALIO FAMILY,
FAILAUTUSI A VEGALIO, SU'A of the Village of Auma,
and TUITELELEAPAGA NAPOLEONE, Appellees

High Court of American Samoa
Appellate Division

AP No. 30-90
AP No. 31-90

June 23, 1992

__________

When a conflict arises, Samoan custom must give way to the laws of the United States and American Samoa. A.S.C.A. § 1.0202.

On appeal, the relevant test is not whether facts in the record were sufficient to support a decision for an appellant, but whether sufficient evidence existed to support the trial court's decision.

Before RICHMOND, Associate Justice, GOODWIN,* Acting [21ASR2d119] Associate Justice, MUNSON ,** Acting Associate Justice, VAIVAO, Associate Judge, and BETHAM, Associate Judge.

Counsel: Appellant Mane Pro Se
For Appellants/Appellees Willis and Heirs of
Amelia Va, Charles V. Ala' ilima
For Appellees Olo and Avegalio family, Aitofele T. Sunia
For Appellee Tuiteleleapaga, Tautai A.F. Faalevao

RICHMOND, J:

These consolidated appeals are from a decision of the Land and Titles Division dividing the flat land called "Lega'oa" in the Village of Leone among the various claimants, after first determining exactly what land is part of "Lega'oa." The proceedings were bifurcated for ease of adjudication, and these appeals are from the second proceeding. The trial court also adjudicated the respective rights of parties claiming the slopes of the valley outside Lega'oa but within a survey submitted by appellant Willis. The procedural history and facts of the case are discussed in detail in Willis v. Fai'ivae, 10 A.S.R.2d 121 (Trial Div. 1989); aff'd, 12 A.S.R.2d 37 (App. Div. 1989).

In AP No.30-90, appellant Taeleifi asserts that the trial court erred in its failure to use a hibiscus hedge as the northern boundary of the Taeleifi land called "Lalolelata," or in the alternative, that the court should have awarded the entire tract Lalolelata to the Taeleifi family through adverse possession. The trial court implicitly found that merely a license, rather than the land itself, was granted by the oral agreement relied on by Taeleifi when it determined the boundary of Taeleifi's land. Taeleifi claims that the hedge was the boundary agreed to according to fa'a Samoa customs and that such customs should not be inferior to "court established boundaries." The short answer to that allegation is that under A.S.C.A. § 1.0202, when the [21ASR2d120] two systems conflict, custom must give way to the laws of American Samoa and the United States--"[t]he customs of the Samoan people not in conflict with the laws of American Samoa or the laws of the United States concerning American Samoa shall be preserved" (emphasis added).

In AP No.31-90, appellant Willis claims that the court erred in its determination of the dividing line between the inland half of Lega'oa, which belongs to appellants, and the seaward half, or in not adjusting (i.e. increasing) the land of the inland half so that the division awarded to appellants was exactly half of the tract; that the court erred in its determination of the western boundary, because it used a stream located within the "flat land" as the boundary and failed to adjust for this reduction of the inland half; that the court erred in its determination that Failautusi Avegalio's freehold grant was located within Lega'oa; and that the court erred in not awarding appellants' residences and farms located on the slopes surrounding Lega'oa, if not the entire slopes, to appellants.

The issue of the main dividing line was not raised in Appellant Willis' motion for new trial, so it is not properly before this Court. Even if it were considered by this Court, however, the trial court properly used the boundaries that were implemented based on the 1906 decision, rightly assuming that those persons closer in time to the decision were in a better position to determine what the 1906 court meant by "inland half." The trial court heavily relied on several surveys from 1915 or earlier and their accompanying recent retraces (1) to establish the dividing line between the inward and seaward halves of Lega'oa. Likewise, the trial court's finding that the stream formed the western boundary of the Willis tract was based on the implementation of the 1906 decision. Additionally, the trial court, in its opinion on the Willis Motion for New Trial, stated that even if the Willis tract originally extended to the boundary argued by Willis, the current [21ASR2d121] occupants has satisfied the 20-year, adverse-possession statute by maintaining occupancy since well before 1962.

We need not detail all of the many additional factors considered by the trial court in its thorough and well-reasoned opinion. The court carefully considered the extensive testimony offered by both interested witnesses and disinterested witnesses, as well as the many surveys and photographs submitted by the various claimants. Additionally, the court conducted its own on-site inspection of the relevant tracts of land.

The remaining question on appeal here are ones of fact. The relevant test is not whether there were facts in the record sufficient to support decisions for the two set of appellants, but whether there was sufficient evidence to support the trial court's decisions. For both appeals considered here, there was. Thus, the trial court's resolution of these issues was not clearly erroneous. On the contrary, it was very well-supported on the record. We therefore AFFIRM.

**********

* 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. Five of these six parties with old surveys rely on long-registered titles. The registered surveys with accompanying retraces were offered by the Ripley estate, the Meredith heirs, and the Uo family. A freehold land grant approved by the Land Commission of Samoa to the Roman Catholic Diocese of Samoa Pago Pago was also offered with its recent retrace, and the heirs of Sekio offered a freehold land grant approved by the Land Commission of Samoa without a retrace. An unregistered map and its accompanying recent retrace was offered by Fai'ivae.

Haleck's Island Motors; Holland v.


JACK and JOAN HOLLAND, Appellants

v.

HALECK'S ISLAND MOTORS and
ROYAL INSURANCE COMPANY, Appellees

High Court of American Samoa
Appellate Division

AP No. 6-91

June 16, 1992

__________

In a breach of bailment suit, a plaintiff must make a prima facie case that the bailed object was delivered and not returned; the burden then shifts to the defendant to show why the bailed object was not returned.

When the defendant stated that a prudent man would have obtained fire insurance for bailed property and when such insurance is custom in the industry, a duty to obtain such insurance existed, and the trial court committed clear error in finding that the bailee's failure to obtain insurance did not violate the prudent-man standard.

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

Counsel: For Appellants, Robert A. Dennison III
For Appellees, John L. Ward II

GOODWIN, J.: [21ASR2d107]

This matter comes before the Appellate Division on an appeal from the Trial Division.

The Appellants ("the Hollands") left their car at Haleck's Island Motors ("Haleck's") for servicing. While the car was stored at Haleck's, a fire broke out, completely destroying the building and its contents. The Hollands' car V(as consumed by the fire as well.

The Hollands sued Haleck's, only to discover that Haleck's liability insurance was written to indemnify Haleck's for damages and loss caused by Haleck's negligence. The case went to trial on the Hollands' claims of negligence in allowing a fire to break out, in storing the car, and in failing to procure bailee insurance. The Hollands also sued on a breach of bailment theory. Royal Insurance Company ("Royal") was joined as a defendant after the Hollands learned that Royal was denying coverage for this particular claim.

After the Hollands rested, Haleck's moved for dismissal. The Trial Division denied that motion because the Hollands had proved a prima facie case. The court entered judgment for Haleck's, however, by an Opinion and Order of January 23, 1991, finding no negligence. The Hollands appeal that decision.

The Hollands have raised three issues to be reviewed: (1) whether the trial court wrongly applied the burden of proof; (2) whether the trial court's finding that Haleck's was not negligent was clearly erroneous; and (3) whether the trial court's finding that there was no duty to insure was clearly erroneous.

A. The Burden of proof

It is undisputed that the Hollands' prima facie case for breach of bailment was made when they showed that the car was delivered to Haleck's and that it was not returned. The burden then shifts to Haleck's to show why the car was not returned.

The Hollands argue that after they made their prima facie case, Haleck's had to prove that they were tree from negligence. Whether the bailor must show negligence or the bailee must show non-negligence is an unsettled area of the law. See generally Annotation, Presumption and Burden of Proof Where Subject of Bailment is Destroyed or Damaged by Fire, 44 A.L.R.3d 171 (1972). [21ASR2d108]

Haleck's case tended to prove that the cause of the fire was not electrical in origin and the cause remains unknown. Its case further showed that the fire spread exceptionally rapidly and that water was unavailable. A finding of non-negligence with reference to the fire was not clearly erroneous.

If the trial division had placed the burden of proving negligence on the Hollands once Haleck's had proved a "no-fault" fire, the Hollands failed to show that the rapid spread of the fire, the lack of water, or the unknown origin were a result of Haleck's negligence. Using either standard, the record would support a finding that the fire was not caused by Haleck's negligence.

B. The Finding of No Negligence

The standard used by the trial division in imposing liability on Haleck's for the loss of the property was the prudent-man standard, "that measure of care which 'ordinarily prudent men, as a class, would exercise in caring for their own property under like circumstances.' Garcia v. Galea'i, CA No. 41-87." The issue before the Court on this point was whether an ordinarily prudent man would have taken the precaution of insuring his own property against fire.

One might well expect an ordinarily prudent repairman to at least insure his customers' cars against fire on his premises. Haleck's failure to provide insurance suggests that Haleck's was not acting as an ordinarily prudent man. Nothing in the trial-division record satisfactorily explains why there was no insurance protection for property left with Haleck's.

A departure from the prudent-man standard is strongly suggested by the deposition testimony of Mr. Haleck, who testified to the following:

Q (by Mr. Dennison): Did you feel it was necessary for you as
a prudent man to purchase insurance to
cover this sort of loss?
A (By Mr. Haleck): Yes.

In light of this testimony, the trial court's finding cannot be said to be well-supported, and we are left with a definite and firm conviction that a mistake has been made. When the defendant himself states that a [21ASR2d109] prudent man would have secured fire insurance for bailed property, it is clear error to find that the bailee's failure to secure insurance does not violate the prudent-man standard.

C. The Duty to Insure

There is no duty on the part of a bailee to insure bailments absent a statutory obligation, an agreement to that effect or some custom or usage of trade. The trial division found that there were none of these. This finding, however, does not have support in the record. As noted, Mr. Haleck himself admitted, in effect, that he had a duty to insure. Indeed, he thought he had purchased the kind of insurance that would have protected his customers. This was fairly substantial proof of a custom and usage of prudent bailees to carry fire insurance for their bailors.

The trial division did not reach the question of duty to insure. Bailee insurance, however, is so prevalent that it can safely be said to be custom in the industry- not just in the repair industry but in virtually all service businesses. A consumer's belief that a repair shop has insurance is entirely reasonable; in fact, it is unreasonable to put a duty on a consumer to inquire whether a repair shop, where the consumer leaves his valuable possessions, has insurance. No body of law compels a contrary result. See Annotation, Bailee's Duty to Insure Bailed Property, 28 AL.R.3d 513 (1969).

For this reason, we are left with the conclusion that there was error. To hold otherwise would be to allow repair businesses to take consumer's property free of any realistic responsibility for that undertaking.

CONCLUSION

Though the fire may not have been preventable, the failure to obtain insurance was preventable. Two theories support a finding that Haleck's was negligent in not providing no-fault fire insurance. First, the subjective belief of the business owner was that he should have obtained that kind of insurance. This created a duty on the part of Haleck's, the breach of which supports a finding of negligence. Second, because it is customary, prudent, and virtually universal to secure one's business customers against fire loss, the requisite custom and usage of trade to insure customers' cars create a duty on the part of the bailee. [21ASR2d110]

For these reasons, the decision of the trial division is REVERSED, and the cause is REMANDED to the trial division to determine damages.

The motion for reconsideration is denied, except for the necessary correction in the statement of facts.

*********

*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.

Atiumaletavai; In re Matai Title


TOVEA A. TAELEIFI GALEA'I TUPA'I, Claimant

v.

SUAFALA TAVAI, FAOATO FUA TUPUA, and
ATOA S. SIPILI, Counter-Claimants

[In the Matter of the Matai Title "ATIUMALETAVAI"
of the Village of Pago Pago]

High Court of American Samoa
Land and Titles Division

MT No. 9-91

May 28, 1992

__________

The High Court will make findings of fact on the statutory criteria in awarding a matai title when the family had an opportunity to reach a consensus but failed to do so. A.S.C.A. § 1.0409.

Before RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, MATA'UTIA, Associate Judge, LOGOAI, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Tovea A. Taeleifi Galea`i Tupa`i, Afoa L.S. Lutu
For Suafala Tavai, Tauese P. Sunia
For Faoato Fua Tupua, Gata E. Gurr
For Atoa S. Sipili, Aitofele T. Sunia

"Atiumaletavai" is a matai title in the village of Pago Pago, Ma`oputasi County, American Samoa.

Tovea A. Taeleifi Galea`i Tupa`i (Tovea) offered the title for registration by the Territorial Registrar in her name. Three counterclaims were filed by Suafala Tavai, Faoato Fua Tupua, and Atoa S. Sipili. The matter was referred by the Registrar to the Office of Samoan Affairs and thence to the High Court.

The trial in this matter was heard by the Court May 12-14, 1992. The judges deliberated for three days on the evidence and arguments presented. The Court finds as follows: [21ASR2d89]

FINDINGS OF FACT

At trial, there was some concern reflected in the testimony over the matter of a candidate filing for registration of the title as the family was still trying to reach consensus. It was clearly indicated in the testimony of all candidates, however, that the family did indeed gather on two separate occasions for discussions prior to registration, and at the end of the second meeting no consensus was reached. In fact, this second meeting of the family broke up in complete disarray with open outbursts of candidate declarations from the various factions of the family present. The Court is satisfied, from the evidence presented, that the Atiumaletavai family had a complete opportunity to reach consensus at their second family gathering but obviously were not able to do so.

Although the Court is not persuaded on the merits of all the reasons stated by the filing candidate for registering the title immediately following the second family meeting, filing for registration when the family could not reach consensus is a sufficient reason on its own.

Pursuant to the considerations set forth in A.S.C.A. § 1.0409, the Court makes the following findings of fact regarding the four candidates for the "Atiumaletavai" title:

1. The best hereditary right.

The Court is convinced, from the evidence presented, that each of the candidates is of the fifth generation of a direct blood line tracing back to one common ancestor, Manu, who was the offspring of a holder of the title "Atiumaletavai."

Therefore, the Court cannot find that any candidate prevails over the others in this regard.

2. The wish of a majority or plurality of the clans.

While the number or names of clans listed in the questionnaires vary from one to three, it is apparent that each candidate has some clan support from a combination of two or three of them. Thus, candidate Tovea, supported by clans Simaie and Sitai with her list of over 160 names, prevails over the others in this regard. [21ASR2d90]

3. The forcefulness, character, and personality of the candidates
and their knowledge of Samoan custom.

The Court finds that candidate Tovea clearly prevails in this regard. Her testimony at trial showed her knowledge of Samoan customs, and her career service record and involvement in community organizations, as well as her unselfish participation in activities that serve the public's interest at large, show her superior qualities of forcefulness, character, and personality.

4. The value of the holder of the title to the family, village, and country.

Here again, candidate Tovea prevails over the others. Her proven active participation in the family affairs, especially during the reign of the last two title holders, her genuine concern and open willingness to bear some major financial responsibilities on matters pertaining to the good health as well as some of the off-island medical expenses of the late title holder, and her continued support and maintenance of the family sa`o's `monotaga' in the village of Pago Pago, amply display the highest degree of devotion to her family. The fact that she has continually served the family and resided in Gataivai on "Atiumaletavai" communal land, and the leadership role she has played consistently on behalf of the "Atiumaletavai" family in village and government affairs, plus her 22 years of dedicated service to the American Samoa Government, clearly speak well of her high value to the family, village, and country.

CONCLUSIONS

Based on the foregoing findings, the Court concludes:

Tovea Tupa`i prevails over the other candidates on issues (2), (3), and (4), and she is therefore selected to be the title holder of the title "Atiumaletavai." The Territorial Registrar is directed to so register the title.

It is so ordered.

**********

Aoelua v. Aoelua Family,


AOELUA SA'OFETALAI, Appellant

v.

AOELUA FAMILY, Appellee

High Court of American Samoa
Appellate Division

AP No.32-90

April 8, 1992

__________

Active service for the matai and the family is necessary to have the requisite standing to petition for a matai's removal for cause; however, only family membership is necessary to have standing to petition for the removal of a matai who has been absent from American Samoa for more than one year. A.S.C.A. §§ 1.0411, 1.0412.

Having the discretion to permit an absent matai to retain his title, a court may, but is not required to, consider the wishes of family members actively serving the matai. A.S.C.A. §§ 1.0412.

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

Per RICHMOND, J.:

This appeal is from a decision of the Land and Titles Division granting appellees' petition to remove the matai title "Aoelua" from [21ASR2d2] appellant. The appellees, members of the Aoelua communal family, sought the removal based on A.S.C.A. § 1.0411, which provides for removal of matai titles for cause, and A.S.C.A. § 1.0412, which provides for removal of matai titles for absence from American Samoa for more than one year.

The appellant was awarded the title in 1985 by the Land and Titles Division of the High Court, inAoelua v. Tagoa'i, MT No. 01-85 (1985), aff'd, AP No. 20-85 (1986). He then went through a title investiture ceremony in which he and Manu Lealai were presented to the village council as joint titleholders, even though appellant alone was selected as the sole and legitimate titleholder.

Since 1987, the appellant has resided in Tacoma, Washington. The appellant has testified that he left the territory in pursuit of his wife's education in order for her to qualify as a registered nurse. The appellant estimates that this education will take between two and four years to complete, but he admits that she has not yet begun the schooling and will not begin until they earn sufficient funds for the tuition.

The trial court found that Aoelua had been absent from the territory for more than one year. The court then examined the reasons for this absence and the wishes of the family, in order to determine whether to exercise its discretion, available to the court under A.S.C.A. § 1.0412(a), to permit the matai to retain the title despite his absence. The court also considered the appellant's acquiescence with the illegal investiture and use of the title by Manu Lealai. The trial court decided not to exercise its discretion, and ordered the removal of the title.

The appellant now argues both that the appellees did not have standing to petition the court for his removal because they did not prove that they were actively serving the matai and family, and that he has not been "absent" from the territory for more than one "continuous" year because he has returned to American Samoa at least once every year.

The appellant's contention that the appellees did not have standing to bring the petition must fail. This requirement of active service is necessary to petition for removal for cause, under A.S.C.A. § 1.0411.(1) While the appellees did petition for removal under this [21ASR2d3] provision, they also petitioned under A.S.C.A. § 1.0412,(2) which only requires that the petitioner be a "member of the family of the absent matai." The petition was granted by the trial court pursuant only to the latter statute; the court made no findings or decisions with regard to the former statute. The trial court did find that petitioner Samuelu Aoelua is a member of the Aoelua family, and the appellant did not contest this finding on appeal. Thus, appellee Samuelu Aoelua, who filed the petition on behalf of appellees, had standing to bring the petition under A.S.C.A. § 1.0412.(3)

The appellant also argues that the trial court should not have weighed the wishes of the appellees when considering the "wishes of the family actively serving the matai," A.S.C.A. § 1.0412(a), in the court's decision on whether to exercise its discretion to permit the appellant to retain his title. Instead, the appellant asserts that the support of other family members, who are actively serving him, should have been considered. The appellant's claim that none of the appellees are actively serving the matai is, as the trial court stated, unjustified. His residence thousands of miles from the village makes traditional service to him by the family as a whole virtually impossible. The trial court did find that a substantial number of the appellees are actively participating in family affairs, which the trial court found sufficient to warrant its consideration.

Yet, even if the appellant were correct, we could not say that the trial court abused its discretion. The statute says that the court "may consider" (emphasis added) the wishes of the family actively serving the matai. This is not a mandate, but merely the opportunity for the court [21ASR2d4] to consider these wishes, if it believes the situation warrants its discretion. For the trial court not to have considered these wishes cannot be an abuse of its discretion.

Finally, the appellant argues that he was never "absent" from American Samoa for one "continuous" year. The statute states that "any matai absent from American Samoa for more than 1 year" may be removed upon petition. A.S.C.A. § 1.0412(a). "Absent" is generally defined as "not present; away." New Webster's Dictionary of the English Language at 6 (college ed. 1974). Within the context of A.S.C.A. § 1.0412, this logically means away from American Samoa. The appellant testified to voting by absentee ballot and to being registered as an absent resident. While these acts may show that the appellant is still a resident of American Samoa, neither supports his argument that he was not "absent"; to the contrary, they lend support to the idea that he was away from the territory.

A.S.C.A. § 1.0404, which governs eligibility to claim or object to matai title succession, provides useful guidance by analogy to a court attempting to determine whether or not to exercise it discretion to permit the matai to keep the title despite his absence. That section provides that, to be eligible to claim or object to the succession, a person must have resided in American Samoa for one calendar year preceding the claim or objection. The section goes on to permit a bona fide resident who is absent from the territory for specifically listed reasons to register as an absent resident and thus be treated for the purposes of that statute "as if he actually resided in American Samoa." One such reason is "attendance at an education institution." These reasons for absence may guide a court when determining whether to use its discretion.

The trial court's refusal to exercise its discretion was not an abuse of discretion, however, even though appellant's claimed reason for the absence is the education of his wife.(4) First, these reasons, which are not mandated by the relevant statute, A.S.C.A. § 1.0412, are merely guidelines for the court, not a requirement that any matai who meets them must be permitted to keep his title. Second, appellant has not met these guidelines, which specify "attendance at an educational institution," [21ASR2d5] because appellant's own testimony indicates that his wife has not yet begun to attend an educational institution.(5)

The trial court also correctly considered the effect of the appellant's absence. In his absence, an unregistered coholder has been permitted to hold himself out as Aoelua. Appellant's acquiescence to this illegal use of a matai title would presumably continue until the legitimate matai returned, but even if it did not continue, its occurrence in the first place is an appropriate factor for the court to weigh.

Lastly, the statute does not require one "continuous" year of absence, but merely "more than 1 year." This statute is based on the needs of both the matai and the family to remain in close touch.(6) The trial court accurately stated:

The Fono's enactment of A.S.C.A. § 1.0412(a) merely highlights
the self-evident truth that a matai's place is with his family and that
the meaningful exercise of his duties demands his continuing
presence in the territory.

While the appellant may have returned for short, occasional visits during his residency in Washington, the trial court decided, as a factual matter, that these visits did not constitute a "continuing presence" sufficient to meet the purpose of the statute. We are unable to say that such a decision is clearly erroneous, and we therefore AFFIRM.

**********

* 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 District of the Northern Mariana Islands, serving by designation of the Secretary of the Interior.

1. A.S.C.A. § 1.0411(a) provides:

A matai may be removed by the High Court upon a petition
for removal filed in the High Court by 25 blood members of
the matai's family, over 18 years of age, who at the time of
the petition are all serving the matai and family according to
Samoan custom.

2. A.S.C.A. § 1.0412(a) provides that: "Any matai absent from American Samoa for more than 1 year may be removed of his title upon petition filed in the High Court by any member of the family of the absent matai." (emphasis added)

3. This Court does not decide whether petitioners would have standing under the other portion of their petition.

4. The Court makes no findings here that the education of a spouse qualifies as a reason for absence under A.S.C.A. §1.0404(b) for the purposes of either A.S.C.A. § 1.0412 or A.S.C.A. § 1.0404.

5. This seems to indicate that appellant was incorrectly registered as an absent resident, because he did not meet the statutory requirements. This matter is not before the Court at this time, however.

6. See, e.g., Galu v. Mariota, 1 A.S.R. 461, 463 (1932) ("the court does not feel the interests of the family can be well served by a matai who does not live in the Village where the family of which he is the matai has its situs").

Anderson v. Vaivao,


MARTIN ANDERSON, Appellant

v.

VAIVAO M. FRUEAN, FUGA T. TELESO and
TAlTO AFA, Appellees

MARTIN ANDERSON, Appellant

v.

AMERICAN SAMOA GOVERNMENT, Appellee

High Court of American Samoa
Appellate Division

AP No. 9-90

June 15, 1992

__________

On appeal. a clearly erroneous standard applied to questions of fact, but questions of law are reviewed de novo. A.S.C.A. § 43.0801{b).

Because land can be owned communally in American Samoa, a communal family may obtain title to land through adverse possession. A.S.C.A. § 37.0120.

In condemning land for public uses to build a road, the United States also acquired the land between the road and the shoreline, including the accompanying littoral rights; these rights have been transferred to ASG. A.S.C.A. § 37.2050.

Subject to several exceptions, filled-in and submerged coastal lands were transferred for the United States Government to ASG, to be administered in trust for the territory's people. 48 U.S.C. § 1705(a). [21ASR2d96]

An action challenging ordinances condemning land for the coastal road was barred by laches when the plaintiff did not file suit until 90 years after the ordinances were enacted. A.S.C.A. § 37.2050.

Land owned by ASG is not subject to acquisition by adverse possession, because the statute of limitations for adverse possession does not run against the government. A.S.C.A. § 37.0120.

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

Counsel: For Appellant, William H. Reardon
For Appellees Vaivao, Fuga, and Taito, Tauese P. Sunia
For Appellee American Samoa Government,
Arthur Ripley, Jr., Assistant Attorney General

RICHMOND, J. :

This appeal is from the decision in two consolidated cases of the Land and Titles Division holding that the appellant, Martin Anderson (Anderson), did not own either of the two claimed portions of the parcel "Logopesega." (1)

The two cases concern the single, freehold parcel of land called "Logopesega" in Pago Pago, American Samoa. This parcel was purchased by Jane Sophia Foster and was later confirmed to be her land in Court Grant 852 in 1897. Douglas O. Craddick (Craddick) purchased Logopesega from the heirs of Jane Foster in 1981 and later assigned his interest to Anderson. The main road around Pago Pago [21ASR2d97] Harbor divides Logopesega approximately along the claims of the parties.

The first case, LT No.40-85, was originally brought by the matais of the communal families Vaivao, Fuga, and Taito (the communal families), which claimed an interest in the land on the mountain or mauga side of the road, against Craddick to quiet title to the mauga side of Court Grant 852 and for unspecified damages. Anderson intervened in this action as Craddick's assignee or his successor in interest. The lower court ruled that the communal families did indeed own the land, which they acquired through adverse possession. The court did not decide which families owned which portions of the parcel, so it therefore could not quiet title, and it did not award damages because no evidence on these issues was offered at trial. Anderson now appeals, claiming that the court erred in not finding that he, as the owner of Court Grant 852, owns this land. The matais did not appeal the decision and, in fact, filed no appellate brief.

The second case, LT No.2-87 , was brought by Anderson against the American Samoa Government (ASG) to quiet title to the seaward or sami side of the road. ASG has quitclaimed part of this section of the parcel to Anderson. (2) At issue is the remaining part of the sami side of Logopesega, which was entirely created when the government filled in the back portion of Pago Pago Harbor for park and recreation purposes; this filling project began in 1966. (3)

Standard of Review

Anderson claims that, because this is an action in equity, we should review the trial court's findings of fact de novo. To do so, however, would be directly contrary to the mandate of A.S.C.A. § 43.0801(b), which states that "[t]he findings of fact of the trial, probate and land and titles divisions of the High Court may not be set aside by the appellate division unless clearly erroneous" (emphasis [21ASR2d98] added). We therefore apply the clearly erroneous standard to questions of fact. Questions of law are, of course, reviewed de novo by the appellate division.

The Mauga Side

Although Anderson phrases his appeal of the decision awarding the rnauga side to the communal families as three issues, essentially there is only one issue: was the evidence sufficient to support the trial court's decision? The question on appeal here is one of fact. The evidence and testimony submitted to the trial court was, as the court acknowledged, inconsistent. The relevant test is not whether there were facts in the record sufficient to support a decision for the appellant, but whether there was sufficient evidence to support the trial court's decision--only then would the decision be clearly erroneous.

The trial court is in the unique position of being able to assess the credibility of witnesses, both interested and disinterested. The court carefully considered the testimony of the witnesses before it found that the communal families had adversely possessed the land. Moreover, the trial court in this case went so far as to inspect the parcel at issue, to enhance its ability to assess the credibility of both the surveys submitted and the witnesses' versions of the use and occupancy of the parcel. We cannot say that the evidence cited by the trial court is insufficient to support its decision.

Anderson also argues that the land could not be adversely possessed through an "unorganized use of the premises by the general public which indicates a claim of common or public right. " Appellant's Brief at 8. The trial court did not find such a use by the general public, however. It found that the plaintiff communal families, not the general public, "have had possession of the disputed area for a great number of years while exercising proprietary rights thereon... without any interruption whatsoever from the Fosters." Additionally, after reciting the requirements of adverse possession, the court concluded that" [p]laintiffs ' possession of the disputed land area certainly qualifies to confer title on them. " (Emphasis added).

Because land can be owned communally in American Samoa, it logically can also be adversely possessed communally. See Fau v. Wilson, 4 A.S.R. 443, 448 (1964); Laeli v. Moetoto, 4 A.S.R. 494, 495 (1964). Such possession is distinct from use by the general [21ASR2d99] public. It includes exclusive and continuous possession by the communal family against the rest of the world.

Anderson misconstrues A.S.C.A. § 37.0201, (4) which defines freehold land, in an attempt to show that adverse possession of freehold land violates public policy. Such a construction, however , would mean that freehold land could never be adversely possessed. No such exception is evident in the adverse possession statute, A.S.C.A. § 37.0120. Freehold land is essentially the only fee-simple title to land available in the territory. Anderson has shown no public policy reason to exempt such titles from the adverse-possession statute.

The court found that the communal possession was clearly shown, although the plaintiffs did not submit a surveyor comply with other necessary requirements sufficient to register the land or to award the requested relief. These findings were not clearly erroneous and the conclusions of law were correct. We therefore affirm the trial court's decision awarding the land to the communal families.

The Sami Side

Anderson's arguments concerning the sami side of Logopesega are more complex. Craddick, Anderson's assignor, originally laid claim to the filled land as the owner of the littoral rights of Court Grant 852 and who is therefore entitled to the abutting, reclaimed land. ASG claims to have acquired title to the littoral rights in 1900 through two enactments on September 3, 1900: Ordinance No. 15, called " An Ordinance Relating to a Public Highway in Pago Pago," and Regulation No.16, called "Regulation Concerning the Public Road of Pago Pago as Defined in Ordinance No.15 of the United States Naval Station, Tutuila" (collectively, the ordinances). (5) [21ASR2d100] Ordinance No.15 condemned the land from Blunt's Point to Breaker's Point "along the shore at high-water mark, of a uniform 15 feet distant inland from said shore." It also provided that anyone claiming compensation for this condemnation "must present their claims to the High Court within three months from the date hereot [sic]; otherwise such claims shall not be recognized. " Regulation 16 then declared it unlawful for anyone to erect any building or structure on the sami side of the public highway without permission of the Commandant of the United States Naval Station, Tutuila, thus asserting the government's proprietary authority over its newly-acquired land. Court Grant 852 extended to the high-water mark within the above area, and ASG claims that the United States therefore acquired the littoral rights of this parcel through the ordinances; these rights were later transferred to ASG. (6) [21ASR2d101]

1. Lago v. Mageo and the Treaty of Cession

Appellant first claims that the trail court erroneously relied on Lago v. Mageo, 4 A.S.R. 287 (1962), aff'd sub nom. Mageo v. American Samoa Gov't , 4 A.S.R. 874 (1963), instead of overuling it; he now urges us to overrule it. This issue is raised too late.

Anderson claims that the court in Lago erred because it never addressed the issue of whether the ordinance that condemned the land and essentially set a statute of limitations for seeking compensation for this land complied with the Treaty of Cession of Tutuila and Aunu'u (the Treaty), which governs the transfer of the islands of Tutuila and Aunu'u to the United States. Appellant claims that the ordinances allowed the government to take property without paying for it, if the owner did not file for compensation within the allotted three months. According to Anderson, this violates the Treaty because Section 2 of the Treaty provides that

If the [ United States] Government shall require any land or any
other thing for Government uses, the Government may take the
same upon payment of a fair consideration for the land, or the
other thing, to those who may be deprived of their property on
account of the desire of the Government.

Anderson did raise, in his Memorandum of Martin Anderson at 5 (filed Jan. 19, 1990), the issue of whether the ordinances violated
[21ASR2d102] the Treaty through overbreadth. (7) He did not, however, raise the larger issue until his motion for reconsideration. It is therefore not appropriately before this Court. Vaimaona v. Tuitasi, 13 A.S.R.2d 76, 82 (1989).

Nevertheless, contrary to appellant's urging that we overrule Lago, we would reaffirm the court's holding in Lago as within the parameters set out by the Treaty. The ordinances, which became published law, were an effective and fair means for the government to acquire the land needed to establish the public highway in the Harbor area. Compensation was offered, in accordance with the Treaty, although the records of payments made cannot be located. As a practical matter, such an ordinance was surely the best way to condemn such a large section of land across the property of so many frequently unregistered and, therefore, unknown owners.

2. Overbreadth

Appellant next claims that the ordinances took more land than was strictly necessary for a road and thus were an overbroad taking.

The trial court incorrectly interpreted the language of the ordinance to mean that the government acquired a "uniform 15 feet of land in from the shoreline. " We instead agree with the Lago court's interpretation, which concluded that the language of Ordinance No.15 meant that "the road was to be 'of a uniform width of fifteen feet' and it was to be 'distant inland from' the shore." Lago, 4 A.S.R. at 292. The Court then interpreted "'along high-water mark of the Harbor of Pago Pago' " to mean that the road was to be within a reasonable distance of the high-water mark, id. at 293, and that the condemnation included the land between the highway and the sea, id. at 296. This is confirmed by Regulation No.16, which forbids anyone from erecting a building on this area without the permission of the government; thus, the government was exercising its proprietary rights. This interpretation of the ordinances, affirmed by the Appellate Division in that case, is the only reasonable interpretation. As the Lago court noted, building a road at an equal distance from the shoreline would be extremely impractical, especially given the many windings and curves of the Pago Pago harbor area. Id. at 293-94. [21ASR2d103]

This condemnation in this case was not unreasonable- it was not an overbroad taking. The land was "condemned and appropriated for public uses," which logically include more than simply a road. Additionally, as the trial court noted,

[w]ith the increasing demands of modern day automobile traffic
within the territory, there is logically no alternative available to
the government for road improvements in the Pago Pago bay
area but the possibility of going sami side.

Thus, through the ordinance, the United States government acquired the land between the road and shoreline, which includes the accompanying litoral rights; ASG now possesses these rights. (8) These rights were necessary for the "public uses" of the ordinance to permit such improvements as sea walls to protect the road.

Additionally, in 1974filled-in land and submerged lands were transferred to ASG, subject to several exceptions, to be administered in trust for the benefit of the people of American Samoa. 48 U.S.C. § 1705(a). (9) This transfer includes the filled-in portion of [21ASR2d104] Logopesega, which formerly belonged to the United States Government. The exception of 48 U.S.C. § 1705(b)(ix) claimed by Anderson, that he had lawfully acquired the formerly submerged lands by purchase of Court Grant 852, does not apply. These formerly submerged lands were the property of the United States, as part of a navigable water within a territory of the United States. Lago, 4 A.S.R. at 301 (citing 65 C.J.S. Navigable Waters 197). Anderson could only have acquired land, up to the mean high tide mark through purchase of Court Grant 852.

Anderson's reliance on Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973), in an attempt to assert his right to the filled-in portion of Logopesega, is misplaced. In Bonelli, a federal re- channelling project resulted in thousands of acres of dried-up riverbed land; the state and the cattle company, the riparian owner, then disputed the ownership of this land. The United States Supreme Court held that the cattle company held title, as the riparian owner .

Because ASG owns the littoral rights of Logopesega, however, if 48 U.S.C. § 1705 were not applicable and Bonelli were, the latter would support ASG rather than Anderson. The initial condemnation was for a permissible public purpose. Additionally, the filling project was undertaken for another, equally valid public purpose--the creation of a park and recreation area for the public.

Through Ordinance No.15, title to the littoral rights along the shore of Pago Pago Harbor from Blunt's Point to Breaker's Point, including the (previous) shoreline of Court Grant 852, vested in and still remains in the government. ASG therefore owns the reclaimed land attached to Court Grant 852, either as the littoral owner or through 48 U.S.C. § 1705.

3. Laches [21ASR2d105]

The trial court also properly found that ASG's defense of laches was valid. Contrary to Anderson's assertion, the littoral rights were not taken in 1966 when the filling operations began, but in 1900, when the ordinances were enacted. Mageo v. Government, 4 A.S.R. 874, 885 (App. Div. 1963). Appellant, in waiting nearly 90 years to claim that he--or rather, his predecessor in interest--was not compensated for an alleged taking, has shown "the classic elements of laches--an unreasonable delay in the assertion of their rights by one party and undue prejudice to the other party." Siofele v. Shimasaki, 9 A.S.R.2d 3, 14 (1988).

Appellant states that "(t]he doctrine of stale demand applies only where, because of the lapse of time, it would be inequitable or injustice would result to allow a party to enforce his legal rights. " Appellant' s Brief at 19. Yet Anderson has no legal rights in this situation. The 1900 condemnation, for a valid public purpose, was permissible. An action for the recovery of land is barred if it is not brought within 20 years after it accrues. A.S.C.A. § 43.0120(6). Thus, any right to recover such land by claiming the ordinances were invalid should have been brought no later than 1920. The statute of limitations for adverse possession does not, however, run against the government, Mageo v. Government, 4 A.S.R. 874, 881-82 (App. Div. 1963); Teo v. Totoa, 2 A.S.R. 243 (1947), so the government has owned the land since 1900, whether or not the Fosters continued to occupy it.

By waiting so long to assert this claim, Anderson/Foster has prejudiced ASG. Several different bodies have governed American Samoa since the Treaty of Cession, and the governmental records from these different periods have been scattered and sometimes lost, making it difficult, if not impossible, for ASG to affirmatively show compensation was paid.

Conclusion

For the foregoing reasons, we AFFIRM the trial court's decision awarding the sami portion of Logopesega to the ASG. We likewise AFFIRM the trial court's decision that the communal families acquired the mauga portion of Logopesega through adverse possession.

*********

*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. Also spelled "Lotopesega."

2. This quitclaimed portion was part of yet another case, Craddick v. ASG, LT No.20-85, which has been resolved and is not at issue in this appeal. The Pago Plaza has since been erected on this portion of the parcel.

3. Most of the disputed portion of land now serves as the parking lot for the Pago Plaza.

4. A.S.C.A. § 37.0201(b) states:

"Freehold lands" means all those lands included in court grants
prior to 1900 which have not, at the request of the owner, been
returned to the status of other land in American Samoa
surrendering their freehold characteristics.

5. The Ordinances were later codified by the Legislative Branch of the Government of American Samoa. Ordinance No.15 now appears as A.S.C.A. § 37.2050:

The public highway declared and proclaimed by Regulation No.
15 and No.16, 1900, enacted 3 September 1900 by B.F. Tilley,
U.S.N., Commandant, and amended by W.. Evans, Captain,
U.S.N., on 10 May 1921, extending from Blunt's Point on the
southern side of ,Pago Pago Harbor, toward Observatory Point
and around the harbor to Breaker's Point on the northern side of
the harbor, along the shore at high water mark, of a uniform width
of 15 feet distant inland from the shore, the land included in the
description being condemned and appropriated for public uses,
is recognized as a public highway, and the rights of the government
and public thereto is asserted.

Regulation No.16 now appears as A.S.C.A. § 37.2052 (now requiring the permission of the Governor rather than the Commandant).

6. Act Aug. 17, 1961, Pub. L. 87-158,75 Stat. 392, provides:

The Secretary of the Navy is hereby authorized and directed
to transfer, without reimbursement or transfer of funds, to the
government of American Samoa, within ninety days after the
date of enactment of this Act [ enacted Aug. 17, 1961] title to
all property, real and personal, which is located in American
Samoa on the date of enactment of this Act [enacted Aug. 17,
1961]... and which is owned by the United States and is within
the administrative supervision of the Department of the Navy
on such date.

(Act may be found in 48 U.S.C.S. § 1662 note.)

This transfer was apparently accomplished by a deed entitled "Transfer of Navy Property to the Government of American Samoa," from E.J. Poltier, Chief of the Bureau of Yards ans Docks, by direction of the Secretory of the Navy, and is probably dated on or about November 15, 1961, although we have been unable to located a signed copy of this deed.

7. This issue is addressed in the next section.

8. Anderson's claim that he acquired the littoral rights when ASG quitclaimed the Pago Plaza parcel to him, see footnote 2 and accompanying text, supra, is incorrect. ASG quitclaimed the land up to the old shoreline, but ASG had already acquired the filled-in portion when the land was filled, and the littoral rights had moved with the shoreline. ASG thus retained the filled portion for the old shoreline up to and including the new shoreline and its accompanying littoral rights.

9. 48 U.S.C. § 1705(a) states:

Subject to valid existing rights, all right, title, and interest of the
United States in lands permanently or periodically covered by
tidal waters up to but not above the line of mean high tide....
and in artifically [sic] made, filled in, or reclaimed lands which
were formerly permanently or periodically covered by tidal
waters, are hereby conveyed to the [government of American
Samoa].... to be administered in trust for the benefit of the
people thereof.

One example of existing rights is found in 48 U.S.C. § 1705(b)(ix):

all submerged lands lawfully acquired by persons other than the
United States through purchase, gift exchange, or otherwise.

Sala v. American Samoa Gov’ t


__________

To bring a declaratory relief action, there must be a justiciable issue based on alleged facts showing, under all the circumstances, that a substantial controversy exists between parties having adverse legal interests of sufficient immediacy and reality to warrant issuance of a declaratory judgment; the test generally applied is the relative certainty that litigation will eventually follow if declaratory relief is not granted. A.S.C.A. § 43.11 01.

Even if an actual controversy exists, a court has the discretion to refuse declaratory relief when, under all the circumstances, it is unnecessary or improper at the time it is sought. A.S.C.A. § 43.1102.

Although a failure to exhaust administrative remedies does not absolutely preclude judicial action, such action is permissible only in exceptional circumstances, including the exception for violations of statutory or constitutional rights.

In disciplinary matters, a public employee need not await a final agency decision only if a preliminary agency decision clearly and unambiguously violates a statutory or constitutional right of thc cmployee or if the prescribed administrative process is clearly inadequate to prevent irreparable injury.

Both the territorial Administrative Procedure Act and the Department of Public Safety's Standard Operating Procedure, a statement of internal management not defined as an administrative rule under the APA, afford a person under investigation the basic due- process rights of notice of the hearing, including a concise statement of allegations, and a right to a hearing at which there is an opportunity to respond and present evidence and argument on all issucs involved and conduct cross-examination. A.S.C.A §§ 4.1025, 4.1026; SOP §§ 4.1.3, 4.1.4.

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

Counsel: For Petitioner, John L. Ward II
For Defendant, Jennifer Joneson, Assistant Attorney General [21ASR2d51]

This action seeks declarations on plaintiff Michael R. Sala's rights with respect to proceedings to terminate his employment by defendant American Samoa Government (Government).

FINDINGS

The evidence before the Court consists solely of documents offered by the parties and admitted. The relevant and material facts provided by these documents for purposes of this opinion are as follows:

l. Plaintiff is a career service employee of the Government. On August 23, 1991, he held the position of Deputy Commissioner in Government's Department of Public Safety (DPS). His duties included the functions described in paragraph 4 of these findings.

2. On August 23, 1991, the Acting Governor, pursuant to A.S.C.A. § 4.0302, issued a memorandum to the Commissioner of Public Safety (Commissioner) authorizing the Commissioner to appoint a "Special Board of Inquiry" (BOI) to investigate allegations of criminal violations of plaintiff as the driver of a motor vehicle in a traffic accident on or about August 6, 1990, in American Samoa, and to provide a report and recommendations to the Commissioner and Attorney General's Office. The memorandum also directed the BOI to "conduct its proceedings pursuant to the Administrative Procedures Act (APA), and in accordance to the laws and regulations pertaining to career service employees of the American Samoa Government."

3. On September 20, 1991, plaintiff's attorney wrote to Michael Fuiava, who is a Deputy Commissioner of Public Safety in charge of DPS operations, and was the BOI's Chairman. This letter appears to have been written when plaintiff's attorney first became aware of the BOI's activities. It informed the Chairman that plaintiff would not make any further written statements to the BOI in view of the pending personal injury action. It also questioned both the Governor's authority to delegate his power to appoint a board of inquiry and the lack of procedural rights under the APA and career service laws or rules afforded plaintiff in the BOI proceedings to that date.

4. The "Report on the Findings, Conclusions and Recommendations of the Special Board of Inquiry," dated November 8, 1991, was addressed to the Commissioner and Attorney General. The title page, Table of Contents, and the first 11 pages and part of Page 12 are in evidence in this action. The report shows that: [21ASR2d52]

a. In addition to Chairman Fuiava, the BOI's members were the DPS Commander in charge of the Training Division, DPS Commander in charge of the Office of Motor Vehicles and Highway Safety, DPS Commander in charge of the Records Office, and DPS Commander in charge of Administration and Finance. The Chairman is of equal rank to plaintiff. The other members are of lower rank.

b. The Commissioner requested the Attorney General to provide legal counsel for the BOI. Assistant Attorney General Ripley was assigned to this role.

c. The BOI took note of the DPS Standard Operating Procedures (SOP) which govern internal investigations of alleged improprieties or misconduct of DPS employees and provide for a board of inquiry to make findings and recommendations to the Commissioner. In cases of proposed adverse disciplinary action, the SOP provides that proceedings of such boards of inquiry shall be conducted subject to applicable territorial and federal laws, apparently referencing the due process requirements in A.S.C.A. Title 4 and A.S.A.C. Title 4.

d. The BOI decided that the SOP was not applicable to its proceedings for two reasons. First, the SOP requires that the members be of equal or higher rank to the employee subject to those proceedings. The BOI Chairman was the only available person who met this requirement, which necessitated the Acting Governor's action to authorize the BOI. Second, the SOP, despite their approval by the Commissioner and Governor, had not been adopted under the formal rule making process. Thus, the BOI decided to use the SOP only as guidelines.

e. The BOI also decided to conduct its proceedings as an investigatory process rather than as a contested case hearing under the APA. Thus, the BOI did not afford plaintiff the contested case requirements of reasonable notice of the hearing and opportunity to respond, present evidence and argument, and conduct cross-examination at the hearing. Rather it took statements under oath by witnesses appearing voluntarily or by subpoena and considered documentary evidence such as police reports, witness statements, and photographs.

f. The BOI began its investigation on August 27, 1991 by reviewing official DPS reports. Witnesses gave statements at various times between August 30 and October 1, 1991 when they and at least three BOI members were available. The accident scene was viewed by the [21ASR2d53] BOI on September 3, 1991.

g. During its investigation, the BOI also decided to expand the scope of its inquiry to include the manner in which the traffic accident investigation was carried out by DPS employees in light of conduct by them that, if substantiated by sufficient evidence, could lead to charges involving obstructing justice, tampering with evidence and perjury by some or all of these employees.

h. The Table of Contents indicates the report covers circumstances leading to and at the traffic accident, the conduct of the investigation and follow-up investigation by various DPS employees and an employee of the Attorney General's Office, and plaintiff's involvement in the conduct of the investigation on general dates, beginning August 13 and ending September 19, 1990. It also lists conclusions and recommendations regarding plaintiff in terms of six territorial laws on speeding, general duty of driver, careless driving, driving while under the influence of intoxicating liquor causing bodily injury, tampering with or fabricating physical evidence, and tampering with a witness.

5. On November 15, 1991, the Commissioner of Public Safety served plaintiff with Commissioner's Office Memorandum No. 61-91, entitled "Notice of Charges Re Traffic Accident on August 6, 1990." The Notice informed plaintiff that the BOI had completed its investigation and recommended plaintiff's prosecution on criminal charges and adverse disciplinary action by termination of his employment. Plaintiff was given three days to respond to the memorandum, which he did in writing on November 18, 1991.

6. On November 15, 1991, the Commissioner also issued to plaintiff Commissioner's Office Memorandum No. 62-91, entitled "Notice of Placement of [sic] Annual Leave." This Notice, on the basis of the BOI report and the sensitive nature of plaintiff's position and responsibilities in the Department, relieved plaintiff from all duties of his position and placed him on annual leave, effective immediately, until resolution of the underlying matter.

7. Plaintiff responded on November 18, 1991 at length and in detail. He denied each of the alleged statutory violations, and for most allegations provided further comment. He also protested the denial of rights under the ABA career service laws and rules, specifically citing A.S.A.C. § 4.1026 and SOP § 4.1. He then continued with comments [21ASR2d54] on the lapse of time after the traffic accident before the BOI was convened, and on details of certain events and his actions after the traffic accident. He concluded by commenting on the BOI's recommendations, the validity of its report, again the lapse of time, and the importance of his role in as the head of the Government's operations within DPS in connection with the programs of the South Pacific Islands Criminal Intelligence Network (SPICIN) and the U.S. National Central Bureau (Interpol).

8. On November 18, 1991, the Acting Governor, by memorandum to the Commissioner, restored plaintiff to his position as head of the Government's SPICIN and Interpol operations.

9. On November 25,1991, Assistant Attorney General Ripley wrote to plaintiff's attorney to follow up on their conversation on November 21, 1991. This letter indicated that the Commissioner would return plaintiff's November 18, 1991 response for attorney-client consultations as may be appropriate and would allow more time to respond in any event. Mr. Ripley also stated he had advised the Commissioner that only the Commissioner, and no BOI member, can participate or advise in any final or recommended agency decision for disciplinary action.

10. On November 27, 1991, plaintiff's attorney responded to Mr. Ripley's letter. This letter identified four concerns with the disciplinary proceedings. First, the Attorney General's Office was still plaintiff's attorney of record in the personal injury action, which arose out of the August 6, 1990 traffic accident and was still pending, and directly participated in the BOI proceedings, allegedly causing a conflict of interest. Second, the entire BOI report was sent to the Commissioner while plaintiff's attorney interpreted the Acting Governor's authorization of the BOI to limit this action to only the BOI's recommendation. Next, the BOI proceedings did not comply with the APA or the administrative rules governing disciplinary action against career service employees. Finally, the bulk of the report dealt with matters outside the scope of the Acting Governor's authorization, to wit, the traffic citations, which had been alleged in the personal injury action complaint, but were later acknowledged as not in fact having been issued. For these reasons and other violations of plaintiff's rights, he advised the Attorney General's Office that plaintiff would not participate in the BOI proceedings, urged withdrawal of the BOI report and the BOI's dissolution, objected to the Commissioner's taking disciplinary action against plaintiff due to the BOI's review of plaintiff's November 18, 1991 response, and cited [21ASR2d55] conflicts of interest of the Attorney General's office and DPS as preventing further action in this matter.

11. On February 7, 1992, the Commissioner forwarded the BOI report, Commissioner's Office Memorandum No. 61-91 of November 15, 1991, and plaintiff's written response of November 18, 1991, to the Director of Human Resources (Director), and stating that plaintiff's "acts and misconduct in this matter have adversely reflected upon the dignity, integrity and prestige of the governmental service," recommended that plaintiff be terminated from employment with the Government. The Commissioner did not request plaintiff's suspension with or without pay pending removal.

12. On February 10, 1992, plaintiff's attorney wrote to the Director. This letter requested the Director not to take action on the Commissioner's February 7, 1992 memorandum until the Commissioner's conflict of interest and the legality of the BOI's action were resolved, and the Attorney General's "special investigator's" findings were known, citing improprieties in the BOI proceedings, the Commissioner's violation of A.S.C.A. § 4.1034, and the Attorney General's decision to obtain outside counsel to handle the matter.

13. On February 25, 1992, the Director responded to plaintiff's attorney. This letter denied the request not to take further action.

14. On February 25, 1992, the Director of Human Resources, by memorandum to plaintiff, notified plaintiff that the Director was terminating plaintiff's employment with the Government, effective March 28, 1992, and suspending plaintiff from his duties, which was implemented without pay, for 30 days, from February 26 to March 27, 1992. The notice informed plaintiff that the Director had carefully reviewed this matter and concurred with the Commissioner's recommendation as reasonable. It further advised plaintiff that his termination was based on plaintiff's "conduct unbecoming a reliable and dependable employee of the Government," citing specifically charges of "speeding, careless driving, driving while under the influence of intoxicating liquor, causing bodily injury, tampering with and/or fabricating evidence, and failure to exercise care while operating a government vehicle" arising out of the traffic accident on August 6, 1990. The letter also advised plaintiff that he was entitled to request within 10 days a hearing before the Government's Personnel Advisory Board (PAB) on this matter and that he had certain rights and procedures related to his hearing process. [21ASR2d56]

15. On February 26, 1992, plaintiff's attorney again wrote to the Director. This letter pointed out that the Acting Governor's August 23, 1991 authorization specifically directed compliance with the APA and the requirement of the Act that investigatory proceedings and reports must conform with an investigatory board's convening order.

16. On February 28, 1992, plaintiff formally requested a hearing before the PAB which was then scheduled on March 16, 1992, by the Director. Before the hearing date, plaintiff requested additional preparation time and disqualification of the Attorney General's Office from representing the Government at the hearing. The Attorney General's Office agreed on the Government's behalf to both requests. On March 13, 1992, plaintiff filed this action for declaratory relief. In a hearing before this Court of March 27, 1992, the parties agreed, among other things, that at plaintiff's request the PAB hearing would be delayed until after a final decision in this action.

DISCUSSION AND CONCLUSIONS

1. Actual Controversy.

We first address the issue of whether or not there is an actual controversy relating to the legal rights and duties of the parties, which is the core requirement of a declaratory relief action. A.S.C.A. § 43.1101. There must be a justiciable issue based on alleged facts showing, under all the circumstance, that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant issuance of a declaratory judgment. The test generally applied is the relative certainty that litigation will eventually follow if declaratory relief is not granted. In re High Chief Title Mauga, 4 A.S.R. 132 (Tr. Div. 1974); Danzy v. Johnson, 417 F. Supp. 426 (E.D. Pa. 1976),aff'd, 582 F.2d 1273 (3rd Cir. 1978).

Plaintiff is a career service employee of the Government. The Government proposes to terminate plaintiff's employment through the adverse or disciplinary action process applicable to career service employees. Plaintiff is challenging the due process adequacy of the procedures to date. It is difficult to frame a more direct and immediate controversy involving legal rights and duties of parties that has high potential to result in future litigation if the alleged errors are not resolved now. An actual controversy exists.

2. Refusal to Hear. [21ASR2d57]

Despite the presence of an actual controversy, the Court still has discretion to refuse declaratory relief where it is not necessary or proper at the time sought under all the circumstances. A.S.C.A. § 43.1102. Application of this statute properly involves analysis of the administrative law principle that the exhaustion of administration remedies is a prerequisite to judicial review in the context of a declaratory relief action.

The exhaustion of administrative remedies standard does not absolutely preclude earlier judicial action, but such action is permissible only in exceptional circumstances. In disciplinary matters, a public employee need not await a final agency decision only if a preliminary agency decision violates clearly and unambiguously a statutory or constitutional right of the employee, or if the prescribed administrative process is clearly inadequate to prevent irreparable injury. Barnes v. Chatterton, 515 F.2d 916 (3rd Cir. 1975); American Federation of Government Employees, Local 1004 v. Resor, 442 F.2d 993 (3rd Cir. 1971); Fitzgerald v. Hampton, 467 F.2d 755 (D.C. Cir. 1972); Athas v. United States, 597 F.2d 722 (Ct. Cl. 1979).

Since the PAB hearing remains as a significant step in proceedings to terminate plaintiff's employment, administrative remedies are clearly not yet exhausted. The Court cannot and will not speculate on the outcome of this hearing.

A further factor is avoidance of judicial administration of executive branch processes. The Court is in no position in theory or practice to take on the executive's functions to administer territorial laws and rules. Election Office of American Samoa Government v. Tuika, 9 A.S.R.2d 1 (Tr. Div. 1988)

With these limiting principles in mind, we turn to analyzing the substantive issues.

3. Misconduct investigation.

Disciplinary action against public employees almost invariably starts with an investigation of some kind into the misconduct resulting in discipline. Normally such investigations are informal and do not involve due process requirements. They may, however, require certain due process procedures when an underlying statute or regulation specifies particular procedures to follow. For specific examples and discussion of principles, see Morgan v. United States, 304 U.S. (1938); Green v. [21ASR2d58] McElroy, 360 U.S. 474 (1959); Hannah v. Larch, 363 U.S. 420 (1960); Federal Communication Commission v. Schreiber, 381 U.S. 279 (1965).

The type of investigation required in this case depends on whether the board of inquiry provisions of the SOP or the contested case provisions of the territorial APA, A.S.C.A. §§ 4.1025-4.1037, or both, apply to the disciplinary process. Both the SOP and APA afford a person under investigation basic due process rights, summarized, for purposes of this discussion, as notice of the hearing, including a concise statement of allegations, and a right to a hearing at which there is opportunity to respond and present evidence and argument on all issues involved and conduct cross-examination. SOP §§ 4.1.3, 4.1.4; A.S.C.A §§ 4.1025, 4.1026.

The SOP was approved by the Commissioner and the Governor, but it has not been adopted pursuant to the rule making procedures set forth in the APA, specifically A.S.C.A. § 4.1020. Thus, it is not an administrative rule as defined in A.S.C.A. § 4.1001(g), having the force and effect of law. It is, however, effective as a statement of internal DPS management, which requires no formal adoption process.

Although it is intended to be applicable as an internal management tool to all disciplinary actions involving DPS employees, the SOP, by its own terms, could not work in the disciplinary proceedings against plaintiff. SOP § 4.1.2 clearly provides that the board of inquiry must consist of four or five members "selected from among employees of the department of equal or higher rank than the employee against whom disciplinary actions [sic] is brought." Excluding the Commissioner, the only person qualified to serve as a member was the Deputy Commissioner who was eventually named as Chairman of the BOI.

Whether or not the Acting Governor issued the BOI convening order of August 23, 1991 exclusively due to this limitation in the SOP, he did, pursuant to A.S.C.A § 4.0302, authorize the BOI investigation.

This convening order delegated the authority to select the BOI members to the Commissioner. Plaintiff's argument that executive appointments must remain with the Governor may reflect sound policy, but so long as A.S.C.A. § 4.0131 allows the Governor and other executive branch officials to delegate their authority, but not their responsibility, without limitation, this delegation of appointing authority was proper. We do not believe that other existing statutes on executive branch appointments limit A.S.C.A. § 4.0131. [21ASR2d59]

Four of the BOI members appointed by the Commissioner were DPS employees of lesser rank than plaintiff. These appointments were contrary to the principle of SOP § 4.1.2, and certainly raise the possibility that these members might be influenced by aspirations for plaintiff's position. However, there is no evidentiary basis for finding any such motivation at work in this case. Although it may have been unwise not to select persons at the deputy or higher level from Government agencies outside of DPS, we conclude that there was no error at law in the makeup of the BOI as appointed.

The convening order also provided that the BOI "shall conduct its proceedings pursuant to the Administrative Procedures Act." A.S.C.A. § 4.0302(b) states that "proceedings and reports of a board of investigation shall be as designated by the Governor in the order convening any such board." The APA has three distinct parts, which are rule making, contested cases, and judicial review. Since the BOI was not involved in either rule making or judicial review, the reference can only mean the contested cases provisions and their procedural due process requirements. These due process rights were expressly denied to plaintiff by the BOI.

The denial of plaintiff's fundamental rights which are established not only statutorily but also constitutionally, Rev. Const. of Am. Samoa, Art. I, § 2 (1967), brings this case within the violation of statutory or constitutional rights exception to the exhaustion of administrative remedies principle for purposes of declaratory relief actions. Hence, the disciplinary action taken to date to terminate plaintiff's employment for conduct related to the traffic accident on August 6, 1990 must be and is declared null and void ab initio. Plaintiff must be and is restored to his position as Deputy Commissioner in the DPS, which he held on November 15, 1991, with all pay and benefits restored from November 16, 1991 forward, including all earned annual leave which he may have been required to take in connection with the employment termination proceedings against him. Judgment will be entered accordingly.

Since our conclusion that the investigatory phase of the employment termination proceedings against plaintiff is fatally flawed is dispositive of this action, we decline to address plaintiff's other allegations of denied rights. Advisory opinions in declaratory relief actions are properly avoided. Danzy v. Johnson, 417 F. Supp. 426 (E.D. Pa. 1976), aff'd, 582 F.2d 1273 (3rd Cir. 1978).

It is so ordered.

**********

Sala v. American Samoa Gov’t


Inherent, executive authority exists to suspend an employee before his removal is effective which would make continued performance of regular duties detrimental to the territorial government's interests; however, this action may not be arbitrary or capricious. § 7.0802; A.S.A.C. §§ 4.0801, 4.0802(e).

If a serious condition exists, ASG may place plaintiff on annual leave, reassign him to duties in which the condition does not exist, place him on excused absence, or suspend him with or without pay pending removal, provided the action is taken in compliance with all applicable laws and rules and is based on substantive and documented justification. A.S.AC. § 4.0802(e).

Because the Governor has general supervision and control of all executive departments, agencies and instrumentalities of the Government, personnel decisions are subject to his direction as long as his actions are in accordance with applicable territorial and federal laws and rules. Am. Samoa Art. II, § 7; A.S.C.A. § 7.0110; A.S.A.C. §§ 4.0102, 4.0111(b).

When the government makes rules to govern the conduct of its affairs, it must abide by those rules and act within its authority.

Before RICHMOND, Associate Justice, AFUOLA, Associate Judge, and MATA'UTIA, Associate Judge. [21ASR2d15]

Counsel: For Petitioner, John L. Ward II
For Respondents, Jennifer Joneson, Assistant Attorney General

On Plaintiff's Motion for Partial Summary Judgment:

FINDINGS

There are no genuine issues as to the material facts forming the basis for plaintiff Michael R. Sala' s present motion for partial summary judgment, under T.C.R.C.P. 56, heard on April 15 and 20, 1992. The motion seeks to obtain his compensation as an employee of defendant American Samoa Government (Government), beginning February 26, 1992, the date of his suspension without pay pending removal. The facts are as follows:

1. Plaintiff is a career-service employee of the Government. On November 15, 1991, he held the position of Deputy Commissioner in the Government's Department of Public Safety. His duties included the functions described in paragraph 4 of these findings.

2. On November 15, 1991, the Commissioner of Public Safety served plaintiff with Commissioner's Office Memorandum No.61-91, entitled "Notice of Charges Re Traffic Accident on August 6, 1990. " The notice informed plaintiff that the Special Board of Inquiry, established to investigate plaintiff's involvement in this traffic accident as the driver of a Government vehicle which struck and injured a pedestrian, had completed its investigation and recommended plaintiff's prosecution on criminal charges and adverse disciplinary action by termination of his employment. Plaintiff was given three days to respond to the memorandum, which he did in writing on November 18, 1991.

3. On November 15, 1991, the Commissioner also issued to plaintiff Commissioner's Office Memorandum No.62-91, entitled "Notice of Placement of [sic ] Annual Leave. " This notice, on the basis of the Special Board of Inquiry report and the sensitive nature of plaintiff's position and responsibilities in the Department, relieved plaintiff from all duties of his position and placed him on annual leave, effective immediately, until the resolution of the underlying matter.

4. On November 18, 1991, the Acting Governor, by memorandum to the Commissioner, restored plaintiff to his position as head of the Government's operations within the Department in connection with the [21ASR2d16] multi-jurisdictional, law-enforcement programs of the South Pacific Islands Criminal Intelligence Network (SPICIN) and U.S. National Central Bureau (Interpol).

5. On February 7, 1992, the Commissioner, by memorandum to the Director of Human Resources, forwarded the Special Board of Inquiry report, Commissioner's Office Memorandum No.61-91 of November 15, 1991, and plaintiff's written response of November 18, 1991, and, stating that plaintiff's "acts and misconduct in this matter have adversely reflected upon the dignity, integrity and prestige of the governmental service," recommended that plaintiff be terminated from employment with the Government. The Commissioner did not request plaintiffs suspension with or without pay pending removal.

6. On February 25, 1992, the Director of Human Resources, by memorandum to plaintiff, notified plaintiff that the Director was terminating plaintiff's employment with the Government, effective March 28, 1992, and suspending plaintiff from his duties, which was implemented without pay, for 30 days from February 26 to March 27, 1992. The notice informed plaintiff that the Director had carefully reviewed this matter and concurred in the Commissioner's recommendation as reasonable. It further advised plaintiff that his termination was based on plaintiffs "conduct unbecoming a reliable and dependable employee of the Government," specifically citing charges of "speeding, careless driving, driving while under the influence of intoxicating liquor, causing bodily injury, tampering with and/or fabricating evidence, and failure to exercise care while operating a government vehicle" arising out of the traffic accident on August 6, 1991. The letter also advised plaintiff that he was entitled to request, within ten days, a hearing on this matter before the Government's Personnel Advisory Board and that he had certain rights and procedures related to this hearing process.

7. On February 28, 1992, plaintiff formally requested a hearing before the Personnel Advisory Board, which was then scheduled for March 16, 1992, the Director of Human Resources. Before the hearing date, plaintiff requested additional preparation time and disqualification of the Attorney General's Office from representing the Government at the hearing. The Attorney General's Office agreed on the Government's behalf to both requests. On March 13, 1992, plaintiff filed this action for declaratory relief. In a hearing before the Court on March 27, 1992, parties agreed, among other things, that at [21ASR2d17] plaintiff's request the Personnel Advisory Board hearing would be delayed until after there is a final decision in this action.

DISCUSSION AND CONCLUSIONS

The statutory authority for termination of employment in the career service with the Government is provided in A.S.C.A. §7.0803, which reads:

7.0803 Demotion and Termination.

(a) Any employee in the career service serving under
an appointment without a time limitation who has completed
his probationary period may be removed for cause or
demoted on any ground set out in 7.0801.
(b) When considered appropriate, such action shall be
recommended in writing to the director of manpower resources
by department heads or other authorized operating officials,
who shall supply the director with supportive evidence.
(c) If the recommendation is followed, the director shall in
writing notify the employee of the nature of the charges against
him, that he is subject to removal or demotion 30 calendar
days from the date of the notice, and that he may request
a hearing before the personnel board qithin 10 calendar
days of the date he receives the notice.
(d) The decision of the personnel advisory board, or of
the director of manpower resources in the event no hearing
is requested and held, shall be final and shall be made within
the 30-day notice period provided in subsection (c).
(e) Employees serving under temporary appointments as
defined in subsection (a) of 7.0207 may be terminated at
any time without notice or the procedures described in this
section.

Grounds for termination as adverse disciplinary action are set forth in A.S.C.A. §7.0801 as follows:

7.0801 Grounds for demotion, suspension, or removal.
Employees in the career service may be demoted, suspended,
or removed for below standard [21ASR2d18] job performance,
misconduct on the job, misconduct the job which reflects
adversely on the government, conviction of a felony, sentence
to prison for 30 days or more upon conviction of a crime, or
violation of standards established administratively which govern
employee conduct and deportment, including but not limited
to, the proper use and penalty for misuse of government property.

Administration rules implementing these statutes have been promulgated at A.S.A.C. §§ 4.0801 and 4.0802. These rules state:

4.0801 Discipline policy generally--Scope of reasons for
removal.
It is the policy of the ASG to ensure that employees
whose performance of their duties or conduct are not
satisfactory are removed from their position promptly, that
those who are guilty of misconduct not sufficiently serious
to justify removal be properly disciplined, that voluntary
and involuntary separations be handled in an orderly manner,
and that employees be protected against arbitrary or capricious
action. Removal may be effected for any of the reasons
but not limited to those, referred to in this title and in the
ASCA.

4.0802 Removal, suspension, demotion of career employees.
(a) Employees in the career service, not serving probationary
or trial periods and who are not serving under temporary
appointments or contracts, shall not be removed, suspended,
or involuntarily demoted except for such cause as will promote
the dtlciency and the good of government service.
(b) Discrimination shall not be exercised in suspensions,
removals, or demotions because of an t:mployee's religious
belief or affiliations, marital status except as may be required
by this title, race, ethnic background, or political affiliation
except as may be required by law, and his physical handicap
unless he is unable to perform the duties of his position.
[21ASR2d19]
(c) Like penalties shall be imposed for like offenses
whenever removals, suspensions, or demotions are made or
when other disciplinary actions are taken.
(d) One of the following procedures shall be followed in
cases of removal, suspension, and involuntary demotion:
(1) The employee shall be notified, in writing, of the
charges against him, and of the corrective action proposed
to be recommended to the director or, in the case of the
Judicial Branch, the Chief Justice, to be taken against him.
(2) The notice shall set forth, specifically and in detail,
the charges preferred against him.
(3) The employee shall be allowed 3 days for filing a
written answer to such charges and for furnishing affidavits
in support of his answer, or he may request and shall be
given the opportunity to reply orally.
(4) If the employee answers the charges, his answer must
be considered by the agency. Following consideration of the
answer, the employee must be furnished with the agency's
decision, in writing, as to the action to be recommended to
the director or, in the case of the Judicial Branch, the Chief
Justice.
(5) The agency shall forward to the director copies of the
charges, answer, and reasons for recommended adverse action,
all of which shall be made a part of the employee's official
personnel file.
(e) The employee shall be retained in an active duty status
during the period of notice of proposed action except as follows:
(1) The employee may be placed on annual leave when the
agency head does not consider it advisable from an official
standpoint to retain him in an active duty status during the
advance notice period.
(2) When the employee is not placed on annual leave and
the circumstances are such that his retention in an active duty
status may result in damage to government property, or may
be detrimental to the interests of the government or injurious
to the employee, his fellow workers, or the general public, he
may be temporarily assigned duties in which these conditions
will not exist, or be placed on excused [21ASR2d20] absence,
and is required to submit a reply to the charges within 24 hours.
The employee may be placed on immediate suspension pending
removal thereafter if requested by the director or, in the case
of the Judicial Branch, the Chief Justice.
(f) The director, if he considers the recommending official's
request reasonable, shall advise the employee in writing of the
removal action to take effect 30 calendar days from the date
of the notice, the reasons therefor, and that he may request a
hearing before the board within 10 calendar days of the date
he receives the notice.
(g) If the employee does not appeal or if he appeals and the
appeal is denied, his removal shall be processed finally in
accordance with instructions applying within the office of
manpower resources.

These statutes and administrative rules are quoted in full to indicate complete instructive context in which the termination of a Government career-service employee must function up to the point in the proceeding when a Personnel Advisory Board hearing is requested and granted. The only issue before the court at this juncture is, of course, the legality of plaintiff's suspension without pay pending removal during the course of this termination proceeding against him.

While A.S.C.A § 7.0802 does not mention suspension with or without pay as a tool of the termination process, these would seem to be inherent, executive authority to suspend an employee before removal is effective under circumstances when continued performance of regular are detrimental to the Government's interests. In any event, A.S.A.C. § 4.0802(e) provides guidelines for when such action is appropriate.

The most sensible interpretation of A.S.A.C. § 4.0802(e) is to apply its provisions for the entire period from written notification by the employee's agency head to the employee of the charges against him and proposed action until either the proposed termination becomes active or the proceeding is cancelled.

The clear preference of A.S.A.C. § 4.0802(e) is to retain the employee in active-duty status during this notice period. A different course of action must be predicated on a determination that it is unadvisable from an official standpoint to keep the employee in that [21ASR2d21] status. Examples of such circumstances cited in A.S.A.C. § 4.0802(e)(2) include retentions that may result in damage to Government property, or may be detrimental to government interests, or may injurious to the employee, his fellow workers or the general public. In no event may this action be arbitrary or capricious. A.S.A.C. § 4.0801.

When retention in the employee's position is inadvisable, the employee's agency head has several options. The preferred choice in this situation is to place the employee on annual leave. When annual leave is not utilized, the employee may be either assigned duties in which the detrimental condition will not exist or placed on excused absence. When reassignment or excused absence are utilized, the employee's time to reply to the charges is reduced from three days to 24 hours. A.S.A.C. § 4.0802(e)(1)-(2). The shortened reply period indicates the relatively greater seriousness of reassignment or excused absence compared to annual leave, even though both excused absence, under A.S.A.C. § 4.0802, and reassignment, see A.S.A.C. § 4.0804, do not involve any loss of pay and benefits.

The agency head's final option is to recommend to the Director of Human Resources that the employee be placed on immediate suspension pending termination. Only the Director has the authority to suspend, and then it exists only upon request. A.S.A.C. § 4.0802(e)(2). Presumably, the request would normally come from the employee's agency head, but it could be made by other competent authority, such as the Governor. It appears from the structure of A.S.A.C. § 4.0802(e) that suspension is the least-favored course of action and must be based on circumstances seriously and adversely impacting the Government's interests.

While the rule does not state whether or not suspension pending removal is with or without pay, again we believe that the Government has inherent authority to take this action with either alternative, provided that there are sufficient justifying circumstances supporting the decision as reasonable, as opposed to arbitrary or capricious. It is noted in this regard that excused absence normally contemplates a period of short-term duration. See A.S.A.C. § 4.0511.

When the Government makes rules to govern the conduct of its affairs, it must play by those rules. In the case, there was no recommendation to or request of the Director of Human Resources by plaintiffs agency head, the Commissioner of Public Safety, or other competent authority to place plaintiff on suspension pending removal, and there was no documented justification for such action. The Director [21ASR2d22] clearly acted in excess of his authority when he unilaterally took the most severe of administrative actions. This excess must be corrected.

Plaintiff's motion for partial summary judgment is granted against the Government only. At this stage, there has been no showing that the named Government departments and the Government instrumentality are properly subject to suit in this action.

Plaintiff must be reinstated as the head of the Government's SPICIN and Interpol operations, the position he held on February 25, 1992, and must receive all entitlements to pay and benefits from the effective date of his suspension without pay, February 26, 1992.

The Acting Governor's authority to restore plaintiff to this position on November 18, 1991, is without question. The Governor has general supervision and control of all executive departments, agencies and instrumentalities of the Government. Rev. Const. Am. Samoa Art. II, § 7; A.S.A.C. § 4.0111(b). Personnel decisions are subject to his direction so long as his actions are in accordance with applicable territorial and federal laws and rules. See A.S.C.A. § 7.0110; A.S.C.A. § 4.0102 The Acting Governor's action did not exceed his authority.

Plaintiff's reinstatement does not mean that the Government must keep plaintiff in this position while the proposed termination proceeding is pending. If one of the conditions described in A.S.A.C. § 4.0802(e) or other similarly serious condition exists, the Government may place plaintiff in annual leave, reassign him to duties in which the condition does not exist, place him on excused absence, or suspend him with or without pay pending removal, provided the action is taken in compliance with all applicable laws and rules and is based on substantive and documented justification.

The Government asserts that plaintiff's reinstatement with pay harms the Government's pecuniary interests. It is argued that as a matter of policy, if misconduct warrants dismissal, the Government should not be required to pay the employee pending removal. On a case-by-case basis, circumstances may justify that position. However, suspension without pay pending removal is the last resort under the existing polices and procedures for termination. Moreover, plaintiff will not recover more than his due in pay and benefits to the extent he has unused, earned annual leave, to which he is entitled without regard to when his employment with the Government may end, or he is reassigned to other duties. [21ASR2d23]

The Government also points out that plaintiff has caused the delay in the Personnel Advisory Board hearing and, on this basis, it should not be required to pay him any extended period pending removal. It is likewise true, however, that this motion for partial summary judgment has been made and granted due to a serious error of law in the Government's handling of the underlying termination proceeding. There are still other , alleged serious errors of law to be resolved at the trial of this action. The Court is not now ruling on the merits of any of these issues, but only correcting the procedurally improper suspension action taken by the Director of Human Resources. Suspension without pay pending removal is not beyond the Government's grasp if there is proper procedural compliance and substantive justification for such action.

Partial summary judgment reinstating plaintiff to the position he held on February 25, 1992, with all pay and benefits restored from February 26, 1992, forward, shall be entered.

It is so ordered.

*********

Jennings; Manoa v.


PANAPA MANOA, LAUPU'E TIPA, FIAPITO TANU,
and VOLOTI MATAAFA, Plaintiffs

v.

JOHN SINAFOA JENNINGS, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 1-92

April 23, 1992

__________

A court may compel specific performance of a partially performed, unwritten agreement; the court's power to compel specific performance is expressly recognized in the statute of frauds relating to land transactions. A.S.C.A. § 37 00211.

Before KRUSE, Chief Justice, T AUANU'U , Chief Associate Judge, and MAILO, Associate Judge.[21ASR2d24]

Counsel: For Plaintiffs, Tauese P.F. Sunia
For Defendant, Gata E. Gurr

This is yet another episode in the seemingly unending series of disputes in the Iliili-Airport road vicinity--another legacy of unregulated subdivision developments.

FACTS

The parties are adjacent-lot owners, and they all trace title to the original registrant Lautele Iuta. The defendant's lot is the servient tenement, while plaintiffs' respective holdings are the dominant tenement. The latter have filed suit seeking a permanent injunction to enjoin the defendant from interfering with their access to the main road. The defendant, who has only recently moved into the area, attempted to block the plaintiffs' further use of a defined access road which has been made available to them since 1987. The access road came about subsequent to an agreement between the parties' respective grantors, Tipa Fa'alafi, then of the servient tenement, and Mrs. Overland Olotoa, then owner of the dominant tenement. Fa'alafi and Olotoa agreed to exchange strips of land to the extent that Fa'alafi would yield up a strip of the servient tenement tor access purposes, while an equal area of the dominant tenement would be yielded by Olotoa for Fa'alafi's use. Nothing was reduced to writing, but the agreement was acted upon by an exchange of performance; the access road was constructed and made use of by Olotoa's grantees, while Fa'alafi, on the other hand, planted and made use of that portion of the dominant tenement assigned to him.

The neighborhood lived in harmony until Fa'alafi sold his lot in to the defendant Jennings. The defendant, while continuing to use of, and apparently also laying claim to, the exchanged strip of dominant tenement, also wants the exclusive use of strip assigned by Fa'alafi for the access road. He claims that Fa'alafi had, immediately prior to selling him the land, given Olotoa's husband $1,000 to buy back the strip now involving the access road. This incredible claim, even if true does not affect the exchange agreement which was entered into between Fa'alafi and Mrs. Overland Olotoa.

CONCLUSION

Although no deeds were exchanged by their predecessors in interest, the court may nonetheless compel specific performance of a [21ASR2d25] partially performed agreement. Indeed, the court's power to compel specific performance is expressly recognized in the statute of frauds relating to land transactions. See A.S.C.A. § 37.0211. We conclude on the foregoing that there is at least an enforceable easement agreement which is binding on the parties hereto; that is, that Fa'alafi had agreed with Olotoa to grant an easement over his property in exchange for the use of an equivalent amount of Olotoa's land.

Accordingly, we decree specific performance of the easement agreement and enjoin the defendant from interfering with plaintiffs' rights under that easement.

It is so ordered.

*********

Jennings v. Jennings,


TINOUSI JENNINGS as the Administratrix of the ESTATE and
Widow of the late DAVID ELI JENNINGS, and as
Guardian Ad Litem for JOHN DAVID JENNINGS, a Minor;
ZENOBIA ZELPHER JENNINGS; and
CHRISTABEL LUPE JENNINGS, Plaintiffs

v.

WALLACE H. JENNINGS, JACK THOMPSON,
ELIZA THOMPSON, TUA FALEMANU as the
TERRITORIAL REGISTRAR, and
AMERICAN SAMOA GOVERNMENT, Defendants

ESTATE OF DAVID JENNINGS,
TINOUSI JENNINGS, Executrix

v.

JACK THOMPSON and ELIZA THOMPSON, Defendants

High Court of American Samoa
Trial Division
Land and Titles Division

CA No. 11-84
LT No. 54-90

May 11, 1992

__________

Dismissal of a lawsuit for lack of diligent prosecution is with prejudice in a civil action but without prejudice in a land and titles action.

When two persons, particularly family members, discuss and plan that one will manage the other's property or business affairs while he is away, a fiduciary relationship is established between them in the absence of actual fraud.

When real property was obtained by constructive fraud or undue influence, violating a fiduciary relationship, a constructive trust provides the remedy to transfer the property to the person entitled to it.

Equitable estoppel is appropriate when (1) the party to be estopped knows the facts; (2) he intends that his conduct shall be acted on or so acts that the party asserting estoppel has a right to believe it is so intended; (3) the party asserting estoppel is ignorant of the facts; and (4) the party asserting estoppel relies on the conduct to his injury. [21ASR2d41]

The classic elements of laches are an unreasonable delay in a party's assertion of his rights and undue prejudice to the other party.

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

Counsel: For Plaintiff Tinousi Jennings, Charles V. Ala 'ilima
For Defendants Jack and Eliza Thompson, Roy J.D. Hall, Jr.

These actions are for recovery of approximately 3.429 acres of land in Pava`ia`i, Island of Tutuila, American Samoa ("the land") from the possession of defendants Jack and Eliza Thompson. The vehicles selected to this end are declarations that the 1976 deed of the land by defendant Wallace Jennings to defendants Jack and Eliza is void and that plaintiffs are entitled to an undivided 2/15 interest in the land, eviction of Jack and Eliza, and correction of the Territorial Registrar's records. Plaintiffs also seek a constructive trust imposed on the properties of Jack and Eliza on the land to compensate plaintiffs for loss of use of the land, $10,000 in punitive damages, and an injunction preventing Jack and Eliza from making any further improvements to the land.

Jack and Eliza in turn seek to have the 1950 deed signed by Jack Thompson declared void or voidable, or, in the alternative, to have a constructive or resulting trust declared on the land. They also assert a number of other affirmative defenses that are not addressed here.

This decision on the merits culminates a protracted series of judicial actions. The history of these actions is set forth in essence. The first of these cases, CA No. 76-83, was commenced in 1983 by the Executor/Administratrix Tinousi Jennings on behalf of the Estate of her late husband, David Eli Jennings, and on behalf of her six children. This action was dismissed early in 1984 when it became clear, on the motion of Jack and Eliza to dismiss or for summary judgment, that Tinousi had initiated the action on behalf of non-consenting offspring.

A new action, CA No. 11-84 (one of the present actions), followed almost immediately by Tinousi on behalf of the Estate, as David Jennings' widow and as guardian ad litem for her minor son John David, and by two adult daughters, Zenobia Zelpher Jennings and Christabel Lupe Jennings. This action was dismissed with prejudice in 1988 for lack of diligent prosecution. [21ASR2d42]

CA No. 22-90, renumbered LT No. 38-90, was then filed in 1990 for relief essentially the same as that sought in LT No. 54-90 (the other present action). LT No. 38-90 was dismissed that same year on motion of Jack and Eliza on the grounds that CA No. 11-84 was dismissed with prejudice. The court noted, however, that a corrective remedy may exist in CA No. 11-84 under T.C.R.C.P. Rule 60(b), permitting relief from a judgment or order based on mistake, inadvertence, or excusable neglect.

Thereafter, LT No. 54-90 was commenced and a Rule 60(b) motion was filed in it. The Court ordered the motion heard as having been made in CA No. 11-84 to constitute a direct rather collateral attack on the judgment in CA No. 11-84. After hearing, the court granted the motion. As a land matter, CA No. 11-84 should have been brought before the Land and Titles Division of the Court, not as a civil action before the Trial Division. There is a practical difference in these two stylings when dismissal for want of diligent prosecution is at issue. Dismissal on this basis in a civil action is with prejudice, while it is without prejudice in a land and titles action, recognizing that most civil cases should be concluded expeditiously, while land claims often warrant more prolonged consideration. The Court regarded this oversight by a court official, rather than any party or counsel, as a proper reason justifying relief from the CA No. 11-84 dismissal under Rule 60(b) and the motion as made within a reasonable time.

The trial date in both LT No. 54-90 and CA No. 11-84 was then set.

FINDINGS

For purposes of these findings, judicial notice is taken of theEstate of Alexander E. Jennings, PR No. 01-1960, and Estate of David Jennings, PR No. 12-77, in addition to the actions referenced above.

These actions involve the Jennings and Thompson families, and it is helpful in resolving the issues to indicate the relationships of family members immediately connected with those issues as shown by stipulation and other evidence in the following chart:

Alexander Eli Jennings - Margaret Pedro
(Married)
|
_______________________________________
| | | | |
Jack Thompson-Eliza Wallace Zilpher Lilly David-Tinousi
(Married) (Married)

It is also noted that Jack is of 3/4 Samoan blood while Alexander was of 1/2 Samoan blood. [21ASR2d43]

By "Deed of Conveyance," dated December 13, 1948 (the 1948 deed), Pule, Matai of the Pule family, for himself and the Pule family, conveyed this land to Jack Thompson as Jack's individually owned land. The deed shows that Jack paid Pule $800 as consideration. On April 25, 1949, the Land Commission recommended the Governor's approval and Governor Vernon Huber approved the transaction. The deed was recorded with the Territorial Registrar on May 2, 1949, in Volume III of the Register of Land Transfers at pages 14-15.

On July 31, 1950, Jack signed a "Deed of Conveyance" (the 1950 deed) transferring the land to Alexander Eli Jennings as Alexander's individually owned land. The recited consideration is the nominal $1. The copy of this document in evidence does not bear a recommendation of the Land Commission or the Governor's approval. It was, however, recorded with the Territorial Registrar on August 29, 1950, in Volume III of the Register of Land Transfers at page 29.

At the time of these two transactions, Jack was married to Eliza, one of Alexander's daughters. They are still married. Jack was also then a Radioman in the U.S. Navy and was stationed in American Samoa. His testimony was that the $800 he paid for the land were part of his savings from his $245 monthly Navy pay. Since he was from the Manu`a Islands, the land was purchased for his immediate family's future use.

In 1950 Jack was reassigned to Honolulu. He testified that his father-in-law Alexander had told him on several occasions that he would look after his property while he was away. Before departing, Alexander approached him about signing the 1950 deed, saying it gave him permission to look after the land. Alexander only showed him the second page, on which appears only the attestation clause and the signatures of Jack and two witnesses.

Following his transfer to Hawaii in 1950, Jack continued to serve in the U.S. Navy until he retired in 1957. He was then employed by the U.S. Federal Aviation Administration (FAA) outside of American Samoa, including a substantial period of time when he was stationed in Guam.

At some time after July 1950 and before his death in 1958, Alexander constructed a small house on a foundation left by the U.S. [21ASR2d44] Marines on the land. However, the principal Jennings home remained in Utulei.

Probate of Alexander's estate was commenced in 1958 in this Court. The proceeding was initiated by a petition for letters of administration by the on-island heirs at law of Alexander and the Bank of American Samoa (the Bank), as the most competent creditor of the deceased residing in American Samoa; the Bank was appointed the administrator of the estate. In 1959, his will was found, naming the Bank as the executor of the estate. The will was executed in 1938. It was admitted to probate and letters testamentary were issued to the Bank in 1960.

The land was included as part of the estate in the original petition for letters of administration and, since it was not covered by the will, passed by intestate succession. The order of final settlement, decree of distribution, and discharge of executor was issued by this Court on July 26, 1962. The order gave a 2/15th share each in the land to Eliza, Wallace, Lilly, and David, Alexander's living children, and to the heirs of Zilpher, his predeceased daughter.

Jack testified he did not know the land was included in the estate during the time of the probate of Alexander's estate. He did, however, state in an affidavit filed in CA No. 22-90, which he signed, but does not now recall signing, on June 26, 1990, that "it was not until my father-in-law's estate was probated in 1962 that I discovered that my Pava`ia`i land was deeded to him."

Based on a transcript of proceedings in the Estate of Alexander E. Jennings, PR No. 01-1960, Eliza and David were present at the close of this estate and responded to questions by the Court. Thus, Eliza and David knew in 1962 that the land was included in Alexander's estate. A reasonable inference from this fact is that Jack also knew about the inclusion of the land in Alexander's estate during its probate or at least shortly after its closing. A further reasonable inference is that Eliza became aware of Jack's version of the 1950 deed and its attendant circumstances contemporaneously with Jack's knowledge of the land's inclusion in Alexander's estate.

David and Tinousi Jennings were married in July 1962. Initially, they lived in the Jennings home in Utulei. However, they did live in the house Alexander built on the land from some time in 1964 until 1967 when they moved back to the Utulei home. [21ASR2d45]

Tinousi testified that David related family history to her from time to time. The following is information pertinent to this case from this source. Alexander married Margaret Pedro. Five children, Eliza, Wallace, Zilpher, Lilly, and David, were born of this marriage. Alexander purchased the land for $800 from Pule in 1948, and brought people and animals from Swains Island to live there. However, he could not register the land due to the extent of his non-Samoan blood. Thus, Alexander had the land registered in his son-in-law Jack's name. After the law was changed in 1949, reducing the Samoan blood requirement and qualifying Alexander to own land, the 1950 transfer took place.

David died at age 34 in 1971 at the Utulei house following a fall. Tinousi is the administrator of David's estate.

Meanwhile, Jack and Eliza retired to American Samoa when Jack was unable to obtain an FAA assignment in American Samoa and decided to resign. Eliza came back in 1968 and moved into the house on the land after a few weeks in the Utulei home. Jack returned in 1969. Since their return, Jack and Eliza have continuously lived and still do live on the land. Over time they made substantial improvements to the land, including two additional houses, a store, and a tennis court. Tinousi first learned of the claim by Jack and Eliza to all of the land in 1968, but neither she nor any other Jennings family member made any objection to this claim or to the Thompson improvements until 1975, when Tinousi's plans to build a home there were denied by Jack and Eliza. Margaret, a daughter of David and Tinousi, testified to one emotional confrontation about this subject.

Regardless of when Jack learned of the inclusion of the land in Alexander's estate, Tinousi's building plans and claim to the land prompted Jack's first legal action to establish his title to the land. On attorney George Wray's advice, the land was deeded to Jack and Eliza in 1976. This "Deed of Conveyance," dated September 6, 1976 (the 1976 deed), was executed by Wallace H. Jennings, another of Alexander's sons, as "Trustee of the Estate of Alexander E. Jennings, deceased," and purported to transfer the land, in consideration of $1, to Jack and Eliza. Wallace's appointment as trustee is not documented.

This action turns on the consequences flowing from the three deed transactions.

1. 1976 Deed. [21ASR2d46]

Since Wallace was not the trustee of Alexander's estate on September 6, 1976, he did not have any legal authority in that capacity to execute the 1976 deed of the land to Jack and Eliza.

Moreover, title to the land had been transferred to Alexander's intestate heirs by this Court's distribution order on July 26, 1962. Thus, any conveyance of the land to Jack and Eliza at any time after that date would require a deed executed by those heirs or their legal representative(s) rather than a representative of the estate.

The 1976 deed has no legal effect and must be canceled.

2. 1948 and 1950 deeds

These deeds are discussed together due to the intimate interrelationships of the circumstances surrounding their executions.

As indicated above, Jack testified that he purchased the land for his immediate family's use, paying $800 from his savings. On the other hand, Tinousi testified that according to family history related by David, Alexander provided the $800 and purchased the land for the Jennings family's use. Under the law in 1948, Jack was able to own land in American Samoa and Alexander was not permitted to own land. It is also true that both Jack and Alexander originated from outside the Island of Tutuila, from the Manu`a Islands and Swains Island respectively. However, at the time, the Jennings had a family home in Utulei, while Jack, married to Alexander's daughter Eliza, did not yet own land to develop on Tutuila.

Evaluating the evidence as a whole, we find that the preponderance establishes that Jack purchased the land in 1948 as his individually owned land and not on Alexander's behalf.

The U.S. Navy's reassignment of Jack to Hawaii in 1950 created his need for someone to look after his property and affairs in American Samoa while he was away. We find that the discussions between son-in-law Jack and father-in-law Alexander about the land in that year were in the context of this management need and not the 1949 change in the law qualifying Alexander to own land. We further find that when Alexander presented the 1950 deed to Jack to sign, Alexander failed to reveal to Jack the true nature of the document. Alexander's acquisition of the land is properly construed in one of two ways. [21ASR2d47]

When two persons discuss and plan that one will manage the other's property or business affairs while he is away, particularly among family members, a fiduciary relationship is established between them in the absence of actual fraud. Alexander's acquisition of the land was the result of constructive fraud or undue influence by Alexander arising from a violation of a fiduciary relationship between Jack as son-in-law and Alexander as father-in-law. See Restatement of Restitution §166 (1937); Johnson v. Clark, 7 Cal. 2d 308, 61 P.2d 767 (1936). It was also the result of an implied promise by Alexander to reconvey the land to Jack upon Jack's return to American Samoa, arising out of the fiduciary relationship. See Steinberger v. Steinberger, 60 Cal. App. 2d 116, 140 P.2d 31 (1943); 76 Am. Jur. 2d, Trusts §234 et seq. The evidence in support of both of these constructions was clear and convincing.

Under these circumstances, a constructive trust provides the remedy to transfer the property at issue to the person entitled to it. See Calistoga Civic Club v. Calistoga, 143 Cal. App. 3d 111, 117, 191 Cal. Rptr. 571, 575-76 (1983); Restatement of Restitution §160 (1937); 76 Am. Jur. 2d, Trusts §221 et seq. After execution of the 1950 deed, Alexander held the land in trust for Jack and was obligated to reconvey the land to Jack, no later than upon his return to American Samoa.

When Alexander died, the obligation of this constructive trust passed to the Bank of American Samoa as the Administrator of Alexander's intestate estate. Following distribution, that obligation was transferred to Alexander's intestate heirs.

In order to accomplish the effect of this remedial constructive trust some 42 years later, the 1950 deed should be canceled, and, as a result, title to the land should now be vested in Jack Thompson through the valid 1948 deed.

Equitable Estoppel

Plaintiffs argue that Jack and Eliza are barred by equitable estoppel from taking unfair advantage of plaintiffs through the long-term failure of Jack and Eliza to assert fraud or other invalidity of the 1950 deed.

Atuatasi v. Tu`ufuli , 9 A.S.R.2d 67, 76 (App. Div. 1988) (quoting Johnson v. Williford, 682 F.2d 868, 872 (9th Cir. 1982)), sets forth a four-part test for estoppel: [21ASR2d48]

1) The party to be estopped must know the facts;
2) he must intend that his conduct shall be acted on or must so act
that the party asserting estoppel has a right to believe it is so
intended;
3) the latter must be ignorant of the facts; and
4) he must rely on the former's conduct to his injury.

Three elements of equitable estoppel are not present in this action. First, if Jack and Eliza misrepresented or concealed any material fact, it was only their knowledge of the inclusion of the land in Alexander's estate when Alexander should only have had managerial powers over the land, not an ownership interest. Jack and Eliza became aware of this inclusion in Alexander's estate, at the latest, at some time between 1958 when the probate proceeding was instituted and 1962 when the land was distributed to Alexander's intestate heirs. Alexander's intestate heirs were aware of the inclusion of the land in his estate contemporaneously with Jack and Eliza.

Second, plaintiffs have not shown that Jack and Eliza intended for the plaintiffs to rely on any misrepresentation or concealment. Jack and Eliza openly asserted their claim to the land as their land at least as of 1968-1969 when they permanently returned to American Samoa and took possession of and began to make substantial improvements to the land.

Finally, plaintiffs have not shown that they relied on any misrepresentation or concealment or that they suffered injury from it. As related above, Alexander's intestate heirs must have been aware of the claim by Jack and Eliza no later than 1969. There was no objection made to their claim by any of these heirs until 1976 when Tinousi offered her plans to relocate her home to the land and was refused. Thus, any misrepresentation or concealment was fully revealed before any injurious reliance could take place.

In fact, the remaining heirs appear to agree with the claim by Jack and Eliza to the land. Wallace certainly did agree, as evidenced by the 1976 deed. While they are not yet legally precluded from any judicial action, neither Lilly, nor any heir of Wallace, who died in 1989, nor any heir of Zilpher, who died in 1961, has participated in this action. [21ASR2d49]

Plaintiffs have not shown any basis to estop Jack and Eliza from pursuing Jack's claim to own the land.

Laches

Similarly, Jack and Eliza's claim is not barred by the equitable doctrine of laches. The classic elements of laches have not been shown: "an unreasonable delay in the assertion of their rights by one party and undue prejudice to the other party." Siofele v. Shimasaki, 9 A.S.R.2d 3, 14 (1988). Even if there was an undue delay by Jack and Eliza in asserting their claim to all of the land, plaintiffs have not shown that they have suffered undue prejudice, just as they have not shown injury for the purposes of estoppel.

CONCLUSIONS

A constructive trust on the land is established with Alexander E. Jennings and his successors in interest as trustees and Jack Thompson as beneficiary.

The 1976 and 1950 deeds are declared void and canceled. The Territorial Registrar shall cancel the registrations of the 1976 and 1950 deeds. Jack Thompson is declared to be the owner of the land as individually owned land by virtue of the 1948 deed.

Judgment shall enter accordingly.

It is so ordered.

**********

Fuimaono; Toluao v.


TOLUAO FETALAIGA, et al., Appellants

v.

A.U. FUIMAONO and the Village of A'OLOAU, Appellees

High Court of American Samoa
Appellate Division

AP No. 3-91

April 20, 1992

__________

Within ten days after receiving the reporter's or clerk's estimate of the transcript's cost, an appellant must file a written order for a transcript or file a certificate that no parts of the transcript are to be ordered the appellate court may, on its own motion, dismiss the appeal for a failure to do so. ACR 10(b)(1), 10(b)(5).

In order for the appellate court to have jurisdiction over an appeal, (1) a motion for new trial or reconsideration must be filed within ten days after the announcement of the judgment or sentence, and (2) the notice of appeal must be filed within ten days after the denial of that timely motion. A.S.C.A, §§ 43.0802.

Attempts to, in essence, appeal a final and unappealable decision may be sanctioned by either the trial or appellate courts.

Before RICHMOND, Associate Justice.

Counsel: For Appellants, Fai'ivae A. Galea'i
For Appellees, Togiola T.A. Tulafono

Amended Order Dismissing Appeal:

The previous order dismissing this appeal was for failure to timely file an appellants' brief. In this case, however, the appellants' brief was never due because the appellants failed to perfect this appeal by complying with the requirements of Appellate Court Rule 10(b). The appeal is therefore dismissed in accordance with Appellate Court Rule 10(b)(5).

Regardless of the arguments submitted by these appellants that they are awaiting the continuation of a hearing, within 10 days after receiving the reporter's or clerk's estimate of the cost of the transcript, [21ASR2d13] all appellants are required either to file with the clerk of the court a written order to the reporter for a transcript of all or part of the proceedings, or to file a certificate that no parts of the transcript are to be ordered. A.C.R. Rule 10(b)(1). The reporter's estimate in this case was filed on April 1, 1991, and the written order or certificate was therefore due on April 11, 1991. Instead, it still has not been filed, over one year later. Under A.C.R. Rule 10(b)(5), the appellate division may on its own motion dismiss the appeal for failure to comply with Rule 10(b)(1), and hereby does so.

Even if the certificate or order for the transcript had been timely filed, however, the appeal would still be dismissed for lack of jurisdiction. In order for the appellate court to have jurisdiction over an appeal, a motion for new trial or for reconsideration must be filed within 10 days after the announcement of the judgment or sentence, and, within 10 days after the denial of that timely motion, the notice of appeal must be filed. A.S.C.A. § 43.0802; Taulaga v. Patea, AP No. 19-89 (issued Nov. 1, 1990); Judicial Memorandum No. 2-87, 4 A.S.R.2d 172 (1987). Only if both of these requirements are met does this Court have jurisdiction to consider the appeal.

In this case, the announcement of judgment was on August 6, 1990, and the earliest motion for reconsideration was filed on September 10, 1990, 25 days too late. A second motion for reconsideration was also filed beyond the 10 day limit. This latest motion for reconsideration, to reconsider the denial of the earlier motion for reconsideration, was denied on February 5, 1991, and the notice of appeal was then filed on March 22, 1991, 35 days too late, even using the latest denial date.(1) Thus, even viewing the filing dates in the light most favorable to appellants, which the Court is no longer inclined to do in this case because of the continued abuses of the judicial process, both motions were untimely, and the appellate court never acquired jurisdiction over these proceedings. The decision of the trial court is therefore final and unappealable, and any further attempts to continue appealing essentially the same decision may be met with appropriate sanctions by either the appellate court or the trial court. [21ASR2d14]

For these reasons, the appeal is dismissed. It is so ordered.

**********

1. For further explanation of the convoluted history of this case, see Fuimaono v. Toluao, LT 12-87 ("Memorandum Opinion and Order on Motion for Reconsideration of Denial of Motion for Reconsideration or Relief from Judgment," issued Feb. 12, 1991).

Fonoti; In re Matai Title


TAFA'IFA FONOTI MALAU'ULU, Claimant

v.

FOFO LOKENI, FIATOA FIATOA, JR., Counter-Claimants

[In the Matter of the Registration of the
Matai Title "FONOTI" of the Village of Tafuna]

High Court of American Samoa
Land and Titles Division

MT No. 7-91

June 30, 1992

__________

A sister of the last titleholder was a generation ahead of his daughter and so prevailed on the hereditary-right criterion under the Sotoa rule.

Before KRUSE, Chief Justice, T AUANU'U , Chief Associate Judge, VAIVAO, Associate Judge, LOGOAI, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Claimant, Asaua Fuimaono
For Counter-Claimant Fofo, Afoa L. Su'esu'e Lutu

The parties before the Court are Tafa'ifa F. Malau'ulu and Fofo Lokeni; candidate Fiatoa Fiatoa Jr. had passed away before the time of trial. (1) With regard to the four criteria set forth in A.S.C.A. § 1.0409(c), the Court makes the following findings:

I. Hereditary Rights

Tafa'ifa Fonoti Malau'ulu (hereafter "Tafa'ifa") and Fofo Fonoti Lokeni (hereafter "Fofo") are respectively the daughter and sister of the last titleholder, Fonoti Aufata. Fonoti Aufata succeeded his father Fonoti Vili, whose connection to the title was through [21ASR2d114]marriage. In these circumstances, we hold that Fofo prevails on this criterion since she is a generation ahead of Tafa'ifa. See In re Matai Title "Sotoa", 2 A.S.R.2d 15 (Land & Titles Div. 1984).

II. Support of the Clans

The parties agree that there are two customary clans of the Fonoti family--Saveuteuga and Siauloto. While the evidence established that each candidate had some clan support, the evidence does not preponderate in favor of a conclusion that either had secured a majority of clan support. A very large number of family members supported the claim to succession filed with the Territorial Registrar by the decedent, Fiatoa Fiatoa, Jr. Although the decedent's sister, Tapunu'u F. Ah Soon, testified that she and her siblings were in support of their aunt Fofo's bid to succession, the evidence was not clear on the wish of those other remaining family members who supported Fiatoa's candidacy. We find that neither candidate prevails on this criterion.

III. Forcefulness, Character, Personality, and Knowledge of Samoan Custom

On the third criterion, we find Tafa'ifa to be the more forceful personality. At 49 years of age, Tafa'ifa is young and ambitious; she has also led an active and leading role in the affairs of the church. Fofo, now 76 years of age, and her husband are now enjoying a well-earned retirement after a long and dedicated ministry in Western Samoa. Although both candidates have displayed a good knowledge of family history, Tafa'ifa shows the more detailed familiarity with Samoan customs and traditions. On balance, we have rated Tafa'ifa ahead of Fofo with respect to this criterion.

IV. Value to Family, Village, and Country

The Court is satisfied that both candidates have in various ways rendered valuable service to the family and past matai and that they have each contributed significantly to village and country. However, we find that Tafa'ifa has the stronger credentials for family leadership. We have already found that she has the more forceful personal characteristics, and while Fofo possesses the experience for judgment that comes with maturity, Tafa'ifa nonetheless has a sufficiently sound background of learning, both in terms of formal education and in terms of first-hand experience with family matters [21ASR2d115] and communal assets-among other things, Tafa'ifa was involved throughout her late father's protracted efforts to fend-off third-party claims to Fonoti-family lands.

From the foregoing, we hold that Tafa'ifa is qualified to succeed the title Fonoti. Although Fofo has the better hereditary claim to entitlement, Tafa'ifa prevails on the third and fourth criteria, with both parties being roughly equal on the second. The Territorial Registrar shall accordingly register the title Fonoti in candidate Tafa'ifa Fonoti Malau'ulu, in accordance with the requirements of A.S.C.A. §1.0409(b).

It is so ordered.

**********

1. We denied a motion by Mrs. Tapunu'u F. Ah Soon, the decedent's sister, seeking to intervene on behalf of her side of the family.

Faoa; Asifoa v.


SOSENE ASIFOA and LEFOTU TUILESU, Appellants

v.

LUALEMAGA E. FAOA, Appellee

High Court of American Samoa
Appellate Division

AP No. 20-90

June 8, 1992

__________

A collateral attack of an in rem judgment is permissible if notice in the first case was defective.

Absent compelling proof to the contrary, the court will assume that the Territorial Registrar record a land title only after complying with his legal obligations, including notice requirements. A.S.C.A. § 37.0103.

Court may disregard land-title registrations when the failure to give the require notice affirmatively appears in the registration itself.

The land-registration statutes do not require a certification or an affidavit by the Territorial Registrar or the High Court that notice was given for the required period. A.S.C.A. .§§ 37.0103(c), 37.0104(b)

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

Counsel: For Appellants, Charles V. Ala'ilima
For Appellee, Afoa L. Su'esu'e Lutu [21ASR2d92]

RICHMOND, J.:

This appeal is from a decision of the Land and Titles Division holding that a 1969 registration of land by Lualemaga was valid and that the appellee was therefore entitled to judgment against the appellants for eviction and trespass. The trial court also found that the appellants had not proved that they had adversely possessed the land. Execution of the eviction order was stayed pending this appeal.

The land in question, located on the boundary between A'oloau and A'asu, was part of a tract originally proposed for registration by Lualemaga Faoliu of the Village of A'asu in 1961. An objection was raised, so the matter was referred to the High Court for resolution. Asu Village Chiefs v. Village of Asu, CA No.40-1961 (Aug. 10, 1961) (the "1961 case"). The only objection was withdrawn, so the court ordered the land registered; this was not done. In 1969, before a new judge, it was "brought to the attention of the court" that the Registrar had not registered the land in accordance with the earlier court order. After reviewing the transcript of the earlier hearing, the court again ordered the Registrar to register the land, and this time, the land was registered. The appellants, chiefs of the Village of A'oloau, now seek to register the land as theirs, claiming that the registration was invalid because the land is located in A'oloau, not A'asu, and that A'oloau never received the required notice of the proposed registration in accordance with Chapter 18, Section 905 of the Code of American Samoa (now A.S.C.A. § 37.0103).

The appellants first assert that they have standing to raise the issue of defective notice in the registration. They are correct. The fact that the registration was ordered by the court, rather than done strictly by the Registrar, does not bar the appellants from claiming that notice was defective in the 1961 case. A collateral attack of an in rem judgment is permissible if notice in the first case was defective. Scott v. McNeal, 154 U.S. 34, 14 S. Ct. 1108, 1112 (1894); see also 47 Am. Iur. Judgmellts § 1071 (2d ed. 1969). Appellants are also not barred by res judicata, because they were not parties to the 1961 case. See Nalnu v. Satele, 15 A.S.R.2d 141 (1990). Thus, they may attempt to show that the notice given for this registration was defective.

Next, appellants claim that the notice was defective. In order to prove this, appellants must meet a heavy burden. Ifopo v. Siatu'u, 12 A.S.R.2d 24, 28 (App. Div. 1989) (emphasis added), established [21ASR2d93] the applicable standard: "the Court must assume--and, absent compelling proof to the contrary, must conclude--that the Registrar recorded a title only after complying with his obligations under the law." The court also noted that "[c]ourts can and do disregard registrations...in which the failure to afford the required notice affirmatively appears in the record of the registration itself. " Id. (citing Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988)) (emphasis added).

Appellants claim that the blank "affidavit of notice" in the Registrar's files constitutes affirmative proof of the failure to afford the required notice in the record of the Lualemaga registration. The appellants also rely on the file's lack of responses from several pulenu'us of villages surrounding the land to a letter from the clerk of the court requesting the pulenu'us to certify that notice was given in their villages, including A'oloau, in the 1961 case. These two factors, combined with the testimony from a witness, Aimalefoa Lefotu Puletu, that she does not remember any notices or announcements regarding this land nor does she remember her father's ever mentioning a notice's being posted, have led the appellants to claim that they have shown "compelling proof" that the notice was defective. Their primary argument is that "[t]here was no affirmative evidence of any posting," including no affirmative statement by either judge in the 1961 and 1969 hearings or by the Registrar that the statutory notice was given. Appellants' Brief at 10. The Ifopo standard, however, does not require that there be affirmative evidence of posting in the registration, but affirmative proof in the record of the registration itself of the failure to post notice in accordance with the statute.

Appellants rely on Vaimaona v. Tuitasi, 18 A.S.R.2d 88 (App. Div. 1991), to establish that the blank "affidavit of posting" meets the Ifopo burden . In Vaimaona, the court remanded the case for an evidentiary hearing on the issue of notice because the "affidavit of posting" was defective on its face. That case significantly differs from the present case, however, because the affidavit in Vaimaona showed statutory deficiencies on if.5 face. The affidavit was filled out, but only alleged posting for 33 days instead of the required 60 days. It was also subscribed to on the first day of posting, which was obviously before the posting took place, so it was prepared without personal knowledge by the subscriber; several other deficiencies that are not relevant to this case were also noted. [21ASR2d94]

This facial deficiency is significant because in the present case, no affidavit was filled out. If such an affidavit were required by the statute, this might constitute a facial deficiency sufficient to meet the Ifopo burden, but no such affidavit is required. In Namu v. Satele, supra, 17 A.S.R.2d at 144, the court correctly noted that "the 'affidavit of posting' is an administrative convenience (albeit a salutary one) rather than a statutory requirement. " The statute merely requires that "[i]f no notice of adverse claim is filed within the 60-day period, and all the requirements of this chapter have been complied with, the territorial registrar shall register the title to such land in the name or names of the applicant or applicants." A.S.C.A. § 37.0103(c) (emphasis added). (1) If an adverse claim is filed, as occurred in the 1961 case, A.S.C.A. § 37.0104(b) directs that "[u]pon adjudication of the matter by the High Court, the territorial registrar shall register the land as directed by the court. " Neither statute requires a certification or an affidavit by the Registrar or the court that notice was given for the required period. Likewise, the clerk of the court's request to the pulenu'us for certification was not a statutory requirement. This absence of required certifications is precisely the reason that the Ifopo standard requires that compelling proof of defective notice appear affirmatively in the registration itself. Under Ifopo, the court presumes that the Registrar--or, as in this case, the earlier court--only caused the land to be registered after complying with the registration statutes, including the notice statute, as A.S.C.A. § 37.0103(c) requires. The lower court thus correctly applied this presumption.

Moreover, two other factors in the 1961 case strengthen this presumption by leading to a strong inference that notice was given: the letter in the 1961 case from the clerk of the court to the pulenu'us of several villages near the land leads to the inference that notice was given, even though it is not further substantiated by "certification " from several of the pulenu'us; and the presence of Fuirnaono, the principal matai of A'oloau, at the 1961 hearing. (2) [21ASR2d95]

Appellants have not met the burden established by Ifopo. The valid registration by Lualemaga precludes the court from questioning the boundary established by that registration. We therefore AFFIRM the trial court's decision .

*********

* 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. The statutes in effect at the time of the 1961 case had the same requirements as the present statutes; the present statutes are used for ease of reference.

2. It is true that "actual knowledge of the proposed conveyance does not vitiate the importance of notice [in accordance with the statute], because other interested persons might have had some objection to registration of title," Vaimaona v. Tuitasi, 18 A.S.R.2d at 95, but such knowledge may lend itself to an inference that proper notice was given.

Faleafine; Fofoagaitotoa v.


TITI FOFOAGAITOTOA, Plaintiff

v.

MUSU FALEAFINE, Defendant

High Court of American Samoa
Trial Division

CA No. 118-91

June 17, 1992

__________

A good-faith improver, whose possession of land was under a claim or color of title, is entitled to equitable relief to compensate for improvements; the measure of compensation is the lesser of (1) the actual cost of the improvements or (2) the amount by which the improvements enhanced the value of the property.

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

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

This action stems from certain attempts by the parties to conclude a land deal, which they never quite managed to get off the ground. As a result, the plaintiff, Titi Fofoagaitotoa, filed suit, claiming restitution and damages, as well as punitive damages, from the defendant, Musu Faleafine. [21ASR2d111]

In early August 1990, plaintiff approached the defendant about the possibility of buying some land from him, and in their ensuing discussion, the parties agreed to a sale and purchase of a half-acre for $50,000, payable in monthly installments of $500. After accepting a cash deposit of $1000, the defendant then immediately took plaintiff and showed him a certain area which he could begin to cultivate. A week or so later, plaintiff gave the defendant another $2,000; however, the defendant also informed plaintiff that he had to be relocated onto an alternative site. The latter acquiesced, and while making his next succeeding monthly payments, he also undertook a number of improvements on this new location in the way of clearing, leveling, planting, and fencing. All of this was happening, however, before the parties had even identified in metes and bounds the subject matter of the purchase.

In the process of plotting the area shown to plaintiff, it was apparently discovered by the defendant that if he only sold to plaintiff the designated area, he would then be effectively left with useless bits and pieces of unsold surrounding areas. Consequently, the defendant proposed to plaintiff that he purchase these additional areas as well. The latter agreed. Again, before the subject matter of the agreement was finalized in the way of a survey, plaintiff began immediately to work and improve the additional areas which he gathered was the extent of the new agreement. Shortly thereafter, the parties had a falling-out. The defendant demanded that plaintiff quit the land, which plaintiff eventually did, but not without making his own demand upon the defendant for the return of monies paid and the recoupment of efforts to improve the land. The matter thus found its way to court.

As we understand the defendant's position, it is that plaintiff had failed to prove a contract for the sale and purchase of land, since the subject matter of the agreement was never defined; hence, there was no contract from which damages can arise to be breached.

We find that we need not address the issues raised by the defense. At trial, plaintiff advised the Court that the deposit and various installments which he paid towards purchasing the land-- totaling $6,600--had been refunded, and that the extent of his claim was for the value of improvements which he had made to the land. To this end, plaintiff claims the sum of $7,354 as hereinafter set out.

On the evidence, we conclude that plaintiff was a" good-faith " improver whose possession of the improved land was under a claim or [21ASR2d112] color of title derived from the defendant himself. As such, plaintiff is entitled to equitable relief in the way of compensation for the improvements which he had made to the land. See Faleatua v. Tauiliili, 19 A.S.R.2d 122 (1991); Fonoti v. Fagaima, 5 A.S.R.2d 158 (1987); Roberts v. Sesepasara, 8 A.S.R.2d 124 (1988). "The measure of compensation is the lesser of two amounts: (1) the actual cost of the improvements or (2) the amount by which they have enhanced the property." Leapagatele v. Nyel, 17 A.S.R.2d 201, 204-05 (1990). This measure of compensation arises from the fact that the duty to compensate is derived from the "unjust enrichment of the land owner, not the impoverishment of the improver." Roberts v. Sesepasara, supra, at 131.

Plaintiff sets out his claim for improvements as follows: 24 loads of fill, $1,080; Backhoe rental, $90; 2 rolls of fencing wire, $136; 5 bags of cement, $23.25; iron posts for fence, $100; labor for setting up posts, $250; labor for clearing land from July, 1990, $1,000; 4500 tiapula (taro tops) at $15 per hundred, $675; and projected income from crops left on the land, $4,000. We find all but the last item of the claim to be, reasonable and within the realm of compensable improvements. The last item, projected income, must necessarily be discounted since the "actual cost of improvements," not the amount which they have enhanced the property value, is the applicable measure of compensation on the evidence before us--"the lesser of two amounts." Leapagatele v. Nyel, supra. We hold that plaintiff is accordingly entitled to be compensated for the value of improvements which he has made to the defendant's land, in the amount of $3,354.25.

Finally, plaintiff also prays for punitive damages. We find that the evidence tails to support and warrant an award of punitive damages.

Accordingly, judgment shall enter in favor of the plaintiff, Titi Fofoagaitotoa, and against the defendant, Musu Faleafine, in the amount of $3,354.25.

It is so ordered.

*********

Estate of Fuimaono,


Estate of TUINANAU FUIMAONO, Deceased.

High Court of American Samoa
Trial Division

PR No. 13-86
PR No. 23-86

June 25, 1992

__________

Lack of a good-faith belief in the validity of a marriage, in a jurisdiction such as American Samoa that does not recognize common-law marriages, precludes finding a putative marriage for inheritance purposes.

Although the common law equated illegitimacy with disinheritance and the legitimation of offspring is essentially a statutory development, disinheritance constitutes impermissible discrimination when paternity or maternity is a genuinely-established fact.

When parents perform their parental duties towards those acknowledged as their children, and those children perform their filial obligations in return, a de facto right of inheritance should be recognized in principle. [21ASR2d122]

Before RICHMOND, Associate Justice, V AIV AO, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Co-administrator Sapati Fuimaono, Charles V. Ala'ilima
For Co-administrator Ato Fuimaono, Gata E. Gurr

Order Determining Heirship and for Further Proceedings:

The motion by co-administrator Sapati Fuimaono (Sapati) of the above-entitled estate (1) for a hearing to close the estate came regularly for hearing on April 6, 1992. The Court heard testimony and received other evidence, and the motion was submitted for decision. The Court, having considered the records on file in this proceeding and the evidence presented at the hearing, finds:

FINDINGS OF FACT

A. Summary of Proceedings

1. On July 10, 1986, Fa'alua Fuimaono (Fa'alua) filed a verified petition for letters of administration of this estate. On September 17, 1986, Sapati also filed a verified petition for letters of administration. These separate proceedings were consolidated on September 22, 1986.

2. Based on these two petitions, the decedent Tuinanau Fuimaono (Tuinanau) was born on March 14, 1906, in American Samoa and died in January 1984 (Fa'alua's petition states on or about January 22 in Hawaii; Sapati's petition states January 1, 1984 in [21ASR2d123] American Samoa). Both petitions agree that Tuinanau died intestate, leaving property in American Samoa subject to administration, and that he was then domiciled in American Samoa. He died in Hawaii.

3. Both petitions list Fa'alua as Tuinanau's surviving wife and Sapati as his surviving son. Fa'alua's petition also lists Saumaleato Fuimaono (Ato) as Tuinanau's surviving son.

4. On February 27, 1987, Fa'alua and Sapati filed a stipulation for their appointment as co-administrators. However, there was no formal appointment of any administrator of record until July 17, 1990.

5. On July 17, 1990, Sapati's petition for Fa'alua's removal as co-administrator, filed June 6, 1990, was pending before the Court. This petition was based on allegations of her mismanagement of the estate, lack of cooperation, and incompetency due to age. Fa'alua controverted these allegations by answer filed on June 14, 1990. There is also a letter in the file alleging similar mismanagement by Sapati.

6. On July 17, 1990, the Court appointed Sapati and Ato as co-administrators, which was formalized by the Court's order dated July 20, 1990.

7. Meanwhile, Fa'alua's notice to creditors was issued and, on July 25, 1986, published in the Samoa News. Another notice to creditors, issued by both Fa'alua and Sapati, was published in the Samoa Journal & Advertiser on March 5, 1987. There are four apparently unresolved creditors' claims on file. There may be others when the final accounting is filed.

8. Several accountings are on file, following the Court's order of June 7, 1990, requiring both Fa'alua and Sapati to file separate accountings by June 22, 1990. Fa'alua's accounting in response was filed on June 20, 1990, and Sapati's accounting was filed on June 21, 1990. As then directed by the Court on July 5, 1990, Fa'alua filed another accounting of cash received on July 17, 1990. As a result of Sapati's motion citing Ato for contempt filed on July 19, 1990, and stipulated continuances to October 18, 1990, to survey lands sold, still another accounting, prepared jointly by Sapati and Ato, was filed on December 11, 1990. On March 14, 1991, the Court advised the co-administrators, at a hearing for approval of the [21ASR2d124] December 14, 1990, accounting, that there were still unresolved accounting issues.

9. The estate proceedings have remained at this point until the present motion was filed. The essence of this motion, despite its styling as a motion to close, is to determine the heirship to Tuinanau's estate and obtain further direction from the Court.

B. Heirship

1. Tuinanau and Selepa were formally married, probably in 1944. Sapati was born of this relationship on February 23, 1940. The couple probably separated in 1945. There is uncertainty about when and if they ever legally divorced.

2. Fa'alua was apparently born on January 11, 1905, and thus was approximately one year older than Tuinanau. Tuinanau and Fa'alua began living together in 1946 or 1947. There is no certificate of their marriage in the files of American Samoa's Registrar of Vital Statistics. No marriage certificate of another jurisdiction was submitted into evidence. There is a church document purporting to show their marriage on August 22, 1946, performed by a person named "Morrow," presumably a reference to former Chief Justice Arthur A. Morrow. Fa'alua also has a Certificate of Identity travel document, issued on September 8, 1976, by the American Samoa Attorney General's Office, stating that she was married. Attached to this document is an American Samoa Birth Certificate, issued as a late registration on J anuary 28, 1971, stating that she was born in Fagatogo, American Samoa, on January 11, 1905. However, there is also an Attorney General's Alien Registration Form, which Fa'alua completed under oath on February 11, 1964, using her maiden name of Letuli and stating that she was born on March 14, 1930, in and was a citizen of Western Samoa, had entered American Samoa at Fagatogo on June 22, 1947, and was living with the Fuimaono family in Nu'uuli. Tuinanau and this Fuimaono family were long-term residents of Nu'uuli, American Samoa. Not all of these documents can be genuine, and we are persuaded that the Alien Registration Form, other than Fa'alua's dat of birth, contains the truth. Thus, we find that the union of Tuinanau and Fa'alua was not solemnized by a marriage ceremony as is required under A.S.C.A. §§ 42.0101.

3. Clearly, however, Tuinanau and Fa'alua held themselves out publicly as a married couple and were recognized by their [21ASR2d125] Fuimaono family and the public at large as married. The relationship lasted in this manner from 1946 or 1947 until Tuinanau's death in 1984, a period of 37 or 38 years. They used the name Fuimaono throughout these years in all their personal and business transactions, and Ato, their son, carries the same name. However, despite their de facto marital relationship, they both knew the relationship was not a legal marriage. Lack of good-faith belief in the validity of a marriage, in a jurisdiction such as American Samoa that does not recognize common-law marriages, precludes finding a putative marriage for inheritance purposes. Vallera v. Vallera, 21 Cal. 2d, 134 P.2d 761 (1943).

4. We find that Fa'alua was neither Tuinanau's lawful spouse nor his putative spouse for inheritance purposes.

5. Ato is the only child born of the relationship of Tuinanau and Fa'alua. He is approximately 46 years old. He has lived with his father, until his father died, and mother throughout his life. Both parents publicly acknowledged Ato as their child. If his parents had legally married, he would have been legitimated under A.S.C.A § 42.0501 and unquestionably entitled to inherit from his father's intestate estate under A.S.C.A. §§ 40.0201 and 40.0202. None of these statutes, however, necessarily exclude illegitimate children from inheritance by their own terms. While we recognize the common-law view equating illegitimacy with disinheritance, and that legitimation is essentially a statutory development of the law, we cannot accept disinheritance as a proper result when paternity or maternity is a genuinely established fact. It is, in the words of the United States Supreme Court, "illogical and unjust" under these circumstances to extend the condemnation of irresponsible liaisons as imposing disabilities on their innocent offspring. Interpretation or application of the American Samoa statutes to disinherit under these circumstances would result in impermissible discrimination. Trimble v. Gordon, 430 U.S. 762 (1972); Nagle v. Wood (Estate of Russell R. Richards), 178 Conn. 180, 423 A.2d 875 (1979); see also Craddick v. Territorial Registrar, 1 A.S.R.2d 10 (1980).

When parents perform their parental duties towards their recognized children, and those children perform their filial obligations in return, as has occurred in this family, a de facto right of inheritance should be recognized in principle. Nagle v. Wood (Estate of Russell R. Richards), supra; see the discussion in H. Clark. Law of Domestic Relations, §§ 5.1, 5.4, 18.8. [21ASR2d126]

6. We find that Ato is Tuinanau's recognized child for inheritance purposes.

CONCLUSIONS OF LAW AND ORDERS

Based on the foregoing facts, the Court concludes and orders:

1. Since Fa'alua is neither a lawful nor putative surviving spouse, she cannot inherit any part of Tuinanau's estate.

2. Since Sapati and Ato are Tuinanau's children for inheritance purposes, they are entitled to succeed equally to Tuinanau's estate, both real and personal property, equally, a one-half undivided interest to each, as tenants in common. A.S.C.A. §§ 42.0201(b), 42.0202(a).

3. Since Sapati and Ato are the only heirs, they should and at this time shall continue to be co-administrators of Tuinanau's estate.

4. Since these proceedings lack a satisfactory inventory of estate assets and a satisfactory accounting, it is not yet in any condition to permit distribution of the property and closing. Therefore, the co- administrators shall jointly generate and file in this proceeding the following documents:

a. An inventory of all estate property existing as of the date of
Tuinanau's death.

b. A final accounting of all transactions, including all cash receipts
and disbursements, and the validity and disposition of all
creditors' claims, since the date of Tuinanau's death to the date
of filing the accounting, together with a petition and proposed
order for distribution of the estate property.

c. A petition and proposed order for closing the estate and
discharging the co-administrators after the distribution is completed.

5. In order to facilitate preparation of these documents, a hearing before the Court is scheduled on July 23, 1992, at 1 :30 p.m. , at which the co-administrators shall produce, and be ready to testify about, copies of the following [21ASR2d127] records in the possession of either or both of them, or now known to be in the possession of third parties, or located by either or both of them between now and the date of the hearing:

a. All records pertaining to all estate property at the date of
Tuinanau's death, and in the case of land, before death.

b. All records pertaining to all transactions concerning estate
property after the date of Tuinanau's death until the date of the
hearing, including but not limited to all cash receipts and
disbursements, and the validity and disposition of creditors'
claims.

It is so ordered.

*********

1. The Court, on its own motion, is changing the title of this estate proceeding. The existing title, "In the Matter of the Estate of Tuinanau Fuimaono, Deceased, by Fa'alua and Sapati Fuimaono, Co-administrators," along with other similar designations along the way, is confusing, especially when Fa'alua is not, and never has been, an appointed administrator in this proceeding. The change keeps the focus on the underlying purpose of this proceeding, the administration of the decedent's estate, and simplifies the title. As a general rule, the title of all proceedings for the administration of decedents' estates should not be any more elaborate than "Estate of __________, Deceased."

Diocese of Pago Pago; Nelson & Robertson Pty., Ltd. v.


NELSON & ROBERTSON PTY., LTD., Appellant

v.

DIOCESE OF PAGO PAGO, Appellee

SHANTILAL BROS., LTD., Appellant

v.

KMST WHOLESALE, INC., et al., Appellee

ROBERTSON PTY., LTD., Intervenor/Appellant

High Court of American Samoa
Appellate Division

AP No. 21-90
AP No. 1-91

April 9, 1992

__________

An appellate court reviews a trial court's interpretation of law de novo.

Even if a statute creates unintended hardships, the responsibility to rewrite a statute belongs to the Legislature not the High Court.

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

Counsel: For Appellant Nelson & Robertson, John L, Ward II
For Appellant Shantilal Bros, Gata E. Gurr
For Appellee Diocese of Pago Pago, Charles V. Ala'ilima
For Appellee KMST Wholesale, Togiola T.A. Tulafono [21ASR2d7]

GOODWIN, J.:

This matter comes before the Appellate Division on an appeal consolidated from the Land and Titles Division, LT No.18-90, and from the Trial Division, CA No.87-88.

PROCEDURAL BACKGROUND

The Appellant, Nelson & Robertson, ("N&R "), the Diocese of Pago Pago ("the Diocese") and Shantilal Brothers, Ltd. ("Shantilal") were among the creditors of KMST Wholesale. Shantilal secured a judgment against KMST in the Trial Division for $41,689.76 in December of 1988. Shantilal then secured a writ of execution for its judgment in December of 1989 and proceeded to hold a sale of KMST's inventory. The auction was held in January of 1990. A total of $25,800.00 was recovered.

Meanwhile, in March of 1988, N&R had recorded a chattel mortgage on "all of [KMST's] inventory." The chattel mortgage covered debts owed N&R by KMST in excess of $212,000.00. The mortgage was properly recorded. It purported to mortgage the following property:

(a) Inventory. All of Mortgagor's inventory, including all goods,
merchandise, raw materials, goods in process, finished goods,
other tangible personalty now owned or hereafter acquired and
held for sale or lease, furnished or to be furnished under contracts
of used or consumed in the business of service, or Mortgagor.

(b) Equipment, Fixtures, Furniture. All of Mortgagor's furniture,
machinery, apparatus, appliances, tools, supplies, materials, trade
and other fixtures and equipment, including automotive equipment,
now owned or hereafter acquired, together with all substitutions
therefore and additions and accessions thereto and parts needed
or intended to be used therewith.

(c) Other. All goods, instruments, documents of title, policies and
certificates of insurance, securities, deposits and other property
owned by [21ASR2d8] Mortgagor or in which it has an interest
which are now or may hereafter be in possession or control of
Company by documents of title or otherwise.

(d) Proceeds and Products. All proceeds and products of all of
the above, including without limitation insurance proceeds and
proceeds of condemnation by paramount authority; all of the
foregoing described property being hereinafter referred to as the
"mortgaged property."

In March of 1990, the Diocese secured a judgment against KMST fo $4,000.00. The combined cases pose the question of whether a general chattel mortgage which purports to cover everything a debtor owns is valid against the judgments of Shantilal and the Diocese, both obtained after the mortgage was filed.

The trial court held that the property description in N&R's chattel mortgage did not comply with A.S.C.A. §§ 27.1510 and so was insufficient as to invalidate the mortgage, thereby making N&R an unsecured, rather than a secured, creditor.

STANDARD OF REVIEW

Because the trial court's judgment presents a legal question that requires interpretation of law, this Court reviews the issue de novo. In re Daniel, 771 F.2d 1352, (9th Cir. 1985), cert. denied 475 U.S. 1016 (1985).

DISCUSSION

At issue is the interpretation of American Samoa Code §27.1510, entitled "Validity of mortgage, bill of sale, etc."(1) That law [21ASR2d9] requires that there be a" specific description" of the mortgaged property. The trial court held that N&R did not sufficiently identify the mortgaged property. The general description, quoted supra, failed under A.S.C.A. § 27.1510.

The decision of the Trial Division was rendered in three parts. First, an Opinion and Order stated that N&R 's mortgage did not cover any particular chattel. This was fatal to its security interest because the Court held that this was not "specific."

Later, the Court revisited the issue in an Opinion and Order on Reconsideration. In that Opinion, the Court explained, "while the [above quoted] language is arguably a 'description' of sorts, it certainly does not contain a description of any 'specific' article or articles, as our statute requires. " The Court reasoned that the word "specific" required that a description by class did not suffice; the Court said, " [I]ndeed, a reference to 'all' of a general class of things would appear to be the very opposite of a 'description' of a 'specific' thing."

Finally, in an Opinion and Order in the Land and Titles Division, the Court reasoned simply that the mortgage contained no specific description, and so failed as a mortgage.

Appellant argues that to uphold the trial court decisions would effectively eliminate inventory financing in American Samoa. Appellees concede the point and argue that this is the concern of the legislature. The trial court said the statute requires a description of every item covered and only the legislature can rewrite the statute. We agree.

The argument of the Appellant should be addressed to the legislature. So long as every chattel mortgage must specifically describe each item covered, inventory financing is not, as a practical matter, available in American Samoa. [21ASR2d10]

The parties make note of the fact that American Samoa has not adopted the Uniform Commercial Code. Appellant is urging an interpretation of A.S.C.A. § 27.1510 consistent with a UCC interpretation. Appellees argue that the UCC interpretation, if desirable, should be made by the legislature, rather than by this court.

We agree and AFFIRM the judgments challenged by these appeals.

RICHMOND, J., dissenting:

I would reverse the decision of the trial court and remand this case with directions to recognize the validity of the appellant's prior, recorded chattel mortgage with respect to appellees' judgment-creditor status and to accordingly distribute the proceeds of the execution sale of KMST's property.

As the trial court and the majority of this court recognize, their decisions will bring consternation to inventory financing in the Territory unless and until there is corrective legislation. It would be a practical impossibility to update a chattel mortgage with specific descriptions of every item of the inventory of a functioning business every day; as such, chattel mortgages have effectively been eliminated in American Samoa, for the time being. It should not be necessary and is not appropriate to inflict this harsh restriction, however temporary, on business practices in the community.

The majority rule under common-law and pre-Uniform Commercial Code statutes clearly upholds "all" of a certain kind or type of mortgaged personal property as sufficiently specific. A description in this manner in a recorded chattel mortgage, even if inquiries are necessary to fully identify the property, adequately notifies subsequent creditors of the encumbrance. Security First Nat'l Bank v. Haden, 211 Cal. App. 2d 459, 27 Cal. Rptr. 282, (1962); Evans v. Stewart, 66 N.W.2d 442 (Iowa 1954); First Nat'l Bank v. First Nat'l Bank, 106 So. 422 (Fla. 1925); In re Beede, 126 F. 853 (N.D.N.Y. 1903); see also cases cited in Annotation, Sufficiency of Description in Chattel Mortgage as Covering All Property of a Particular Kind, 2 A.L.R.3d 839, 840-51 (1965). For inventory financing, particularly when, as here, "all" of the inventory is mortgaged, the instrument itself does raise the inquiries necessary to discover the exact scope of the mortgage and thus adequately notifies third parties of the mortgage. When subsequent [21ASR2d11] creditors have actual notice of a prior recorded chattel mortgage, the majority rule is even more universal. Annotation, supra, 2 A.L.R.3d at 850-51.

Reversal, in my view, would not violate any principle leaving policy-making to the Legislature. As the court stated in Bennett v. Green, 119 S.E. 620, 622 (1923), "[a] general description of this kind is tantamount to a specific description of each unit composing the whole." Such a description of "all" of a particular thing actually makes it easier for a subsequent creditor to determine what is mortgaged than if only some (or all) items are specifically described, because a creditor need not determine which of the particular items are mortgaged, and which are not--they all are.

Additionally, the other territorial recording statutes, A.S.C.A. §§ 37.0210 and 37.1002(b), embody the concept of constructive notice through recordation in land-alienation and mortgage transactions. Consistency would indicate a similar legislative intent with respect to inventory and other business financing using personal property as security, but the majority's interpretation makes the description and the notice it affords into a substantive requirement that voids the mortgage even between the parties themselves. This narrow and crippling construction is unnecessary. Interpreting the statute to permit a mortgage of "all " of a particular thing, such as inventory, is plausible under the statute as it is written, is a much more practical construction of the Legislature's intent, and is more consistent with other territorial recording statutes.

Perhaps those involved in the legislative process will quickly take up the banner of reform.

*********

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

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

1. The test of the law at issue reads:

No mortgage, bill of sale, conditional sales contract, deed of
trust or conveyance of personal property which is not
accompanied by a personal delivery thereof to the vendee is
valid as to persons who do not have actual thereof unless all
of the following conditions are met:
(1) it is in writing signed by the person to be bound and
attested to by at least one witness;
(2) it is filed with the territorial registrar within ten days after
its execution;
(3) it truly states the consideration upon which it was based
or the debt or liability which it was intended to secure, and
contains a description of the specific article, articles, or land
sold or mortgaged.

American Samoa Gov’t v. Sefo,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

MELISE SEFO, Defendant

High Court of American Samoa
Trial Division

CR No. 5-92

May 5, 1992

__________

A warrantless arrest is improper if the government does not present evidence on which a court may judge "reasonableness." Rev. Const. Am. Samoa Art. I, § 5.

Although the time differential and intervening circumstances may sever the relationship between illegal arrest and a confession, the culpability of the police does not abrogate the application of the territorial constitution's exclusionary rule. Rev. Const. Am. Samoa Art I, § 5.

Merely giving Miranda warnings is insufficient to constitute an "intervening circumstance" severing the causal relationship between an illegal arrest and a confession, and such a confession must be suppressed. Rev. Const. Am. Samoa Art. I, § 5.

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

Counsel: For Plaintiff, Donald M. Sheehan, Assistant Attorney General
For Defendant, Barry I. Rose, Assistant Public Defender

On Motion to Suppress:

The defendant is charged with two counts of murder. She moves to suppress the government's use of certain incriminating statements which she had previously made on the ground that she was illegally in custody when these statements were given. Defendant argues [21ASR2d33] that she was arrested without a warrant in violation of Revised Constitution of American Samoa Art. I, Section 5, and A.S.C.A. § 46.0801 and that, therefore, her statements are inadmissible.(1)

At the hearing, the government had all but conceded the issue of valid arrest; the court was given very little detail on the surrounding circumstances leading up to the defendant's custodial situation. Officer Vaitoelau Laumoli testified that in the early hours of one particular morning he had accompanied Inspector Mika Kelemete to the village of Malaeloa and arrested the defendant; he acknowledged that they did not have a warrant at the time. When asked why they had gone to Malaeloa, Officer Laumoli could only generally say that their office had been seeking out the person who had perpetrated the trouble before the court and that they had gone to Malaeloa because of information which their office had received. He further testified that after arriving at Malaeloa, he heard Inspector Kelemete verbally warn the defendant of her rights and inform her that she was under the custody of their office. He noted that while the defendant was crying and visibly distraught, she also submitted to them quietly.

Officer Terry Letuli, who had also gone to Malaeloa, testified that he was told by Inspector Kelemete that the defendant turned herself in to the "authorities"; he believed the defendant had turned herself in to the Commissioner of Public Safety. Officer Letuli also testified that he overheard a Mrs. Tua Togiola state that certain Tongan members of the victims' family were out looking for the defendant; hence, he noted in the booking form that the defendant was being held for her safety. [21ASR2d34]

While it did not escape our attention that the testimony elicited from Officer Letuli was, in effect, an attempt to allude to that statutory exception sanctioning warrantless arrest in the situation where protective custody is called for, see A.S.C.A. § 46.0805(7), the government simply failed to show that the defendant indeed required protection. Moreover, if the defendant had in fact attempted to turn herself in--the antithesis of restraint-the government again failed to supply details. Inspector Kelemete, the arresting and ranking officer at the scene of the arrest, was not called to elaborate on the factors leading up to the arrest--which Officer Laumoli could not. Accordingly, the court was not supplied an evidentiary basis upon which "reasonableness," the substantive element of Article I, § 5 might be assessed.

On the extent of the testimony before us, we must conclude that the defendant was "seized" in the constitutional sense, and that her arrest was not only "unreasonable" but not in accordance with applicable procedural requirements. Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. § 46.0801.

The evidence, however, did show that later on at the police station that same morning, Officer Meauta Mageo, Jr. was very meticulous with the manner in which he walked the defendant through the Miranda warning process before he asked her whether she wished to say anything. He was clearly very consciously attempting to avoid the any subsequent claims of coercion and overbearance on his part. The ensuing dialogue between the defendant and Officer Mageo culminated in the statements now sought to be suppressed. Under these circumstances, the government submits that even if the arrest were illegal, the defendant's confession should nonetheless be admissible because it was a product of free will--it was voluntary.(2) The contention is that since the confession was voluntarily given, it was not obtained by exploiting the illegal [sic] and arrest and hence not obtained in violation of Article I, § 5. [21ASR2d35]

The Supreme Court, in Dunaway v. New York, 442 U.S. 200, 217-18 (1979), stated that voluntariness, while it is the key issue for Fifth Amendment analysis, is merely a threshold issue for Fourth Amendment analysis. "Beyond this threshold requirement, Brown [v. Illinois, 422 U .S. 590 (1975)] articulated a test designed to vindicate the 'distinct policies and interests of the Fourth Amendment' ...[by identifying] the relevant inquiry as 'whether [an accused's] statements were obtained by exploitation of the illegality of his arrest.'" Dunaway, 442 U.S. at 218 (internal citation omitted) (quoting Brown, 422 U.S. at 600). Both Brown and Dunaway focus on the "causal connection between the illegality and the confession," as a reflection of the two policies behind the use of the exclusionary rule as a means of effectuating the Fourth Amendment--namely, deterring future police misconduct and bolstering judicial integrity by encouraging obedience to legal rules. Brown, 422 U.S. at 603; Dunaway, 442 U.S. at 218. The Brown test highlights four factors: whether Miranda warnings were given, "the temporal proximity of the arrest and the confession, the presence of intervening circumstances, ...and, particularly, the purpose and flagrancy of the official misconduct."(3) Brown, 422 U .S. at 603-04. Further, the Court in Brown clearly rejected the notion that Miranda warnings alone were sufficient to purge the taint of an illegal arrest. Id. at 602-03. This was re-emphasized in Dunaway, 442 U.S. at 217-18.

The government argues that Miranda warnings were given and that the police in the present case were acting in good-faith reliance on a statutory provision (that permits protective custody) so the necessary causal connection does not exist between the arrest and the confession because it was not flagrant misconduct.

In American Samoa, however, these factors must be read in light of a constitutional exclusionary rule. This provides that "[e]vidence obtained in violation of [Article I, § 5] shall not be admitted in any court." Rev. Const. Am. Samoa Art. I, § 5. The time differential and especially any intervening circumstances may indeed be applicable in American Samoa as serving to' sever the relationship between the illegal arrest and the confession; if there is no relationship between the two, the confession would not be a product of the illegal arrest and would not be obtained in violation of Article I, § 5. The last factor, however, while important in Brown and Dunaway, seems largely to serve the goal of [21ASR2d36] deterring future police misconduct, not of proving that the confession was not a product of the illegal arrest. This is not a permissible reason to abrogate the protection of the constitutional exclusionary rule and, therefore, the culpability of the police is not a factor in the American Samoa scheme.

The government also argues that the case of Rawlings v. Kentucky, 448 U.S. 109 (1980), supports the admissibility of the confession in the present case. The Court in Rawlings applied the Brown test to a statement given during a detention that occurred in a home while waiting for a search warrant, after officers lawfully in the home smelled marijuana. After the warrant arrived, an occupant of the house was ordered to dump the contents of her purse onto a table; substantial amounts of controlled substances were thus exposed, and the defendant made incriminating statements by claiming some of the drugs. The Rawlings Court noted that Miranda warnings were given just prior to the incriminating statement; that the arrest and confession were not temporally close because of the congenial, not-strictly custodial atmosphere in the house during the 45-minute detention (defendant and companions were joking with police and offered them refreshments); that there was an intervening circumstance--the discovery of the drugs--which led to a spontaneous reaction "of free will unaffected by the initial illegality," Rawlings, 448 U.S. at 109-10 (quoting Brown, 442 U.S. at 603); and that the officers committed no conscious or flagrant misconduct. Id. at 108-11. The Court therefore held that the statements were free of any taint from any illegality in the initial detention.(4)

However, Rawlings seems to differ from the present case in two key details. First, the atmosphere was different; the time element is roughly the same, but police in the present case were actually questioning the defendant, and the events occurred at the police station, not in a home. In the Rawlings case, the 45 minutes of the detention--the temporal severing period--were spent quietly waiting for the search warrant. While the presence of this defendant's friends and family at the police station is certainly a relevant factor under Brown, the custodial circumstances here were a lot less casual than those found in Rawlings. Second, we find no intervening circumstance to evoke a spontaneous response in this case; instead, the police were questioning the defendant. [21ASR2d37] Additionally, as discussed above, police misconduct, or lack thereof, is, we believe, not a relevant consideration.

The mere giving of Miranda warnings is not sufficient to sever the causal relationship between an illegal arrest and a subsequent confession; it alone cannot constitute an "intervening circumstance." Neither of the two other applicable factors appear to sever the relationship of the illegal arrest and the confession. The confession occurred within an hour or so of arrest, and no other circumstances intervened. We conclude that the confession must be suppressed.

It is so ordered.

*********

1. Revised Constitution of American Samoa Art. I, § 5 reads in pertinent part:

The right of the people to be secure in their persons. ..against
unreasonable. ..searches and seizures shall not be violated, and
no warrants shall issue, but upon probable cause, supported by
oath or affirmation. ...Evidence obtained in violation of this
section shall not be admitted in any court.

(emphasis added).

A.S.C.A. § 46.0801 reads, "Except as provided in 46.0805 and 46.806, no an-est may be made except upon a warrant, duly issued in accordance with the provisions of this chapter." (emphasis added).

2. A confession by one illegally in custody must be suppressed unless the causal connection between the arrest and the confession had become so attenuated that the latter should not be deemed "tainted " by the former. Wong Sun v. United States, 371 U.S. 471 (1963). In Wong Son, the Supreme Court held that a confession made by an accused after his unlawful arrest was not excludable when it was shown that the confession was the result of "an intervening... act of free will." Id. At 486

3. The test also explicitly states that the burden of proving admissibility rests on the prosecution.

4. The Court remained undecided whether the initial detention was legal or not.

American Samoa Gov’t v. Luki,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

FAGAVAO LUKI, aka FUNKY, and AZIZA PRITCHARD,
aka CHEEZE, Defendants

High Court of American Samoa
Trial Division

CR No. 15-92
CR No. 16-92

May 28, 1992

__________

A defendant was not illegally taken into custody without a warrant when he voluntarily agreed to a police officer's request to go to the station for questioning. [21ASR2d85]

A bill of information using the language of the criminal statute is sufficient as long as the statute sets forth all of the elements constituting the offence.

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

Counsel: For Plaintiff, Donald M. Sheehan, Assistant Attorney General
For Defendant Luki, Barry I. Rose, Assistant Public Defender
For Defendant Pritchard, Robert A. Dennison III

On Motion to Suppress, Dismiss and Sever:

Defendant Aziza Pritchard moves to suppress "defendant's statements, scientific evidence or test results and other evidence obtained as a result of an illegal search, detention and/or arrest of the defendant"; to dismiss the information for want of specificity; and to sever (T.C.R.Cr.P 14).

I. Motion to Suppress

The grounds for this motion are twofold: 1) that on March 8, 1992, the defendant was illegally taken in to custody by Police Officer Analoi Suamataia without a warrant and that, therefore, the statements which he subsequently gave at the police station shortly thereafter were fruits of that unlawful seizure and excludable under Rev. Const. Am. Samoa Art. I, §5;(1) and 2) that these statements were obtained from the defendant in violation of his right to counsel. [21ASR2d86]

The evidence did not bear out a situation of arrest. Rather , the defendant acceded, in the presence of family members, to Officer Suamataia's request to go with him to the station for questioning. We find no Art. I, § 5 basis to the motion.

Defendant also argues that he had invoked his right to counsel and that Officer Suamataia should therefore not have questioned him until counsel was present.(2) Assuming arguendo that a situation constituting "custodial interrogation," within the rule of Miranda v. Arizona, 384 U.S. 436 (1966), had arisen at the police station, we find nothing on the evidence to suggest that the defendant had ever requested counsel. Rather, the evidence showed that before the defendant had left with officer Suamataia, the latter was advised by the defendant's sister that their family either had a lawyer or were going to obtain a lawyer for the defendant. At the station, officer Suamataia first gave the defendant the Miranda warnings, and the defendant then signed a written waiver of his rights. Subsequently he gave a statement. In these circumstances, we are not satisfied that the right to counsel was invoked. See Moran v. Burbine, 475 U.S. 412 (1986). The motion is denied.

II. Motion to Dismiss

The information charges the defendant with, among other things, the crimes of Sodomy, a violation of A.S.C.A § 46.3611, and Sexual Abuse in the First Degree, a violation of A.S.C.A. § 46.3615. The defendant argues that the information fails to state the "specific act or acts" the defendant is alleged to have committed which constitute "deviate sexual intercourse" or "sodomy" within A.S.C.A. § 46.3611, and which constitutes "sexual contact" within the meaning of A.S.C.A. § 46.3615. The information is couched in the language of the respective statutes. [21ASR2d87]

This very same motion was addressed by the court in Government of American Samoa v. Afamasaga, 17 A.S.R.2d 145 (Trial Div. 1990). There the Court said:

That a criminal charge is couched in the language of the statute, is
not, of itself, grounds for the dismissal of an information. It is settled
law that an information using only statutory language is quite permissible
as long as the statute sets forth "fully, directly and expressly, without
any uncertainty or ambiguity,... all the elements necessary to constitute
the offence intended to be punished." Hamlin v. United States, 418
U.S. 87, 117-18 (1974). Furthermore, Rule 7(c) "does not mean that
the indictment must set forth facts and evidentiary details necessary to
establish each of the elements of the charged offence." United States
v. Williams, 679 F.2d 504, 508 (1982), cert. denied 459 U.S. 1111.
There is a distinction between "a defendant's constitutional right to know
what offense he is charged with and his desire to know the evidentiary
details of the prosecution's case." Id. at 509. See also United States v.
Crow, 824 F.2d 761 (1987).

Afamasaga, 17 A.S.R. 2d at 149-50. For reasons given in Afamasaga, we deny the motion to dismiss.

III. Motion to Sever

We exercise our discretion against the motion and thus deny the same.

It is so ordered.

**********

1. Rev. Const. Am. Samoa Art. I, §5, reads in pertinent part:

The right of the people to be secure in their persons... against unreasonable...
searches and seizures shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation,.... Evidence obtained
in violation of this section shall not be admitted in any court.

(emphasis added.)

2. In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the Supreme Court held that a suspect in custody must be informed of his right to remain silent and the right to confer with an attorney before or during interrogation. The Court's holding was premised on the Fifth Amendment's privilege against self-incrimination. The Court further held that if a suspect requests an attorney, the interrogation must cease until counsel is present. Id. at 474; see also Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

American Samoa Gov’t v. Luki,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

FAGAVAO LUKI, aka FUNKY, and AZIZA PRITCHARD,
aka CHEEZE, Defendants

High Court of American Samoa
Trial Division

CR No. 15-92
CR No. 16-92

May 28, 1992

__________

Generally, an arrest, whether with or without a warrant, must be supported by probable cause. Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. § 46.0805(3).

A confession will be suppressed if the government fails to meet its burden of showing that probable cause for a warrantless arrest existed when it was made. Rev. Const. Am. Samoa Art. I, § 5; A.S.C.A. § 46.0805(3).

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

Counsel: For Plaintiff, Donald M. Sheehan, Assistant Attorney General
For Defendant Luki, Barry I. Rose, Assistant Public Defender
For Defendant Pritchard, Robert A. Dennison III

On Motion to Suppress: [21ASR2d83]

Defendant Fagavao Luki moves to suppress his confession made at the Fagatogo police station to Police Officer Analoi Suamataia on the morning of March 8, 1991. Among other things, Luki contends that he was arrested without a warrant and that his confession was obtained while he was unlawfully detained, in violation of his constitutional rights under Rev. Const. Am. Samoa Art. I, § 5.(1) The government relies on the provisions of A.S.C.A. § 46.0805(3), which authorizes a warrantless arrest "of persons found near the scene of a felony and suspected of committing it, where such suspicion is based on reasonable grounds and the arrest follows the crime by a short time."

The evidence shows that the defendant was taken into custody on the morning of March 8, 1992, and then later questioned. Officer Paulo Leuma testified that he and two other fellow officers from the village of Leone were instructed by Commander Poa'i Ripley to pick up the defendant, who is also a Leone villager. The officers did not have a warrant when they picked up the defendant, whom they found asleep at home. After he was first verbally warned of his Miranda rights, the defendant was then transported to the Tafuna sub-station where he was questioned by other officers.

Generally, an arrest whether with or without a warrant must be supported by probable cause. Giordenello v. United States, 357 U.S. 480 (1958); Wong Sun v. United States, 371 U.S. 471, (1963); see also Gerstein v. Pugh, 420 U.S. 103 (1975). The terms "probable cause" and "reasonable grounds" have been said, in the context of arrests, to be substantially equivalent in meaning. Draper v. United States, 358 U.S. 307 (1959). Furthermore, probable cause for a warrantless arrest must exist when the arrest is made, see United States v. Simon, 409 F.2d 474,475 (7th Cir. 1969), cert. denied, 396 U.S. 829; Washington v. United States, 414 F.2d 1119, 1122 (D.C. Cir. 1969); United States v. Rivera, 321 F .2d 704, 708 (2d Cir. 1963), and the government has the burden of showing probable cause. Wong Sun, supra; United States v. Rivera, supra, at 708. [21ASR2d84]

On the extent of the showing before us, we cannot say that [here was either probable cause or reasonable grounds for arresting the defendant. Save for Officer Leuma's statement that he had heard from someone at the sub-station that the complainant had been raped, the Court was not told anything about the circumstances leading up to this particular defendant's arrest. The decision to arrest the defendant was made by the ranking officer of the watch, Commander Ripley, not the arresting officer, Leuma. Commander Ripley was not called to testify and explain his reasons for ordering the defendant's arrest.

On the foregoing, we hold that defendant Luki's statements made to Lt. Suamataia at the Fagatogo police station on the morning of March 8, 1992, must be excluded, since the government has failed to show that the defendant was, at the time he made the statements in question, arrested and detained upon "probable cause," within the meaning of Rev. Const. Am. Samoa Art. I, § 5, or "reasonable grounds," within the meaning of A.S.C.A. § 46.0805(3). Won Sun, supra. Motion to suppress is granted.

It is so ordered.

*********

1. This provision--proscribing unreasonable searches and seizures-- tracks the language of the Fourth Amendment to the United States Constitution; however, it differs from its federal counterpart in that it additionally provides that "[e]vidence obtained in violation of this section shall not be admitted in any court."

American Samoa Gov’t; Crispin v.


PETER CRISPIN and HENRY JAMISON, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT and DOES I-V,
Defendants

High Court of American Samoa
Trial Division

CA No.3-91

May 21, 1992

__________

Claims against the American Samoa Government for personal injury or property damage must be administratively submitted under the Government Tort Claims Act to the Attorney General for resolution before judicial action is instituted. A.S.C.A. § 43.1205.

The High Court looks to the Federal Rules of Civil Procedure for guidance and must conform to them as closely as practicable. A.S.C.A. § 43.0201(a).

The standard of proof on a motion to dismiss at the conclusion of a plaintifrs evidence is a preponderance of the evidence; the court is not obliged to rule on the motion at that point but may defer judgment until the close of all the evidence.

An owner or possessor of land has a duty to cause no unreasonable risk of harm to others in the vicinity and so is liable for creating or maintaining dangerous artificial conditions.

Negligence of a landowner or land occupier is not a substantial factor proximately causing harm if the harm would have occurred despite the negligence of the landowner or land occupier.

Before RICHMOND, Associate Justice, LOGOAI, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Plaintiffs: Roy J. D. Hall, Jr.
For Defendants: Richard Lerner, Assistant Attorney General [21ASR2d61]

This is an action by which plaintiffs Peter Crispin and Henry Jamison seek damages against American Samoa Government for property damage.

FINDINGS

Plaintiffs jointly own a 26 foot Sea Ray Express motorboat. Plaintiff Crispin is also a co-owner of the Tool Shop, Inc., which has business premises on land in the Sen. Daniel K. Inouye Industrial Park at Tafuna, American Samoa, leased from defendant. Facilities of the Maintenance and Operations Division (M & O) of defendant's Department of Public Works are on land immediately adjacent to the northern boundary of the Tool Shop area. The two areas are separated by a 6-foot chainlink fence.

On Saturday, February 3, 1990, the motorboat was parked on a trailer at the westerly end of the Tool Shop building next to the separating fence. It had been there for approximately two to three months in need of repair due to a blown head gasket. The trailer axle was also in disrepair. Thus, the motorboat was not readily movable from this location on this date. The motorboat had been parked at this point on many occasions before when it was taken out of the water.

Across from the motorboat, there was a shed that was next to the fence on the M & O premises. The shed covered various equipment parked in this area by defendant. Defendant constructed the shed in June or July 1988. Plaintiff Crispin told the workers that he thought the quality of the construction was not good work. They laughed. He also informed the head of the M & O Division about his opinion on the quality of the shed construction. However, no alterations were made to the structure.

A storm with strong winds began to impact American Samoa on Friday, February 2, 1990. Plaintiff Crispin had heard by Friday evening that the storm might reach hurricane proportions. The Tool Shop opened for business Saturday morning, February 3. However, the storm was growing in strength, with strong gusts of wind, and all employees had been allowed to go home by noon.

Plaintiff Crispin and his wife remained at the premises past noon. Bill Maxey, a business person then operating at the Lumanai Corporation warehouse a short distance to the east in the Industrial Park, and his wife stopped by some time between noon and 12:30[21ASR2d62] p.m. At approximately 1:00 p.m., while the two couples were having coffee in the second floor office of the Tool Shop at the west end of the building, Maxey and plaintiff Crispin saw the roof of the shed blown by the wind in one piece off the shed and into and over the fence onto the motorboat.

At the time the shed roof was blown onto the motorboat, the winds generally came from a northeasterly direction. However, the Tool Shop building did not offer much protection to the area where the motorboat was located. The roof was still on the motorboat when plaintiff Crispin checked about 11:00 p.m. Saturday night. Another check between 2:00 and 3:00 a.m. Sunday, February 4, revealed the roof was then blown off the motorboat.

While on the motorboat, the wind was banging the roof up and down against the motorboat. Plaintiff Crispin inspected the damage on Monday, February 5, 1990. It was extensive. Both starboard windows and their top and side frames were broken. One port window was also broken. The top awning and frame were destroyed. The cabin doors were damaged, and substantial interior water damage occurred. The front hatch was broken. The stern handrail was also broken, and other handrails were bent. The gel coat on the hull was extensively chipped. The estimated cost of repair is $4,300.

Akapo Akapo of the U.S. National Weather Service provided the official records of wind strength taken at the nearby Pago Pago International Airport during this storm, designated Hurricane Ofa. The winds were recorded until the Weather Service lost power about 6:00 p.m. on Saturday, February 3, 1990. The highest recorded wind on Saturday was 93 knots or approximately 107 miles per hour at 2:19 p.m. Between 12:30 and 1:30 p.m., the winds ranged from a low of 15 knots, or 17.25 miles per hour, to the strongest gust at 77 knots, or 88.55 miles per hour.

David Gianni, General Manager of the Architect and Engineering Division (A & E) of the Department of Public Works of defendant Government, testified to community building standards. At the time of Hurricane Ofa, the Uniform Building Code, Short Form, 1964 edition, was in effect. The shed would be rated under the Code as a "J" occupancy structure, which is a non-human occupied building with the least restrictions applicable to its construction. There would be no wind resistance restrictions. He had seen the shed before the storm and did not observe any violations of applicable construction [21ASR2d63] standards in the Code or generally accepted standards in the community. The shed would not withstand the winds of Hurricane Ofa. He would have designed, if he had been involved in that phase, a more substantial shed for its intended purposes, which would have withstood 80 to 90 mile per hour winds, in light of safety considerations for adjoining property.

Hurricane Ofa caused severe damage throughout the Tafuna area. The Lumanai Development Corporation building housing Bill Maxey's business suffered extensive wall and roof damage at some point after the shed roof was deposited on the motorboat. Paul Dumas, a defendant Government employee with the Department of Education and a resident at the Government housing complex about one-half mile to the east of the Tool Shop, testified to serious damage to units there. The winds were at their peak in that area late Saturday night and early Sunday morning. There was both structural damage, particularly to roofs, and considerable water damage inside the housing units.

Andy Smith, who is presently the Deputy Director of Public Works and was General Manager of the Civil Division when Hurricane Ofa struck, testified to several inspections during and after the storm. He inspected north shore areas of the Island of Tutuila on Friday, February 2, where severe wave surge damage occurred. During the morning of Saturday, February 3, he checked on crews working at various damaged areas. These inspections were slowed by obstacles on the road requiring removal for vehicles to pass.

He returned to the M & O compound at Tafuna at 1:30 p.m. on Saturday, February 3. While there, this area was being struck by periods of heavy rains with intermittent strong winds. When he left for home about 3:00 p.m., he observed a large section of the roof blown off the Burns Philp lumber yard building, which is southerly across the street from the Tool Shop, into the adjacent Spencer Company warehouse. Banana trees and a breadfruit tree were blown down near his Government quarters in the Tafuna housing area. The storm was then intensifying. By dark that evening, mango and other larger trees were down in this area.

After the storm, he observed extensive damage in the Tafuna area. Power poles were snapped and lines down. In the Industrial Park, the CBT Lumber warehouse had collapsed. Portions of the Burns Philp roof were blown away. Roofs at the Tropical Millwork[21ASR2d64] buildings were off. Metal skin at the GHC Reid facility was gone; likewise at the South Pacific Recycle premises. The McConnell-Dowell building had roof damage. The Ice, Inc. facility was severely damaged, as was the T & T compound. All of these structures are located in the vicinity of the Tool Shop.

Towards the Pago Pago International Airport, the Tafuna High School gymnasium had collapsed. Roofs of the airport shops were gone. One hangar was virtually destroyed, as were several warehouses. The Government's Office of Procurement facility in this area suffered severe skin and roof damage.

At the east end of the Industrial Park, there was substantial roof damage at the Vocational-Technical School adjacent to the Government housing area. The roof of one Government housing unit was destroyed. Other units had significant wind damage. Roofs and fences at the nearby Government Correctional Facility were seriously damaged.

The M & O compound was also heavily damaged. The heavy equipment shop skin was gone. The second floor of the materials laboratory was blown away.

He did not see any damage to the Tool Shop. The Lumanai Development Corporation warehouse was still intact Saturday afternoon, February 3. He believes most of the serious destruction in the Tafuna area occurred after 3:00 p.m. that afternoon and into the early morning the next day.

He also believes the CBT warehouse collapsed as a result of a rocking motion. He does not know whether faulty construction or strong winds, or both factors, caused or contributed to this action.

He has no personal knowledge of the manner of construction of the shed. He estimated its size at 35 to 40 feet long and 10 to 15 feet wide. However, he only saw it from a distance before the hurricane.

DISCUSSION AND CONCLUSIONS

1. Administrative Claim Prerequisite. [21ASR2d65]

Claims against the American Samoa Government for personal injury or property damage must be administratively submitted under the Government Tort Claims Act to the Attorney General for resolution before judicial action is instituted. A.S.C.A. § 43.1205. This prerequisite to suit is clearly jurisdictional by its own terms.

In this case, the pleadings implicitly show that plaintiff Crispin filed an administrative claim, which was rejected by the Attorney General. However, defendant Government's answer to the complaint denies this Court's jurisdiction over plaintiff Jamison's claim for lack of a prior administrative claim. The Court sought but did not receive any specific details about plaintiff Crispin's administrative claim, specifically a copy of the claim and denial, to make an informed decision on the issue of plaintiff Jamison's standing based on the form and content of plaintiff Crispin's administrative claim.

A.S.C.A. § 43.1205 is an essentially precise counterpart of 28 U.S.C.A. § 2675 in the federal Tort Claims Act. While there is no territorial implementing rule to A.S.C.A. § 43.1205 known to the Court, the federal rule at 28 C.F.R. § 14.3 provides:

§ 14.3 Administrative claim; who may file.
(a) A claim for injury to or loss of property may be presented
by the owner of the property, his duly authorized agent, or legal
representative.
* * * *
(e) A claim presented by an agent or legal representative shall
be presented in the name of the claimant, be signed by the agent
or legal representative, show the title or legal capacity of the
person signing, and be accompanied by evidence of his authority
to present a claim on behalf of the claimant as agent, executor,
administrator, parent, guardian, or other representative.

Federal court decisions make applicable policy considerations clear. The administrative claim prerequisite, while jurisdictional, is not an arbitrary standard. One basic purpose is to focus the government on settling claims without litigation when settlement is appropriate. Another is not to obstruct judicial determinations on technicalities when the government is adequately apprised of the claim [21ASR2d66] it must face. See, as examples of claims involving representative capacities, Locke v. United States, 351 F. Supp. 185 (D.C. Haw. 1972); Coe v. United States, 502 F. Supp. 881 (D.C. Or. 1980); Sky Harbor Air Service, Inc. v. United States, 348 F. Supp. 594 (D.C. Neb. 1972); see generally Annotation, When is Claim Properly Presented to Federal Agency, Under 28 U.S.C.S. § 2675(a), for Purposes of Satisfying Prerequisite to Subsequent Suit Under Federal Tort Claims Act, 73 A.L.R. Fed. 338 (1985).

Applying these principles in this case, the Court only knows, by way of evidence, that plaintiffs are in some legal manner co-owners of the motorboat, and that plaintiff Jamison allegedly failed to file an administrative claim. Neither the claim or claims by plaintiffs nor the denial or denials by defendant, as the case may be, nor any other affirmative evidence on this issue, was presented. Thus, the Court declines to rule on the legal sufficiency or insufficiency of plaintiff Crispin's administrative claim on plaintiff Jamison's behalf.

On the other hand, defendant was aware of the plaintiffs co-ownership of the motorboat and was adequately prepared to defend this action. In this case at least, the interests of final determination of the issues with respect to all litigants outweigh the legal niceties of plaintiff Crispin's representative capacity for administrative claim purposes. Therefore, we accept jurisdiction over plaintiff Jamison's claim. We also expect defendant to support more vigorously any asserted defects in the administrative claim process in the future if it truly wants to rely on such defects in defense.

2. Motion to Dismiss under T.C.R.C.P. 41(b).

Defendant moved, pursuant to T.C.R.C.P. 41(b), for dismissal when plaintiffs completed presentation of their evidence on the ground that upon the facts and the law plaintiffs had shown no right to relief. The Court opted to decline to render any judgment until the close of all the evidence.

T.C.R.C.P. 41(b) is precisely the same as Rule 41(b) of the Federal Rules of Civil Procedure (F.R.C.P.).(1) This Court looks to[21ASR2d67] the F.R.C.P. for guidance and must conform to them as closely as practicable. A.S.C.A. § 43.0201(a). The standard of proof on a motion to dismiss at the conclusion of a plaintiff's evidence is that plaintiff must prevail by a preponderance of evidence. Willis v. Fai`ivae, 10 A.S.R.2d 121, 141 (1989); J. Moore, J. Lucas, & J. Wicker, 5 Moore's Federal Practice ¶ 41.13[4], at 41-177 to 41-179 (1985); C. Wright & A. Miller, 9 Federal Practice and Procedure: Civil § 2371, at 224-25 (1971).

However, the Court is not obliged to rule on the motion at this point and may defer judgment until the close of all the evidence. This procedure amounts to no more than a refusal to enter judgment when a plaintiff completes his case-in-chief, and does not preclude a later determination not altogether strictly consistent with postponement of the ruling. J. Moore, J. Lucas, & J. Wicker, supra, ¶ 41.13[4], at 41-179 to 41-180 (1985); C. Wright & A. Miller, supra, § 2371, at 222-23 (1971).

Having in its discretion elected to defer judgment until the close of all the evidence, the Court now turns to its decision based on the law applicable to the findings of fact above.

3. Defendant's Negligence.

This case embraces the rights and obligations in tort by owners or other occupiers of land to persons outside of the premises. This area of the law has historically been slower to accommodate to the needs of modern society, or put otherwise, to balance the privilege to freely use one's land with due regard for others who may be adversely affected by those uses. W. Prosser & W. Keeton, The Law of Torts § 57 (5th ed. 1984); Restatement (Second) of Torts § 363 et seq. (1984); B. Witkin, Summary of California Law, Torts § 898 et seq. (9th ed. 1988); see also the informative discussion in Sprecher v. Adamson Cos., 30 Cal. 3d 358, 636 P. 2d 1121 (1981). [21ASR2d68]

Today it is widely accepted, however, in the context of the facts of this case, that a landowner or possessor of land is liable for creating or maintaining dangerous artificial conditions. Restatement (Second) of Torts §§ 364, 365; B. Witkin, supra, § 898. Defendant's duty is to cause no unreasonable risk of harm to others in the vicinity. W. Prosser & W. Keeton, supra, §57.

There is no serious issue under the evidence in this case that defendant vicariously knew, through its employees responsible for the shed's construction, including at least one senior official, that the shed was of inferior quality. However, it is equally clear that the quality of the shed's construction met the minimum statutory building requirements applicable to this type of structure. Therefore, it is concluded that defendant did not breach any duty owed to plaintiffs and was not negligent with respect to the construction of the shed.

Even if it was concluded that the shed was negligently constructed, perhaps due to a higher standard of care in light of the proximity of the shed to plaintiffs' adjacent premises and/or defendant's knowledge of the destructive force of hurricanes, liability does not follow. The evidence shows that a shed of this type reasonably constructed to withstand greater wind forces, under architect Gianni's design, probably would not have repelled hurricane winds in excess of 80 to 90 miles per hour. Recorded Hurricane Ofa winds reached 88.55 miles per hour in velocity at or about the time the shed's roof was blown onto plaintiffs' motorboat. Negligence of a landowner or land occupier is not a substantial factor proximately causing harm if the harm would have occurred despite the negligence of the landowner or land occupier. Restatement (Second) of Torts § 432(1). Thus, any negligence by defendant in the construction of the shed was not a proximate cause of plaintiffs' property damage.

We conclude that defendant was not negligent and Hurricane Ofa was the legal proximate cause of plaintiffs' property damage. Judgment will be entered in defendant's favor.

It is so ordered.

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1. The operative provisions of F.R.C.P. 41(b) have recently been transferred to F.R.C.P. 52(c) with a new name: judgment on partial findings. This change is largely organizational, placing all provisions dealing with findings of fact and conclusions of law in a non-jury trial in one rule. However, it also broadens the scope of the rule in two respects. First, the motion is available to a plaintiff as well as a defendant. Second, it can be made at any time after the opposing party has been fully heard on an issue. It continues to give the court broad discretion to require issues to be tried in a particular sequence before having legal sufficiency tested by this motion.

Alofipo v. Va,


PAULO ALOFIPO, Plaintiff

v.

MOANANU VA, Defendant

High Court of American Samoa
Trial Division

CA No. 32-91

May 21, 1992

__________

A court must treat issues that the parties have impliedly or expressly consented to try as having actually been raised in the pleadings, and thus as not waived by the failure to plead. Fed. R. Civ. P. 8, 15;T.C.R.C.P. 8, 15.

If an unpleaded defense is introduced at trial without objection, the pleadings will be treated as though they had actually raised the issue; in the absence of such implicit consent, a court has the discretion to permit the amendment of pleadings over objection to conform to the evidence at trial. Fed. R. Civ. P. 15(b), T.C.R.C.P. 15(b).

Before RICHMOND, Associate Justice, AFUOLA, Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Plaintiff, Charles v. Ala'ilima
For Defendant, Gata E. Gurr

Both plaintiff and defendant have moved for reconsideration of the judgment entered March 25, 1992, or alternatively for a new trial.

Defendant's motion, claiming insufficient evidence to support the decision and the damages, is denied.

Plaintiff's motion, claiming that defendant's failure to plead contributory negligence resulted in a waiver of that affirmative defense, is also denied. [21ASR2d70]

Under Federal Rule of Civil Procedure (F.R.C.P.) Rules 8 and 15, a Court must treat issues that the parties have impliedly or expressly consented to try as having actually been raised in the pleadings, and thus as not waived by the failure to plead. See C. Wright & A. Miller,Federal Practice and Procedure § 1278, at 494-98. F.R.C.P. Rule 15(b) requires that the pleadings be treated as if they actually had raised the issue if an unpleaded defense is introduced at trial without objection; in other words, if the parties impliedly consented to the amendment. In the absence of such consent, F.R.C.P. Rule 15(b) also gives the Court discretion to permit the amendment of pleadings over objection to conform to the evidence at trial. This discretion should be used to consider whether the merits will be served by the amendment and whether the opposing party will be prejudiced by the amendment.

The above federal provisions are nearly identical counterparts to our local rules, T.C.R.C.P. Rules 8 and 15(b). Thus, based on A.S.C.A. § 43.0201, which establishes that High Court procedure "shall conform, as closely as practicable, to the practice provided for in the Federal Rules of Civil Procedure," we accept this interpretation for our own rules, as well.

Contributory negligence was actually litigated by the implied or even express consent of the parties in this case. Additionally, it was discussed at the pretrial conference, so plaintiff suffered no prejudice through the sudden assertion of the defense, and had ample opportunity to meet the defense. Thus, under both the mandatory and discretionary provisions of Rule 15(b), the issue of contributory negligence was properly before the Court.

Both motions are DENIED.

It is so ordered.

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Afualo v. Puailoa,


OPAPO AFUALO, Appellant

v.

T.M. PUAILO, MOEA'I ULIATA, ALAI'A FILIFILI
and PENIROSA FANENE, Appellees

High Court of American Samoa

Appellate Division

AP No. 16-90

June 23, 1992

__________

On appeal, the test is not whether facts in the record are sufficient to support a decision for the appellant but whether sufficient evidence supported the trial court's decision. [21ASR2d116]

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

Counsel: For Appellant, Gata E. Gurr
For Appellees, Charles V. Ala'ilirna

RICHMOND, J.:

This is an appeal from a decision of the Land and Titles Division in two consolidated cases over the offer of registration of a parcel of land on the western slopes overlooking Malaeimi Valley, Tutuila. In the first case, appellant Opapo Afualo (Afualo) offered the 24-acre tract for registration as the individually owned land of "the children of Luteru Afualo" in 1988, and the Appellees objected. T .M. Puailoa (Puailoa) claimed that the land belonged to his communal family; Penirosa Fanene (Fanene) claimed that he owned the land by right of original occupation; (1) and Moea'i Uiliata and Alai 'a Filifili (the Faleniu families) claimed that the land belonged to the communal families of Faleniu, an adjacent village. The second case was an [21ASR2d117] injunctive action by Afualo against Puailoa and his son-in-law, also relating to this tract.

The trial court found that Afualo's father, Luteru Afualo (Luteru), came to Malaeimi in his capacity as an officer or employee of the Mormon Church (the Church), which long occupied a tract of approximately 300 acres of the Malaeimi Valley (the 300-acre tract) adjacent to the present survey, and began cultivating land that overlapped the boundary of this 300-acre tract as a licensee of the Church. Additionally, the court found that Afualo had not sufficiently proved that he had acted on his own account under a claim of right in cultivating land outside that possessed by the Church. The court also found that the preponderance of the evidence showed that the present 24-acre survey was cleared by a Church group that Luteru supervised, not by Luteru himself. The court concluded that activities of those acting as licensees cannot give rise to claims of ownership. Finally, the court found that Afualo did not claim individual ownership of any land in Malaeimi until 1987, after Puailoa, claiming that it was Puailoa communal land, ordered Afualo to leave the land. Because the court found that Afualo did not present evidence sufficient to prove ownership, it held that he could not claim the land. The trial court did not determine who ultimately owns the land because it had insufficient evidence to decide between Puailoa and the Faleniu families.

Afualo now appeals, claiming that the trial court erred because there was not sufficient evidence to support its finding that Afualo was acting as a licensee of the Mormon Church or its finding that Afualo did not claim the land in the present 24-acre survey as individually owned land before 1987. Appellant also urges that the preponderance of the evidence supports his position, but this court is not free to weigh the evidence or determine where the preponderance lies; instead, we must examine the evidence only to determine whether the trial court's decision was clearly erroneous.



The issues on appeal here are ones of fact. The relevant test is not whether there were facts in the record sufficient to support a decision for the appellant, but whether there was sufficient evidence to support the trial court's decision. The court carefully considered the testimony offered by both interested witnesses and disinterested witnesses, as well as the surveys and photographs submitted by the various claimants. The trial court's thorough and well-reasoned opinion addresses the plausibility of each claimant's theory on who cleared the land, when, and why, and it was clearly supported by [21ASR2d118] sufficient evidence. Thus, the trial court's resolution of these issues was not clearly erroneous. On the contrary, it was very well supported on the record. We therefore AFFIRM.

*********

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninh 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. Fanene claimed that he owned a tract of land within the 24-acre survey by right of original occupation. The trial court found that while the Fanene family does own Malaeimi land on the sami or sea side of the main government road, Fanene does not own the parcel at issue, which is on the mauga or mountain side of the road, either because he is collaterally estopped from making this claim, see Reid v. Fanene, LT No.7-79 (one of the consolidated cases decided in Reid v. Puailoa, 1 A.S.R.2d 85 (1983)), or because the land had long been occupied by someone and was therefore not susceptible to new "original occupation." Fanene did not appeal this decision, and although he is named as a party by appellant, Afualo does not contest the Fanene portion of the decision.