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22ASR2d

22ASR2d

Sepulona v. Mau,


VAELUA SEPULONA for Herself and as Guardian of
MALAKI SA'O, a Minor, Plaintiffs

v.

MAU MAU JR., PAUL YOUNG, and DOES I-V, Defendants

High Court of American Samoa
Trial Division

CA No. 28-91

September 9, 1992

__________

A suit against police officers for assault, unlawful entry, and wrongful arrest was dismissed when hospital records showed a minor's injuries took place four months after the complaint was filed and when the credible evidence showed that his mother consented to the search of the house and that the minor was brought to the police station by another youth.

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

Counsel: For Plaintiffs, Charles V. Ala'ilima
For Defendants, Micheal R. O'Connor, Assistant Attorney General

Plaintiffs, a mother and her minor son, seek damages from the defendants Mau Mau, Jr., and Paul Young, police officers, alleging unlawful entry into their family home and wrongful arrest and assault on the minor in May 1990. The testimony was poles apart; however, we find the police officers to be more credible. Our overall impression from plaintiffs' testimony was that of fabrication. While the place of the alleged arrest is stated in the verified complaint as "a friend's home in Fagatogo, " the minor, who is now 16 years of age, testified that he was arrested by officers other than the defendants while he was sitting in front of Sam Scanlan's store. He also testified that he was then beaten by Officer Young with a chair, testimony which his mother attempted to corroborate by testifying that she had subsequently taken her son to the hospital where he was required to undergo x-rays and was treated for cuts and abrasions. The minor's hospital records, however, failed to disclose any hospital treatment around the time frame of the alleged beating. Rather, the hospital's records revealed treatment for injuries [22ASR2d91] which were attributable to claimed police brutality which occurred some four months after the complaint here was filed on March 12, 1991. The records further revealed that most of the minor's hospital visits were related to injuries noted as having resulted from beatings by either his father or his uncle.

The minor is well-known to the police. The credible evidence shows that one Sunday morning in late May 1990, the minor was brought into the station by another Fagatogo youth, who told the police that the minor knew something about the burglary of Chen's store, which the police were in the process of investigating at the time. The minor was referred to Officer Mau; Officer young would work a different shift that day. After questioning by Officer Mau, the minor told the officer that he had some money hidden at his home, which is located on the steep rise immediately behind the station. The minor then led Officers Mau and Tafa Vili in a hike up the hill to his home. When they arrived there, they met the minor's mother and informed her of the purpose of their visit; they asked permission to enter the home (an open fale-type structure), and the mother consented. After a feigned search by the minor, he then informed the officers that he had hidden the loot outside in the yard. Another pretense of looking for something under a rock pile outside the house ended with the minor running away and the officers then realizing that they had been taken on a wild-goose chase.

We conclude on the evidence that there was no arrest by te officers; that there was n o entry into plaintiff's home without permission; and that there was no beating of the minor by the officers. The complaint is dismissed, and plaintiffs shall take nothing thereby.

It is so ordered.

**********

Scratch v. Sua,


SALA SCRATCH, Plaintiff

v.

SE'I SUA, PEPE SUA, and Son, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 6-92

August 28, 1992

__________

A personal license conditioned on performing traditional service (tautua) becomes revocable when that service ceases. [22ASR2d54]

Although having built on property without the landowner's permission and so not a good-faith improver, defendant was still entitled to compensation when the plaintiff permitted construction to continue and so contributed to a situation in which denying compensation would be inequitable.

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

Counsel: For Plaintiff, Gata E. Gurr
For Defendants, Charles V. Ala'ilima

Plaintiff Sala Scratch seeks eviction of the defendants from her land, known as "Agasolo," located in Sogi, Vailoatai. (1) The defendants counter-claim for the value of improvements which they allege they have made to the land.

This matter was set for trial on July 23, 1992. On the day of trial, plaintiff appeared with her counsel, Gata Edwin Gurr; neither the defendants nor their counsel of record, Fai'ivae A. Galea'i, appeared. We noted on file, however, a letter from counsel Fai'iva'e office dated July 10, 1992, requesting the clerk to reschedule trial to another date. The letter, which was not filed until July 17, 1992, states that Se'i Sua was seeking medical attention in the United States and that counsel Fai'ivae was unavailable owing to a family emergency in the United States. We apprised counsel of the contents of the letter, and he objected to a continuance; he advised that his client was prepared for trial and that he had no prior notice of the letter request from Fai'ivae's office. We sustained the objection. (2)

FACTS
[22ASR2d55]

Plaintiff had known the defendant Pepe Sua from the days they were growing up together in the village of Sato'oapai in Western Samoa. In 1965, plaintiff moved to American Samoa and eventually established herself in Tafeta. The defendants at one time were also living in Tafeta next door to plaintiff on Maea-family property. However, a falling-out with their host in 1985 or 1986 required the defendants to move out of Maea's land. It was then that the defendant Pepe Sua approached plaintiff for help; she asked plaintiff whether they could live on her property in Sogi. Plaintiff, who had previously helped out the defendant Pepe Sua and her family on various occasions whenever the latter sought assistance, acceded to Pepe Sua's request, but on the condition that the defendants render tautua (traditional service) in return for use of land.

Agasolo was purchased in 1981 and was already developed in crops by the time the defendants moved onto it. Plaintiff testified that she had initially cleared the land with a bulldozer and maintained the same for growing crops, including vegetable gardens. After the defendants moved onto Agasolo they also planted crops themselves, and at the outset they lived in a shack which plaintiff had helped in building.

The anticipated tautua proved to be sporadic. After a while it was begrudgingly given, but towards the end of 1991, the tautua ceased as the defendants resisted service. As a result, plaintiff finally asked the defendants to vacate her land, which the defendants have apparently refused to do until plaintiff reimburses them for various claimed improvements, including the value of a house which they have since built on Agasolo.

The construction of the referenced house was commenced without plaintiff's knowledge or permission; she found out about the construction shortly after Hurricane Ofa, which occurred early in 1990, when the defendants rather boldly appeared at her place of business to buy certain building material. Plaintiff further testified that she nonetheless decided to allow the defendants to finish construction since the foundation was already complete and the defendants had agreed to her stipulation that the house would remain with the land whenever the defendants eventually left. All that plaintiff could tell us about the house was that it is a brick building of fairly good size, which she diffidently gauged at 24 x something."

CONCLUSIONS
[22ASR2d56]

We conclude on the foregoing that plaintiff has established grounds for eviction; the defendants' interest in the land is merely a personal license. The license, which was conditioned on continuing tautua, became revocable when that tautua ceased. The petition to evict will therefore be granted.

The next question is whether the defendants are entitled to equitable relief for improvements. "Such relief ... is available ... to an occupant who has made improvements in 'good faith, Fonoti v. Fagaima, 5 A.S.R.2d 158 (1987); Roberts v. Sesepasara, 8 A.S.R.2d 124 (1988), and whose possession must have been under some color or claim of title." Faleatua v. Tauiliili, 19 A.S.R.2d 122 (1991). The corresponding duty to compensate is derived from the "unjust enrichment of the land owner." Roberts v. Sesepasara, supra, at 131.

On the record before us, the only evidence pointing to compensable improvements relates to the home erected by the defendants. Defendants' claim for crop improvements was contradicted by plaintiff's testimony that Agasolo was already agriculturally improved land when the defendants moved on to it. We so find. As to the home, the defendants were hardly good-faith improvers at the outset when they commenced building on plaintiff's land without permission. (Plaintiff remains unaware as to how the building permit was secured from the authorities in the first place without her approval as landowner.) On the other hand, plaintiff did subsequently allow the structure's completion after learning that a foundation had already been laid. While the evidence further revealed an agreement between the parties to the effect that the resulting house would remain with plaintiff upon the defendants' departure from Agasolo, it is, we feel, very apparent from the circumstances that the parties were, at the time, really contemplating a much longer presence on the land by the defendants. We conclude that these were the sort of circumstances alluded to by the Appellate Division in Tulisua v. Olo, 8 A.S.R.2d 169, 172 (App. Div. 1988), "where there true owner has ... contributed to a situation in which it would be inequitable to deny compensation." However, in order to determine the value of compensable improvement, we are in need of further details on the house in question. With the procedural flexibility accorded in these cases by A.S.C.A § 3.0242(b), we will hold a further hearing on the issue of value alone. In order to allow counsel time to secure any necessary appraisals with respect to the house, this matter will again be placed on calendar upon motion of either party. (The parties remain free, of course, to negotiate an agreement on value of the house.) [22ASR2d57]

It is so ordered.

**********

1. Plaintiff produced a deed to "Agasolo," which is registered with the Territorial Registrar in Land Transfers Volume IV, pages 189-90.

2. T.C.R.P. 7(B)(1) requires, inter alia, that "[a]n application to the court for an order shall be by motion ...," and T.C.R.C.P. 6(d) requires, inter alia, that "[a] written motion ... and notice of the hearing thereof shall be served not later than 10 days before the time specified for the hearing." (Emphasis added).

Tuia'ana; Pili v.


FALEMA'O PILI, for and on Behalf of the CORPORATION OF
THE PRESIDING BISHOP OF THE CHURCH
OF JESUS CHRIST OF THE LATTER DAY SAINTS, Plaintiffs

v.

TUIA'ANA MOI, TOEASO LAUAMA and
SIA LAUAMA, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 50-91

September 14, 1992

__________

A "good-faith" possessor is one who makes improvements on land in the honest belief that he is the owner; thus, a person knew of an adverse claim to land but nonetheless carried on with construction is not entitled to equitable relief for the value of improvements.

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

BETHAM, Associate Judge.

Counsel: For Plaintiff, Gata E. Gurr
For Defendants, Asaua Fuimaono

Plaintiff petitions for injunctive relief and the eviction of the defendants Toeaso and Sia Lauama from a certain portion of land located in Mapusaga. The disputed area was a part of a larger 22-acre tract of land which various matai of Faleniu, including a former Tuia'ana, had conveyed in 1944 to the Corporation of the Presiding Bishop, Church of Jesus Christ of the Latter Day Saints (hereinafter the "Church") for "school and church purposes." The deed of conveyance contained a reversionary clause whereby the land would revert to the grantors in the event the land ceased to be used for the designated purposes.

In 1983, the defendant Tuia'ana and three other matai of Faleniu sued the Church to recover the land conveyed in 1944. The suit was resolved in a settlement whereby the parties agreed that the land would revert back to the respective communal-land owners, with the exception of three small parcels which the Church would retain for a mission home, a chapel site, and an institute site. Pursuant to the settlement [22ASR2d101] agreement, the parties subsequently exchanged deeds. Thereafter, the Church registered its deed of conveyance with the Territorial Registrar while the Faleniu matai, including defendant Tuia'ana, resorted once more to the court to sort out their respective claims to the estate in reversion. See Moea'i v. Te'o, 85 (1988), aff'd sub nom. Moea'i v. Alai'a, 12 A.S.R.2d 91 (1989).

In early June 1991, the defendants Toeaso and Sia Lauama began the construction of a house on a site within that area of land retained by the Church in the 1983 settlement and referred to above as the "institute site," and is more particularly described in the appendix hereto. The construction by the Lauamas was at the direction of the defendant Tuia'ana, and it continued to completion, notwithstanding the Church's repeated objections to the defendants that the construction was being undertaken on Church property. This suit was filed on August 23, 1991.

Tuia'ana's position, as he made known on the witness stand, borders on the vexatious. He asserts that he was awarded the disputed site in the 1988 case, Moea'i v. Te'o. Additionally, he claims that the 1983 settlement with the Church was concluded without his fully knowing what was going on.

The court's ruling in Moea'i v. Te'o, with respect to Tuia'ana's interest in the reversion, specifically states that "Tuia'ana has the right to register the land contained in his survey ... with the exceptions lands ... retained by the [Corporation of the Presiding Bishop,] Church [of Jesus Christ of the Latter Day Saints]." Id. at 91 (emphasis added). In a footnote to this conclusion, the court further explains as follows:

[a]ssuming that Tuia'ana's survey has been offered for registration and
that no one who is not a party to this case has objected to it, Tuia'ana
may register it except insofar as it encroaches on land retained by the
[Corporation of the Presiding Bishop,] Church [of Jesus Christ of the
Latter Day Saints].

Id. (emphasis added). Tuia'ana's understanding of the 1988 decision is thus very much mistaken. His alternative claim is not only difficult to believe but is also without merit. He was one of the plaintiffs in the 1983 proceedings and was represented throughout by counsel; those proceedings resulted in a settlement agreement which was presented to the court for approval; the action was subsequently dismissed with [22ASR2d102] prejudice upon joint stipulation; (1) and an exchange of deeds, to which Tuia'ana was a signatory party, thereafter ensued. It is a little too late now to be imploring mistake.

We conclude that the site of the construction complained of is within property owned by the 'Church, to wit, the institute site, and that the defendants have no right to remain thereon. The petition for eviction must therefore be granted.

We also conclude that defendants are not entitled to equitable relief for the value of improvements. Such relief is available only to a "good-faith" possessor; that is, one who makes improvements on land in the honest belief that he is the owner. Tulisua v. Olo, 8 A.S.R.2d 169 (App. Div. 1988). Here, the defendants had knowledge of plaintiff's adverse claim to the site concerned but nonetheless carried on with construction. They cannot, in these circumstances, be said to be good-faith possessors. Id.; see also Fonoti v. Fagaima, 5 A.S.R.2d 158 (1987).

The defendants may remove their structure from plaintiff's land; however, the parties are free, and encouraged, to negotiate a sale of the structure. If they cannot so agree, then the defendants have sixty days to remove their property from plaintiff's land. The petition for eviction is granted, and the petition for injunctive relief is granted. The defendants shall remove themselves and their property from the land within sixty days, and they are enjoined from any further occupation of the said land thereafter.

It is so ordered.

APPENDIX

Institute Site

All that certain real property lying in Land Square "28" Unit "C",
situated in the village of Mapusaga, County of Tualauta, Western
District, Island of Tutuila, American Samoa, being a portion of
land known as [22ASR2d103] Mapusaga owned by LDS, more
fully described as follows:

Beginning at an iron pin set at corner of stonewall which has
coordinates of X=236,817.29 and Y= 289,160.67 American
Samoa datum of 1962. Run thence on azimuth 22 10' 37",
107.36 feet to an iron pin; thence on a azimuth 147 02' 00",
169.34 feet to an iron pin found; thence on azimuth 243 07
52", 70.72 feet to an iron pin; thence on azimuth 236 50' 42",
62.37 feet to an iron pin; thence on azimuth 229 11' 02",
25.00 feet to a point; thence on azimuth 327 02' 00", 105.00
feet to a point; thence on azimuth 57 23' 15", 69.23 feet to
the point of beginning.

Containing 0.4343 acre, more or less.

*********

1. See Tuia'ana v. The Corporation of the Presiding Bishop, Church of Jesus Christ of the Latter Day Saints, CA No. 103-83 (1985).

Talauega v. Mulipola,


TALAUEGA LETUMU, POLAPIITASI FIASEU, and
FAIAAI F. MATA'U, Plaintiffs

v.

SAMOA and JEANETTE MULIPOLA, and
AIAVA UA, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 23-92

July 10, 1992

__________

Sufficient grounds for issuing a preliminary injunction consist of (1) a substantial likelihood that the applicants will prevail at trial on the merits, and (2) great or irreparable harm to the applicant. A.S.C.A. § 43.1301(j).

Entering land through permission of a family matai is hardly consistent with individual ownership.

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

LOGOAI, Associate Judge.

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

This dispute is essentially between first cousins, who are members of the Fiaseu family ofMasausi, and it concerns entitlement to a certain homesite located on a ridge separating Masausi and Fagaitua. The site once contained the home of plaintiffs' (Talauega Letumu and Polapiitasi Fiaseu) sibling, Vai Fiaseu, who built his home thereon in 1983 on the basis that the site was part of the Fiaseu family's communal land "Sopomaleula." At the time Vai Fiaseu was also holding himself out as the senior matai of the Fiaseu family (having gone through a matai-installation ceremony with the village and having undertaken the matai-title registration process as required by statute), and as such he executed a separation agreement for the construction of his home. He subsequently moved off-island. Sometime thereafter his cousin, Jeanette Mulipola, approached plaintiffs about the use of their brother Vai's home, since she and her husband were planning to build a home of their [22ASR2d8] own on the opposite side of the road. Plaintiffs agreed; Jeanette and her husband consequently moved into Vai's house and commenced construction of a house of their own across the road.

It seems that the Mulipolas have since taken the position that plaintiffs' side of the family has no right whatsoever to Sopomaleula Plaintiff Talauega testified that in 1987, Jeanette's father Pesefea Utu who has been living off-island since 1952 and was visiting at the time on a church-related conference, told him and his sister that they had no rights at all to lands in the village of Masausi and that plaintiffs should confine themselves to Sailele village, where they belong. Talauega farther testified that Pesefea also gave him and his sister the ultimatum that Vai's house would be burnt to the ground if plaintiffs- side of the family refused to stay in Sailele. He also testified that Vai's home was indeed burnt to the ground and that the Mulipolas had thereafter commenced to erect yet another home on the disputed site after obtaining a building permit under signature of the defendant Aiava Ua who now holds himself out illegally as the Fiaseu titleholder. Plaintiffs seek a preliminary injunction to halt the construction by the Mulipolas pending trial on the merits.

At the hearing, Pesefea Utu claimed that the site in question is part of his individually owned land, also known as "Sopomaleula " He claims that he began clearing the land after the Second World War- however, he also acknowledges that he went upon this area after obtaining permission from his father, the then-Fiaseu titleholder Vai Fiaseu, who also attended and testified at the hearing, disputes his uncle's claim to individual landholding.

We hold that plaintiffs have established sufficient grounds for the issuance of a preliminary injunction pursuant to A.S.C.A. § 43.1301(j). (1) [22ASR2d9] We conclude that there is a substantial likelihood that the applicants will prevail at trial on the merits. The evidence here essentially reveals a forced ouster of one Fiaseu family member by another on the unlikely premise that the land in question is individually owned land. Among other things, the evidence tended to show that Pesefea Utu had gone on the land Sopomaleula through permission of the family matai. This is hardly consistent with individual ownership. See Fanene v. Magalei, LT No. 64-77 (1977).

On the issue of great or irreparable harm, we find in favor of plaintiffs. The Court visited the scene and observed a rectangular, concrete foundation with cinder-block walls in the process of going up; the slab had yet to be poured. The construction is located somewhat precariously on the edge of a steep ravine, with little room for anything else on the site. On the opposite side of the road, however, we also noticed an impressive structure yet to be completed. This is the home which the Mulipolas were originally building, while temporarily occupying Vai Fiaseu's home, which subsequently burned. This structure has been substantially built; however, its construction has been very obviously halted while the complained-of construction was begun. In the circumstances, it is difficult to resist the conclusion that the primary purpose behind the construction complained of is an attempt, in derogation of plaintiffs' claims to entitlement, to assert pule in a permanent way- a concrete fixture of defendants' choosing. This construction is in a preliminary stage, and in our view, the equities weigh in favor of y provisional injunction to secure the status quo until a decision on the merits of this case.

IT IS THEREFORE ORDERED that construction, by the defendants and all those in active concert with them, on the structure located on the site that contained Vai Fiaseu's house until it was burnt, is hereby ENJOINED until final disposition hereof.

**********

1. This enactment provides:

"Sufficient grounds for the issuance of a preliminary injunction"
means:
(1) there is a substantial likelihood that the applicant will prevail
at trial on the merits and that a permanent injunction will be
issued against the opposing party; and
(2) great or irreparable injury will result to the applicant before
a full and final trial can be fairly held on whether a permanent
injunction should issue.

Logoai; Ava v.


CHIEF AVA VILI for HIMSELF and the
AVA FAMILY of PAVA`IA`I, Plaintiffs,

v.

FOMA`I P. LOGOAI, FAALILIU P. LOGOAI
and HER CHILDREN, Defendants.

AVA V. AVA, Plaintiff,

v.

MIKE McDONALD, Defendant and Cross-claimant,

v.

FOMA`I P. LOGOAI, Cross-defendant.

High Court of American Samoa
Land and Titles Division

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

__________

A registration of title to land as individually-owned land was invalid and so cancelled by the court when that land was assigned for the use of defendant and her immediate family but remained communal land and when such registration was not authorized by a matai having authority over the land.

Serious irregularities in land registration documents may overcome a document registration's evidentiary presumption of land ownership.

When the court ruled that land was not a lessor's individually-owned land and so cancelled a lease, the lessee was entitled to reimbursement for unjust enrichment for improvements made to the land from the matai having authority over the land and from his communal family. [22ASR2d66]

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

Counsel: For Plaintiffs, Tauese P.F.Sunia
For Defendant and Cross-defendant Foma`i P. Logoai and 
Defendants Faaliliu P. Logoai and her children, Asaua Fuimaono
For Defendant and Cross-claimant Mike McDonald, William H. Reardon

This amended opinion and order is issued in response to Mike McDonald's motion for consideration of or new trial on his cross-claim against Foma`i P. Logoai. This motion was heard and granted on August 21, 1992.

AMENDED OPINION AND ORDER

The Ava initiated the action in LT No. 32-90 for himself and the Ava family in June 1990 to declare the registration of a portion of the land called "Lalofutu" in the Village of Pava`ia`i, American Samoa, by the Logoais as individually owned land of Faaliliu P. Logoai and her children null and void, and to recognize this land as communal land of the Ava family. He commenced the action in LT No. 36-90 later in June 1990 to enjoin further construction or other encroachment by Mike McDonald on a part of the registered land leased by McDonald and his wife from the Logoais. McDonald counterclaimed for damages against the Ava for unjust enrichment should the Ava prevail. McDonald also cross-claimed against his lessor Foma`i P. Logoai for damages and quiet title. The actions were consolidated.

On February 5, 1991, the Logoais filed a motion for summary judgment, which was heard on February 28, 1991 and denied on May 8, 1991. The motion was based on the contention that the Certificate of Registration of the title to the land, issued pursuant to A.S.C.A. §§ 37.0101 et seq. by the Territorial Registrar in 1984 to Faaliliu and her children as their individually owned land, was conclusive. This title registration was accomplished through this Court's order in an action entitled "In the Matter of the Application by: Fa`aliliu P.S. Logoai and Children, Applicants," LT No. 19-77, in which it was alleged that the land was Ava land and the applicants were Ava family members. The action in 1977 sought and obtained the Court's order permitting survey of the land after the Ava's alleged obstruction of this process. However, since the survey on its face was neither dated nor fully certified, and further lacked an accompanying surveyor and pulenu`u certificate, the title registration process was not completed until Foma`i P. Logoai [22ASR2d67] obtained the Court's order directing nunc pro tunc dating and registration in 1984. The 1977 action did not name the Ava or anyone else as defendants, and the proceedings in 1977 and 1984 were entirely ex parte. In denying the motion for summary judgment, the Court ruled that the serious irregularities in the 1977 action shown on the face of the registration documents overcame the evidentiary presumption from the title registration of ownership of the land by Faaliliu P. Logoai and her children before the registration and could not prevent the Ava from litigating the issue of this ownership in the present actions. See Ifopo v. Siatu`u, 12 A.S.R.2d 24 (1989); Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988); Solomona v. American Samoa Government, __ A.S.R.2d __, AP No. 22-89 (1990).

The present actions came on regularly for trial on January 16 and 17, 1992. After the plaintiffs completed the presentation of their case, the defendants moved for dismissal on two grounds: first, the lack of a certificate of irreconcilable dispute issued by the Secretary of Samoan Affairs pursuant to A.S.C.A. § 43.0302 on file with the Court, and, second, the lack of the plaintiffs' standing to sue in that the evidence demonstrated that the land at issue was originally under the pule or control of the Pagofie title rather than the Ava title. The Court, in its discretion under T.C.R.C.P. Rule 41(b), declined to render any judgment until the close of all the evidence.

Strictly, these actions should not have been commenced without an accompanying certificate of irreconcilable dispute, but the time of filing is a procedural requirement that may be corrected by later filing before judgment. However, failure to file this certificate at all deprives the Court of jurisdiction to render a decision. Thus, on February 19, 1992, plaintiffs were ordered to file a certificate in conformance with A.S.C.A. § 43.0302 within 60 days or face dismissal of their actions.

The 60 day period was designed to afford adequate time to hold the required two appearances, each on at least 20 days' notice, before the Secretary or his deputy before the certificate can be issued. In fact, the second hearing on April 23, 1992 and the issuance and filing of the certificate on May 4, 1992 took place after the 60 day period. For purposes of proceeding to determine these actions on their merit, however, we consider the certificate to have been filed in substantial compliance with the Court's order of February 19, 1992.

A. FINDINGS OF FACT
[22ASR2d68]

We first summarize the several witnesses' testimony as a prelude to finding the essential ultimate facts.

1. Ava Vili's Testimony. The Ava is 64 or 65 years old. He succeeded to the Ava matai title in 1970. At that time, he had been living in California for a number of years. He went there in 1947 and returned permanently to American Samoa with his family in 1973.

The land "Lalofutu" in the Village of Pava`i`ai, American Samoa totals approximately 25 acres and includes the 2.69 acres, more or less, at issue. "Lalofutu" was first occupied by a couple in the Ava ancestral family. Their cultivation was principally below the portion of the land at issue towards the Village proper. This couple had four children, two sons and two daughters. The children of one of the daughters included two brothers who were, respectively, the Ava's father and Faaliliu's father. Thus, according to the Ava, both he and Faaliliu are Ava family members, and "Lalofutu" is communal land of the Ava family. All surrounding lands are communal lands of other families.

The Ava's father also held the Ava title, while Faaliliu's father held the Pagofie title. Both titles are matais of the same family. Ava communal lands are under the pule of both titles in the sense that both matais, when contemporaneously filled, consult with each other before Ava communal land transactions take place, but such lands, including "Lalofutu," are Ava, not Pagofie, communal lands. There have been no Ava- authorized surveys or title registrations of Ava communal lands, other than a sale of a portion of such lands for church premises for $9,000 in 1983 under an earlier commitment by his father as the Ava and Faaliliu's father as the Pagofie.

Although long occupied by the Ava family, "Lalofutu" was not significantly developed until 1942. The Ava, along with his father, mother and brother, then began to clear the land in earnest. They worked the land almost daily. An Ava family couple was also authorized to live within the land at issue in that year. Another Ava couple replaced this couple in the same location in 1947. The Ava's father was involved in a shooting incident on "Lalofutu" in 1948. As one result, his father instructed the Ava never to live on this land himself, about which his mother reminded him years later when he had cinders hauled there intending to build his house. "Lalofutu" was vacant of any residents when his father died in 1964. [22ASR2d69]

Faaliliu's father and his immediate family, including Faaliliu, moved to the Manu`a Islands in 1930 or 1931. He returned in 1933 and died of tuberculosis about one month later. The Ava does not recall that Faaliliu or any of her siblings were able to attended their father's funeral. Faaliliu and her immediate family were actually still living in the Manu`a Islands in 1948 at the time of the shooting incident.

A daughter of the present Pagofie told the Ava in 1977 that Faaliliu was having the land at issue surveyed. He stopped the survey, telling the surveyor that he would ruin the surveyor's equipment if the survey was not stopped. He thinks that the survey was completed the next day, but in any event it was done without his knowledge.

The Ava was unaware of Faaliliu's court action in 1977 or the follow-up in that action in 1984. At no time did he see or otherwise become aware of any announcement by the Pulenu`u of Pava`i`ai, or any Village chiefs' meeting, or any notice, or the posting thereof, concerning the survey and title registration of the land at issue.

During the Ava's testimony, reference was made to seven other transactions of public record affecting "Lalofutu." All seven described the land as Pagofie communal land and involved separation agreements to convert proposed residences to be constructed on "Lalofutu" to personal property of the building owner, in accordance with A.S.C.A. §§ 37.1501 et seq. Three occurred between 1964 and 1970 when the Ava title was vacant. One of the other four also involved title registration under A.S.C.A. §§ 37.0101 et seq., as individually owned land. The Ava disclaims knowledge of six of the seven transactions, stating no buildings were constructed as a result of them. The remaining transaction was a separation agreement, not involving title registration, in 1983, which the Ava signed on behalf of the Pagofie family. According to the Ava, he signed this separation agreement following joint approval by both the Pagofie, who was unavailable to sign, and himself.

With respect to Mike McDonald, the Ava has known him since his arrival in American Samoa and during their respective participation in the construction business here. Although he drove by "Lalofutu" almost daily, he thought that the shop, McDonald's first building, actually belonged to Foma`i and did not stop its construction. He saw McDonald pouring the concrete foundation for a second building and told McDonald to stop. McDonald refused, claiming it was on Foma`i's land. The action against McDonald was filed about one month later. [22ASR2d70]

2. Faaliliu's Testimony. Faaliliu was born in 1924 and is now 67 years of age. Her father was the eldest of two sons of a previous Ava, and held the Pagofie title. He was the first person to clear "Lalofutu," with the help of his wife and brothers, which began in 1934, and to name the land. She is not familiar in any respect with the couple who the Ava claims first cultivated "Lalofutu." According to Faaliliu, "Lalofutu" is Pagofie communal land, other than the portion given to her as her individually owned land. Except for the cinders excavation incident described below, no Ava has ever exercised, or attempted to exercise, pule over "Lalofutu," and no one has lived there under any Ava's authority. She recognizes the present Ava as the senior matai of the Ava family, but denies that he has any pule over "Lalofutu."

In 1937, when she was 13 years old, her family moved to the Manu`a Islands. Her father died the following year, in 1938. Before he died, he as the Pagofie gave her the land at issue as her individually owned land. This gift was made in the presence of the Ava's father, who was the Ava at that time. Her father was living in Pava`i`ai proper then, and was using "Lalofutu," although there were as yet no plantations there.

In 1940, when Faaliliu was age 16 years, she married a Manu`an. She remained in the Manu`a Islands until she returned to the Island of Tutuila, initially in 1955 and permanently in 1958, to live on the land at issue according to her father's earlier instructions and wishes. There was no one living on the land at issue in 1955. Since then, the only homes on the land at issue other than her home have been those of her children and sister. Her husband and a niece are buried there, solely by her authority. The couple moving onto "Lalofutu" in 1942 and others thereafter lived elsewhere within "Lalofutu" and not on the portion at issue. Likewise, the 1948 shooting incident occurred outside the area she claims to own. She also pointed out that when the road up the mountain from Pava`i`ai to Aloau was constructed in 1963-1964, passing immediately adjacent to the land at issue, she first objected, but withdrew her objection when the Pagofie at that time advised her to let road go through "Lalofutu" and along her land.

The only dispute between her and the present Ava came in 1977. She objected to the removal of cinders from an area on the ocean side of her house, which the Ava had authorized. He did not object to her survey of the land at issue at that time. She thought that the survey had been completed and the 1977 court action was brought to stop the excavation of cinders, not to permit the survey. She did not know either [22ASR2d71] that the true nature of her petition was to compel the survey, or that the petition described the land at issue as Ava communal land.

The 1977 petition was filed with the Court as an ex parte action by an attorney. The attorney was acting on information furnished by Faaliliu or another on her behalf. Faaliliu signed the petition, which alleges that she and her children are blood members of the Ava family, the land at issue is Ava communal land assigned to their use by Ava Lafoia (the present Ava's father), and the Ava as the present senior matai of the family had stopped their survey of the land at issue. The prayer specifically requested an ex parte order allowing the survey to proceed. The Court's order of May 6, 1977 authorized the survey to continue, and directed the title registration process to proceed pursuant to law.

3. Foma`i's Testimony. Foma`i is Faaliliu's son. He was born in 1952 and is now 39 years old. He was born in the Manu`a Islands, but has lived on the land at issue, beginning either in 1958 or 1962 until 1972, when he joined the U.S. Marine Corps, and since 1984, when he completed his military service. This land was given to his mother by his grandfather Pagofie. When he moved to the land, only his part of the family was cultivating any portion of "Lalofutu." Only Faaliliu's plantations were on the land at issue since he first lived there.

"Lalofutu," including the land at issue, is Pagofie land in origin. No Ava was asked for permission to register the land at issue as Faaliliu's individually owned land. This permission is unnecessary for Pagofie land. He was not here in 1977. However, he understood that the 1977 court action was initiated when the present Ava threatened his mother about surveying the land at issue to peacefully resolve the Ava's objections.

After returning in 1984, he checked with the Territorial Registrar's Office on the status of the title registration of the land at issue. He learned from the Assistant Territorial Registrar that the title had not been registered as Faaliliu's individually owned land, because the Territorial Registrar could not register a title based on a survey which was undated and not signed by the surveyor. The Assistant did not say anything about a pulenu`u certificate. He was advised by the Registrar to obtain either a new survey or this Court's order to register the title. He then presented to this Court Faaliliu's affidavit, dated September 14, 1984, stating in essence that the 1977 survey lacked a date, precluding the title registration without this Court's order, and received this [22ASR2d72] Court's order to date the survey nunc pro tunc and register the land at issue.(1)

There was an incident in 1989 when the Ava had a load of cinders delivered to the land at issue for construction of the home of the Ava's sister. Foma`i stopped the unloading. The Ava arrived about 10 minutes later. Despite threats, a meeting was scheduled the following Sunday, at which the Ava agreed that his sister's home would be built on a portion of "Lalofutu" across the road from the land at issue.

Regarding McDonald, Foma`i was first aware of the Ava's objection to his presence when McDonald started his second building. The Ava did not take up his objection with Foma`i directly, even when the controversy of this action was discussed at the office of the Secretary of Samoan Affairs (prior to the trial and before the Court's order of February 19, 1992).

4. Assistant Territorial Registrar's Testimony. Pelema Kolise, who was then the Assistant Territorial Registrar, recalls being approached about the title registration of the land at issue in 1984. He does not specifically recall that Foma`i was the person who came to his office to discuss the registration. The registration had been rejected up to that time, because the survey was not dated and certified by the surveyor. So long as these defects were not corrected, the registration process could not proceed without this Court's order. However, he does not recall advising the person who approached him on what to do to complete the title registration.

He believes the person who approached him came three times, the third time with this Court's order to register the title to the land at issue as the individually owned land of Faaliliu and her children. He has seen in his experience more than 100 court orders to register titles to land. The order in this case was peculiar since no trial took place before its issuance. Normally a surveyor and pulenu`u certificate is necessary, and Faaliliu's affidavit does not cover this point. However, he acted [22ASR2d73] upon the Court's order of September 20, 1984 as authority to register the title to the land at issue.

The offer for registration of the land at issue as the individually owned land of Faaliliu and her children was signed by Foma`i on Faaliliu's behalf and filed with the Territorial Registrar on September 20, 1984. The Notice for Proposed Registration of Land was issued by the Registrar on the same day. The Affidavit of Posting, signed by Kolise on November 19, 1984, shows that the notice was posted at the Court House and on two telephone poles in Pava`ai`i from September 20 through November 19, 1984. The Certificate of Registration, issued by the Registrar, certifies that title to the land at issue was registered as the individually owned land of Faaliliu and her children on November 29, 1984. The survey filed with the certificate of Registration is signed by the surveyor, but despite the Court's order of September 20, 1984, is still undated. In addition, there is no surveyor and pulenu`u Certificate on file with the Registrar.

There are no Territorial Registrar's records for lands registered under the Ava family name.

Contrary to the allegation in plaintiffs' complaint, Kolise is not related to Faaliliu and her children.

5. McDonald's Testimony. McDonald is a carpenter by trade and has about 25 years of experience in the construction business.

He negotiated the lease of approximately .22 acres within the land at issue with Foma`i. The term of the lease is 20 years, beginning November 6, 1989 and ending November 5, 2009. The rent for the first five years, $9,000, is payable and was paid in advance. The rent for the remaining 15 years is $150 per month. All improvements revert to the landowner at the end of the lease. The lease was signed by Foma`i as lessor and McDonald and his wife as lessees on November 6, 1989. The McDonalds took possession immediately.

He first learned of the Ava's objection to the lease some seven months later. The objection surprised him. He had known the Ava as a fellow member of the local construction business community for years. The Ava had seen him almost daily during his construction activity on the leased land, and had said nothing about this activity. By the time of the Ava's objection, he had constructed a shop, installed a septic tank, and started the foundation for a house on the leased area. [22ASR2d74]

McDonald's investment in the leasehold consists of $15,680 for the shop building, according to his estimated construction cost of $13 per square foot, $2,000 for the septic tank, and $5,000 for the house foundation, a total of $21,560. In addition, he has paid $9,550 in rent, including the original advance and a later advance, to Foma`i.

Resolution of Evidentary Conflicts

There are several factors that we consider persuasive in resolving the conflicts in the various testimonies and finding the essential ultimate facts.

First, with the possible exceptions of the land at issue and one other parcel, both within "Lalofutu," this area of Pava`ia`i, including "Lalofutu" and the lands surrounding it, are communal lands of various families. "Lalofutu" is clearly communal land in origin.

The seven transactions in evidence of portions of "Lalofutu" other than the land at issue, including the separation agreement executed by the Ava, again with the two possible exceptions noted above, certainly indicate that "Lalofutu" was and is Pagofie communal land. On the other hand, the fact that a Pagofie executed the documents in six of these seven transactions, particularly when the Ava executed the document in one of them, is not necessarily inconsistent with the Ava's testimony that the Ava and the Pagofie, when both titles are filled, exercise a form of joint pule over Ava communal lands. It may be the family's practice for the Pagofie to execute the formal documents of these transactions, or it may be that the Ava was genuinely unaware of the six transactions of which he disclaims knowledge. Three of these transactions occurred when the Ava title was vacant. Further, no testimony by a knowledgeable matai of the Pagofie family was offered to contradict the Ava's testimony. The Ava's testimony as a whole was, in our opinion, cohesive and convincing.

Faaliliu's testimony, however, that her father as the Pagofie, with the concurrence of the Ava's father as the previous Ava, gave her and her children the land at issue as their individually owned land, when she was at most 14 years of age and unmarried, is incredulous. At most these two earlier family titleholders might have made a commitment that the land at issue would be assigned to Faaliliu's use in the future, much like their commitment to sell a portion of Ava communal land for church purposes, but that in her case the land would remain communal land. [22ASR2d75]

Faaliliu and her immediate family did later move onto and cultivate the land at issue without objection, until she sought to survey and register title to this land in 1977 as individually owned land of herself and her children. Her children were probably included in her claim to the land at this time. Their occupancy then continued after 1977 without objection, as the Ava apparently thought he had successfully prevented the title registration proposed in 1977, until the Ava first learned about the title registration well after the registration was accomplished in 1984.

Most important are the admissions in the petition filed with the Court in 1977 that the land at issue is Ava communal land assigned to Faaliliu and her children for their use, Faaliliu and her children are blood members of the Ava family, and the Ava was objecting to the survey. This petition was signed by Faaliliu and her attorney. The petition must have been prepared by the attorney based on information provided by Faaliliu or some knowledgeable person on her behalf. Of similar importance is the ex parte nature of the 1977 court action, both that year and in 1984 when the title registration was completed, in the face of the Ava's announced objections to the survey.

Finally, it is noted that the documentation supporting the title registration remains defective. The survey is signed by the surveyor and implicitly dated nunc pro tunc by court order. However, the customary approval for registration on the survey itself has still not been completed. Moreover, an accompanying surveyor and pulenu`u certificate, which evidences compliance with and is mandated by A.S.C.A. § 37.0102(c), is still lacking. We find that the essential ultimate facts are as follows:

1. The land at issue is Ava communal land.

2. Neither an Ava nor a Pagofie, either collectively or singularly when in office, authorized registration of the title to the land at issue as the individually owned land of Faaliliu and her children, or of Faaliliu alone.

3. The land at issue was assigned to Faaliliu for the use of herself and her immediate family, but remained Ava communal land. [22ASR2d76]

4. Neither an Ava nor a Pagofie, again either collectively or singularly when in office, authorized the lease of a portion of the land at issue to the McDonalds.

5. McDonald has paid Foma`i $9,550 in rent for the leased land, including a payment of $9,000 for the first five years of the lease and another advance of $550.

B. CONCLUSIONS OF LAW

We reach conclusions of law as follows:

1. The registration of the title to the land at issue as the individually owned land of Faaliliu and her children is invalid and is canceled.

2. The lease of a portion of the land at issue to the McDonalds is likewise invalid and is canceled.

3. The Ava, for himself and on behalf of the Ava family, has been unjustly enriched as a result of the invalid McDonald lease and must pay to McDonald the damages McDonald suffered in constructing improvements to the land in the sum of $21,560. Since the Ava never received any of the rent paid for the lease, McDonald cannot recover these sums from the Ava.

4. McDonald shall recover the unused portion of the rental advances, totaling $4,652.86, from his lessor Foma`i. McDonald is not entitled to have title quieted.

5. McDonald's money judgments shall bear post-judgment interest at the statutory rate of 6% per annum.

6. This decision implicitly rules against the defendants' motion to dismiss on the grounds that the Ava lacked standing to sue, and that motion is denied.

Judgment shall be entered accordingly.

It is so ordered.

(Dated as of July 27, 1992)

**********

1. While the Court's order provides for a nunc pro tunc date of May 7, 1979, it is probable that the Court intended the date to be May 7, 1977, the day after the Court's order of May 6, 1977 permitting the survey. In any event, the copy of the survey on file with the Territorial Registrar still bears only the surveyor's undated signature. The approval for registration remains undated and unsigned.

Letuli v. Le`i,


OLO LETULI, Plaintiff

v.

MATT LE'I, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 13-91

September 4, 1992

__________

The tort of trespass to land, unlawful interference with its possession, may occur by causing the entry of some other person or thing and may be committed as the result of an intentional, reckless, or negligent act, or as the result of an ultrahazardous activity.

To commit the tort of trespass to land, the only intent required is the intent to enter another's land, regardless of the actor's motivation.

The employer of an independent contractor is generally not liable for physical harm done by the contractor or the contractor's employees; however, an employer is liable when he knows or has reason to know that, in the ordinary course of doing the work in a usual or prescribed manner, the work is likely to result in trespass.

When an owner of two adjacent parcels of land conveys one of them, or when the owner of a parcel of land conveys a part of it, the grantee takes the land with all benefits that appear to belong to the land at the time of the transfer.

The purpose of recognizing implied easements is to carry out the intent of the parties in light of all the circumstances, which include the visibility and permanency of the easement on the servient estate, reasonable necessity of the easement, actual use of the easement at the time of the transfer, and reasonably foreseeable uses of the easement.

The usual remedy for harm to land resulting from a past trespass and not amounting to total destruction of the value of the land is compensation (1) measured by the difference between the market value of the land before and after the harm or, where appropriate, the cost of restoration that has been or may be reasonably incurred, (2) for loss of use of the land, and (3) for discomfort and annoyance to the occupant of the land.

If a trespass involves a continuing invasion on the land, damages may be recovered for both the past invasions and either the decrease in the value of the land caused by the prospect of the continuing invasions or the owner's cost of avoiding future invasions. [22ASR2d78]

In the absence of proof of pecuniary loss, compensatory damages for harm to land is limited to nominal damages, though punitive or exemplary damages may be awarded.

Intended to punish a wrongdoer and deter him and others from similar, future misconduct, punitive or exemplary damages may be awarded for outrageous conduct shown by acts done with evil motive or reckless indifference to others' rights; among the circumstances to consider are the character of a defendant's act and the nature and extent of a plaintiffs harm which the defendant caused or intended to cause.

Though an injunction is usually inappropriate for past acts of trespass because the remedy at law is adequate, both injunctive relief and compensatory damages may be granted for a continuing trespass.

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

Counsel: For Plaintiff, William H. Reardon
For Defendant, Gata E. Gurr

Plaintiff Letuli commenced this action on March 14, 1991 to obtain: (1) preliminary and permanent injunctions enjoining defendant Le`i and associated persons from trespassing on, encroaching upon, and causing any damage to plaintiff's individually owned land in an area known as Fogagogo in American Samoa; (2) special, general, and exemplary or punitive damages for defendant's acts of trespass allegedly occurring in February and March of 1991; and (3) attorney's fees and costs of suit. The order to show cause on plaintiff's application for a preliminary injunction was heard on April 3, 1991 and was continued to April 9, 1991 for further hearing, with the Court's advice to defendant to retain an attorney. On April 9, 1991, defendant appeared by counsel, and after further hearing, the Court denied the application for a preliminary injunction and urged the parties to work out their differences in some manner. Any efforts to that end apparently failed, and trial was held on June 30 and July 1, 1992. The Court inspected the area immediately at issue on July 1, 1992.

FINDINGS OF FACT

In 1962, plaintiff owned and surveyed, as his individually owned land, approximately 44 acres of land in a roughly triangular shape in the area known as Fagogogo in American Samoa. At the present time, this land is bounded on the north side by a paved road to the part of the land commonly known as "Freddie's Beach," where plaintiff's residence is [22ASR2d79] located, and on the west side by a dirt road extending from the northwest corner to the southwest corner, which is near the ocean, of the land. The boundary from the northeast corner to the southwest corner runs along the ocean front.

Over the years, plaintiff has conveyed parcels within this acreage to various persons. In 1977, he deeded a parcel of approximately 2.98 acres to Ethel T.W. Fujii (Fujii deed). In 1978, he transferred two contiguous parcels to the north of the Fujii parcel, each about one acre, to Oliver E. Moors. The Fujii deed and the deed of the southerly acre of the two Moors parcels (Moors deed) contain grants of the land, together with all rights, easements, and appurtenances belonging or in any way incident or appertaining to the land. Both the Fujii and Moors parcels are bounded on the west side by, and are accessible from, the north-south dirt road.

Plaintiff left a 12-foot right of way between the Moors and Fujii parcels, which is indicated in the deed of Moors' southerly one-acre parcel. This right of way provides access to plaintiff's land east of these parcels, as well as to two other parcels which plaintiff conveyed to other persons. Plaintiff's stated intent was then, and still is, that the use of this 12-foot right of way be exclusive to him and the owners of these two other parcels.

To the south of the Fujii parcel, along the north-south dirt road and extending to the southwest corner of the original acreage, plaintiff conveyed two more parcels to Moors, totaling about 2.83 acres. Immediately to the east of these two parcels and the Fujii parcel are the two parcels having access rights through the 12-foot right of way.

In due course, Moors subdivided his two-acre parcel north of the Fujii parcel into five lots. He deeded one lot, containing approximately .54 of an acre and located in the southeastern portion of the Moors parcel, to defendant (Le`i deed). This transaction occurred on August 5, 1983. The grant of the land in the deed also includes all rights, privileges, and easements held or enjoyed in connection with, or appurtenant to the land. Moors conveyed the northern lot of this subdivision, extending the full west to east width of two-acre parcel, to another person. The three southwestern lots were conveyed to a third person.

Defendant's lot is presently landlocked, unless the 12-foot right of way between the Moors and Fujii parcels, or a right of way across [22ASR2d80] one or more of the lots owned by Moors' other two grantees, is available for his use. Moors represented to defendant that the 12-foot right of way was defendant's access to this lot. Moors regularly accessed his parcel from both the north-south dirt road and the 12-foot right of way before he sold his subdivision lots. Defendant and at least the third buyer used the 12-foot right of way to enter their property. Plaintiff testified that he did not know that Moors would subdivide the two-acre parcel until the lots had been transferred to defendant and the other two third parties.

The main event took place in February of 1991 when defendant contracted with Samoa Maritime, Co. to clear his lot with a bulldozer in preparation for the construction of his family's new home. This work was accomplished in one day, according to the bulldozer operator, or two days, according to defendant. In any event, it was completed on or about February 20, 1991, the date of Samoa Maritime's invoice of $670 for the work.

Defendant had shown the operator's superior the area to be cleared, and a survey of his lot, on the day before the work began. The operator, who is Samoa Maritime's heavy equipment supervisor and who did this job himself because he was short-handed on regular operators, arrived at the site about 8:00 a.m. the next morning. In order to bring the bulldozer to the lot, it was necessary to off-load the bulldozer from the hauling trailer at the north end of the dirt road and drive it down that the road and across the 12-foot strip. Defendant arrived between 8:30 and 9:00 a.m. and showed the boundaries of his lot to the operator. The operator visibly saw two pins along the 12-foot strip, and defendant pointed to a third pin at the easterly corner where his lot and the northern lot meet. They did not walk the four corners of defendant's lot. Defendant told the operator to cut and level at various places on his land, to stay within his property and out of plaintiff's property, and to pile the debris on his lot near the northern lot to fill a depression.

At this point, defendant left the site, and the operator's and defendant's versions of subsequent events differ at least in one material respect. Defendant stated that he returned about 1:00 p.m. to find the bulldozer inoperative, the operator gone, and the job less than one-half done. He next returned to the site about noon the following day, at which time the work had been completed and the bulldozer had been removed from the area. According to the operator, the work was completed on the first day, and the defendant was happy with it when he returned to the site between 4:00 and 4:30 p.m. [22ASR2d81]

Both the operator and defendant tended to minimize any encroachment onto plaintiff's land. The operator indicated that the area to the east of defendant's land was mostly covered with four to five foot bushes and other growth. He testified that the boundary between plaintiff's and defendant's lands was not clearly discernible to him, but he may have driven the bulldozer onto plaintiff's land. He admitted to cutting down some small pandanus trees, including eight or so which may have been outside of defendant's land, and some six larger trees, including two futu trees, of which perhaps four could have been outside defendant's land.

Defendant testified that there were no large trees in the area directly between his property and the ocean, only small pandanus trees and various shrubs. He admitted that the bulldozer went into plaintiff's land, probably 20 to 25 feet, during turning around movements. He stated that only one large tree on his land and no such trees on plaintiff's land were destroyed during the clearing procedure, and except for hurricane damage later in 1991, plaintiff's land was substantially the same now as it was immediately after the bulldozing. A pile of rocks, one foot or so in diameter, was left near the southeast corner of his lot for later use. All other debris was deposited as he had instructed the operator.

Plaintiff and his wife were in Australia at the time defendant's lot was bulldozed. They first learned about the clearing operation from Moors after they returned. When they inspected the area, they were appalled and extremely upset at the damage done to plaintiff's land. Defendant's land was cleared and most of the vegetation from plaintiff's land to the ocean front was cut down. Lost were two futu trees, two small coconut trees, a banyan tree, and many pandanus trees. Bushes have come back, but no trees.

Both plaintiff and his wife testified that plaintiff did not give defendant permission before the bulldozing episode to clear any portion of plaintiff's land. Plaintiff's wife talked to defendant after this event. She told defendant of plaintiff's and her anger and distress over the incident. She said that in response defendant chuckled and stated that someone else must have instructed the bulldozer operator to clear the area on plaintiff's land.

Visual inspection revealed that a substantial portion of plaintiff's land from defendant's lot to the ocean shoreline boundary had been cleared. Tree stumps were observed, as were a large number of[22ASR2d82] pandanus branches on the ground. The ocean view from defendant's lot was notably improved. Bush vegetation has grown back, but there was no significant sign as yet of natural tree restoration in the 16 months or so since the clearing occurred.

A further controversy pertains to the power line poles which have been installed by the American Samoa Power Authority (ASPA) along the 12-foot right of way to provide electric power to defendant's new home. Defendant obtained a deed of easement form which ASPA uses to acquire as grantee an easement for electrical and power service lines to private property from the owner or lessee of that property as grantor. On February 8, 1989, defendant took this form to plaintiff, who signed it and is identified in the form as the landowner. According to defendant, Moors was unavailable at the time. Defendant signed the form as well, and is identified in the form as lessee of the land. Plaintiff was not clear on all the circumstances surrounding execution of this easement, which defendant stated took place at plaintiff's new home at "Freddie's Beach" on a Saturday morning, but admitted signing the form. Plaintiff also claimed that he thought he was granting an easement to Moors, not ASPA, to have power line poles installed along the north-south dirt road to Moors' two-acre parcel. In fact, the easement in evidence is not signed on ASPA's behalf. However, since poles have been erected along the 12-foot right of way, presumably ASPA has the original or a copy completed to its satisfaction. Moreover, the real factual concern now is whether the poles are within defendant's and his westerly neighbor's lots or are within the 12-foot right of way. Visual inspection did not determine whether or not any of the power line poles are located on the right of way.

DISCUSSION

1. Trespass on plaintiff's land.

The tort of trespass to land is the unlawful interference with its possession. W. Prosser and W. Keeton, The Law of Torts § 13 at 70 (5th ed. 1984). It may be committed as the result of an act which is intentional, reckless, or negligent, or as the result of ultrahazardous activity. Gallin v. Poulou, 140 Cal. App. 2d 638, 295 P.2d 958, 959-62 (1956). The only intent required is the intent to enter another's land, regardless of the actor's motivation. Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463, 232 Cal. Rptr. 668, 676-77 (1986). Trespass may occur by causing the entry of some other person or thing. Restatement (Second) of Torts, § 158(a) at 277 (1965). As a general principle, the employer of an independent [22ASR2d83] contractor is not liable for physical harm done by the contractor or the contractor's employees. Id. § 409 at 370. However, liability flows when an independent contractor is hired to do work which the employer knows or has reason to know or recognize that, in the ordinary course of doing the work in a usual or prescribed manner, is likely to result in trespass. Id. § 427B at 419-20.

The clearing of defendant's land by the bulldozer operator on or about February 20, 1991 involved clear acts of trespass to plaintiff's land. Defendant recognized the risks of trespass to plaintiff's land when he discussed the work to be done with the operator's supervisor and pointed out to the operator, at least partially, the boundaries of his lot and, he said, cautioned the operator to keep the bulldozer and debris within his lot. Although the operator was an employee of an independent contractor hired to clear the land, the situation in this action is squarely within the exception imposing liability on the employer of an independent contractor who is employed to perform work likely to result in trespass. Thus, defendant is liable to plaintiff for the physical harm done by the bulldozer operator's trespass to plaintiff's land.

2. Defendant's rights in plaintiff's land.

There is no doubt that the bulldozer excursions beyond the boundaries of defendant's lot trespassed upon plaintiff's land. However, if defendant has any rights to use the 12-foot right of way, there has been no unlawful encroachment by defendant in this area of plaintiff's land, unless the operation of the bulldozer across or placement of any of the power line poles within the right of way exceeded defendant's authority in the exercise of those rights.

When an owner of two adjacent parcels of land conveys one of them, or when the owner of a parcel of land conveys a part of it, the grantee takes the land with all benefits that appear at the time of the transfer to belong to the land. Fristoe v. Drapeau, 35 Cal. 2d 5, 215 P.2d 729 (1950). The purpose of recognizing implied easements is to carry out the intent of the parties in light of all the circumstances. Id., 215 P.2d at 730. Relevant circumstances include but are not necessarily limited to the visibility and permanancy of the easement on the servient estate, reasonable necessity of the easement, actual use of the easement at the time of the transfer, and reasonably foreseeable uses of the easement. Id., 215 P.2d at 730-31. [22ASR2d84]

The Fujii deed, Moors deed and Le`i deed contain general references to easements and other benefits related to the land conveyed and thus evidence the parties' clear intent to convey such benefits with the land in each instance. The 12-foot right of way was created along with Moors deed transaction. It is both visible and permanent. Its purpose in providing access to plaintiff's land and the two landlocked parcels to the south at the time of the Moors deed is manifest.

The parties' intention to provide an alternative means of entrance to the Fujii and Moors parcels at the time of the deed is less certain. However, despite plaintiff's protestation that he intended in 1978 to exclude use of the 12-foot right of way other than to his land and the other two parcels, we are satisfied that this intent did not crystallize until the bulldozing incident in 1991. During the interim, it is apparent that at least Moors, defendant and defendant's westerly neighbor used this means to their land without any objection from plaintiff. It was certainly foreseeable in 1978, especially given the sizeable acreage conveyed to Moors, almost six acres, and the configuration of his parcels, that Moors might some day subdivide his parcels and create lots reasonably requiring entrance over the 12-foot right of way. This was unquestionably Moors' and defendant's expectations at the time of the Le`i deed.

It is true, of course, that defendant might be able to establish entitlement to a right of way across lots which Moors conveyed to the other two transferees of Moors' two-acre parcel. Sese v. Leota, 9 A.S.R.2d 25 (1988). This alternative tends to diminish reasonable necessity as a factor supporting defendant's use of the 12-foot right of way. However, we think that the unobjected use of the 12-foot right of way by Moors for some 13 years and by defendant for some eight years, along with the foreseeability of landlocked subdivision lots, is indicative of not only mutual intent to allow use of the 12-foot right of way for the benefit of both the Fujii parcel and the Moors two-acre parcel, but also of the practical and, therefore, reasonable necessity for use of this passage to defendant's lot. We do not think that Moors and his other grantees should or need to be shouldered with this burden in this particular situation.

Under all the circumstances of this case, an implied easement across the 12-foot right of way was created in connection with the Moors deed transaction in 1978 for the benefit of the Fujii parcel and the Moors two-acre parcel, and any future subdivision lots of either parcel which are contiguous to the 12-foot right of way. Thus, defendant has [22ASR2d86] an implied easement to enter his lot by crossing the 12-foot right of way on plaintiff's land. It follows that there was no actionable trespass when the bulldozer traversed along the 12-foot right of way to reach and leave defendant's lot on or about February 20, 1991.

The power line poles, however, are a different matter. A 12-foot easement is not well suited for handling both motor vehicles and power line poles, and, in any event, there is no evidence showing any mutual intent to locate utility lines within this right of way. There also appears to be some uncertainty as to whether or not any of the power line poles now in place are within the 12-foot right of way. It is defendant's obligation to ensure that any such encroachment either has not occurred or is corrected.

3. Damages.

The usual remedy for harm to land resulting from a past trespass and not amounting to total destruction of the value of the land is compensation (1) measured by diminution in value, i.e., the difference between market value of the land before and after the harm, or where appropriate the cost of restoration that has been or may be reasonably incurred, (2) for loss of use of the land, and (3) for discomfort and annoyance to the occupant of the land. Restatement (Second) of Torts, § 929(1) at 544 (1979). If a severable thing attached to the land is damaged, recovery of the loss in market value to the attachment rather than damage to the land as a whole is an optional approach. Id. § 929(2) at 544.

If a trespass involves a continuing invasion on the land, damages may be recovered for both the past invasions and either the decrease in the value of the land caused by the prospect of the continuing invasions or the owner's cost of avoiding future invasions. Id. § 930 at 548.

Compensatory damages for harm to land require proof of the pecuniary loss outlined in the principles stated above. In the absence of such proof, which can occur when substantial actual damages are not susceptible to precise proof, the damage entitlement is limited to nominal damages in a trivial amount. Id. § 907 at 462-63.

However, even if only nominal damages can be awarded, there may be recovery for punitive or exemplary damages, whether the trespass involves either substantial harm without satisfactory proof of pecuniary loss or no harm. Id. § 908, and comments b and c, at 464-65. [22ASR2d86] Punitive or exemplary damages are intended to punish a wrongdoer and deter him and others from similar future misconduct, based on outrageous conduct shown by acts done with evil motive or reckless indifference to others' rights. Id. § 908, and comments a and b, at 464-65. Among the circumstances to consider are the character of a defendant's act and the nature and extent of a plaintiff's harm which the defendant caused or intended to cause. Id. § 908(2), and comment e, at 464, 466-67.

The evidence in this action clearly shows substantial damage to the part of plaintiff's land which defendant caused to be bulldozed. It also shows that one or more power line poles may constitute a continuing trespass on the 12-foot right of way. However, in both respects, the evidence is devoid of proof of the amount of plaintiff's pecuniary loss from either the past or any continuing invasions. The trees severed were natural growth and appear to lack market value or other readily ascertainable value. We do not think plaintiff's anger and distress are compensable in the absence of satisfactory proof of any consequential serious illness or significant bodily or emotional injury. This lack of compensatory damage proof limits the award of damages to nominal damages of a trivial amount, traditionally $1.

The evidence does show, however, that the act done on defendant's behalf was reprehensible and outrageous. The extent of the bulldozing on plaintiff's land is inexcusable and attributable to reckless disregard of plaintiff's rights, if not malicious retribution for plaintiff's refusal to permit clearing to improve defendant's ocean view. Taking into account the character of defendant's act, the nature of plaintiff's harm, and defendant's responsible station in life, we think that defendant's act warrants an award of punitive or exemplary damages in the sum of $1,500.

4. Injunctive relief.

Injunctive relief is usually inappropriate for past acts of trespass, as the remedy at law of damages is adequate. Lutu v. Fuimaono, 4 A.S.R. 450 (1964). However, a continuing trespass that can be abated is properly eliminated by injunctive relief, which is permitted in addition to proven compensatory damages in a jurisdiction abolishing the distinction of actions in law and equity such as this one. Restatement (Second) of Torts § 951 at 626-27. Defendant can readily determine whether or not any of the power line poles are located within the 12-foot right of way, and relocate any offending poles to a proper area. [22ASR2d87]

CONCLUSIONS OF LAW

1. Defendant owns an implied easement incidental to his lot over the 12-foot right of way as the means of ingress to and egress from his lot. This implied easement does not include utility lines on, over, or beneath the surface of the right of way.

2. Passage of the bulldozer over the 12-foot right of way on or about February 20, 1991 did not constitute a trespass to plaintiff's land.

3. Defendant is liable to plaintiff for the trespass to plaintiff's land, other than to the 12-foot right of way, by the bulldozer clearing operation on or about February 20, 1991.

4. Any power line poles located within the 12-foot right of way constitute a continuing trespass to plaintiff's land.

5. There is no proof of compensatory damages. Plaintiff is only entitled to nominal damages, which are assessed at $1.

6. The trespass by the bulldozer clearing operation on or about February 20, 1991 was caused by reckless indifference, if not maliciousness, by defendant. Plaintiff is awarded to punitive or exemplary damages in the sum of $1,500.

7. Plaintiff is entitled to have defendant, at defendant's sole expense, correctly locate the southerly boundary of defendant's and his neighbor's lots, by resurvey or other appropriate means, and remove or cause to be removed any power line poles erected within the 12-foot right of way. Defendant is so enjoined.

8. Plaintiff has shown no basis for an award of attorney's fees or costs of suit, and such an award is denied.

Judgment shall be entered accordingly.

It is so ordered.

**********

Le`i; Letuli v.


OLO LETULI, Plaintiff

v.

MATT LE'I, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 13-91

September 4, 1992

__________

The tort of trespass to land, unlawful interference with its possession, may occur by causing the entry of some other person or thing and may be committed as the result of an intentional, reckless, or negligent act, or as the result of an ultrahazardous activity.

To commit the tort of trespass to land, the only intent required is the intent to enter another's land, regardless of the actor's motivation.

The employer of an independent contractor is generally not liable for physical harm done by the contractor or the contractor's employees; however, an employer is liable when he knows or has reason to know that, in the ordinary course of doing the work in a usual or prescribed manner, the work is likely to result in trespass.

When an owner of two adjacent parcels of land conveys one of them, or when the owner of a parcel of land conveys a part of it, the grantee takes the land with all benefits that appear to belong to the land at the time of the transfer.

The purpose of recognizing implied easements is to carry out the intent of the parties in light of all the circumstances, which include the visibility and permanency of the easement on the servient estate, reasonable necessity of the easement, actual use of the easement at the time of the transfer, and reasonably foreseeable uses of the easement.

The usual remedy for harm to land resulting from a past trespass and not amounting to total destruction of the value of the land is compensation (1) measured by the difference between the market value of the land before and after the harm or, where appropriate, the cost of restoration that has been or may be reasonably incurred, (2) for loss of use of the land, and (3) for discomfort and annoyance to the occupant of the land.

If a trespass involves a continuing invasion on the land, damages may be recovered for both the past invasions and either the decrease in the value of the land caused by the prospect of the continuing invasions or the owner's cost of avoiding future invasions. [22ASR2d78]

In the absence of proof of pecuniary loss, compensatory damages for harm to land is limited to nominal damages, though punitive or exemplary damages may be awarded.

Intended to punish a wrongdoer and deter him and others from similar, future misconduct, punitive or exemplary damages may be awarded for outrageous conduct shown by acts done with evil motive or reckless indifference to others' rights; among the circumstances to consider are the character of a defendant's act and the nature and extent of a plaintiffs harm which the defendant caused or intended to cause.

Though an injunction is usually inappropriate for past acts of trespass because the remedy at law is adequate, both injunctive relief and compensatory damages may be granted for a continuing trespass.

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

Counsel: For Plaintiff, William H. Reardon
For Defendant, Gata E. Gurr

Plaintiff Letuli commenced this action on March 14, 1991 to obtain: (1) preliminary and permanent injunctions enjoining defendant Le`i and associated persons from trespassing on, encroaching upon, and causing any damage to plaintiff's individually owned land in an area known as Fogagogo in American Samoa; (2) special, general, and exemplary or punitive damages for defendant's acts of trespass allegedly occurring in February and March of 1991; and (3) attorney's fees and costs of suit. The order to show cause on plaintiff's application for a preliminary injunction was heard on April 3, 1991 and was continued to April 9, 1991 for further hearing, with the Court's advice to defendant to retain an attorney. On April 9, 1991, defendant appeared by counsel, and after further hearing, the Court denied the application for a preliminary injunction and urged the parties to work out their differences in some manner. Any efforts to that end apparently failed, and trial was held on June 30 and July 1, 1992. The Court inspected the area immediately at issue on July 1, 1992.

FINDINGS OF FACT

In 1962, plaintiff owned and surveyed, as his individually owned land, approximately 44 acres of land in a roughly triangular shape in the area known as Fagogogo in American Samoa. At the present time, this land is bounded on the north side by a paved road to the part of the land commonly known as "Freddie's Beach," where plaintiff's residence is [22ASR2d79] located, and on the west side by a dirt road extending from the northwest corner to the southwest corner, which is near the ocean, of the land. The boundary from the northeast corner to the southwest corner runs along the ocean front.

Over the years, plaintiff has conveyed parcels within this acreage to various persons. In 1977, he deeded a parcel of approximately 2.98 acres to Ethel T.W. Fujii (Fujii deed). In 1978, he transferred two contiguous parcels to the north of the Fujii parcel, each about one acre, to Oliver E. Moors. The Fujii deed and the deed of the southerly acre of the two Moors parcels (Moors deed) contain grants of the land, together with all rights, easements, and appurtenances belonging or in any way incident or appertaining to the land. Both the Fujii and Moors parcels are bounded on the west side by, and are accessible from, the north-south dirt road.

Plaintiff left a 12-foot right of way between the Moors and Fujii parcels, which is indicated in the deed of Moors' southerly one-acre parcel. This right of way provides access to plaintiff's land east of these parcels, as well as to two other parcels which plaintiff conveyed to other persons. Plaintiff's stated intent was then, and still is, that the use of this 12-foot right of way be exclusive to him and the owners of these two other parcels.

To the south of the Fujii parcel, along the north-south dirt road and extending to the southwest corner of the original acreage, plaintiff conveyed two more parcels to Moors, totaling about 2.83 acres. Immediately to the east of these two parcels and the Fujii parcel are the two parcels having access rights through the 12-foot right of way.

In due course, Moors subdivided his two-acre parcel north of the Fujii parcel into five lots. He deeded one lot, containing approximately .54 of an acre and located in the southeastern portion of the Moors parcel, to defendant (Le`i deed). This transaction occurred on August 5, 1983. The grant of the land in the deed also includes all rights, privileges, and easements held or enjoyed in connection with, or appurtenant to the land. Moors conveyed the northern lot of this subdivision, extending the full west to east width of two-acre parcel, to another person. The three southwestern lots were conveyed to a third person.

Defendant's lot is presently landlocked, unless the 12-foot right of way between the Moors and Fujii parcels, or a right of way across [22ASR2d80] one or more of the lots owned by Moors' other two grantees, is available for his use. Moors represented to defendant that the 12-foot right of way was defendant's access to this lot. Moors regularly accessed his parcel from both the north-south dirt road and the 12-foot right of way before he sold his subdivision lots. Defendant and at least the third buyer used the 12-foot right of way to enter their property. Plaintiff testified that he did not know that Moors would subdivide the two-acre parcel until the lots had been transferred to defendant and the other two third parties.

The main event took place in February of 1991 when defendant contracted with Samoa Maritime, Co. to clear his lot with a bulldozer in preparation for the construction of his family's new home. This work was accomplished in one day, according to the bulldozer operator, or two days, according to defendant. In any event, it was completed on or about February 20, 1991, the date of Samoa Maritime's invoice of $670 for the work.

Defendant had shown the operator's superior the area to be cleared, and a survey of his lot, on the day before the work began. The operator, who is Samoa Maritime's heavy equipment supervisor and who did this job himself because he was short-handed on regular operators, arrived at the site about 8:00 a.m. the next morning. In order to bring the bulldozer to the lot, it was necessary to off-load the bulldozer from the hauling trailer at the north end of the dirt road and drive it down that the road and across the 12-foot strip. Defendant arrived between 8:30 and 9:00 a.m. and showed the boundaries of his lot to the operator. The operator visibly saw two pins along the 12-foot strip, and defendant pointed to a third pin at the easterly corner where his lot and the northern lot meet. They did not walk the four corners of defendant's lot. Defendant told the operator to cut and level at various places on his land, to stay within his property and out of plaintiff's property, and to pile the debris on his lot near the northern lot to fill a depression.

At this point, defendant left the site, and the operator's and defendant's versions of subsequent events differ at least in one material respect. Defendant stated that he returned about 1:00 p.m. to find the bulldozer inoperative, the operator gone, and the job less than one-half done. He next returned to the site about noon the following day, at which time the work had been completed and the bulldozer had been removed from the area. According to the operator, the work was completed on the first day, and the defendant was happy with it when he returned to the site between 4:00 and 4:30 p.m. [22ASR2d81]

Both the operator and defendant tended to minimize any encroachment onto plaintiff's land. The operator indicated that the area to the east of defendant's land was mostly covered with four to five foot bushes and other growth. He testified that the boundary between plaintiff's and defendant's lands was not clearly discernible to him, but he may have driven the bulldozer onto plaintiff's land. He admitted to cutting down some small pandanus trees, including eight or so which may have been outside of defendant's land, and some six larger trees, including two futu trees, of which perhaps four could have been outside defendant's land.

Defendant testified that there were no large trees in the area directly between his property and the ocean, only small pandanus trees and various shrubs. He admitted that the bulldozer went into plaintiff's land, probably 20 to 25 feet, during turning around movements. He stated that only one large tree on his land and no such trees on plaintiff's land were destroyed during the clearing procedure, and except for hurricane damage later in 1991, plaintiff's land was substantially the same now as it was immediately after the bulldozing. A pile of rocks, one foot or so in diameter, was left near the southeast corner of his lot for later use. All other debris was deposited as he had instructed the operator.

Plaintiff and his wife were in Australia at the time defendant's lot was bulldozed. They first learned about the clearing operation from Moors after they returned. When they inspected the area, they were appalled and extremely upset at the damage done to plaintiff's land. Defendant's land was cleared and most of the vegetation from plaintiff's land to the ocean front was cut down. Lost were two futu trees, two small coconut trees, a banyan tree, and many pandanus trees. Bushes have come back, but no trees.

Both plaintiff and his wife testified that plaintiff did not give defendant permission before the bulldozing episode to clear any portion of plaintiff's land. Plaintiff's wife talked to defendant after this event. She told defendant of plaintiff's and her anger and distress over the incident. She said that in response defendant chuckled and stated that someone else must have instructed the bulldozer operator to clear the area on plaintiff's land.

Visual inspection revealed that a substantial portion of plaintiff's land from defendant's lot to the ocean shoreline boundary had been cleared. Tree stumps were observed, as were a large number of [22ASR2d82] pandanus branches on the ground. The ocean view from defendant's lot was notably improved. Bush vegetation has grown back, but there was no significant sign as yet of natural tree restoration in the 16 months or so since the clearing occurred.

A further controversy pertains to the power line poles which have been installed by the American Samoa Power Authority (ASPA) along the 12-foot right of way to provide electric power to defendant's new home. Defendant obtained a deed of easement form which ASPA uses to acquire as grantee an easement for electrical and power service lines to private property from the owner or lessee of that property as grantor. On February 8, 1989, defendant took this form to plaintiff, who signed it and is identified in the form as the landowner. According to defendant, Moors was unavailable at the time. Defendant signed the form as well, and is identified in the form as lessee of the land. Plaintiff was not clear on all the circumstances surrounding execution of this easement, which defendant stated took place at plaintiff's new home at "Freddie's Beach" on a Saturday morning, but admitted signing the form. Plaintiff also claimed that he thought he was granting an easement to Moors, not ASPA, to have power line poles installed along the north-south dirt road to Moors' two-acre parcel. In fact, the easement in evidence is not signed on ASPA's behalf. However, since poles have been erected along the 12-foot right of way, presumably ASPA has the original or a copy completed to its satisfaction. Moreover, the real factual concern now is whether the poles are within defendant's and his westerly neighbor's lots or are within the 12-foot right of way. Visual inspection did not determine whether or not any of the power line poles are located on the right of way.

DISCUSSION

1. Trespass on plaintiff's land.

The tort of trespass to land is the unlawful interference with its possession. W. Prosser and W. Keeton, The Law of Torts § 13 at 70 (5th ed. 1984). It may be committed as the result of an act which is intentional, reckless, or negligent, or as the result of ultrahazardous activity. Gallin v. Poulou, 140 Cal. App. 2d 638, 295 P.2d 958, 959-62 (1956). The only intent required is the intent to enter another's land, regardless of the actor's motivation. Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463, 232 Cal. Rptr. 668, 676-77 (1986). Trespass may occur by causing the entry of some other person or thing. Restatement (Second) of Torts, § 158(a) at 277 (1965). As a general principle, the employer of an independent [22ASR2d83] contractor is not liable for physical harm done by the contractor or the contractor's employees. Id. § 409 at 370. However, liability flows when an independent contractor is hired to do work which the employer knows or has reason to know or recognize that, in the ordinary course of doing the work in a usual or prescribed manner, is likely to result in trespass. Id. § 427B at 419-20.

The clearing of defendant's land by the bulldozer operator on or about February 20, 1991 involved clear acts of trespass to plaintiff's land. Defendant recognized the risks of trespass to plaintiff's land when he discussed the work to be done with the operator's supervisor and pointed out to the operator, at least partially, the boundaries of his lot and, he said, cautioned the operator to keep the bulldozer and debris within his lot. Although the operator was an employee of an independent contractor hired to clear the land, the situation in this action is squarely within the exception imposing liability on the employer of an independent contractor who is employed to perform work likely to result in trespass. Thus, defendant is liable to plaintiff for the physical harm done by the bulldozer operator's trespass to plaintiff's land.

2. Defendant's rights in plaintiff's land.

There is no doubt that the bulldozer excursions beyond the boundaries of defendant's lot trespassed upon plaintiff's land. However, if defendant has any rights to use the 12-foot right of way, there has been no unlawful encroachment by defendant in this area of plaintiff's land, unless the operation of the bulldozer across or placement of any of the power line poles within the right of way exceeded defendant's authority in the exercise of those rights.

When an owner of two adjacent parcels of land conveys one of them, or when the owner of a parcel of land conveys a part of it, the grantee takes the land with all benefits that appear at the time of the transfer to belong to the land. Fristoe v. Drapeau, 35 Cal. 2d 5, 215 P.2d 729 (1950). The purpose of recognizing implied easements is to carry out the intent of the parties in light of all the circumstances. Id., 215 P.2d at 730. Relevant circumstances include but are not necessarily limited to the visibility and permanancy of the easement on the servient estate, reasonable necessity of the easement, actual use of the easement at the time of the transfer, and reasonably foreseeable uses of the easement. Id., 215 P.2d at 730-31. [22ASR2d84]

The Fujii deed, Moors deed and Le`i deed contain general references to easements and other benefits related to the land conveyed and thus evidence the parties' clear intent to convey such benefits with the land in each instance. The 12-foot right of way was created along with Moors deed transaction. It is both visible and permanent. Its purpose in providing access to plaintiff's land and the two landlocked parcels to the south at the time of the Moors deed is manifest.

The parties' intention to provide an alternative means of entrance to the Fujii and Moors parcels at the time of the deed is less certain. However, despite plaintiff's protestation that he intended in 1978 to exclude use of the 12-foot right of way other than to his land and the other two parcels, we are satisfied that this intent did not crystallize until the bulldozing incident in 1991. During the interim, it is apparent that at least Moors, defendant and defendant's westerly neighbor used this means to their land without any objection from plaintiff. It was certainly foreseeable in 1978, especially given the sizeable acreage conveyed to Moors, almost six acres, and the configuration of his parcels, that Moors might some day subdivide his parcels and create lots reasonably requiring entrance over the 12-foot right of way. This was unquestionably Moors' and defendant's expectations at the time of the Le`i deed.

It is true, of course, that defendant might be able to establish entitlement to a right of way across lots which Moors conveyed to the other two transferees of Moors' two-acre parcel. Sese v. Leota, 9 A.S.R.2d 25 (1988). This alternative tends to diminish reasonable necessity as a factor supporting defendant's use of the 12-foot right of way. However, we think that the unobjected use of the 12-foot right of way by Moors for some 13 years and by defendant for some eight years, along with the foreseeability of landlocked subdivision lots, is indicative of not only mutual intent to allow use of the 12-foot right of way for the benefit of both the Fujii parcel and the Moors two-acre parcel, but also of the practical and, therefore, reasonable necessity for use of this passage to defendant's lot. We do not think that Moors and his other grantees should or need to be shouldered with this burden in this particular situation.

Under all the circumstances of this case, an implied easement across the 12-foot right of way was created in connection with the Moors deed transaction in 1978 for the benefit of the Fujii parcel and the Moors two-acre parcel, and any future subdivision lots of either parcel which are contiguous to the 12-foot right of way. Thus, defendant has [22ASR2d86] an implied easement to enter his lot by crossing the 12-foot right of way on plaintiff's land. It follows that there was no actionable trespass when the bulldozer traversed along the 12-foot right of way to reach and leave defendant's lot on or about February 20, 1991.

The power line poles, however, are a different matter. A 12-foot easement is not well suited for handling both motor vehicles and power line poles, and, in any event, there is no evidence showing any mutual intent to locate utility lines within this right of way. There also appears to be some uncertainty as to whether or not any of the power line poles now in place are within the 12-foot right of way. It is defendant's obligation to ensure that any such encroachment either has not occurred or is corrected.

3. Damages.

The usual remedy for harm to land resulting from a past trespass and not amounting to total destruction of the value of the land is compensation (1) measured by diminution in value, i.e., the difference between market value of the land before and after the harm, or where appropriate the cost of restoration that has been or may be reasonably incurred, (2) for loss of use of the land, and (3) for discomfort and annoyance to the occupant of the land. Restatement (Second) of Torts, § 929(1) at 544 (1979). If a severable thing attached to the land is damaged, recovery of the loss in market value to the attachment rather than damage to the land as a whole is an optional approach. Id. § 929(2) at 544.

If a trespass involves a continuing invasion on the land, damages may be recovered for both the past invasions and either the decrease in the value of the land caused by the prospect of the continuing invasions or the owner's cost of avoiding future invasions. Id. § 930 at 548.

Compensatory damages for harm to land require proof of the pecuniary loss outlined in the principles stated above. In the absence of such proof, which can occur when substantial actual damages are not susceptible to precise proof, the damage entitlement is limited to nominal damages in a trivial amount. Id. § 907 at 462-63.

However, even if only nominal damages can be awarded, there may be recovery for punitive or exemplary damages, whether the trespass involves either substantial harm without satisfactory proof of pecuniary loss or no harm. Id. § 908, and comments b and c, at 464-65. [22ASR2d86] Punitive or exemplary damages are intended to punish a wrongdoer and deter him and others from similar future misconduct, based on outrageous conduct shown by acts done with evil motive or reckless indifference to others' rights. Id. § 908, and comments a and b, at 464-65. Among the circumstances to consider are the character of a defendant's act and the nature and extent of a plaintiff's harm which the defendant caused or intended to cause. Id. § 908(2), and comment e, at 464, 466-67.

The evidence in this action clearly shows substantial damage to the part of plaintiff's land which defendant caused to be bulldozed. It also shows that one or more power line poles may constitute a continuing trespass on the 12-foot right of way. However, in both respects, the evidence is devoid of proof of the amount of plaintiff's pecuniary loss from either the past or any continuing invasions. The trees severed were natural growth and appear to lack market value or other readily ascertainable value. We do not think plaintiff's anger and distress are compensable in the absence of satisfactory proof of any consequential serious illness or significant bodily or emotional injury. This lack of compensatory damage proof limits the award of damages to nominal damages of a trivial amount, traditionally $1.

The evidence does show, however, that the act done on defendant's behalf was reprehensible and outrageous. The extent of the bulldozing on plaintiff's land is inexcusable and attributable to reckless disregard of plaintiff's rights, if not malicious retribution for plaintiff's refusal to permit clearing to improve defendant's ocean view. Taking into account the character of defendant's act, the nature of plaintiff's harm, and defendant's responsible station in life, we think that defendant's act warrants an award of punitive or exemplary damages in the sum of $1,500.

4. Injunctive relief.

Injunctive relief is usually inappropriate for past acts of trespass, as the remedy at law of damages is adequate. Lutu v. Fuimaono, 4 A.S.R. 450 (1964). However, a continuing trespass that can be abated is properly eliminated by injunctive relief, which is permitted in addition to proven compensatory damages in a jurisdiction abolishing the distinction of actions in law and equity such as this one. Restatement (Second) of Torts § 951 at 626-27. Defendant can readily determine whether or not any of the power line poles are located within the 12-foot right of way, and relocate any offending poles to a proper area. [22ASR2d87]

CONCLUSIONS OF LAW

1. Defendant owns an implied easement incidental to his lot over the 12-foot right of way as the means of ingress to and egress from his lot. This implied easement does not include utility lines on, over, or beneath the surface of the right of way.

2. Passage of the bulldozer over the 12-foot right of way on or about February 20, 1991 did not constitute a trespass to plaintiff's land.

3. Defendant is liable to plaintiff for the trespass to plaintiff's land, other than to the 12-foot right of way, by the bulldozer clearing operation on or about February 20, 1991.

4. Any power line poles located within the 12-foot right of way constitute a continuing trespass to plaintiff's land.

5. There is no proof of compensatory damages. Plaintiff is only entitled to nominal damages, which are assessed at $1.

6. The trespass by the bulldozer clearing operation on or about February 20, 1991 was caused by reckless indifference, if not maliciousness, by defendant. Plaintiff is awarded to punitive or exemplary damages in the sum of $1,500.

7. Plaintiff is entitled to have defendant, at defendant's sole expense, correctly locate the southerly boundary of defendant's and his neighbor's lots, by resurvey or other appropriate means, and remove or cause to be removed any power line poles erected within the 12-foot right of way. Defendant is so enjoined.

8. Plaintiff has shown no basis for an award of attorney's fees or costs of suit, and such an award is denied.

Judgment shall be entered accordingly.

It is so ordered.

**********

Konelio; Toeaina v.


TOEAINA MUASAU for HIMSELF and
on behalf of the TOEAINA FAMILY, Plaintiffs,

v.

TOFELOGO KONELIO, TITO MALAE
and VELEGA PAOPAOLII, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 75-90

August 7, 1992

__________

In ascertaining the boundaries of communal land, the court looks at a number of factors, including the reasonableness of location, whether they are logical extensions of existing, determined boundaries, the existence of natural and man-made landmarks, and the resulting configuration of the land. [22ASR2d26]

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

Counsel: For Plaintiffs, Togiola T.A. Tulafono
For Defendants, Tauese P.F. Sunia

The objective of this action is to quiet title to a portion of the land named "Vaoto" on the Island of Ofu in the Manu`a Islands, Territory of American Samoa, either as the communal land of the Toeaina family, or as the communal land of the Malae family, or as the communal land of the Velega family, or as the communal lands in part of any two or all three of these families. Tofelogo Maino Konelio, a potential fourth claimant to this portion of "Vaoto," withdrew from this action before the trial commenced.

This is the second action filed in this Court to quiet title to the portion of "Vaoto" at issue, and judicial notice is taken of the first action for purposes of the Court's findings of fact in this action.

FINDINGS OF FACT

"Vaoto" is large parcel of land on the Island of Ofu in the Manu`a Islands, Territory of American Samoa. The Ofu Airport, which is operated by the American Samoa Government, is situated on portions of "Vaoto" leased by the Government from seven families owning these portions as their respective communal land. The seven, in order from the west end to the east end of the airport, are the Autele, Taauau, Lei, Misaalefua, Leui, Toeaina, and Malae families. The portion of "Vaoto" at issue consists of approximately 4.539 acres lying immediately adjacent to the northern boundary of the leased airport area and near the eastern end of the airport runway.

The airport terminal building straddles this northern boundary near the southeast corner of the portion of "Vaoto" at issue. The terminal building was constructed about three years ago. In 1986, Malae entered a lease with the Government for the land within the disputed area on which the terminal is partially situated, and received advance payment of the rent for the first two five-year periods of the lease term.

There are several other buildings and remnants of buildings on the portion of "Vaoto" in dispute, most of which are close to the terminal. All of these buildings were constructed and occupied by members of the [22ASR2d27] Toeaina family. The graves of Toeaina Muasau, who died in 1991 after this action was instituted, and his son, who died in 1897, are also located in the vicinity of the structures near the terminal.

The Government leased the airport area from the seven families on June 27, 1974 for an original term of 30 years ending June 26, 2004, with two successive 10-year options to extend the lease if they are exercised by the Government. The lease at first provided for an annual rental of $1,147.32, prorated among the seven families and subject to adjustment by renegotiation for each successive five-year period. The lease was amended for the second five-year period to provide for a monthly rental of $989.08, again prorated among the seven families and subject to renegotiation for each successive five-year period remaining. The leased area was approximately 13.188 acres, based on the Government's survey No. 1497, dated March 20, 1973 (the 1973 survey). There is no evidence in the record of any later rent renegotiations or other changes to the lease.

The late Toeaina, who ascended to this senior chief or matai title in 1982, obtained a survey by the Government of the portion of "Vaoto" in dispute in 1987 (the 1987 survey). The point of beginning of this survey No. 105-15-87, dated July 24, 1987, is the northeast corner of the Toeaina communal land identified in survey No. 1497. The Surveyor and Pulunu`u Certificate for this survey was executed by these officials, respectively, on July 17 and 18, 1987. On July 30, 1987, Toeaina's daughter, Mamao Muasau Esau offered this newly surveyed portion of "Vaoto" to the Territorial Registrar for registration of the title as the communal land of the Toeaina family, pursuant to A.S.C.A. §§ 37.0101 et seq. The Territorial Registrar's Notice for Proposed Registration of Land was issued and posted at the Court House and on two telephone poles in Ofu from July 30, 1987 through September 28, 1987.

Objections were filed to the proposed title registration by Velega Paopaolii on August 10, 1987 and Malae Tito on August 21, 1987. On September 29, 1987, the Territorial Registrar referred the matter to the Secretary of Samoan Affairs for dispute resolution proceedings under A.S.C.A. § 43.0302. On November 19, 1987, the Secretary issued a Certificate of Irreconcilable Dispute, and on November 30, 1987, pursuant to A.S.C.A. § 37.0104, the Registrar submitted the matter to this Court for judicial resolution, which was designated LT No. 34-87. Objectors Malae and Velega then filed in this action a Complaint to Quiet Title against claimants Toeaina and the Toeaina family, who answered in due course. Thus, in this first action, the objectors became the [22ASR2d28] designated plaintiffs and the claimants became the defendants. Ultimately, however, on July 31, 1989, this first action was dismissed by stipulation. Noting that the airport terminal was apparently constructed in 1989, we infer that the parties anticipated a final mutual settlement of their differences, which as it turns out was not realized.

Toeaina obtained another Government survey of the portion of "Vaoto" at issue, No. 51-15-89, dated June 28, 1989 (the 1989 survey). This survey is the same as the 1987 survey. The Surveyor and Pulenu`u Certificate was executed on June 10, 1989, and the land was offered to the Territorial Registrar for title registration as communal land of the Toeaina family on July 3, 1989. Another Notice for Proposed Registration of Land was issued and posted from July 3, 1989 through September 1, 1989. In addition to objections filed by Malae on August 4, 1989 and Velega on September 1, 1989, Tofelogo also objected on July 21, 1989. Once again, on September 5, 1989, the Registrar referred the matter to the Secretary of Samoan Affairs for dispute resolution proceedings, which extended more than one year and resulted in the issuance of the Secretary's second Certificate of Irreconcilable Dispute on November 9, 1990 and the Registrar's referral to the Court for judicial disposition on November 19, 1990. This time claimants Toeaina and his family filed a Petition to Quiet Title to Land "Vaoto." Thus, they became the designated plaintiffs and the three objectors became the denoted defendants.

Two surveyors have been involved. One generated, and at the trial identified, the 1973 survey. The Government has employed him as a surveyor, beginning in 1964, and as highway planner, involving the use of surveys, since 1982. The original survey required several days of field work. He consulted with family members in the process of delineating boundaries between the various communal lands within the area to be leased for the airport. These consultations included members of both the Toeaina and Malae families. There was no dispute then between these family members on the location of the boundary between the Toeaina and Malae communal lands within the airport area. He placed an iron pin or monument at the point where this boundary intersects with the northern boundary of the airport area. He is not aware of any revision of the exterior and interior boundaries of the airport area. However, the boundary between the Toeaina and Malae communal lands as depicted in the 1973 survey and in the survey designated as the 1986 revision of the exterior boundary and subdivisions of the airport (1986 survey) is the same. He has no knowledge of the portion of "Vaoto" at issue or any title registration proceedings related [22ASR2d29] to this area, except that he recalls seeing at the time of the original survey coconut and other trees but no banana trees in this area generally, and no buildings.

The other surveyor is also employed by the Government, in that capacity. He did the 1986 survey, as well as the 1987 survey and 1989 survey, and at the trial identified the 1986 survey and the 1989 survey.(1) Toeaina pointed out to him the eastern boundary of the disputed land, and other Toeaina family members showed him the northern and western boundaries. He used the northern boundary of the airport area as the southern boundary of the disputed land and, for this purpose, followed the monuments in place along this boundary. The southeast and southwest corners of the disputed land are identical, respectively, to the northeast and northwest corners of the Toeaina communal land within the airport area as shown on the 1986 survey. These monuments were in place at these two points when he conducted the 1986 survey and 1989 survey. Fetalia`i Toeaina testified, without contradiction, that these are the same monuments put in place by the surveyor at the time of the 1973 survey.

There is conflicting evidence over the rights of the Toeaina and Malae families to own and use a substantial portion of the disputed land. Malae did not object either to Fetalia`i's house, which is located in the westerly part of the disputed portion of "Vaoto," or to his plantations behind this house up the mountainside generally. However, it is a different matter as to the land where the Toeaina houses and plantations, and, of course, the airport terminal, are located in the easterly part of the disputed land.

Toeaina constructed a European or "papalagi" style house in the southeast corner of this area in 1977.(2) This house was severely damaged during Hurricane "Esau" in 1981, and Toeaina, using materials salvaged from the first house, built a second structure in the style of a Samoan guest house below the original house and nearer to the northern boundary of the airport. The only remains of the first house are the [22ASR2d30] concrete pillars. In 1985, Toeaina constructed another "papalagi" house in this area. Later yet another house of this style was added in the vicinity. In addition, the graves of Toeaina's son, who died in 1987, and Toeaina, who died in 1991, are located immediately to the west of the 1985 house. Toeaina family members asserted that these homes and graves were situated on this portion of "Vaoto" as a matter of right.

Malae and his family members, on the other hand, declared that these locations are within Malae communal land and the construction and burials occurred with either Malae's permission or sufferance. For example, Malae stated that the 1977 house was constructed only after Toeaina Faufano, Toeaina's predecessor in the Toeaina title, and Toeaina had consulted with him and he had agreed to the location during an on-site visit. Further, his brother Aiomanu, in Malae's absence, formally objected to the registration of the separation agreeement for the 1985 house, but upon Malae's return, he permitted construction of this house after Toeaina met with him. He did object to the Secretary of Samoan Affairs to the burial of Toeaina's son, who had died off-island, on the land, but there was not sufficient time for judicial resolution of this issue. He considered Toeaina's burial a special situation due to Toeaina's critical illness, and he had assured him during a visit at the Government's LBJ Tropical Medical Center that burial would be allowed next to his son. He also said that there were more Malae graves than Toeaina graves on the disputed land, going back historically.

Toeaina's daughter Mamao countered this testimony by stating that she had selected or at least suggested the location of the 1977 house, site preparation was already completed when Malae visited the location, and Toeaina's purpose in meeting with Malae was to seek withdrawal of Aiomanu's objection to this construction as well. Malae agreed with the withdrawal, but when it was not forthcoming, the house was built anyway.(3)

Given the evident sincerity expressed by both families of their current respective ownership and right to use the portion of "Vaoto" in controversy, we are not inclined to disbelieve either family's testimony on events surrounding the construction or burials on the disputed land. [22ASR2d31] We do believe, however, that there has been a certain amount of misinterpretation or miscommunication by both families concerning those events. Therefore, we look to the real crux of the problem between these families to resolve this controversy.

There are substantial interrelationships between the Toeaina and Malae families which have been carried over to the use of at least a significant part of the disputed land and have tended to confuse the ownership of this land. The testimony of two older persons, one on behalf of the Toeaina family and the other on behalf of the Malae family, focus clearly on this problem.

High Chief Seumaala F. Mauga, who at age 78 years testified lucidly, is related to both the Toeaina and Malae families. His father and his grandmother on his father's side were Malae family members. His grandmother's father held the Malae title at one time. His mother was a Toeaina family member. He is also related to the Velega family. His immediate family lived with the Malae family until his father's death and thereafter with the Toeaina family. His father, until his death, and he and his older brothers, until he enrolled in school on the Island of Tutuila at the age or 14 or 15 years, worked on both Toeaina and Malae communal lands. While his father was living, they worked as Malae family members, but were also able to work on Toeaina communal land because his father's sister and uncle were blood related to both families. During his educational years and 41 years in the employ of the Government's Department of Education, he remained in contact with his Ofu families, visiting during vacations especially and participating in "fa`alavelaves" or family affairs of both families. He stated clearly that the southeast corner of the disputed land is approximately 8 to 10 feet east of the airport terminal, and the area in the 1989 survey is Toeaina communal land.

Rev. Peter Malae, who is Malae's uncle and at age 77 years is also clearheaded, testified about his knowledge of the disputed land. He also went to Tutuila, at age 18 years, first to attend school, followed by 7 years of teaching, and then to serve 20 years in the "Fitafita" Guard and U.S. Navy. He returned to Ofu during vacations and on other occasions as well. In 1951, his naval service took him away from American Samoa. This curtailed his visits to Ofu until he retired from the military. He then became a minister, serving in Hawaii, and resumed visits home almost annually. He said that the disputed land is Malae communal land. He pointed out that at one time his father had a Samoan style guest house [22ASR2d32] on the airport terminal site,(4) and that there used to be other Malae houses of this nature in the area. He further stated that Malae family members, exercising their rights, worked on the disputed land. These persons included Seumaala and his family while they were living as Malae family members. He acknowledged, however, that Toeaina also had rights to at least use the land, and since certain individuals had standing in both families, the boundary between Toeaina and Malae communal lands is not clear-cut.

The uncertainties about which family was represented by the persons working the disputed land can be resolved by reference to the various surveys and related circumstances. First, the westerly boundary of this portion of "Vaoto" in the 1989 survey, which delineates Misaalefua communal land to the west and Toeaina communal land to the east, is not in dispute.

Second, with respect to the northern boundary in the 1989 survey, Poulima Velega testified that Velega communal land lies up the mountainside, extending along the northern boundaries of the Misaalefua and Toeaina communal lands. There was also some testimony during Toeaina's case suggesting that Toeaina communal land extended further north than Misaalefua communal land. However, the western and eastern boundaries in the 1989 survey only extend 480 feet from the northern boundary of the l973 survey and 1986 survey, which is only part way up the mountainside towards the 1,601 foot summit of Tumu Mountain. The northern boundary of the Misaalefua communal land is not shown, and there is no indication in Poulima's testimony that the delineated northern boundary of the disputed land actually intrudes upon Velega communal land. The northern boundary in the 1989 survey is in a reasonable location as depicted.

The southern boundary of the disputed land is established by the northern boundary of the airport, which was located in 1973 and is marked by two pins or monuments at strategic points to define the boundaries within the airport area between the Misaalefua, Toeaina, and Malae communal lands. These points now mark the southeast and southwest corners of the disputed land. These points were established after consultation with representatives of the three families and without disagreement among them.

The boundary between the Misaalefua and Toeaina communal lands up the mountainside from this southwesterly point is a logical extension of the boundary between these lands within the airport area and is marked by a line of coconut trees. Whether or not the eastern boundary of the disputed land is now or ever was marked by a similar line of coconuts trees, and this is a disputed fact, this boundary in the 1989 survey is also a logical extension of the boundary between the Toeaina and Malae communal lands within the airport area. Moreover, both the western and eastern boundaries are noticeably restrained in that they tend to converge as they go northwards rather than extend in a straight line up the mountainside.

In addition, if the boundary between the Toeaina and Malae communal lands is positioned as proposed in the survey which Malae had prepared, the boundary would be moved significantly westward and reduce the Toeaina communal land within the 1989 disputed land survey by approximately 2.5 acres, or from aproximately 4.539 acres to 2.039 acres. This is a reduction of about 55 per cent. While not impossible, it would also create, bearing in mind the divisions of "Vaoto" among several families, a peculiar "L"-shaped configuration to the Toeaina communal land.

The evidence preponderates in support of the area shown in the 1989 survey as Toeaina communal land, based on an implicit, if not express, understanding and agreement among the leaders and members of both the Toeaina and Malae families, at least until some time after the 1973 survey was completed, and regardless of any Malae family use, again whether implicitly or expressly permissive, of areas within this portion of "Vaoto" for plantation or other purposes.

CONCLUSIONS OF LAW

1. Title to the portion of "Vaoto" shown in the 1989 survey is quieted as the communal land of the Toeaina family.

2. The Toeaina family is entitled to have the title to the portion of "Vaoto" shown in the 1989 survey registered by the Territorial Registrar as the communal land of the Toeaina family, in accordance with A.S.C.A. §§ 37.0101 et seq. The Territorial Registrar is directed to complete the title registration in such manner.

Judgment shall be entered accordingly.

It is so ordered.

**********

1. The 1987 survey was not introduced into evidence at the trial, but is included in the judicially noticed LT No. 34-87 file.

2. Except as noted below, the only structures on the disputed land prior to the construction of the 1977 house were Samoan style houses with thatched roofs used as shelters for plantation workers.

3. Documentation of this objection was not produced at the trial. Hence, it is not clear whether this objection was formally filed with the Secretary of Samoan Affairs or was only informally registered with Toeaina.

4. Seumaala controverted this statement in rebuttal testimony.

Kao Ya Fisheries Co.; Taiwan Simon Enterprises Co. v.


IN THE HIGH COURT OF AMERICAN SAMOA



TRIAL DIVISION



TAIWAN SIMON ENTERPRISES CO., LTD., ) CA No. 56-92

)

Plaintiff, )

)

v. ) ORDER DENYING MOTION

) TO DISMISS OR IN THE

KAO YA FISHERIES COMPANY, ) ALTERNATIVE TO QUASH

) SUMMONS

Defendant in Personam. )

_____________________________________)

)

TAIWAN SIMON ENTERPRISES CO., LTD., ) CA No. 70-92

)

Plaintiff, )

)

v. ) ORDER OF CONSOLIDATION

)

THE F/V KAO YA #3, Her Cargo, )

Freight, Equipment, Engines, Mast, )

Boats, Anchors, Cables, Chains, )

Rigging, Tackle, Furniture, and )

All Other Necessaries Appertaining )

to the Vessel, )

)

Defendant in Rem, )

)

and )

)

KAO YA FISHERIES COMPANY, )

)

Defendant in Personam. )

_____________________________________)



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



Counsel: For Plaintiffs, Afoa L. Su`esu`e Lutu

For Defendants, Togiola T. A. Tulafono

Defendant Kao Ya Fisheries Company has appeared specially in CA No. 56-92 for the purpose of moving the Court to dismiss that action or in the alternative to quash the summons on the grounds that the Court lacks jurisdiction over this defendant. This motion came on regularly for hearing on July 15, 1992. The Court, having considered the documents on file in CA No. 56-92 and counsel's arguments, finds that plaintiff has established a prima facie case of jurisdiction over defendant in this action in that:

1. Plaintiff's verified complaint alleges that defendant is doing business in American Samoa by owning four fishing vessels which have used or are using Pago Pago as their home port and has failed to pay plaintiff $438,644.77 for provisions and other operational requirements furnished by plaintiff, also doing business in American Samoa, to these vessels, from which it is reasonably inferred that some, and perhaps all, of the underlying transactions occurred in American Samoa.

2. Plaintiff's verified complaint further alleges that defendant is associated with two other business entities in American Samoa, which are under the supervision and control of two individuals, respectively, who are defendant's "local agents and directors."

Therefore, defendant Kao Ya Fisheries Company's motion to dismiss the complaint or in the alternative quash the summons in CA No. 56-92 is denied. Plaintiff must, of course, still establish jurisdiction over this defendant by a preponderance of the evidence before the end of the trial of this action.

At the hearing on this motion, the parties stipulated that in the event the Court denied the motion, CA No. 56-92 and CA No. 70-92 would be consolidated for all further proceedings. Therefore, these two actions are now consolidated.

It is so ordered.



Dated:____________________ __________________________

LYLE L. RICHMOND

Associate Justice







__________________________ __________________________

MATA`UTIA TUIAFONO LOGOAI SIAKI

Associate Judge Associate Judge

In re Matai Title “Tela”,


IOANE MALAGA, Claimant

v.

SAMUELU AOELUA, Counter-Claimant

[In re Matai Title "TELA" of the Village of Afono]

High Court of American Samoa
Land and Titles Division

MT No. 5-91

August 24, 1992

__________

A title candidate prevailed on the criterion of value to family, village, and country when he had first-hand experience with family affairs and broad rapport with other families on village affairs, as well as leadership ability demonstrated by overwhelming familial support.

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

Counsel: For Claimant, Togiola T.A. Tulafono

For Counter-Claimant, Afoa Moega Lutu

Ioane Malaga filed his claim to succession with the Territorial Registrar to be registered as the holder of the matai title "Tela" of the village of Afono. Samuelu Aoelua objected, seeking succession himself. In these matters, the Court is guided by the four criteria set out in A.S.C.A § 1.0409(c). (1) [22ASR2d46]

FINDINGS

I. Hereditary Entitlement

Ioane Malaga claims entitlement to the Tela title through his grandfather Tela Manu. He thus claims 25% in blood ties and hereditary entitlement. Samuelu Aoelua's hereditary claim is that his great-great grandfather was a Tela Fualaau. His claim, however, is strongly opposed by others in the Tela family. Tuato'o Tautalatasi, a member of the Tela family and ranking orator in his own right, testified that there was no tradition in family history about a Tela Fualaau.

We find in favor of Ioane Malaga with respect to this consideration; the evidence as a whole preponderates in favor of the conclusion that Ioane Malaga has the better hereditary claim to the title Tela. Samuelu Aoelua's blood claim is not without doubt; the claim is vigorously challenged from within the family. In any event, his asserted family connection, according to his own reckoning, is farther removed than candidate Malaga's.

II. Support of Clans

On this issue, we find that there are three traditional clans in the Tela family, namely, Taliamanu, Vaai, and Moli. We find that Ioane Malaga secured the support of the majority of the clans of the Tela family; he quite clearly secured the overwhelming weight of family opinion. On the other hand, the evidence showed that Samuelu Aoelua's support was, as best, that of his immediate family.

III . Forcefulness, Character, Personality, and Knowledge of Samoan Custom [22ASR2d47]

From our decision of the candidates and from the evidence presented, we find that the parties are roughly equal in these respects. Both candidates are similarly situated in terms of age, education, work experience, service to the church, and knowledge of Samoan custom (as well as a shared contempt for the law proscribing the use of non-registered titles). Neither rises notably above the other with regard to forcefulness, character, personality, and knowledge of Samoan customs.

IV. Value to the family, village and country

We find that each candidate is equal in service to the country. However, in terms of value to the village and family, we find that Ioane Malaga prevails over Samuelu Aoelua. Ioane Malaga's following withing the family gives him the edge for leadership capacity. It goes without saying that the ability to lead effectively entails the ability to secure a following. At the same time, Malaga has had first-hand experience with family affairs, having actively served for many years as the matai taule'ale'a (leading young man) of the Tela. In such capacity he has had a broad rapport with other families on village affairs. Samuelu Aoelua, while once upon a time active as the matai taule'ale'a for the Aoelua, has comparatively been involved with village matters to a lesser degree. We are of the opinion that candidate Ioane Malaga is better situated to not only promote the dignity and welfare of the Tela family, but also to interact with other families on matters of village concern. We conclude that Ioane Malaga prevails on this criterion.

CONCLUSIONS

On the foregoing, we hold that Ioane Malaga is qualified to hold the title Tela. He prevails over Samuelu Aoelua on the first, second and fourth criteria. The Territorial Registrar shall accordingly register the Tela title from the village of Afono in candidate Ioane Malaga, in accordance with the requirements of A.S.C.A. § 1.0409(b).

It is so ordered.

**********

1. This provision reads as follows:

In the trial of title cases, the High Court shall be guided by the
following considerations, in the priority listed:
(1) the best hereditary right, as to which the male and female
descendants are equal in families where this has been customary;
otherwise the male descendant prevails over the female;
(2) the wish of the majority or plurality of those clans in the family
as customary in that family;
(3) the forcefulness, character and personality of the persons under
consideration for the title, and their knowledge of Samoan customs;
(4) the value of the holder of the title to the family, village and country.

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 re Registration of the Matai Title
"ATIUMALETAVAI" of the village of Pago Pago]

High Court of American Samoa
Land and Titles Division

MT No. 9-91

September 10, 1992

__________

Although the High Court's matai-title decisions frequently include substantial comparative discussions of title candidates' qualifications under each of the four statutory criteria, the only legal requirement is a written decision containing findings of fact and conclusions of law on each of the four statutory criteria. A.S.C.A § 1.0409(C); T.C.R.C.P. 52(a).

As long as a matai-title candidate acts within his legal rights, he remains eligible for the title, even if he abuses the traditional selection process by a premature offer of registration which forces other candidates to object to protect their interests.

In regards to a candidate matai-title qualifications, American Samoa follows the traditional rule of determining domicile or permanent residency by the union of physical presence at a particular place and intent to indefinitely fix habitation there, frequently denoted as the place to which, when a person is absent, he or she intends to return.

The number of individual supporters among a family's clans does not establish a majority or plurality of clan support for a matai-title candidate but is only one factor indicating support in those clans.

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

Counsel: For Claimant, Afoa L.S. Lutu
For Counter-Claimant Suafala, Tauese P.F. Sunia
For Counter-Claimant Faoato, Gata E. Gurr
For Counter-Claimant Atoa, Aitofele T. Sunia [22ASR2d95]

Order Denying Motions for Reconsideration or New Trial:

The trial in this case was held on May 12-14, 1992, and resulted in the award of the matai title "Atiumaletavai" to claimant Tovea A. Taeleifi Galea'i Tupa'i (Tovea). The Court's opinion and decision was issued and filed on may 28, 1992. Each of the counter-claimants, Suafala Tavai (Suafala), Faoato Fua Tupua (Faoato) and Atoa S. Sipili (Atoa) have filed motions for reconsideration or new trial, respectively on June 1, 1992, June 8, 1992, and June 5, 1992. The motions were heard on June 30, 1992.

The motions have taken issue with the Court's decision and opinion with respect to each of the four criteria which the Legislature has prescribed and mandated for the Court's guidance in A.S.C.A § 1.0409. These criteria require consideration of the claimant's and counter-claimants' (1) hereditary right to the matai title; (2) support among the customary clans of the family as entities; (3) forcefulness, character and personality, and knowledge of Samoan customs; and (4) value as the titleholder to the family, village and country. In addition, Suafala has faulted the lack of extensive, comparative discussion of the title candidates' qualifications in the Court's opinion and decision, while Atoa has cited undue rapidity by Tovea in filing to register the title with the Territorial Registrar without allowing the family sufficient time to reach a consensus, and Faoato has questioned the legitimacy of Suafala's residency for purposes of holding a matai title. We will discuss all of these matters as may be necessary or appropriate to clarify or expand upon the Court's opinion and decision.

1. Comparative discussion of qualifications.

In taking up this issue, Suafala appears to be looking at the frequent but not universal approach in this Court's matai-title decisions to include substantial comparative discussions of the title candidates' qualifications under each of the four statutory criteria which must be considered. While this method can provide useful analysis to the reader of matai-title judicial decisions and was assiduously followed during the three days of deliberations undertaken by the judges in this case, the only legal requirement is a written decision containing findings of fact and conclusions of law on each of the four statutory criteria. A.S.C.A § 1.0409(c); see also T.C.R.C.P. 52(a). The Court's opinion and decision in this action complied with this requirement.

2. The offer of the title for registration. [22ASR2d96]

Atiumaletavai Kaleopa died in January 1991. Two family meetings about his successor did not result in a selection. In April 1991, following the second meeting, Tovea offered to register the title in her name with the Territorial Registrar, which triggered the statutory notice, objection and dispute-resolution procedures. In September 1991, after three hearings did not succeed in reaching an agreement on the successor titleholder, the Deputy Secretary of Samoan Affairs issued a certificate of irreconcilable dispute. Citing In re Matai Title "Le'iato", 2 A.S.R.2d 94 (1986), Atoa has criticized Tovea's offer ti register the title as an action taken without affording adequate time to allow the family to reach a consensus in due course on the successor and requiring her disqualification.

We concur with the Court's comments in Le'iato that too many matai titles are awarded by judicial process rather than by the family in accordance with traditional custom, and that the Legislature should consider legislation aimed at curbing the abuse of the traditional, matai-title selection process that can result from premature offers of registration, which force other candidates to object to protect their interests. However, contrary to Atoa's position on this issue, Le'iato does not stand for the proposition that a title candidate who acts within his or her legal rights but at the same time abuses the traditional selection process is disqualified. This is the very reason legislation to protect he custom would be beneficial. Moreover, in this case, the judges carefully weighed the evidence on the circumstances surrounding Tovea's offer to register the title for any adverse impact on her qualifications and found that there was ample opportunity for and manifested unlikelihood of a family consensus on the selection.

3. The residency qualification

Suafala lived and was employed outside of American Samoa for many years. He is now retired. His wife is non-Samoan, and he still owns a home in Hawaii, where his wife was living at the time of the trial. However, as Atiumaletavai Kaleopa's health was seriously deteriorating, he returned to American Samoa for the express purpose of establishing the residency required under A.S.C.A § 1.0404(a) as a prerequisite to holding a matai title. His return was more than one year before he objected to Tovea's claim to the title, and except for occasional visits with his family in Hawaii, he has remained here.

American Samoa follows the traditional rule of determining domicile or permanent residency by the union of physical presence at a [22ASR2d97] particular place and intent to indefinitely fix habitation there, frequently denoted as the place to which, when a person is absent, he or she intends to return. See A.S.C.A. § 6.0212 (election-code provisions). The Court deliberated on the evidence on this point as well and was, and still is, satisfied that Suafala is a bona fide resident for the purpose of qualification to hold this matai title.

4. The best hereditary right.

Efforts to state a universal rule as the standard used to evaluate the best hereditary-right issue have defied practical formulation. In re Matai Title "Sotoa", 2 A.S.R.2d 15 (1984), sought this objective by rejecting the notion that every titleholder established a new line of heredity in favor of the conceptually logical and fair concept that blood lines should be traced from the original titleholder. TheSotoa rule soon ran into practical difficulties in application, usually when there have been divergent views on the identity of the original titleholder or successors to that title. Examples are In re Matai Title "Le'iato", 2 A.S.R.2d at 94-95; In re Matai Title "La'apui", 4 A.S.R.2d 7, 7-8 (1987); and In re Matai Title "Fano", 4 A.S.R2d 148, 148-49 (1987). At the opposite end of the spectrum is the realistic view that recognizes that any rule of general principle may not only be impractical but also not in accord with a particular family's traditions, and thus, that any given case may require a distinctly different approach. See In re Matai Title "Fano", 4 A.S.R. 2D AT 149; In re Matai Title "Tauaifaiva", 5 A.S.R.2d 13, 15 (1987).

In this case, Suafala has advocated use of the pre-Sotoa rule favoring the candidate with the highest percentage of blood relation to any previous titleholder. As the only candidate who is the offspring of a titleholder, the application of this rule gives him an advantage on this issue. The other three candidates have generally urged reference to a common ancestor, on whose identity the four candidates agree, who although not a holder of the title was a direct descendant of the original titleholder through several generations. Each of the four candidates is a fifth generation descendant of this common ancestor. Thus, the result is equality of hereditary right among them. Whether or not this reference to a common ancestor is a true family tradition, it is in fact only a variation and practical application of the Sotoa rule, which the Court is following in this case. Hence, none of the candidates prevails on this issue.

On this issue, Atoa also asserted that Tovea must be excluded from the equality of hereditary right found by the Court, based on the [22ASR2d98] language of A.S.C.A § 1.0409(c)(1) stating, in essence, that a male descendant prevails over a female descendant unless family custom treats both genders equally in matai-title matters. However, again the Court has considered the evidence on this point and has found, and continues to find, that females are not excluded from holding the title within the traditions of this family.

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

The troublesome area of this criterion has been a lack of a clear definition to enable identification of the clans of a family. It has been said that clans are established by the children of the original titleholder who marry and have offspring, a logical corollary of the Sotoa rule on hereditary rights. In re Matai Title "Sotoa", 2 A.S.R.2d at 15-16. However, again there is the view that clans are best determined by the traditions of the family in each case. In re Matai Title "Tauaifaiva", 5 A.S.R.2d at 15.

The evidence in this case shows that the original titleholder had only one child, who in turn had four children. Each of these four children had children, but only one of the four children had descendants who are traced by the evidence beyond themselves to modern times. The evidence also shows that there are three distinct families which result from the common ancestor, who has been identified for hereditary-right purposes, and which are clearly active in present-day family affairs and are recognized as Atiumaletavai clans for decision-making purposes. Thus, the Court has accepted these three families as the customary clans for purposes of this case.

The Court's reference in the opinion and decision to the number to Tovea's individual supporters among at least two of these three clans is not properly interpreted as establishing a majority or plurality of the clan support, as the present motions suggest, but only as indicative of her support in those two clans as distinguished to the support in those clans for the other candidates. As In re Matai Title "Fano", 4 A.S.R.2d at 150, indicates, the numbers are properly considered, but only as one factor evidencing clan support.

Further review of the evidence on this issue has convinced the Court that there has been significant support among the members of the one or more of the three present-day clans for each of the candidates, but there is no satisfactory evidence of genuine or full support by at least two of these clans for any of the candidates, and certainly none by the family, [22ASR2d99] considered as a single clan descended from their common progenitor as the son of the original titleholder.

Application of the standard on this criterion also produces no clearly prevailing candidate having a majority or plurality of clan support, and the finding of fact on this issue in the Court's opinion and decision is so modified.

6. The third and fourth criteria.

The standards applicable to the third criteria on forcefulness, character and personality, and knowledge of Samoan customs, and to the fourth criteria on value to family, community and country are adequately stated by their statutory descriptions. The present motions do not establish any convincing basis for different findings of fact on either of these issues.

7. Conclusions.

Since Tovea clearly remains the superior candidate on the last two criteria and the findings of fact on the first two criteria as modified will not change this result, the motions for reconsiderations, except for the change in the finding of fact on the clan-support criterion, or new trial are denied.

It is so ordered.

**********

Amisone v. Talaeai,


ÿWPCá  *(› dØëÑ£Dce!'xq„χ¶ãÂzýxh°D }xEy‘(Xa —_ãªÿ-v5j6Y¨ÖÍj|.¯Z;K” ¶â,ÁÃq®ÏÇ(ñ­)¡À!®Ò =Av䃳±‰ÜB8-Á[ˆ|Ñn 0Ѩøx¼²¾¸µò¾Itf€×n¹=FNW´‚"!Mš]4?•¥ Ž´!œ ÆIwF>{@×îîòÕbÔ¹'»õ‡KÓ!d€ð<1@íâ^÷ÇŸ›«²pUÍÜ^UË–gÛø âCVcJiÊ„=ûvBæáV½ô=5Àُ©(ž9² 0à Í mÍ#ÁäUN¥ %óNù ~û¶y D-/U>\^ šw¦4ª¾ÍpÏ?¢?(›Å©$¡¡ÔUSUS.,ÔÓK€ (€X°KÓÔ€ XîXXXÔÔ€ XîXXXîÔƒ`À€€€ÿÿÿ˜0&Öd9 Z‹6Times New Roman RegularX ˜C:\PROGRA~1\Corel\WORDPE~1\Template\CUSTOM~1\Web\wp9web.wptC:\Program Files\Corel\WordPerfect Office 2000\Template\Custom WP Templates\Web\wp9web.wpt)!ÈÈÈÈdxdx&Öd9 Z‹&Times New Romanz!ž,L Ÿn,ê:i¢×+003|xC:\PROGRA~1\Corel\WORDPE~1\template\CUSTOM~1\poplar.gifpC:\PROGRA~1\Corel\WORDPE~1\template\CUSTOM~1\poplar.gifC:\Program Files\Corel\WordPerfect Office 2000\template\Custom WP Templates\poplar.gif8Ï Ø.wéDwé,°ÑJ¬?$Ï\R¬?$ÏàU·`ÔúO¬? é€YˆàΰÔ}qÝsÜo àU·Øo Øo Øo Ý ƒÅ©!ÝÔUSUS.,ÔÓK€ (€XKÓÔ€ XîÌXXXÔÔ€ XîÌXX XîÌÔÝ  ÝÔ_ÔÓ  Óò òÔ_ÔESEROMAÔ_Ô€Ô_ÔAMISONEÔ_Ô,€Individually€and€as€Administrator€Ð ÜÜ Ðfor€the€Estate€of€Ô_ÔFILIPOÔ_Ô€Ô_ÔAMISONEÔ_Ô,€Deceased,€Ð ÖÖ Ðand€Ô_ÔFETAOMIÔ_Ô€Ô_ÔAMISONEÔ_Ô,€Plaintiffs,€Ð ÐÐ Ѐ€€€€€€€€€€€€v.Ð ¦¦ ÐÔ_ÔKERISIANOÔ_Ô€Ô_ÔTALAEAIÔ_Ô,€HERBERT€BOAT,€Ð || ÐINSURANCE€COMPANY€OF€THE€€PACIFIC,€and€DOES€I-X,€Ð vv ÐDefendants.Ð pp ÐHigh€Court€of€American€SamoaÐ F F  ÐTrial€DivisionÐ @ @  ÐCA€No.€84-91Ð    ÐAugust€26,€1992ó óÐ ìì  Ð__________Р  ÐÓ  Óò òA€motion€for€summary€judgment€against€a€defaulting€party€is€inappropriate€when€the€civil„procedure€rules€expressly€provide€forÐ ˜˜  Ða€motion€for€default€judgment,€which€is€designed€to€minimize€injustice€to€non„appearing€parties.€Fed.€R.€Civ.€P.€55,€56;Ð ’’  ÐÔ_ÔT.C.R.C.P.Ô_Ô€55,€56.ó óÐ ŒŒ ÐBefore€RICHMOND,€Associate€Justice,€Ô_ÔTAUANUÔ_Ô`U,€Chief€Associate€Judge,€and€Ô_ÔLOGOAIÔ_Ô,€Associate€Judge.Ð bb ÐÐ ÐCounsel:€€For€Plaintiffs,€John€L.€Ward€IIÐ VV Ѐ€€€€Plaintiffs€brought€this€action€in€tort€for€the€death€of€Ô_ÔFilipoÔ_Ô€Ô_ÔAmisoneÔ_Ô,€the€son€of€plaintiffs€Ô_ÔEseromaÔ_Ô€and€Ô_ÔFetaomiÔ_Ô€Ô_ÔAmisoneÔ_Ô,€as€a€passenger€inÐ ,, Ða€one-vehicle€accident€against€the€driver,€owner€and€insurer€of€the€vehicle,€respectively,€defendants€Ô_ÔKerisianoÔ_Ô€Ô_ÔTalaeaiÔ_Ô,€Herbert€Boat€andÐ && ÐInsurance€Company€of€the€Pacific.€€The€action€has€been€settled€with€defendants€Boat€and€Insurance€Company€of€the€Pacific.€€DefendantÐ    ÐÔ_ÔTalaeaiÔ_Ô,€who€has€been€convicted€of€the€crime€of€homicide€by€vehicle€in€violation€of€Ô_ÔA.S.C.A.Ô_Ô€ðð€22.0706€in€connection€with€the€accident,€hasÐ  Ðnot€filed€an€answer€in€this€action.€Plaintiffs€have€moved€for€a€partial€summary€judgment€on€the€issue€of€defendant€Ô_ÔTalaeaiÔ_Ô's€liability€and€haveÐ  Ðrequested€a€hearing€to€establish€the€award€of€damages.€€The€motion€was€heard€on€July€10,€1992.€€ò ò[22ASR2d52]ó óÐ  Ѐ€€€€On€July€21,€1992,€plaintiffs€filed€a€motion€for€reconsideration,€new€trial€or€hearing,€and/or€amended€judgment.€€The€hearing€on€thatÐ ä ä  Ðmotion€on€August€10,€1992€prompts€the€issuance€of€this€amended€order€to€correct€a€typographical€error€in€citing€a€nonexistent€subsectionÐ Þ!Þ! Ð(b)(1)€of€Ô_ÔT.C.R.C.P.Ô_Ô€Rule€55€and€an€inaccurate€statement€in€the€discussion€on€the€procedural€requirements€of€that€rule.€€Defendant€Ô_ÔTalaeaiÔ_ÔÐ Ø"Ø" Ðfirst€appeared,€by€attorney€Ô_ÔGataÔ_Ô€E.€Ô_ÔGurrÔ_Ô,€at€the€hearing€of€this€motion,€the€substantive€disposition€of€which€will€be€addressed€in€a€separateÐ Ò#Ò# Ðorder.Ð Ì$Ì$ Ѐ€€€€Since€the€motion€for€partial€summary€judgment€has€been€made€under€default€circumstances,€the€Court€first€considers€whether€or€not€suchÐ ¢&¢& Ða€motion€under€Ô_ÔT.C.R.C.P.Ô_Ô€Rule€56,€instead€of€a€motion€for€default€judgment€under€Ô_ÔT.C.R.C.P.Ô_Ô€Rule€55,€is€appropriate.Ð œ'œ' Ѐ€€€€We€look€to€the€Federal€Rules€of€Civil€Procedure€for€guidance.€Ô_ÔA.S.C.A.Ô_Ô€ðð€43.0201(a).€€Ô_ÔT.C.R.C.P.Ô_Ô€Rule€56€and€F.R.C.P.€Rule€56,Ð r)r) Ðwhich€are€identically€worded,€do€not€expressly€prohibit€a€motion€for€summary€judgment€against€a€party€in€default.€€However,€beforeÐ l*l*  Ðamendment€in€1948,€F.R.C.P.€Rule€56€did€prevent€a€motion€for€summary€judgment€until€the€defendant's€answer€was€served.€€This€changeÐ f+f+! Ðwas€not€intended€to€broaden€the€scope€of€circumstances€under€which€a€motion€for€summary€judgment€is€appropriately€made,€but€to€curtailÐ `,`," Ðdilatory€defense€tactics€by€delaying€service€of€the€answer.€€C.€Wright,€A.€Miller,€and€M.€Kane,€10€Federal€Practice€and€Procedure:€Civil€2dÐ Z-Z-# Ððð€2711€(1983).Ð T.T.$ Ѐ€€€€It€would€also€be€inconsistent€to€permit€a€motion€for€summary€judgment€in€a€default€situation€when€both€sets€of€civil€procedure€rulesÐ *0*0% Ðexpressly€provide€for€a€motion€for€default€judgment.€Ô_ÔT.C.R.C.P.Ô_Ô€Rule€55€and€F.R.C.P.€Rule€55.€€Again,€the€general€historical€use€ofÐ $1$1& ÐF.R.C.P.€Rule€56€in€practice€has€been€when€all€parties€affected€by€the€proposed€summary€judgment€have€at€least€appeared€in€some€mannerÐ 22' Ðin€the€action.€€See€the€discussion€in€C.€Wright,€A.€Miller,€and€M.€Kane,€10€Federal€Practice€and€Procedure:€Civil€2d€ðððð€2712,€2716€andÐ ÜÜ Ð2717€(1983).Ð ÖÖ Ѐ€€€€Lastly,€from€the€perspective€of€the€territorial€civil€procedure€rules,€extension€of€a€motion€for€summary€judgment€to€default€situationsÐ ¬¬ Ðwould€tend€to€reduce,€if€only€by€inertia,€the€use€of€discretionary€evidentiary€hearings€which€are€expressly€authorized€and€customarily€heldÐ ¦¦ Ðunder€Ô_ÔT.C.R.C.P.Ô_Ô€Rule€55(b),€in€addition€to€the€unique€requirement€of€serving€the€defaulting€party€with€notice€of€the€motion€for€defaultÐ    Ðjudgment,€which€is€not€required€with€respect€to€Ô_ÔnonappearingÔ_Ô€parties€under€F.R.C.P.€Rule€55(b)(1).€€While€service€of€a€notice€of€a€motionÐ šš Ðfor€summary€judgment€ò ò[22ASR2d53]ó ó€is€required,€evidentiary€hearings€are€not€mentioned€in€and€are€rarely€held€under€Ô_ÔT.C.R.C.P.Ô_Ô€Rule€56.Ð ”” Ѐ€€€€Proceedings€to€expeditiously€conclude€litigation,€when€appropriate,€are€useful,€and€both€summary€judgment€and€default€judgmentÐ j j  Ðproceedings€serve€that€worthy€objective€well.€€If€summary€judgment€proceedings€are€restricted€to€actions€in€which€the€parties€to€the€motionÐ d d  Ðhave€appeared,€those€parties'€interests€are€inherently€protected.€€The€importance€of€using€default€judgment€proceedings€in€default€situationsÐ ^ ^  Ðis€to€regularize€judicial€scrutiny€in€such€cases€to€minimize,€if€not€entirely€avoid,€injustices€to€Ô_ÔnonappearingÔ_Ô€parties€that€may€otherwiseÐ X X  Ðoccasionally€happen.€€It€is€better€practice€in€this€jurisdiction€to€maintain€this€clear€dichotomy€between€summary€and€default€judgmentÐ R R  Ðproceedings.€€Ð LL  Ѐ€€€€For€these€reasons,€we€deny€plaintiffs'€motion€for€partial€summary€judgment.€€Plaintiffs€can,€of€course,€proceed€by€way€of€a€motion€forÐ ""  Ðdefault€judgment.Ð  Ѐ€€€€It€is€so€ordered.Ð òò Ð(Dated€as€of€July€15,€1992.)Ð ÈÈ ÐÓ  Ó**********Ð žž ÐÓÓ

Amerika Samoa Bank v. Adams,


AMERIKA SAMOA BANK, Plaintiff

v.

BILL ADAMS and QUALITY FURNITURE, Defendants

and

PACIFIC ISLAND MANUFACTURING COMPANY, 
INC., Garnishee

High Court of American Samoa
Trial Division

CA No. 109-89

August 17, 1992

__________

Shareholders' immunity for corporate debts is absolute unless circumstances justify disregarding the corporate entity to prevent abuse of corporate privileges by an individual or another corporation having domination or control; in such cases, the issue is whether limiting corporate privileges will accomplish justice and defeat fraud or other unfairness in a court's resolution of the issues before it. A.S.C.A. § 30.0114(6).

The court found that a corporation was the alter ego of an individual and its assets subject to garnishment when the totality of the circumstances showed that this individual dominated and controlled the corporation and was its real owner. A.S.C.A. § 43.1811(a).

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

Counsel: For Plaintiff, William H. Reardon
For Defendant Bill Adams, Pro Se

Judgment Against Gamishee and Modification of Original Judgment:

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

Counsel: For Plaintiff, William H. Reardon
For Defendants, Bill Adams Pro Se
For Garnishee, Pro Se

Plaintiff is presently seeking a judgment in the sum of $7,115.35 in this action against the garnishee pursuant to the garnishment laws of American Samoa, A.S.C.A. §§ 43.1801 et seq. Plaintiff's application for an order to show cause for this purpose and affidavit in support of issuance of the order were filed on May 5, 1992. The order to show cause was issued on May 6, 1992, and an evidentiary hearing was held [22ASR2d39] on May 20, 1992 as scheduled. Bill Adams (Adams) and Saipai Adams (Saipai), his wife, appeared and testified.

FINDINGS OF FACT

On May 27, 1987, Adams signed a promissory note on behalf of Quality Furniture, which is a domestic American Samoa corporation fully named Quality Furniture Manufacturing, Inc., in the principal sum of $12,441.26, with interest at the rate of 12% per annum on the decreasing balance of the principal, payable to the Amerika Samoa Bank (the Bank) in 48 monthly installments of $327.63 each, on the 27th day of each month beginning on June 27, 1987. The principal sum represented the combined balance of two loans by the Bank to Quality Furniture. Payments on the promissory note were made sporadically, the first one on July 15, 1987, and the last one on February 21, 1989.

On December 15, 1989, the Bank commenced this action against Adams and Quality Furniture for damages on default of the unpaid amount of the promissory note in the sum of $6,028.07, plus prejudgment and postjudgment interest, costs of suit, and attorney's fees. Following trial on August 1, 1990, at which Adams did not appear, the Bank was awarded judgment against Quality Furniture. The written judgment, issued on August 7, 1990, is in the principal amount of $6,028.07, plus prejudgment interest of $390.43, attorney's fees of $641.85, and costs of $55, a total of $7,115.35.

The Bank served a notice of garnishment on the Bank of Hawaii on June 17, 1991, which did not reveal any property belonging to Adams or Quality Furniture in the Bank of Hawaii's possession or debts due to Adams or Quality Furniture by the Bank of Hawaii.

The Bank then served Adams with interrogatories in aid of judgment on August 28, 1991, which were returned on October 1, 1991 with Adams' unsigned answers. In one answer, Adams stated that he was a consultant to Pacific Island Manufacturing and was paid $200 on the 5th and 20th of each month, a total of $400 per month.

The Bank next served Pacific Island Manufacturing with a notice of garnishment on April 7, 1992. The interrogatories were answered and signed by Saipai, and were filed with the Court on April 24, 1992. In one answer, Saipai stated that Adams "is not an employee or owner, partner, officer or any other of Pacific Island Mfg. Inc." The Bank followed with this proceeding for a judgment against the garnishee. [22ASR2d39]

Pacific Island Manufacturing was incorporated as a domestic American Samoa corporation on June 27, 1986, with its principal place of business in Nu`uuli, American Samoa. Saipai is one of the three incorporators. According to Saipai, the present shareholders or owners and managing Directors of the corporation are her sister and brother and herself. She is also the President of the corporation, but does not recall when she took office. The last meeting of the Board of Directors was in 1991, but she is uncertain which Directors attended the meeting.

Saipai states emphatically that Adams has nothing, and never had anything, to do with Pacific Island Manufacturing's business affairs. However, there are numerous significant indications to the contrary. One of Pacific Island Manufacturing's main business activities is selling furniture. Adams has been in the furniture business for some 32 years. This experience includes the operation of Quality Furniture in American Samoa, which he closed down in 1986, after a judgment of $40,000 in damages was rendered against him and Quality Furniture by this Court. He claims that he was tired of and experiencing burn-out from the furniture business. Pacific Island Manufacturing commenced business operations the same year. Both Adams and Saipai, his wife of 10 years, admit that her knowledge of the furniture business was gained from him.

Pacific Island Manufacturing also operates a tour and travel agency, doing business as "Pacific Island Tour & Travel." For this activity, it registered with the American Samoa Government's Territorial Registrar in 1986, after Pacific Island Manufacturing was incorporated, a seven-day tour itinerary in American Samoa, including a daily schedule of events, as its purported "sole and exclusive property." This registered document is signed by Adams. He states that he was running the tour and travel operation for Saipai in 1986.

Saipai's knowledge of Pacific Island Manufacturing's business, as well as business matters generally, is largely superficial. In addition to her vagueness on formal corporate affairs noted above, she does not know the amount of the original investment in the corporation, which came from funds provided by her parents, or the amount invested in the beginning inventory of the business. She also did not recognize a number of technical English terms for furniture items when she was questioned about them, although this may be attributable in part to a lack of familiarity with this terminology.

More significantly, while she runs the store and at times consults with her sister and brother, she looks to Adams for advice on business [22ASR2d40] matters. As specific examples, she answered the interrogatories to garnishee after discussing the questions asked with Adams; and Pacific Island Manufacturing's tax returns are prepared by an accountant, but she signs them only after discussing the returns with Adams. The company's business premises are located on land that Quality Furniture leases, under a lease signed by Adams, and in turn subleases to Pacific Island Manufacturing.

Saipai left American Samoa in the early part of September 1991 and returned from California in February 1992. According to Adams, he looked after Pacific Island Manufacturing's business affairs and was paid $400 per month as a consultant for his oversight services, during the first two months or so of his wife's absence. He continued to provide these services without any compensation after Hurricane "Val" struck American Samoa in the early part of December 1991 causing extensive damage to the furniture inventory at Pacific Island Manufacturing's store. The inventory damage made it necessary for Saipai to stay in California longer than intended to replace the damaged items. On-hand replenishment of the inventory was accomplished in February and March of this year.

Adams went on to explain that Saipai's continued absence required him to submit to the Government in December 1991 two business license renewal applications for calendar year 1992 on behalf of Pacific Island Manufacturing. One of these applications was for the furniture business, while the other was for the tour and travel agency operation. Adams signed both applications as the Manager of Pacific Island Manufacturing.

Saipai stated that Adams is not now receiving any money from Pacific Island Manufacturing, and that she is the sole signatory on the company's bank account. She professed that she has no knowledge about Adams' remunerative activities or any debts he may have.

Adams stated that he has no financial interest in Pacific Island Manufacturing, and that his only present business activity, which began a few months ago, is in wholesale produce, dealing with a company in Los Angeles. He also stated that his only present indebtedness, except to his parents, is the one to the Bank involved in this action.

DISCUSSION
[22ASR2d41]

The ultimate resolution of the present proceedings in this action depends upon the application of A.S.C.A. § 43.1811(a), which reads in pertinent part as follows:

43.1811 Judgment.
(a) If it is made to appear that the garnishee
was indebted to the defendant or had any of his
property in his hands at the time of being served
with the notice of garnishment, the garnishee
shall be liable to the plaintiff . . . to the full 
amount of the judgment, or to the amount of such
indebtedness or property held by the garnishee.

The application of this statute in this case in turn requires analysis of the sequential relationship of Quality Furniture and Pacific Island Manufacturing and Adams' relationship to both corporations.

The Bank's underlying judgment in this action is only against Quality Furniture as a corporation. Judgment was not awarded against Adams. The fundamental purpose of incorporating is to create a legal entity having an existence separate from that of its shareholders and thereby exempting the shareholders' property from corporate debts. The corporation laws of American Samoa recognize this purpose. A.S.C.A. §30.0114(6). This immunity is absolute unless there are circumstances justifying disregard of the corporate entity to prevent abuse of corporate privileges either by one or more individuals or by another corporation. B.E. Witkin, 9 Summary of California Law, Corporations § 12(1) at 524-25 (Bancroft-Whitney Co., 9th ed. 1989). In such cases, the issue is not whether the corporate entity should be disregarded for all purposes, but whether limiting corporate privileges will accomplish justice and defeat fraud or other unfairness in resolving the particular issues before the court. Id. § 12(2) at 525.

It must be shown that the corporation is dominated or controlled by one or more individuals or another corporation. As stated in Minifie v. Rowley, 187 Cal. 481, 202 P. 673, 676 (1921), domination or control in this context means:

Before the acts and obligations of a corporation can be legally 
recognized as those of a particular person, and vice versa, the 
following combination of circumstances must be made to appear: 
First, that the corporation is not only influenced and governed
by that person, but [22ASR2d43] that there is such a unity of 
interest and ownership that the individuality, or separateness, 
of said person and corporation has ceased; second, that the facts
are such that an adherence to the fiction of the separate existence 
of the corporation would, under the particular circumstances, 
sanction a fraud or promote injustice."

The totality of the circumstances set forth above and the manner in which Adams and Saipai testified provide ample basis to find, and we do find, that in reality Adams was, and still is, the dominating force in control of both corporations and their alter egos. We further find from these circumstances that Adams is the dormant but nonetheless real owner of Pacific Island Manufacturing, whether or not his equity interest is shared in some manner with Saipai or any other persons. See Nelson v. Tarman, 163 Cal. App. 2d 714, 329 P.2d 953 (1958). The creation of Pacific Island Manufacturing simultaneously with the operational demise of Quality Furniture were Adams' means of relieving the financial pressures on Quality Furniture and continuing the same business afresh in an ostensibly different format as Pacific Island Manufacturing. While not defrauded outright, the Bank was clearly the object of unfairness. These findings lead us to recognize that the acts and obligations of Quality Furniture are also those of Adams and Pacific Island Manufacturing, as both corporations are Adams' alter egos.

In light of the present finding of Adams' alter ego relationship with Quality Furniture, the judgment in this action excluding Adams as a judgment debtor needs reconsideration. The alter ego issue was not raised during the trial of this action. Hence, this Court then had no basis to look behind the protective corporate clothing of Quality Furniture. Now that Adams' alter ego relationship with Quality Furniture has been found to exist, it is apparent that the judgment in this action requires amendment to designate the correct judgment debtors. An amendment of this nature is proper whenever the necessity becomes evident during proceedings after the judgment, so long as there was jurisdiction over the omitted defendant at the time of trial. Thomson v. L.C. Roney & Co., 20 Cal. App. 2d 456, 246 P.2d 1017 (1952).

At this point, we take note that A.S.C.A. § 43.1812 precludes a judgment against a garnishee unless the principal defendant, or in this case judgment debtor, has had seven days' notice of the garnishment proceedings and a marshal's return of that notice is of record. There is a marshal's return showing service of the writ of garnishment and related documents on Adams as Pacific Island Manufacturing's [22ASR2d44] manager on April 7, 1992, 52 days before the hearing on the order to show cause. The order to show cause was served on Saipai on May 7, 1992, 13 days before the order to show cause hearing. Adams did testify at the order to show cause hearing, and clearly, he had more than seven days' notice of that hearing. However, there is no marshal's return showing service of the order to show cause on Adams or Quality Furniture.

The purpose of A.S.C.A. § 43.1812 is to ensure that the principal defendant has adequate opportunity to participate and protect his property interests in proceedings against a garnishee allegedly indebted to or holding property of the defendant. Notice of the order to show cause hearing or other evidentiary proceeding is particularly important in this respect and is the object of the marshal's return required under A.S.C.A. § 43.1812.

In this case, however, in view of Adams' actual participation in the order to show cause hearing and alter ego relationship with Pacific Island Manufacturing and Quality Furniture, the marshal's return of service of the order to show cause on Saipai is substantial compliance with the requirement of a marshal's return of service on Adams and Quality Furniture.

CONCLUSIONS OF LAW

1. The Amerika Samoa Bank is entitled to a judgment against garnishee Pacific Island Manufacturing Company, Inc. in the sum of $7,115.35, plus interest at the rate of 12% per annum from August 1, 1990.

2. The Bank is entitled to a judgment against defendant Bill Adams individually, in addition to defendant Quality Furniture, on the underlying promissory note, dated May 27, 1987, in the sum of $7,115.35, nunc pro tunc to August 1, 1990, and the judgment, which was awarded on August 1, 1990 and signed on August 7, 1990, is so modified.

Judgment shall enter accordingly.

It is so ordered.

**********

Vaimaona v. Tuitasi,


VAIMAONA FOLOI, ARIETA VAIMAONA,
LAU LAGIMA VAIMAONA, and TAU FUIAVA VAIMAONA,
for Themselves and on Behalf of the VAIMAONA FAMILY
of LAULI'I, Plaintiffs

v.

FA'AMAMAFA TUITASI, Defendant

High Court of American Samoa
Land and Titles Division

LT No. 18-88

July 1, 1992

__________

Because failure to meet statutory notice requirements can deprive family members of an adequate opportunity to object to the registration of title, compliance with the statutory notice requirements for registrations of title is an essential feature of the registration process. A.S.C.A. §§ 37.0101 et seq.

Recordation of a genuine copy of a deed is permitted under certain circumstances, as being similar to the evidentiary admission of a copy of an instrument as an exception to the best- evidence rule. R.O.E. 1002, 1003, 1004(1).

Regarding proposed land transfers, for which the Land Commission must provide the Government wiih recommendations, the Land Commission should hold public hearings and must give reasonable notice of its deliberations to interested persons, regardless of the forum selected to "study" proposed transactions.

Before RICHMOND, Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge.

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

Findings of Fact, Conclusions of Law, and Order on Remand:

The trial in this action was held on June 28, 1989, and the decision was issued on August 28, 1989. The issue of fraud in connection with the conveyance of a certain portion of the communal land of the Vaimaona family by plaintiff Vaimaona Foloi as the sa`o or senior matai of the family to defendant Fa`amamafa Tuitasi as her [22ASR2d2] individually owned land was the focus of the trial proceedings. The trial court determined that there was no fraud in fact, the Samoan custom of family consultation on major decisions was not a requirement of law in land transfer transactions, the conveyance was completed in compliance with the provisions of A.S.C.A. §§ 37.0201 et seq. concerning alienation of land, and the registration of the title to the land was done in accordance with the provisions of A.S.C.A. §§ 37.0101 et seq. For these reasons, the action was dismissed.

Plaintiffs' motion for a new trial was filed on September 7, 1989. The motion was heard on September 25, 1989, and the trial court's decision on the motion was issued on December 12, 1989. The trial court discussed at length the procedural irregularities raised by the motion, particularly with respect to notice requirements, in the title registration process of the land in question under A.S.C.A. §§ 37.0101 et seq. However, the trial court upheld the validity of the conveyance under A.S.C.A. §§ 37.0201 et seq., and on that basis, considered any procedural deficiencies in the title registration process moot for purposes of this action. Thus, the motion was denied.

Plaintiffs' appeal was noticed on December 14, 1989, and the appellate decision, addressing two issues, was handed down on March 12, 1991. The appellate court upheld the trial court on the issue of family consultation. However, it disagreed with the trial court's decision to effectively quiet title to the land in Tuitasi when the record below clearly evidenced irregularities, broadly described as the notice issue, regarding the registration of the title to the land and possibly the recordation of the deed transferring the land to Tuitasi. Hence, this action was remanded to the trial court for an evidentiary hearing and further findings of fact and conclusions of law on the notice issue. This evidentiary hearing was held on April 24, 1992.

FINDINGS OF FACT

The Territorial Registrar of the American Samoa Government, who did not testify at the trial contrary to the usual practice in actions involving titles to land, testified at the evidentiary hearing. Based on the testimony of the Territorial Registrar and other witnesses at the hearing, together with the records in the trial and appellate files in this action, the Court finds as follows:

1. The land at issue is situated in Aumi, which is a part of the Village of Lauli`i, American Samoa.[22ASR2d3]

2. On November 7, 1977, Luaitaua Pele, the Pulenu`u or Mayor of Lauli`i, gave public oral notice in the Village at a meeting of the chiefs thereof of the time and place of the survey of the land. The survey was made by a Government surveyor and, on November 18, 1977, was approved for registration by the Manager of the Government's Survey Branch. The Surveyor and Pulenu`u Certificate, showing compliance with the requirements set forth in A.S.C.A. § 37.0102, was signed on December 20, 1977.

3. On January 19, 1978, Vaimaona Foloi offered the land for registration with the Territorial Registrar as the communal land of the Vaimaona family. The Notice for Proposed Registration of Land was posted from January 20, 1978 through March 21, 1978 in front of the Court House and on two telephone poles in Aumi, as certified by the Affidavit of Posting issued by the Territorial Registrar on March 27, 1978. No objections to the proposed registration were received during the posting period. The land was then registered by the Territorial Registrar as the communal land of the Vaimaona family.

4. Vaimaona Foloi executed a warranty deed, dated as of December 23, 1977 and delivered on April 11, 1978, conveying the land to Tuitasi as her individually owned land. The trial court found that at some point between April 11, 1978 and August 6, 1987, the original of the deed was lost or destroyed, and that the disappearance was a result of Arieta Vaimaona's unsuccessful efforts to complain about the conveyance to various Government officials and not due to any act of bad faith by Tuitasi.

5. On August 6, 1987, Tuitasi filed a copy of the deed with the Territorial Registrar for registration. Since she was not acting immediately upon an attorney's advice at that point, we find that she was generally aware of the land registration requirements and intended to comply with those requirements. On the same day, the Territorial Registrar, in his capacity as the Secretary of the Land Commission, issued the Commission's notice of the filing and prospective forwarding of the deed to the Governor for approval or disapproval, and setting September 8, 1987 as the deadline for filing objections with the Secretary. This initiated the process for registration or recordation of the deed pursuant to A.S.C.A. §§ 37.0201 et seq. The notice was posted in front of the Court House and on two telephone poles in the Village of Lauli`i from August 6, 1987 through September 8, 1987, a period of 34 days. The Affidavit of Posting issued by the Territorial Registrar certifies the places and period of posting, but was signed on August 6, 1987, before rather than after the posting period was completed. [22ASR2d4]

6. The Land Commission considered this land transaction on September 28, 1987. Vaimaona Foloi twice participated in the hearing before the Commission. Although it is not entirely clear whether his two appearances were on the same day or different days, the Commission's deliberations were concluded and its recommendation for approval of the conveyance was forwarded to the Governor on September 28, 1987.

7. The Governor appended his approval of the conveyance on the copy of the deed on October 20, 1987. On the same day, the Territorial Registrar registered the transaction in the Register of Land Transfers.

8. The Territorial Registrar's Certificate of Registration form is used to certify both registrations of title under A.S.C.A. §§ 37.0101 et seq. and recordations of transfer documents under A.S.C.A. §§ 37.0201 et seq. As the trial court indicated, the Certificate issued in this transaction is somewhat ambiguous. It clearly registers or records the deed itself. It also refers to registration as Tuitasi's "individually-owned land." The Registrar testified that when a deed seeks to change the status of land from communal land to individually owned land, the practice is to provide the required 60 day notice period before the Land Commission's hearing is held. However, with a posting period of only 34 days, 60 day notice for the purpose of title registration under A.S.C.A. §§ 37.0102 et seq. was not afforded in this case.

CONCLUSIONS OF LAW

Based on the foregoing findings of fact, and addressing in particular the issues of notice raised by the appellate court, the Court concludes as follows:

1. The appellate court rightly points out that compliance with the statutory notice requirements for registrations of title under A.S.C.A. §§ 37.0101 et seq. is an essential feature of the registration process. The importance of proper notice is graphically illustrated in this action in view of the sa`o's failure to follow the custom of family consultation before he deeded the land to Tuitasi. Notice then becomes the only means by which interested family members have an opportunity to voice objections to proposed title registrations, which is particularly important when communal land is proposed to be registered as individually owned land. [22ASR2d5]

Details of posting become very significant. Posting at non-obvious locations, or in an area outside the village in which or nearest to which the land is situated, or for less than the mandated posting period can deprive family members of adequate opportunity to object to the registration of title. The customary official Government affidavit of posting showing these details and executed after the posting period closes, while not a legal requirement in the process, solidifies confidence in the title registration program.

Plaintiffs suggest that the 1987 notices in this transaction were posted at places too remote from their family lands in Aumi. However, we do not need to take up this question, as the evidence clearly shows that the notices were posted for only 34 days in 1987, and there is no evidence that the Territorial Registrar was relying on the 60 day period afforded in 1978, when the land was registered as Vaimaona communal land, as a basis for registration of the title in 1987 in Tuitasi as her individually owned land. Since the 60 day notice period mandated under A.S.C.A. § 37.0103 was not met during the proceedings in 1987, there has not been a valid registration of the title to the land as Tuitasi's individually owned land under to A.S.C.A. § 37.0101.

2. Tuitasi presented a copy of the deed to the Territorial Registrar in 1987 for registration without differentiating between registration of the title or recordation of the instrument, or both, as her purpose. The Registrar acted upon her offer as one for registration or recordation of the deed.

Although the instrument offered a copy of the deed, its genuineness as a copy of the original has not been contested. The trial court found that the original was lost or destroyed as a result of Arieta Vaimaona's unsuccessful efforts to complain about the conveyance to various Government officials, after the deed was executed and delivered, and before the copy was offered for registration. Her responsibility for the disappearance, and not any bad faith act by Tuitasi, is also uncontested. Recordation of a genuine copy of a deed under these circumstances is consistent with evidentiary admission of a copy of an instrument as an exception to the best evidence rule. See R.O.E., Rules 1002, 1003, and 1004(1). The passage of 10 years, more or less, while lengthy is not sufficient of itself to deprive Tuitasi of her land registration or instrument recordation rights. The copy of the deed offered by Tuitasi was recordable, and may be used for title registration purposes. [22ASR2d6]

The Territorial Registrar followed the procedural steps required for recordation of instruments. The Land Commission must provide the Governor with recommendations on proposed transfers of communal land and individually owned land before the Governor gives his essential approval to land transfer transactions. A.S.C.A. §§ 37.0203 and 37.0204. Implicitly, but not explicitly, the Land Commission should hold public hearings on proposed land transfers and, although there are no specific notice requirements, must give reasonable notice of its deliberations to interested persons, regardless of the forum selected to "study" proposed transactions.

The Land Commission held a hearing on the proposed conveyance in this action. The hearing was conducted after notice for the filing of objections was posted for 34 days. Although there is some dispute over the suitability of the posting places in the Village of Lauli`i, and there is no record of any specific notice of the hearing date, Vaimaona Foloi, as the sa`o of the Vaimaona family and grantor in the deed, participated meaningfully in the hearing.

The Land Commission then recommended the Governor's approval of the conveyance, and the Governor approved it. Accordingly, the Territorial Registrar then registered the deed. Thus, the deed was duly registered for recording purposes under A.S.C.A. § 37.0210(a).

3. The Territorial Registrar's Certificate of Registration, dated October 20, 1987, is set aside with respect to the registration of the title to land at issue in this action as Fa`amamafa Tuitasi's individually owned land, but is sustained with respect to the registration or recordation of the deed transferring the land to Tuitasi as her individually owned land.

It is so ordered.

**********

Workmen's Comp. Comm’n; National Pacific Ins. Co. v.


NATIONAL PACIFIC INSURANCE CO., LTD., Petitioner

v.

COMMISSIONER OF THE AMERICAN SAMOA
GOVERNMENT'S WORKMEN'S COMPENSATION
COMMISSION, Respondent

SIONE KOLO, Intervenor

High Court of American Samoa
Trial Division

CA No. 37-92

July 23, 1992

__________

A Court gives considerable deference to administrative decisions involving an agency's construction of its governing statute and regulations, unless the court deems the interpretation to be inconsistent with a statutory mandate or to frustrate legislative policy.

When a claimed conflict between two statutes is not relevant and not at issue, the court will decline comment. A.S.C.A. § 32.0619(a), (f).

If a Workmen's Compensation Commission's statutory interpretation is permissible under the statues and regulations, the Court should defer to the Commission's decision; but if that construction is inconsistent with a statutory mandate, frustrates legislative policy, or renders the statutes or regulations ineffective, the Court must set aside the decision. A.S.C.A § 32.0652(a)

Nothing requires that insured persons go through the process of off-island medical referral; the primary concern of the referral process is the government's expenditure of funds. A.S.C.A. §§ 11.0311(b), 11.0318.

The Workmen's Compensation Commission's decision that the hospital's off-island medical referral procedure does not apply to those covered by the workmen's compensation statute is a permissible interpretation of applicable statutes and regulations, so the court will defer to that decision. A.S.C.A. § 32.0619; A.S.A.C. § 11.0312.

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

Counsel: For Petitioner, John L. Ward, II
For Respondent, Michael R. O'Connor, Assistant Attorney General [22ASR2d16]

FACTS

Intervenor Sione Kolo was seriously injured on September 5, in the course of his employment for Samoa Maritime. All parties agree that the injury is covered by compensation benefits under the Workmen's Compensation Act, A.S.C.A. §§ 32.0501 et seq. Intervenor's treating physician has recommended off-island medical care. After a formal hearing, the Workmen's Compensation Commission ("Commission") concluded in its Findings of Fact, Conclusions of Law, and Decision and Order filed on March 3, 1992, that Samoa Maritime and its workmen's compensation insurer, petitioner National Pacific Insurance Co. ("NPI"), "are responsible for the provision of such medical and hospital services, treatment and supplies required by Claimant, which includes the making of arrangements for such necessary off-island medical treatment." Id. At 6. NPI now seeks judicial review of that decision pursuant to the provisions of A.S.C.A. § 32.0652. Although NPI concedes that it must cover medical treatment and travel expenses for the off-island care, including accommodation and per diem, it claims that Intervenor must go first through the off-island medical referral procedure outlined in A.S.A.C. §§ 11.0310 et seq. and that the LBJ Tropical Medical Center ("LBJ") must make the arrangements for Intervenor's off-island medical treatment. Additionally, NPI argues that the government cannot charge different rates for insured and uninsured patients.

Respondent and Intervenor, on the other hand, both raise the issue of whether LBJ is within the Commission's jurisdiction in the firs place; they claim that it is not and that the Commission therefore cannot order LBJ to process Intervenor through its off-island medical referral procedure.

Intervenor further alleges that NPI intends to seek reimbursement for the costs which it incurred in making the off-island arrangements, and Intervenor therefore seeks a declaration to the effect that he is not responsible for such costs, as well as a permanent injunction to enjoin NPI from filing suit against him to recover such costs. Intervenor also prays for his attorney's fees and costs since June 1991.

STANDARD OF REVIEW

The courts have given considerable deference to administrative decisions involving an agency's construction of its governing statute and [22ASR2d17] regulations. Thus, in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984), the Supreme Court said that

[i]f . . . the court determines [that] Congress has not directly
addressed the precise question at issue, the court does not simply
impose its own construction on the statute, [footnote omitted] as
would be necessary in the absence of an administrative interpretation.
Rather, if the statute is silent and ambiguous with respect to the
specific issue, the question for the court is whether the agency's
answer is based on a permissible construction of the statute.

In Wilderness Society v. Morton, 479 F.2d 842, 864 (D.C. Cir. 1973), the Court of Appeals noted "the settled principle that administrative interpretations are entitled to great weight" but went on to add that if the court deems the interpretation to be inconsistent with a statutory mandate or to frustrate congressional policy, the court need not approve the interpretation. Deference to the agency's interpretation does not mean rubber-stamping its decisions. Additionally, he court noted that" [t]here is a presumption against construing a statute so as to render it ineffective." Id. At 855.

These standards have been effectively incorporated in the Workmen's Compensation Act. A.S.C.A. § 32.0652(a) provides that, "[i]f not in accordance with law, a compensation order may be suspended or set aside, in whole or in part." This provision limits the court, which "can set aside the Commission's decision only if it was 'not in accordance with law.'" Continental Ins. Co. v. Workmen's Compensation Comm'r of Am. Samoa, 7 A.S.R.2d 105, 107 (1988), aff'd, 8 A.S.R.2D 152 (App.Div. 1988). On issues of fact, the right to appeal the Commission's decision "does not entitle the losing party to a new trial before a new tribunal. As long as reasonable people could differ on the facts presented to the Commission, its decision will be upheld on appeal." Id.

Thus, if the Commission's interpretation is permissible under the statutes and regulations, the Court should defer to the Commission's decision. If, however, the Commissions construction is inconsistent with a statutory mandate, frustrates legislative policy, or renders the statutes or regulations ineffective, the Court must set aside the decision. See also Morton v. Ruiz, 415 U.S. 199, (1974). [22ASR2d18]

DISCUSSION

Off-Island Referral Procedures

A. Different Rates

The American Samoa Administrative Code provides that "[t]he medical referral committee will meet to review each proposed referral case, and . . . will recommend approval or disapproval according to policies, procedures, and criteria governing this process." A.S.A.C. § 11.0312(b). As the Commission found one of these policies is that, if a patient is covered by workmen's compensation insurance, the patient will not go through the off-island medical-0referral procedures. Instead, the doctor advises the employer or insurer in writing of the recommendation that off-island treatment is essential and sends a copy to the patient's attorney, if he has one. Upon receipt, the employer or insurer makes any necessary arrangements for off-island treatment.

The hospital also charges different rates for insured and uninsured patients, under A.S.A.C. §§ 11.0303-11.0304 (insured), adopted under the authority of Rev. Const. Am. Samoa Art. IV, § 6, and A.S.A.C. §§ 11.0301-11.0302 (uninsured), adopted under the authority of A.S.C.A §§ 13.0601-13.0602. NPI argues that the distinctions in the administrative rules requiring workmen's compensation insurers to be charged different rates than those the injured patient would be charged if not covered by workmen's compensation insurance are "in conflict with the laws of American Samoa," Rev. Const. Am. Samoa Art. IV, §6, and are not, as the administrative code states, authorized by this section of the Revised Constitution.

The American Samoa Code Annotated provides that all fees and other charges for treatment under the Workmen's Compensation scheme "shall be limited to such charges as prevail in the same community for similar treatment of injured individuals of like standard of living, and shall be subject to regulation by the commissioner." A.S.C.A. § 32.0619(f). It also provides that "[t]he employer shall furnish, where no other provision is made, such medical [and] . . . hospital service . . . as the nature of the injury or the process of recovery may require." A.S.C.A. § 32.0619(a). NPI asserts that the different rates established by the administrative code conflict with the limits established by these statutes. [22ASR2d19]

The "conflict" is claimed to arise because the authorizing statute prescribes "reasonable" charges for the use of government facilities, and the Workmen's Compensation Act "expressly limit[s]" fees and other charges for medical treatment to those prevailing for "similar treatment of injured individuals of like standard of living." NPI's Opening Brief at 5 (citing A.S.C.A § 32.0619(f). The thrust of the argument is that "no statutory clear authority to charge different rates or provide different procedures based upon insurance coverage, for patients otherwise statutorily entitled to 'free' medical care, is indicated in the language of these statutes." NPI's Opening Brief, at 5. Yet NPI never argues that the rates charged are not "reasonable," thus the conflict with the statutory authority actually does not exist.

Further, this alleged conflict is not at issue in the appeal. LBJ has simply refused to process Intervenor through the off-island referral procedures, and therefore, no charges, whether at the insured or uninsured rate, are incurred. Thus, any differences in charges is not relevant in the present case.

B. Governing the Process

The Commission's decision determined that A.S.C.A. § 32.0619(f), which limits workmen's compensation charges, does not mandate that workers covered under the statute and who require off-island treatment must be processed by LBJ. NPI disputes this determination, claiming that "LBJ may not treat patients differently based solely upon the fact that the patient's charges and fees will be paid pursuant to the Workmen's Compensation Act." NPI's Opening Brief, at 6.

The key issue is whether the A.S.A.C. provision allowing "policies, procedures and criteria [to] govern[] this process" of off-island referral can encompass an unwritten policy that those fully covered by insurance will not go through the process at all; is this "governing" the process? There is no clear statutory mandate requiring anyone to go through the off-island referral procedures. NPI makes much of the off-island referral committee's duty to review each proposed referral case, but this duty does not arise until "[t]he chief of service immediately concerned fills out an off-island medical referral form and sends it to the office of the director of health," A.S.A.C. § 11.0312(a), thus creating a "proposed referral case," A.S.A.C. § 11.0312(b). Presumably, such a form will be filled out only when the chief of service anticipates that LBJ will be paying at least part of the cost of off-island medical [22ASR2d20] treatment. If anything, this equivocality of the statute lends itself to supporting the Commission's decision, since it would be difficult to find that the decision is not in accordance with law when the law does not have specific requirements.

This policy actually does govern the process by serving as a valid screen to exclude people from the process and its benefits-medical care at government expense-and not to "exempt" them from "completing the Off-island Medical Referral requirements," as NPI claims. NPI's Opening Brief, at 9. The primary purpose of the procedure is to ensure that only those who truly need the off-island care receive it at LBJ's expense, and the exclusions serve to keep those who will not receive the care at LBJ's expense out of the process, thus conserving time and resources. This screen functions in the same way as the requirement that a patient qualify by contract, residence, or nationality for free medical care before he can be considered by the off-island referral committee; unless the patient meets the requirement, the committee does not consider the case. Yet clearly the qualifications "govern" the process even though they serve to exclude people from the process. The only difference is that one is a promulgated policy while the other is not. This exclusion does not render the statute ineffective or frustrate the legislative purpose behind the statute.

NPI claims that A.S.A.C. § 11.0311(b) "acknowledges that insured, eligible patients will still go through the off-island referral process," because it states that the American Samoa Government ("ASG") will only be responsible for any amounts not covered by insurance, including workmen's compensation insurance. But nothing requires those who are insured to go through the process of off-island medical referral; the provisions of both A.S.A.C. § 11.0311(b) and § 11.0318, which permits a patient to choose private care but limits the government's monetary responsibility for that care to the Tripler Army Medical Center's rate, demonstrate that the primary concern of the off-island referral procedure is the government's expenditure of funds. As Respondent and Intervenor argue, the off-island referral process is only necessary for those who wish LBJ to pay some part of the costs of off-island care. Because Intervenor's injury is entirely covered by workmen's compensation benefits, LBJ will not be paying any part of the costs of off-island care; thus, the off-island medical referral process is not a necessary step for Intervenor.

NPI also argues that it is only required under A.S.C.A. § 32.0619(a) to furnish medical care where no other provision is made, and [22ASR2d21] that since the Commission clearly found that Intervenor would be entitled to free medical care, the Commission's decision is not in accordance with law. It is urged that others of like standard of living receive "free" off-island medical care and have the arrangements for off-island care made by LBJ. This argument, however, overlooks the administrative rule that ASG, and therefore LBJ, is only responsible for the costs of off-island medical referral not covered by workmen's compensation under A.S.A.C.§ 11.0311(b). Because NPI is responsible for the entire cost of Intervenor's treatment, it is not entitled to receive the free services that LBJ provides at government expense.

This policy serves as part of a sensible method to effect off-island medical care for those covered by workmen's compensation. Although those covered by workmen's compensation may often include those who would be entitled to free medical treatment, the two groups are distinct. The example given by respondent of a foreign national who works in American Samoa and would not be entitled to LBJ-sponsored off-island care, but would be entitled to workmen's compensation, illustrates that the two procedures were not meant to mesh. Requiring all workers to go through the off-island medical referral procedures would prevent some workers, who need off-island care and qualify to have workmen's compensation pay for it, from qualifying or and obtaining this care. The policy also allows the employer or insurer to begin making the necessary arrangements immediately after the need for off-island care becomes apparent, while permitting the employer to challenge the necessity of such off-island care through a Commission hearing very early in the process.

Additionally, to require strict compliance with the LBJ off-island medical-referral procedures would require LBJ to obligate funds for travel and medical care, expenses which even NPI acknowledges it must pay. This, too, shows that the two procedures were not meant to be complementary parts of a single procedure but instead address entirely separate concerns.

Finally, NPI's misgivings about whether off-island care is warranted in cases covered by workmen's compensation insurance can be and has in this case been addressed through a workmen's compensation hearing and order. This procedure serves as a safeguard in questionable cases to ensure that only those who truly need off-island care are so referred at the insurer's expense. [22ASR2d22]

The off-island medical-referral committee is, as respondent and Intervenor urge, primarily set up to ensure that LBJ funds are only expended when necessary. Because such funds will not be spent in cases covered by workmen's compensation insurance, this analysis by the referral committee is not necessary. Thus, in cases covered by workmen's compensation insurance, the policy of not consulting the off-island medical-referral committee is a logical and reasonable policy. The statute is not rendered ineffective, no legislative policy is frustrated, and the non-consultation policy is not inconsistent with a statutory mandate. Additionally, the other inconsistencies that would result from following the off-island referral procedures make it clear that the policy should be considered a permissible interpretation of the governing statutes and regulations and as such is entitled to deference by the Court. Given this deference, the policy and the Commission's decision must be upheld.

In view of the conclusion we have reached, we need not consider the issue of jurisdiction over LBJ nor address the merits of Intervenor's petition for declaratory and injunctive relief. It remains for us to consider Intervenor's request for attorneys fees and costs. There was no basis set out for this claim, and the same is denied.

It is so ordered.

**********

Gurr v. Scratch,


DOROTHY GURR, STANLEY GURR, UTI GANDY,
MALO MOEA'I, and AVALUA MOEA'I, Plaintiffs

v.

NEIL SCRATCH, SALA SCRATCH, AMERICAN INDUSTRIES,
and AMERICAN SAMOA GOVERNMENT, Defendants

High Court of American Samoa
Trial Division

CA No. 84-92

September 25, 1992

__________

In denying a preliminary injunction, the court balanced the relative hardships of plaintiffs legitimate nuisance complaints and a business' significant financial detriment from the proposed constraints, as well as the public interest in having the business available for consumers' use.

Issuance of a preliminary injunction requires a plaintiffs written undertaking to pay defendant's damages and costs, up to a specified amount and with sufficient sureties as the court may determine, which may result from the injunction if a permanent injunction is not granted and defendant is awarded damages and costs. A.S.C.A. § 43.1309(a). [22ASR2d104]

Before RICHMOND, Associate Justice, TAUANU`U, Chief Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Plaintiffs, Charles V. Ala`ilima
For Defendants Neil Scratch, Sala Scratch, and American Industries,
Afoa L. Su`esu`e Lutu
For American Samoa Government, Assistant Attorney General
Jennifer L. Joneson

Plaintiffs' application for a preliminary injunctions came on regularly for hearing on September 18 and 21, 1992.

Defendants Neil and Sala Scratch own and operate defendant American Industries (collectively "American Industries"), a building materials and hardware business located in Tafeta, American Samoa. Presently, business operations are quite active. Hurricanes "Ofa" in 1990 and "Val" in 1991 contributed substantially to that development. However, real growth appears to have begun at some earlier time, which is not yet clearly identified. Business operations now involve use of areas on both sides the public road through Tafeta, and include significant traffic from heavy duty trucks and forklifts operated by American Industries and from numerous customers' vehicles. In plaintiffs' view, American Industries' business operations became with expansion and now are unduly noisy and hazardous for an area zoned principally as residential.

Earlier this year, American Industries went forward with plans to add a large warehouse-type structure to the business premises to serve as wholesale/retail outlet. When defendant American Samoa Government ("ASG") learned of the extent of this construction, it stopped the work and required American Industries to obtain land use and building permits, and any necessary zoning variance, through its required project notification and review system (PNRS) process for such projects, which in this case included two noticed public hearings before the PNRS review committee.

During the course of this administrative process, plaintiffs were prompted to object to the proposed project. Apparently sensing prolonged delay in project approval and having substantial quantities of [22ASR2d105] cement on hand, American Industries changed the scope of the project and received ASG's informal approval to construct only a concrete slab for outdoor sports activities. The slab was then completed in accordance with the original plans, including concrete posts, which certainly suggests American Industries' anticipation of eventual approval of the proposed building. Indeed, although the building is not under construction, the slab is being utilized for non-sports activities.

This change in direction caused plaintiffs to then file this action to seek, among other relief, preliminary and permanent injunctions (1) requiring American Industries to cease all business operations and construction on its premises until there has been full compliance with ASG's PNRS and zoning requirements, and (2) preventing ASG from allowing any use of the premises that was not properly noticed. At the preliminary injunction hearing, plaintiffs particularized their request for provisional relief to enjoin American Industries' use of the new slab, further expansion of business operations, and storage of materials on or other use of the area across the public road from the main business premises. There was also indication that American Industries is searching for alternative business locations, which might bring about a more peaceful resolution of this dispute.

We are persuaded that the preliminary injunctions sought by plaintiffs are unnecessary and inappropriate. This is a situation that calls for balancing the relative hardships. On one hand, plaintiffs appear to have legitimate nuisance complaints. On the other hand, American Industries may suffer significant financial detriment from the proposed constraints. An element of the public interest also exists in having this business outlet available to consumers in this part of the Territory.

We think that ASG is in a better position than the Court to assist in finding a solution to the competing interests of plaintiffs and American Industries, including acceptable uses of the new slab, during the pendency of this action. We do not share plaintiffs' perception that ASG is an inept regulator, which they consider to be illustrated by lax handling of laws and administrative rules in past matters concerning American Industries' business operations. To the contrary, we expect that ASG will act resolutely in enforcing presently applicable laws and rules, particularly in this action.

We would also point out that under A.S.C.A. § 43.1309(a), issuance of preliminary injunctions against American Industries requires a written undertaking by plaintiffs, with sufficient sureties as the Court [22ASR2d106] may determine, to the effect the plaintiffs will pay American Industries' damages and costs, up to a specified amount, that American Industries may sustain due to the injunction if a permanent injunction is not granted and American Industries is awarded damages and costs. In this regard, the evidence of record is not yet particularly illuminating, and an appropriate undertaking amount may only be conjectural at best. However, any significant, immediate curtailment of American Industries' business operations could result in substantial damages, perhaps in the tens of thousands of dollars.

For these reasons, we have concluded that preliminary injunctions as a provisional remedy should not be issued in this action, and we urge the three parties to pursue a reasonable resolution of their differences before the trial of this action.

The application for preliminary injunctions is denied.

It is so ordered.

**********

 

Ghiselli Brothers, Inc. v. Ryan, Inc.,


GHISELLI BROS., INC., Plaintiff

v.

RYAN, INC. and AMERIKA SAMOA BANK, Defendants

High Court of American Samoa
Trial Division

CA No. 103-89

September 1, 1992

**********

The statutory rate of six percent interest is presumed on overdue debts for which no contractual interest rate is specified. A.S.C.A. § 28.1501(a).

Because a plaintiff bore no risk of loss under a c.i.f. contract and is not permitted to recover twice for the same injury, a defendant was entitled to remittitur in the amount of a cash settlement which a plaintiff received from an insurance company.

When a court would have to assess evidence and the parties' credibility to resolve the issue of negligence, summary judgment is inappropriate.

The general rule for recovery when a bank is negligent in collecting a draft is that the bank is liable for the actual loss suffered by the owner of the commercial paper as a result of the negligent misconduct of the bank; however, only nominal damages are recoverable when it appears that the paper remains collectible.

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

Counsel: For Plaintiff, John L. Ward II
For Defendant Ryan, Inc., Roy J.D. Hall, Jr.
For Defendant Amerika Samoa Bank, William H. Reardon [22ASR2d58]

On Motions for Reconsideration or New Trial, Motions for Summary Judgment, and Motions for Stay of Execution:

On June 4, 1991, this Court issued its Opinion and Order on Motion for Summary Judgment, which found both defendants, Ryan, Inc. ("Ryan ") and Amerika Samoa Bank ("ASB"), jointly and severally liable to the plaintiff Ghiselli Bros., Inc. ("Ghiselli") in the amount of $44,033.38. This sum reflected the purchase price for a container of meat products shipped c.i.f. by Ghiselli to Ryan, for which ASB was to act as the collecting bank; the products were discovered to be spoiled when the container was opened, so Ryan stopped payment on the check that it had previously tendered to ASB for payment of the consignment. All three parties have since filed motions for reconsideration; Ryan alternatively moved for a new trial. In addition, ASB and Ryan have moved for opposing summary judgments on their cross-claims against each other. Both defendants have also moved for a stay of execution in the event their relevant motions are denied.

Plaintiffs motion for reconsideration was at least partially denied by the Court's order of J une 17, 1991. The Court denied plaintiffs motion to reconsider "having to do with its request for attorney fees either as incidental damages or collection costs." The attorney fees are thus no longer at issue. Plaintiff has, however, reiterated its request for an award of pre-judgment and post-judgment interest on the debt owed.

Both defendants seek remiittitur of the award of damages by $12,000, as Ghiselli received that sum from the insurer(1) of the spoiled container on December 8, 1989. This was the only basis for ASB's Motion for Reconsideration.

Ryan's Motion for Reconsideration or New Trial, filed June 14, 1991, and corrected June 21, 1991, alleges several errors by the Court, including the above remittitur issue, the grant of summary judgment for [22ASR2d59] plaintiff, and the failure to grant summary judgment for Ryan against ASB. These are discussed in more detail below.

Ryan's motion for summary judgment rests on ASB's alleged negligence in retaining the original insurance documents and bill of lading, both of which Ryan obtained when it delivered the check and returned to ASB upon discovery of the spoilage, or alternatively on ASB's breach of its contract with Ghiselli to accept only local currency from Ryan when acting as Ghiselli's collecting bank.

ASB's motion for summary judgment rests on its claim that Ryan is ultimately liable for the sum because Ryan ordered ASB to stop payment on the check which paid for the goods, and ASB's compliance with this stop-payment order resulted in ASB's liability to Ghiselli.

All of these motions were consolidated for hearing and were heard on October 25, 1991.

DISCUSSION

1. Interest

The plaintiff asked for interest both in the original complaint, which resulted in the Opinion and Order filed June 4, 1991, and in its motion to reconsider, which resulted in the Order filed J une 17, 1991; neither order addressed this issue.

Plaintiff asked for interest a third time at the hearing on October 25, 1991. The defendants opposed this claim. A.S.C.A. § 28.1501(a) provides that "[t]he rate of interest when there is no written agreement with respect thereto .yhall be 6 percent a year, and interest shall be presumed on overdue debts." (Emphasis added). This presumption was applied in Pritchard v. Amerika Samoa Bank, 8 A.S.R.2d 157, 162 (App. Div. 1988), in which the appellate court held that "[t]he statutory rate where no interest is specified is 6%." See also Meridian Breckwoldt Samoa, Ltd. v. Haleck, 7 A.S.R.2d 95, 101 (1988). Both cases then imposed pre-judgment interest trom the date the respective indebtedness became due until the dates of judgment and post-judgment interest thereafter. While the silence of this Court on two previous occasions might normally be taken as an implicit denial of the motion, in this case the object of the motion, interest, is statutorily presumed and therefore should be awarded. We thus grant plaintiffs motion insofar as it seeks reconsideration of any implied denial that may have occurred. [22ASR2d60]

2. Remittitur

Ghiselli's Memorandum of Points and Authorities in support of its Motion for Summary Judgment asked for the amount of the sight draft "less any set-off from the insurance settlement, if applicable," but the issue was not addressed by the Court. It was then raised in the Motion for Reconsideration by ASB but put off for further hearing by the Court's Order on the Motions for Reconsideration of June 17, 1991, as not having yet been argued in a hearing.(2) Ryan's Motion for Reconsideration or New Trial also raised this issue, but that motion has yet to be addressed as well.

Ghiselli now argues that the insurance amount is not a windfall, but an "accommodation" from the insurer due to Ghiselli's position as a good customer of the insurance company. Ghiselli cites Procter & Gamble Distributing Co. v. Lawrence American Field Warehousing Corp., 213 N.E.2d 873 (N.Y. 1965), to support its claim that the money belongs to either Ghiselli or the insurance company and that this Court therefore has no power to decide the issue because the insurance company is not a party. In Proctor & Gamble, however, the money at issue was paid as a deposit by the purchaser of vegetable oil that vanished; Proctor & Gamble might have had an obligation to return some or all of the deposit, and because the purchaser was not a party to the action, the court could not determine the rights and obligations regarding the money. Here, the money is a payment from an insurer; it has nothing to do with a potential obligation to refund the "deposit" because the goods were never received. The money is clearly a payment for a loss, whether it is called an accommodation or a settlement, and such payment is the purpose of insurance companies.

A similar situation confronted the court in Meridian Breckwoldt Samoa, Ltd. v. Haleck, 7 A.S.R.2d 95, 98-100 (1988). In that case, the defendant agreed to purchase a quantity of "safety glass" for windshields from the plaintiff. The safety glass was delivered, but the defendant refused to pay tor it. Plaintiff and its parent company in Germany then sought to recover the price of the glass from the shipping line that had released the glass to the plaintiff without receiving full payment as required by the shipping contract. The parent company eventually obtained a settlement from the shipping line. In the later suit filed in [22ASR2d61] American Samoa, the court held that the plaintiff could not recover the entire purchase price because it had been partially reimbursed by the shipping line.

The Court in its Opinion and Order of June 4, 1991, concluded that Ghiselli bore no risk of loss since the goods were shipped on c.i.f. terms.(3) Thus, when Ghiselli first approached the insurance company with a claim on the loss, the latter could deal with Ghiselli only as ml agent of Ryan, since the c.i.f. policy benefitted Ryan once the goods were delivered to the carrier in California.

We find the reasoning in Meridian to be persuasive and conclude that Ryan is entitled to remittitur to account for the $12,000 settlement with the insurance company. ASB will also benefit from this settlement, as a plaintiff cannot recover twice for the same injury.

3. Motions for Summary Judgment

Ryan alleges the Court erred in not granting summary .judgment for Ryan against ASB for ASB's negligence in retaining the original documents or ASB's breach of its contract with Ghiselli in acting as the collecting bank; alternatively, Ryan asks for indemnity on either or both of these grounds. ASB, on the other hand, claims that this motion was denied in the original June 4, 1991, Opinion on Ghiselli's Motion for Summary Judgment. But ASB is clearly mistaken; the Court's opinion unequivocally states that "[w]e express no opinion concerning the rights and liabilities between Ryan and the Bank." (Slip op. at 7). The motion therefore is properly before the Court.

ASB's breach of its contract with Ghiselli is the basis of its liability to Ghiselli, but it has no effect on the rights and obligations between ASB and Ryan.

ASB disputes the allegations of negligence, claiming it had an obligation to its customer to honor the stop-payment order and that it had orders from Ghiselli's bank, the Bank of the West, that required it to hold the documents unless it was specifically told otherwise. This dispute is over a material issue, as it forms the very grounds of Ryan's motion. To resolve this issue, the Court would need to assess "the [22ASR2d62] evidence as well as [the parties'] credibility. Such an assessment is inappropriate on a motion for summary judgment." Ah Mai v. American Samoa Gov't, 11 A.S.R.2d 133, 137 (1989). Thus, regardless of the merits of the underlying contentions, summary judgment for Ryan must be denied.

ASB's opposing Motion for Summary Judgment claims that Ryan is ultimately liable for the goods because it ordered ASB to stop payment on the check. The cases cited by ASB to support this proposition clearly show Ryan's liability to Ghiselli, and some show the ordinary position of a drawee bank of a check that has had payment stopped to the drawee and maker of the check, but they do not address the issue of the cross-claim--Ryan's obligation to indemnify ASB, a collecting bank as well as a drawee bank. Only one of these cases included as a party a bank collecting on a draft. In that case, Farmers & Merchants Nat'l Bank v. Boardwalk Nat'l Bank, 245 A.2d 35 (N.J. 1968), Hammonton Investment & Mortgage Co. ("Himco") issued a draft to Reeves Motors ("Reeves"), which was then deposited in Reeves' checking account with Farmers & Merchants National Bank ("Farmers"). Farmers processed the check and permitted Reeves to write checks against the amount. The drafts were drawn on Himco's checking account with Boardwalk National Bank ("Boardwalk"). After Boardwalk processed the drafts as "paid," Himco induced Boardwalk to take back the checks and return them to Farmers as "payment refused." The court affirmed the holding that both Himco and Boardwalk were liable to Farmers for the amount of the drafts. Additionally, it affirmed the judgment for Boardwalk on its cross-claim against Himco, but it did so because Himco had given an implied undertaking to hold Boardwalk harmless from liability to Farmers if Boardwalk acceded to Himco's request for return of the check after it had been stamped "paid." No express undertaking was evident in the present case, and the Court cannot find such an implied undertaking at the summary-judgment stage, so the case does not support a similar resolution at this point in this case.

The focus should not be on the stop-payment order, however; instead, it should be on the bases for the liability of the two defendants. Regardless of any negligence by ASB, the underlying obligation of Ryan to Ghiselli would exist and does exist. Ryan's liability stems from its contract with Ghiselli to purchase the meat products; the c.i.f. nature of the contract obligated Ryan to pay for these goods once they were. delivered to the carrier in California, regardless of their condition on arrival or whether they ever arrived. ASB's liability stems from its failure to comply with its contract with Ghiselli to act as the collecting [22ASR2d63] bank in the transaction with Ryan, and to accept only local currency or its equivalent in exchange for the title documents. By varying the terms of its contract with Ghiselli, ASB "obligated itself to make good any difference between the effect of what it did and the effect of what it had contracted to do." Opinion and Order, slip op. at 6 (filed June 4, 1991).

The general rule for recovery when a bank is negligent in collecting a draft is that the bank is liable for the actual loss suffered by the owner of the commercial paper as a result of the negligent misconduct of the bank. 10 Am. Jur. 2d Banks § 737, at 702; see also Cleve v. Craven Chem. Co., 18 F.2d 711,716 (4th Cir. 1927); but see Fifth Nat'l Bank v. Ashworth, 16 A. 596 (Pa. 1889). "Nominal damages only have been held to be recoverable where it appears that, despite the collecting bank's improper act or omission, the paper remains collectible." 10 Am. Jur. 2d Banks § 738; see Stark v. Public Nat'l Bank of N.Y., 123 Misc. 647,206 N.Y.S. 8 (N.Y. App. 1924); but see Fifth Nat'l Bank v. Ashworth, 16 A. 596 (Pa. 1889). In this case, the paper is currently collectible under the judgment against Ryan, and Ryan should thus indemnify ASB for the amount of the judgment.

4. Ryan's Motion for Reconsideration or New Trial

Ryan's remaining allegations of errors by the Court are summarized as follows:

(a) Ryan alleges the sun1Inary judgment for Ghiselli was in error because there was a factual dispute between Ghiselli and Ryan about how the goods were damaged. This factual dispute, however, was not over a material fact, and summary judgment was therefore appropriate. The court accepted Ryan's version of the events for purposes of the summary judgment motion and still found Ryan liable because of the nature of a c.i.f. contract.

(b) Ryan alleges the Court erred in granting summary judgment for Ghiselli because Ghiselli did not timely file an insurance claim, even though it knew or should have known that ASB had the original documents. Under a c.i.f. contract, however, the seller has no responsibility to file such a claim; the insurance policy benefits the buyer. Summary .judgment was therefore proper .

5. Request for a Stay of Execution [22ASR2d64]

Both defendants have moved for a stay of execution of the judgment if the court denies their relevant motions. Save as provided by T.C.R.C.P .62(a), request to stay execution of judgment in favor of plaintiff is denied.

ORDER

The Motions for Reconsideration are GRANTED as to interest and remittitur and are DENIED as to all other issues.

Plaintiff shall have judgment against the defendants jointly and severally in an amount equal to the following: $44,033.38, the purchase price for the container of goods; plus 6% pre-judgment interest from January 19, 1989, the date when Ryan took possession of the original documents; minus the $12,000 insurance settlement as of December 8, 1989, the date it was received by Ghiselli; and plus post-judgment interest at 6% .Counsel for plaintiff shall prepare a proposed amended judgment for the Court's signature, along with a schedule showing how the amount of the judgment was calculated.

The Motion for Summary Judgment by Ryan against ASB is DENIED. The Motion for Summary Judgment by ASB against Ryan is GRANTED, obligating Ryan to indemnify ASB on the judgment in favor of Ghiselli. The request tor a stay is DENIED.

It is so ordered.

*********

1. The insurer has refused to pay on the claim for the container because it believed that Ryan's acts and omissions regarding the container caused the loss and because the original insurance documents and bill of lading apparently have not, to this date, been filed with the insurance company as required. Also, the claim was filed six months after the discovery of the spoilage, which was not the "immediate notice" required by the insurer.

2. It seems that neither defendant raised this matter until after the grant of summary judgment.

3. A letter on tile from the insurer to Ghiselli of July 18, 1989, also emphasizes this fact.

Ava v. Logoai,


CHIEF AVA VILI for HIMSELF and the
AVA FAMILY of PAVA`IA`I, Plaintiffs,

v.

FOMA`I P. LOGOAI, FAALILIU P. LOGOAI
and HER CHILDREN, Defendants.

AVA V. AVA, Plaintiff,

v.

MIKE McDONALD, Defendant and Cross-claimant,

v.

FOMA`I P. LOGOAI, Cross-defendant.

High Court of American Samoa
Land and Titles Division

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

__________

A registration of title to land as individually-owned land was invalid and so cancelled by the court when that land was assigned for the use of defendant and her immediate family but remained communal land and when such registration was not authorized by a matai having authority over the land.

Serious irregularities in land registration documents may overcome a document registration's evidentiary presumption of land ownership.

When the court ruled that land was not a lessor's individually-owned land and so cancelled a lease, the lessee was entitled to reimbursement for unjust enrichment for improvements made to the land from the matai having authority over the land and from his communal family. [22ASR2d66]

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

Counsel: For Plaintiffs, Tauese P.F.Sunia
For Defendant and Cross-defendant Foma`i P. Logoai and
Defendants Faaliliu P. Logoai and her children, Asaua Fuimaono
For Defendant and Cross-claimant Mike McDonald, William H. Reardon

This amended opinion and order is issued in response to Mike McDonald's motion for consideration of or new trial on his cross-claim against Foma`i P. Logoai. This motion was heard and granted on August 21, 1992.

AMENDED OPINION AND ORDER

The Ava initiated the action in LT No. 32-90 for himself and the Ava family in June 1990 to declare the registration of a portion of the land called "Lalofutu" in the Village of Pava`ia`i, American Samoa, by the Logoais as individually owned land of Faaliliu P. Logoai and her children null and void, and to recognize this land as communal land of the Ava family. He commenced the action in LT No. 36-90 later in June 1990 to enjoin further construction or other encroachment by Mike McDonald on a part of the registered land leased by McDonald and his wife from the Logoais. McDonald counterclaimed for damages against the Ava for unjust enrichment should the Ava prevail. McDonald also cross-claimed against his lessor Foma`i P. Logoai for damages and quiet title. The actions were consolidated.

On February 5, 1991, the Logoais filed a motion for summary judgment, which was heard on February 28, 1991 and denied on May 8, 1991. The motion was based on the contention that the Certificate of Registration of the title to the land, issued pursuant to A.S.C.A. §§ 37.0101 et seq. by the Territorial Registrar in 1984 to Faaliliu and her children as their individually owned land, was conclusive. This title registration was accomplished through this Court's order in an action entitled "In the Matter of the Application by: Fa`aliliu P.S. Logoai and Children, Applicants," LT No. 19-77, in which it was alleged that the land was Ava land and the applicants were Ava family members. The action in 1977 sought and obtained the Court's order permitting survey of the land after the Ava's alleged obstruction of this process. However, since the survey on its face was neither dated nor fully certified, and further lacked an accompanying surveyor and pulenu`u certificate, the title registration process was not completed until Foma`i P. Logoai [22ASR2d67] obtained the Court's order directing nunc pro tunc dating and registration in 1984. The 1977 action did not name the Ava or anyone else as defendants, and the proceedings in 1977 and 1984 were entirely ex parte. In denying the motion for summary judgment, the Court ruled that the serious irregularities in the 1977 action shown on the face of the registration documents overcame the evidentiary presumption from the title registration of ownership of the land by Faaliliu P. Logoai and her children before the registration and could not prevent the Ava from litigating the issue of this ownership in the present actions. See Ifopo v. Siatu`u, 12 A.S.R.2d 24 (1989); Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988); Solomona v. American Samoa Government, __ A.S.R.2d __, AP No. 22-89 (1990).

The present actions came on regularly for trial on January 16 and 17, 1992. After the plaintiffs completed the presentation of their case, the defendants moved for dismissal on two grounds: first, the lack of a certificate of irreconcilable dispute issued by the Secretary of Samoan Affairs pursuant to A.S.C.A. § 43.0302 on file with the Court, and, second, the lack of the plaintiffs' standing to sue in that the evidence demonstrated that the land at issue was originally under the pule or control of the Pagofie title rather than the Ava title. The Court, in its discretion under T.C.R.C.P. Rule 41(b), declined to render any judgment until the close of all the evidence.

Strictly, these actions should not have been commenced without an accompanying certificate of irreconcilable dispute, but the time of filing is a procedural requirement that may be corrected by later filing before judgment. However, failure to file this certificate at all deprives the Court of jurisdiction to render a decision. Thus, on February 19, 1992, plaintiffs were ordered to file a certificate in conformance with A.S.C.A. § 43.0302 within 60 days or face dismissal of their actions.

The 60 day period was designed to afford adequate time to hold the required two appearances, each on at least 20 days' notice, before the Secretary or his deputy before the certificate can be issued. In fact, the second hearing on April 23, 1992 and the issuance and filing of the certificate on May 4, 1992 took place after the 60 day period. For purposes of proceeding to determine these actions on their merit, however, we consider the certificate to have been filed in substantial compliance with the Court's order of February 19, 1992.

A. FINDINGS OF FACT
[22ASR2d68]

We first summarize the several witnesses' testimony as a prelude to finding the essential ultimate facts.

1. Ava Vili's Testimony. The Ava is 64 or 65 years old. He succeeded to the Ava matai title in 1970. At that time, he had been living in California for a number of years. He went there in 1947 and returned permanently to American Samoa with his family in 1973.

The land "Lalofutu" in the Village of Pava`i`ai, American Samoa totals approximately 25 acres and includes the 2.69 acres, more or less, at issue. "Lalofutu" was first occupied by a couple in the Ava ancestral family. Their cultivation was principally below the portion of the land at issue towards the Village proper. This couple had four children, two sons and two daughters. The children of one of the daughters included two brothers who were, respectively, the Ava's father and Faaliliu's father. Thus, according to the Ava, both he and Faaliliu are Ava family members, and "Lalofutu" is communal land of the Ava family. All surrounding lands are communal lands of other families.

The Ava's father also held the Ava title, while Faaliliu's father held the Pagofie title. Both titles are matais of the same family. Ava communal lands are under the pule of both titles in the sense that both matais, when contemporaneously filled, consult with each other before Ava communal land transactions take place, but such lands, including "Lalofutu," are Ava, not Pagofie, communal lands. There have been no Ava- authorized surveys or title registrations of Ava communal lands, other than a sale of a portion of such lands for church premises for $9,000 in 1983 under an earlier commitment by his father as the Ava and Faaliliu's father as the Pagofie.

Although long occupied by the Ava family, "Lalofutu" was not significantly developed until 1942. The Ava, along with his father, mother and brother, then began to clear the land in earnest. They worked the land almost daily. An Ava family couple was also authorized to live within the land at issue in that year. Another Ava couple replaced this couple in the same location in 1947. The Ava's father was involved in a shooting incident on "Lalofutu" in 1948. As one result, his father instructed the Ava never to live on this land himself, about which his mother reminded him years later when he had cinders hauled there intending to build his house. "Lalofutu" was vacant of any residents when his father died in 1964. [22ASR2d69]

Faaliliu's father and his immediate family, including Faaliliu, moved to the Manu`a Islands in 1930 or 1931. He returned in 1933 and died of tuberculosis about one month later. The Ava does not recall that Faaliliu or any of her siblings were able to attended their father's funeral. Faaliliu and her immediate family were actually still living in the Manu`a Islands in 1948 at the time of the shooting incident.

A daughter of the present Pagofie told the Ava in 1977 that Faaliliu was having the land at issue surveyed. He stopped the survey, telling the surveyor that he would ruin the surveyor's equipment if the survey was not stopped. He thinks that the survey was completed the next day, but in any event it was done without his knowledge.

The Ava was unaware of Faaliliu's court action in 1977 or the follow-up in that action in 1984. At no time did he see or otherwise become aware of any announcement by the Pulenu`u of Pava`i`ai, or any Village chiefs' meeting, or any notice, or the posting thereof, concerning the survey and title registration of the land at issue.

During the Ava's testimony, reference was made to seven other transactions of public record affecting "Lalofutu." All seven described the land as Pagofie communal land and involved separation agreements to convert proposed residences to be constructed on "Lalofutu" to personal property of the building owner, in accordance with A.S.C.A. §§ 37.1501 et seq. Three occurred between 1964 and 1970 when the Ava title was vacant. One of the other four also involved title registration under A.S.C.A. §§ 37.0101 et seq., as individually owned land. The Ava disclaims knowledge of six of the seven transactions, stating no buildings were constructed as a result of them. The remaining transaction was a separation agreement, not involving title registration, in 1983, which the Ava signed on behalf of the Pagofie family. According to the Ava, he signed this separation agreement following joint approval by both the Pagofie, who was unavailable to sign, and himself.

With respect to Mike McDonald, the Ava has known him since his arrival in American Samoa and during their respective participation in the construction business here. Although he drove by "Lalofutu" almost daily, he thought that the shop, McDonald's first building, actually belonged to Foma`i and did not stop its construction. He saw McDonald pouring the concrete foundation for a second building and told McDonald to stop. McDonald refused, claiming it was on Foma`i's land. The action against McDonald was filed about one month later. [22ASR2d70]

2. Faaliliu's Testimony. Faaliliu was born in 1924 and is now 67 years of age. Her father was the eldest of two sons of a previous Ava, and held the Pagofie title. He was the first person to clear "Lalofutu," with the help of his wife and brothers, which began in 1934, and to name the land. She is not familiar in any respect with the couple who the Ava claims first cultivated "Lalofutu." According to Faaliliu, "Lalofutu" is Pagofie communal land, other than the portion given to her as her individually owned land. Except for the cinders excavation incident described below, no Ava has ever exercised, or attempted to exercise, pule over "Lalofutu," and no one has lived there under any Ava's authority. She recognizes the present Ava as the senior matai of the Ava family, but denies that he has any pule over "Lalofutu."

In 1937, when she was 13 years old, her family moved to the Manu`a Islands. Her father died the following year, in 1938. Before he died, he as the Pagofie gave her the land at issue as her individually owned land. This gift was made in the presence of the Ava's father, who was the Ava at that time. Her father was living in Pava`i`ai proper then, and was using "Lalofutu," although there were as yet no plantations there.

In 1940, when Faaliliu was age 16 years, she married a Manu`an. She remained in the Manu`a Islands until she returned to the Island of Tutuila, initially in 1955 and permanently in 1958, to live on the land at issue according to her father's earlier instructions and wishes. There was no one living on the land at issue in 1955. Since then, the only homes on the land at issue other than her home have been those of her children and sister. Her husband and a niece are buried there, solely by her authority. The couple moving onto "Lalofutu" in 1942 and others thereafter lived elsewhere within "Lalofutu" and not on the portion at issue. Likewise, the 1948 shooting incident occurred outside the area she claims to own. She also pointed out that when the road up the mountain from Pava`i`ai to Aloau was constructed in 1963-1964, passing immediately adjacent to the land at issue, she first objected, but withdrew her objection when the Pagofie at that time advised her to let road go through "Lalofutu" and along her land.

The only dispute between her and the present Ava came in 1977. She objected to the removal of cinders from an area on the ocean side of her house, which the Ava had authorized. He did not object to her survey of the land at issue at that time. She thought that the survey had been completed and the 1977 court action was brought to stop the excavation of cinders, not to permit the survey. She did not know either [22ASR2d71] that the true nature of her petition was to compel the survey, or that the petition described the land at issue as Ava communal land.

The 1977 petition was filed with the Court as an ex parte action by an attorney. The attorney was acting on information furnished by Faaliliu or another on her behalf. Faaliliu signed the petition, which alleges that she and her children are blood members of the Ava family, the land at issue is Ava communal land assigned to their use by Ava Lafoia (the present Ava's father), and the Ava as the present senior matai of the family had stopped their survey of the land at issue. The prayer specifically requested an ex parte order allowing the survey to proceed. The Court's order of May 6, 1977 authorized the survey to continue, and directed the title registration process to proceed pursuant to law.

3. Foma`i's Testimony. Foma`i is Faaliliu's son. He was born in 1952 and is now 39 years old. He was born in the Manu`a Islands, but has lived on the land at issue, beginning either in 1958 or 1962 until 1972, when he joined the U.S. Marine Corps, and since 1984, when he completed his military service. This land was given to his mother by his grandfather Pagofie. When he moved to the land, only his part of the family was cultivating any portion of "Lalofutu." Only Faaliliu's plantations were on the land at issue since he first lived there.

"Lalofutu," including the land at issue, is Pagofie land in origin. No Ava was asked for permission to register the land at issue as Faaliliu's individually owned land. This permission is unnecessary for Pagofie land. He was not here in 1977. However, he understood that the 1977 court action was initiated when the present Ava threatened his mother about surveying the land at issue to peacefully resolve the Ava's objections.

After returning in 1984, he checked with the Territorial Registrar's Office on the status of the title registration of the land at issue. He learned from the Assistant Territorial Registrar that the title had not been registered as Faaliliu's individually owned land, because the Territorial Registrar could not register a title based on a survey which was undated and not signed by the surveyor. The Assistant did not say anything about a pulenu`u certificate. He was advised by the Registrar to obtain either a new survey or this Court's order to register the title. He then presented to this Court Faaliliu's affidavit, dated September 14, 1984, stating in essence that the 1977 survey lacked a date, precluding the title registration without this Court's order, and received this [22ASR2d72] Court's order to date the survey nunc pro tunc and register the land at issue.(1)

There was an incident in 1989 when the Ava had a load of cinders delivered to the land at issue for construction of the home of the Ava's sister. Foma`i stopped the unloading. The Ava arrived about 10 minutes later. Despite threats, a meeting was scheduled the following Sunday, at which the Ava agreed that his sister's home would be built on a portion of "Lalofutu" across the road from the land at issue.

Regarding McDonald, Foma`i was first aware of the Ava's objection to his presence when McDonald started his second building. The Ava did not take up his objection with Foma`i directly, even when the controversy of this action was discussed at the office of the Secretary of Samoan Affairs (prior to the trial and before the Court's order of February 19, 1992).

4. Assistant Territorial Registrar's Testimony. Pelema Kolise, who was then the Assistant Territorial Registrar, recalls being approached about the title registration of the land at issue in 1984. He does not specifically recall that Foma`i was the person who came to his office to discuss the registration. The registration had been rejected up to that time, because the survey was not dated and certified by the surveyor. So long as these defects were not corrected, the registration process could not proceed without this Court's order. However, he does not recall advising the person who approached him on what to do to complete the title registration.

He believes the person who approached him came three times, the third time with this Court's order to register the title to the land at issue as the individually owned land of Faaliliu and her children. He has seen in his experience more than 100 court orders to register titles to land. The order in this case was peculiar since no trial took place before its issuance. Normally a surveyor and pulenu`u certificate is necessary, and Faaliliu's affidavit does not cover this point. However, he acted [22ASR2d73] upon the Court's order of September 20, 1984 as authority to register the title to the land at issue.

The offer for registration of the land at issue as the individually owned land of Faaliliu and her children was signed by Foma`i on Faaliliu's behalf and filed with the Territorial Registrar on September 20, 1984. The Notice for Proposed Registration of Land was issued by the Registrar on the same day. The Affidavit of Posting, signed by Kolise on November 19, 1984, shows that the notice was posted at the Court House and on two telephone poles in Pava`ai`i from September 20 through November 19, 1984. The Certificate of Registration, issued by the Registrar, certifies that title to the land at issue was registered as the individually owned land of Faaliliu and her children on November 29, 1984. The survey filed with the certificate of Registration is signed by the surveyor, but despite the Court's order of September 20, 1984, is still undated. In addition, there is no surveyor and pulenu`u Certificate on file with the Registrar.

There are no Territorial Registrar's records for lands registered under the Ava family name.

Contrary to the allegation in plaintiffs' complaint, Kolise is not related to Faaliliu and her children.

5. McDonald's Testimony. McDonald is a carpenter by trade and has about 25 years of experience in the construction business.

He negotiated the lease of approximately .22 acres within the land at issue with Foma`i. The term of the lease is 20 years, beginning November 6, 1989 and ending November 5, 2009. The rent for the first five years, $9,000, is payable and was paid in advance. The rent for the remaining 15 years is $150 per month. All improvements revert to the landowner at the end of the lease. The lease was signed by Foma`i as lessor and McDonald and his wife as lessees on November 6, 1989. The McDonalds took possession immediately.

He first learned of the Ava's objection to the lease some seven months later. The objection surprised him. He had known the Ava as a fellow member of the local construction business community for years. The Ava had seen him almost daily during his construction activity on the leased land, and had said nothing about this activity. By the time of the Ava's objection, he had constructed a shop, installed a septic tank, and started the foundation for a house on the leased area. [22ASR2d74]

McDonald's investment in the leasehold consists of $15,680 for the shop building, according to his estimated construction cost of $13 per square foot, $2,000 for the septic tank, and $5,000 for the house foundation, a total of $21,560. In addition, he has paid $9,550 in rent, including the original advance and a later advance, to Foma`i.

Resolution of Evidentary Conflicts

There are several factors that we consider persuasive in resolving the conflicts in the various testimonies and finding the essential ultimate facts.

First, with the possible exceptions of the land at issue and one other parcel, both within "Lalofutu," this area of Pava`ia`i, including "Lalofutu" and the lands surrounding it, are communal lands of various families. "Lalofutu" is clearly communal land in origin.

The seven transactions in evidence of portions of "Lalofutu" other than the land at issue, including the separation agreement executed by the Ava, again with the two possible exceptions noted above, certainly indicate that "Lalofutu" was and is Pagofie communal land. On the other hand, the fact that a Pagofie executed the documents in six of these seven transactions, particularly when the Ava executed the document in one of them, is not necessarily inconsistent with the Ava's testimony that the Ava and the Pagofie, when both titles are filled, exercise a form of joint pule over Ava communal lands. It may be the family's practice for the Pagofie to execute the formal documents of these transactions, or it may be that the Ava was genuinely unaware of the six transactions of which he disclaims knowledge. Three of these transactions occurred when the Ava title was vacant. Further, no testimony by a knowledgeable matai of the Pagofie family was offered to contradict the Ava's testimony. The Ava's testimony as a whole was, in our opinion, cohesive and convincing.

Faaliliu's testimony, however, that her father as the Pagofie, with the concurrence of the Ava's father as the previous Ava, gave her and her children the land at issue as their individually owned land, when she was at most 14 years of age and unmarried, is incredulous. At most these two earlier family titleholders might have made a commitment that the land at issue would be assigned to Faaliliu's use in the future, much like their commitment to sell a portion of Ava communal land for church purposes, but that in her case the land would remain communal land. [22ASR2d75]

Faaliliu and her immediate family did later move onto and cultivate the land at issue without objection, until she sought to survey and register title to this land in 1977 as individually owned land of herself and her children. Her children were probably included in her claim to the land at this time. Their occupancy then continued after 1977 without objection, as the Ava apparently thought he had successfully prevented the title registration proposed in 1977, until the Ava first learned about the title registration well after the registration was accomplished in 1984.

Most important are the admissions in the petition filed with the Court in 1977 that the land at issue is Ava communal land assigned to Faaliliu and her children for their use, Faaliliu and her children are blood members of the Ava family, and the Ava was objecting to the survey. This petition was signed by Faaliliu and her attorney. The petition must have been prepared by the attorney based on information provided by Faaliliu or some knowledgeable person on her behalf. Of similar importance is the ex parte nature of the 1977 court action, both that year and in 1984 when the title registration was completed, in the face of the Ava's announced objections to the survey.

Finally, it is noted that the documentation supporting the title registration remains defective. The survey is signed by the surveyor and implicitly dated nunc pro tunc by court order. However, the customary approval for registration on the survey itself has still not been completed. Moreover, an accompanying surveyor and pulenu`u certificate, which evidences compliance with and is mandated by A.S.C.A. § 37.0102(c), is still lacking. We find that the essential ultimate facts are as follows:

1. The land at issue is Ava communal land.

2. Neither an Ava nor a Pagofie, either collectively or singularly when in office, authorized registration of the title to the land at issue as the individually owned land of Faaliliu and her children, or of Faaliliu alone.

3. The land at issue was assigned to Faaliliu for the use of herself and her immediate family, but remained Ava communal land. [22ASR2d76]

4. Neither an Ava nor a Pagofie, again either collectively or singularly when in office, authorized the lease of a portion of the land at issue to the McDonalds.

5. McDonald has paid Foma`i $9,550 in rent for the leased land, including a payment of $9,000 for the first five years of the lease and another advance of $550.

B. CONCLUSIONS OF LAW

We reach conclusions of law as follows:

1. The registration of the title to the land at issue as the individually owned land of Faaliliu and her children is invalid and is canceled.

2. The lease of a portion of the land at issue to the McDonalds is likewise invalid and is canceled.

3. The Ava, for himself and on behalf of the Ava family, has been unjustly enriched as a result of the invalid McDonald lease and must pay to McDonald the damages McDonald suffered in constructing improvements to the land in the sum of $21,560. Since the Ava never received any of the rent paid for the lease, McDonald cannot recover these sums from the Ava.

4. McDonald shall recover the unused portion of the rental advances, totaling $4,652.86, from his lessor Foma`i. McDonald is not entitled to have title quieted.

5. McDonald's money judgments shall bear post-judgment interest at the statutory rate of 6% per annum.

6. This decision implicitly rules against the defendants' motion to dismiss on the grounds that the Ava lacked standing to sue, and that motion is denied.

Judgment shall be entered accordingly.

It is so ordered.

(Dated as of July 27, 1992)

**********

1. While the Court's order provides for a nunc pro tunc date of May 7, 1979, it is probable that the Court intended the date to be May 7, 1977, the day after the Court's order of May 6, 1977 permitting the survey. In any event, the copy of the survey on file with the Territorial Registrar still bears only the surveyor's undated signature. The approval for registration remains undated and unsigned.

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 re Registration of the Matai Title
"ATIUMALETAVAI" of the village of Pago Pago]

High Court of American Samoa
Land and Titles Division

MT No. 9-91

September 10, 1992

__________

Although the High Court's matai-title decisions frequently include substantial comparative discussions of title candidates' qualifications under each of the four statutory criteria, the only legal requirement is a written decision containing findings of fact and conclusions of law on each of the four statutory criteria. A.S.C.A § 1.0409(C); T.C.R.C.P. 52(a).

As long as a matai-title candidate acts within his legal rights, he remains eligible for the title, even if he abuses the traditional selection process by a premature offer of registration which forces other candidates to object to protect their interests.

In regards to a candidate matai-title qualifications, American Samoa follows the traditional rule of determining domicile or permanent residency by the union of physical presence at a particular place and intent to indefinitely fix habitation there, frequently denoted as the place to which, when a person is absent, he or she intends to return.

The number of individual supporters among a family's clans does not establish a majority or plurality of clan support for a matai-title candidate but is only one factor indicating support in those clans.

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

Counsel: For Claimant, Afoa L.S. Lutu
For Counter-Claimant Suafala, Tauese P.F. Sunia
For Counter-Claimant Faoato, Gata E. Gurr
For Counter-Claimant Atoa, Aitofele T. Sunia [22ASR2d95]

Order Denying Motions for Reconsideration or New Trial:

The trial in this case was held on May 12-14, 1992, and resulted in the award of the matai title "Atiumaletavai" to claimant Tovea A. Taeleifi Galea'i Tupa'i (Tovea). The Court's opinion and decision was issued and filed on may 28, 1992. Each of the counter-claimants, Suafala Tavai (Suafala), Faoato Fua Tupua (Faoato) and Atoa S. Sipili (Atoa) have filed motions for reconsideration or new trial, respectively on June 1, 1992, June 8, 1992, and June 5, 1992. The motions were heard on June 30, 1992.

The motions have taken issue with the Court's decision and opinion with respect to each of the four criteria which the Legislature has prescribed and mandated for the Court's guidance in A.S.C.A § 1.0409. These criteria require consideration of the claimant's and counter-claimants' (1) hereditary right to the matai title; (2) support among the customary clans of the family as entities; (3) forcefulness, character and personality, and knowledge of Samoan customs; and (4) value as the titleholder to the family, village and country. In addition, Suafala has faulted the lack of extensive, comparative discussion of the title candidates' qualifications in the Court's opinion and decision, while Atoa has cited undue rapidity by Tovea in filing to register the title with the Territorial Registrar without allowing the family sufficient time to reach a consensus, and Faoato has questioned the legitimacy of Suafala's residency for purposes of holding a matai title. We will discuss all of these matters as may be necessary or appropriate to clarify or expand upon the Court's opinion and decision.

1. Comparative discussion of qualifications.

In taking up this issue, Suafala appears to be looking at the frequent but not universal approach in this Court's matai-title decisions to include substantial comparative discussions of the title candidates' qualifications under each of the four statutory criteria which must be considered. While this method can provide useful analysis to the reader of matai-title judicial decisions and was assiduously followed during the three days of deliberations undertaken by the judges in this case, the only legal requirement is a written decision containing findings of fact and conclusions of law on each of the four statutory criteria. A.S.C.A § 1.0409(c); see also T.C.R.C.P. 52(a). The Court's opinion and decision in this action complied with this requirement.

2. The offer of the title for registration. [22ASR2d96]

Atiumaletavai Kaleopa died in January 1991. Two family meetings about his successor did not result in a selection. In April 1991, following the second meeting, Tovea offered to register the title in her name with the Territorial Registrar, which triggered the statutory notice, objection and dispute-resolution procedures. In September 1991, after three hearings did not succeed in reaching an agreement on the successor titleholder, the Deputy Secretary of Samoan Affairs issued a certificate of irreconcilable dispute. Citing In re Matai Title "Le'iato", 2 A.S.R.2d 94 (1986), Atoa has criticized Tovea's offer ti register the title as an action taken without affording adequate time to allow the family to reach a consensus in due course on the successor and requiring her disqualification.

We concur with the Court's comments in Le'iato that too many matai titles are awarded by judicial process rather than by the family in accordance with traditional custom, and that the Legislature should consider legislation aimed at curbing the abuse of the traditional, matai-title selection process that can result from premature offers of registration, which force other candidates to object to protect their interests. However, contrary to Atoa's position on this issue, Le'iato does not stand for the proposition that a title candidate who acts within his or her legal rights but at the same time abuses the traditional selection process is disqualified. This is the very reason legislation to protect he custom would be beneficial. Moreover, in this case, the judges carefully weighed the evidence on the circumstances surrounding Tovea's offer to register the title for any adverse impact on her qualifications and found that there was ample opportunity for and manifested unlikelihood of a family consensus on the selection.

3. The residency qualification

Suafala lived and was employed outside of American Samoa for many years. He is now retired. His wife is non-Samoan, and he still owns a home in Hawaii, where his wife was living at the time of the trial. However, as Atiumaletavai Kaleopa's health was seriously deteriorating, he returned to American Samoa for the express purpose of establishing the residency required under A.S.C.A § 1.0404(a) as a prerequisite to holding a matai title. His return was more than one year before he objected to Tovea's claim to the title, and except for occasional visits with his family in Hawaii, he has remained here.

American Samoa follows the traditional rule of determining domicile or permanent residency by the union of physical presence at a [22ASR2d97] particular place and intent to indefinitely fix habitation there, frequently denoted as the place to which, when a person is absent, he or she intends to return. See A.S.C.A. § 6.0212 (election-code provisions). The Court deliberated on the evidence on this point as well and was, and still is, satisfied that Suafala is a bona fide resident for the purpose of qualification to hold this matai title.

4. The best hereditary right.

Efforts to state a universal rule as the standard used to evaluate the best hereditary-right issue have defied practical formulation. In re Matai Title "Sotoa", 2 A.S.R.2d 15 (1984), sought this objective by rejecting the notion that every titleholder established a new line of heredity in favor of the conceptually logical and fair concept that blood lines should be traced from the original titleholder. TheSotoa rule soon ran into practical difficulties in application, usually when there have been divergent views on the identity of the original titleholder or successors to that title. Examples are In re Matai Title "Le'iato", 2 A.S.R.2d at 94-95; In re Matai Title "La'apui", 4 A.S.R.2d 7, 7-8 (1987); and In re Matai Title "Fano", 4 A.S.R2d 148, 148-49 (1987). At the opposite end of the spectrum is the realistic view that recognizes that any rule of general principle may not only be impractical but also not in accord with a particular family's traditions, and thus, that any given case may require a distinctly different approach. See In re Matai Title "Fano", 4 A.S.R. 2D AT 149; In re Matai Title "Tauaifaiva", 5 A.S.R.2d 13, 15 (1987).

In this case, Suafala has advocated use of the pre-Sotoa rule favoring the candidate with the highest percentage of blood relation to any previous titleholder. As the only candidate who is the offspring of a titleholder, the application of this rule gives him an advantage on this issue. The other three candidates have generally urged reference to a common ancestor, on whose identity the four candidates agree, who although not a holder of the title was a direct descendant of the original titleholder through several generations. Each of the four candidates is a fifth generation descendant of this common ancestor. Thus, the result is equality of hereditary right among them. Whether or not this reference to a common ancestor is a true family tradition, it is in fact only a variation and practical application of the Sotoa rule, which the Court is following in this case. Hence, none of the candidates prevails on this issue.

On this issue, Atoa also asserted that Tovea must be excluded from the equality of hereditary right found by the Court, based on the [22ASR2d98] language of A.S.C.A § 1.0409(c)(1) stating, in essence, that a male descendant prevails over a female descendant unless family custom treats both genders equally in matai-title matters. However, again the Court has considered the evidence on this point and has found, and continues to find, that females are not excluded from holding the title within the traditions of this family.

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

The troublesome area of this criterion has been a lack of a clear definition to enable identification of the clans of a family. It has been said that clans are established by the children of the original titleholder who marry and have offspring, a logical corollary of the Sotoa rule on hereditary rights. In re Matai Title "Sotoa", 2 A.S.R.2d at 15-16. However, again there is the view that clans are best determined by the traditions of the family in each case. In re Matai Title "Tauaifaiva", 5 A.S.R.2d at 15.

The evidence in this case shows that the original titleholder had only one child, who in turn had four children. Each of these four children had children, but only one of the four children had descendants who are traced by the evidence beyond themselves to modern times. The evidence also shows that there are three distinct families which result from the common ancestor, who has been identified for hereditary-right purposes, and which are clearly active in present-day family affairs and are recognized as Atiumaletavai clans for decision-making purposes. Thus, the Court has accepted these three families as the customary clans for purposes of this case.

The Court's reference in the opinion and decision to the number to Tovea's individual supporters among at least two of these three clans is not properly interpreted as establishing a majority or plurality of the clan support, as the present motions suggest, but only as indicative of her support in those two clans as distinguished to the support in those clans for the other candidates. As In re Matai Title "Fano", 4 A.S.R.2d at 150, indicates, the numbers are properly considered, but only as one factor evidencing clan support.

Further review of the evidence on this issue has convinced the Court that there has been significant support among the members of the one or more of the three present-day clans for each of the candidates, but there is no satisfactory evidence of genuine or full support by at least two of these clans for any of the candidates, and certainly none by the family, [22ASR2d99] considered as a single clan descended from their common progenitor as the son of the original titleholder.

Application of the standard on this criterion also produces no clearly prevailing candidate having a majority or plurality of clan support, and the finding of fact on this issue in the Court's opinion and decision is so modified.

6. The third and fourth criteria.

The standards applicable to the third criteria on forcefulness, character and personality, and knowledge of Samoan customs, and to the fourth criteria on value to family, community and country are adequately stated by their statutory descriptions. The present motions do not establish any convincing basis for different findings of fact on either of these issues.

7. Conclusions.

Since Tovea clearly remains the superior candidate on the last two criteria and the findings of fact on the first two criteria as modified will not change this result, the motions for reconsiderations, except for the change in the finding of fact on the clan-support criterion, or new trial are denied.

It is so ordered.

**********

American Samoa Gov’t v. Salu,


AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

PAUAI SALU a.k.a. SALAKI, Defendant.

High Court of American Samoa
Trial Division

CR No. 63-91

August 26, 1992

__________

Before RICHMOND, Associate Justice, TAUANU`U, Chief Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Plaintiff, John L. Wilks
For Defendant, Barry I. Rose

By information filed by plaintiff on December 17, 1991, defendant was accused of committing the crime of sexual assault in the first degree, as a Class D felony, in violation of A.S.C.A. § 43.3615. On May 19, 1992, pursuant to a plea agreement, defendant pled guilty to attempted sexual assault in the first degree, a Class A misdemeanor, in violation of A.S.C.A. §§ 43.3401 and 43.3615, false imprisonment, a Class A misdemeanor, in violation of A.S.C.A. § 46.3533, and assault in the third degree, a Class C misdemeanor, in violation of A.S.C.A. § 43.46.3522(a)(5), in lieu of the original accusation. The plea agreement did not contain any provisions regarding sentencing.

On June 23, 1992, defendant was sentenced to one year's imprisonment on each of the Class A misdemeanors and 15 days on the Class C misdemeanor, to run consecutively. Execution of the sentence was suspended and defendant was placed on probation for a period of [22ASR2d49] two years on the conditions that he: (1) serve a period of detention at the Tafuna Correctional Facility of 15 days on each offense, to run consecutively, without release for any purpose other than medical emergency except by prior Court approval; (2) depart from American Samoa immediately upon his release from detention and remain outside of American Samoa during the rest of the period of probation; (3) have no contact with the victim during the period of probation; and (4) conduct himself as a law abiding citizen wherever he may reside during the period of probation. Credit on the probationary detention periods was granted for time in custody awaiting trial in this prosecution.

On July 2, 1992, defendant filed a motion for a new trial on the grounds that the probationary departure order was statutorily and constitutionally invalid. On July 9, 1992, defendant amended his order to seek modification of the probationary detention periods to have them run concurrently rather than consecutively. At the hearing on the motion, also on July 9, 1992, the motion with respect to modification of the detention periods was denied, by stipulation the hearing on the motion with respect to the departure order was continued first to August 20, 1992, and later to August 24, 1992, and the departure order was stayed pending disposition of this aspect of the motion. The further hearing took place on August 24, 1992.

One of defendant's principal arguments on the probationary departure order is that departure from American Samoa is not specifically authorized as a condition of probation under A.S.C.A. §§ 43.2205 and 43.2206, and, hence, he was not truly informed of this possible consequence of his guilty pleas by the laws of American Samoa, particularly since departure orders have normally been used only in felony convictions. While we believe that A.S.C.A. § 46.2205 clearly authorizes probationary conditions reasonably related to the purposes of probation in a given case beyond those conditions enumerated in the statue, this argument is directly answered by A.S.C.A. §41.0614, enacted by P.L. 22-1 (1991), which expressly recognizes the Court's power to impose probationary departure conditions.

Defendant's arguments on other potential legal and constitutional deficiencies of probationary departure orders were addressed in depth in American Samoa Government v. Fa`amaoni, CR No. 63-89 (1989). The trial court's reasoning on those issues in that case is persuasive. In our opinion, defendant's arguments on these other issues are without ultimate merit. [22ASR2d50]

We also disagree with defendant's argument that the probationary departure order in this case was essentially punitive in nature. On the contrary, our purposes were to: (1) protect the public, including both the 13-year old victim in this case, who resides in the Manu`a Islands, and other potential young victims who reside there or elsewhere in American Samoa, Tutuila and Anu`u, from any repetitious conduct by defendant; and (2) relocate defendant back to his homeland in Western Samoa where his family and village lifestyle will be significantly more structured than will be his lifestyle as a single young man not yet intimately associated with family or community in American Samoa and will, in our opinion, provide a greater rehabilitative influence during this young man's development to responsible adulthood in the near term.

Accordingly, defendant's motion for a new trial with respect to the probationary departure order is denied.

Probation granted in this action will best serve its purposes of public protection and offender rehabilitation if it is carried out immediately. Therefore, defendant's motion for a stay of execution of the probationary departure order pending appeal is denied. As required by T.C.R.Cr.P. Rule 38(4), it is stipulated that the term of defendant's probation commenced on June 23, 1992.

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

July 22, 1992

__________

When a party mistakenly designates a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. T.C.R.C.P. 8(c)

Potential claimants to an estate's proceeds were to be joined as necessary parties when the complete relief granted by the court would affect the property rights of persons who were not presently parties to the action. T.C.R.C.P. 19.

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

Counsel: For Plaintiffs, Charles V. Ala'ilima
For Defendants, Roy J.D. Hall, Jr. [22ASR2d11]

On Motion for Reconsideration or New Trial:

At oral arguments heard on June 17, 1992, plaintiffs moved the Court for reconsideration or new trial on several grounds. First, they claim that the findings of fact are clearly erroneous or unsupported by the evidence. We decline to reconsider our decision or grant a new trial on this ground.

Plaintiffs also assert that the relief awarded was beyond the Court's authority. They claim that defendants Jack and Eliza Thompson did not file a compulsory counterclaim against the plaintiffs in accordance with T.C.R.C.P. 13 (a) and thus are not entitled to any relief. This claim has no merit, as under T.C.R.C.P. 8(c), "[w]hen a party mistakenly designates ... a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation." The defendants did ask for the relief we granted in several of their asserted affirmative defenses. Misdesignation clearly occurred, but in the interest of justice, we have treated the pleading as if there were a proper designation. Thus, we also decline to grant reconsideration or a new trial on this ground.

Finally, plaintiffs assert that the Court's order exceeds the Court's authority because it affects property rights of persons who are not parties to this action. This claim does have merit. When the property was included in Alexander's estate, it was divided and distributed among over a dozen people, including David and Eliza. T.C.R.C.P. 19 provides that "[a] person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties." (Emphasis added.) In this case, the complete relief constructed by this Court must affect the rights of all of these heirs of Alexander, since the relief is based on Alexander's fiduciary relationship with Jack and his implied promise or constructive fraud with respect to the relationship, and all of the heirs received their interests from Alexander. It is possible that even if the Court were only to award the Jennings' 2/15 interest to the Thompsons, the remaining heirs would be collaterally estopped from later claiming that they own their interests because of the derivation from Alexander. Thus, the parties are necessary parties and the Thompsons, if they desire relief to be accorded in this case, must attempt to join the remaining heirs. [22ASR2d12]

Several of these distributees have since died, and although most of these estates(1) are still open and can thus be joined by naming their administrators or executors, a few estates have been closed and the property in them distributed. The Thompsons will have to attempt to join the distributees of these closed estates as well, to bring all of the potential claimants before the Court. It the defendants are unable to bring some of the parties before the Court, we will then determine whether these parties are indispensable or whether the action can proceed despite their absence.

Even if no attempt to join the other heirs is made, we do not confirm the plaintiffs' 2/15 interest in the property. Plaintiffs' original prayer for relief is denied if such joinder is not attempted.

**********

1. The Estate of Margaret Z. Jennings, PR No. 39-88, may be helpful in determining which of Alexander's heirs are still alive and where they may be found.

Bryant v. Southwest Marine of Samoa , Inc.,


CURTIS BRYANT, BARBARA BRYANT, WARD BROWNE,
DAVID IRVINE, KEITH BURBRIDGE, RITA BURBRIDGE,
JOHN ROSE, and GREG LEWIS, Plaintiffs

v.

SOUTHWEST MARINE OF SAMOA, INC.,
VESSEL SOUTHWEST MARINE CRANE BARGE,
its Engines, Tackle, and Gear, and DOES I-XX, Defendants

SOUTHWEST MARINE OF SAMOA, INC., Third-Party Plaintiff

v.

KOREA WONYANG FISHERIES CO., LTD.,
KOREAN TUNA VENTURES S.A., STARKIST SAMOA, INC.,
STARKIST FOODS, INC., and
AMERICAN SAMOA GOVERNMENT, Third Party Defendants

High Court of American Samoa
Trial Division

CA No. 41-92

September 8, 1992

__________

Though modelled on the Federal Tort claims Act, as amended in 1966, the territorial Government Tort Liability Act does not contain the F.T.C.A.'s exception from the administrative-claim prerequisite for a cause of action asserted by third-party complaint, cross-claim, or counterclaim. 28 U.S.C. § 2675(a); A.S.C.A. § 43.1205(a).

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

Counsel: For Plaintiffs, Charles V. Ala'ilima
For Defendant and Third-Party Plaintiff
Southwest Marine of Samoa, Inc. and Defendant
Southwest Marine Crane Barge, Robert A. Dennison III
For Third-Party Defendant StarKist Samoa, Inc. and
StarKist Foods, Inc., John L. Ward II [22ASR2d89]
For Third-Party Defendant American Samoa Government,
Cheryl A. Quadlander, Assistant Attorney General

Order Denying Motion to Reconsider Order on Motion to Dismiss:

The Court's order granting the motion by third-party defendant American Samoa Government ("ASG") to dismiss the third-party complaint against it was issued on August 5, 1992, and entered on August 6, 1992. The motion by defendant and third-party plaintiff Southwest Marine of Samoa, Inc. ("SWM Samoa") to reconsider this order was filed on August 17, 1992, and heard on September 3, 1992.

In connection with its motion to reconsider, SWM Samoa has correctly pointed out that the administrative-claim prerequisite to suit against the U.S. Government was added to the Federal Torts Claims Act ("F.T.C.A.") by amendment to 28 U.S.C. § 2675 in 1966; and that then-federal case law, initiated by United States v. Yellow Cab, 340 U.S. 543 (1951), had clearly established third-party practice against the federal government. Any cause of action asserted by third-party complaint, cross-claim, or counterclaim is expressly and reasonably excepted from the administrative-claim requirement in 28 U.S.C. § 2675(a). However, this point only reinforces the compelling inference that the Legislature acted deliberately when the American Samoa Government Tort Liability Act ("G.T.L.A) was enacted in the following year, 1967, and the exception was not included in A.S.C.A § 43.1205(a). The G.T.L.A was modeled on the F.T.C.A., as amended in 1966, and A.S.C.A. § 43.1205(a) is the counterpart of 28 U.S.C. § 2675(a).

The motion to reconsider the order of dismissal is denied.

The following language was inadvertently omitted from the Court's order dismissing the third-party complaint against ASG and by amendment added at the end of the last paragraph on page 3: "It is so ordered."

It is so ordered.

**********

Bryant v. Southwest Marine of Samoa, Inc.,


CURTIS BRYANT, BARBARA BRYANT, WARD BROWNE,
DAVID IRVINE, KEITH BURBRIDGE, RITA BURBRIDGE,
JOHN ROSE, and GREG LEWIS, Plaintiffs

v.

SOUTHWEST MARINE OF SAMOA, INC.,
VESSEL SOUTHWEST MARINE CRANE BARGE, its Engines,
Tackle and Gear, and DOES I-XX, Defendants

SOUTHWEST MARINE OF SAMOA, INC.,
Third-Party Plaintiff

v.

KOREA WONYANG FISHERIES CO., LTD.,
KOREAN TUNA VENTURES S.A.,
STARKIST SAMOA, INC., STARKIST FOODS, INC., and
AMERICAN SAMOA GOVERNMENT, Third-Party Defendants

High Court of American Samoa
Trial Division

CA No. 41-92

August 6, 1992

__________

The requirement of filing an administrative claim before filing suit under the Government Tort Liability Act is jurisdictional. A.S.C.A. § 43.1205.

Although based on the Federal Tort Liability Act, the territorial Government Tort Liability Act does not contain the former's exception for third-party complaints from the requirement that an administrative-claim is a prerequisite to filing suit. 28 U.S.C. § 2675; A.S.C.A. §43.1205.

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

Counsel: For Plaintiffs, Charles V. Ala'ilima
For Defendant and Third-Party Plaintiff Southwest Marine
of Samoa, Inc. and Defendant Southwest Marine Crane Barge,
Robert A. Dennison III [22ASR2d24]
For Third-Party Defendant StarKist Samoa, Inc. and
StarKist Foods, Inc., John L. Ward II
For Third-Party Defendant American Samoa Government,
Cheryl A. Quadlander, Assistant Attorney General

On Motion to Dismiss:

The motion by third-party defendant American Samoa Government (ASG) to dismiss the third-party complaint against it for lack of subject matter jurisdiction came on regularly for hearing on July 8, 1992.

ASG claims that this Court can have no jurisdiction over ASG until defendant/third-party plaintiff Southwest Marine of Samoa, Inc. (SWM Samoa) has filed an administrative claim that is denied by ASG; this administrative claim must be pursued prior to filing suit. SWM Samoa counters that the Federal Tort Claims Act (F.T.C.A.), on which the American Samoa Government Tort Claims Act is based, allows an exception for third-party claims and that plaintiffs but not SWM Samoa suffered the injury and thus only plaintiffs should file any administrative claim. We find SWM Samoa's reasoning both logical and enticing, but we find that we are compelled to rule for ASG.

The requirement of filing an administrative claim pursuant to A.S.C.A. § 43.1205 before filing suit is in fact jurisdictional. Gobrait v. Americana Hotels, Inc., 1 A.S.R.2d 1 (Tr. Div. 1978); Mataipule v. Tifaimoana Partnership, Ltd., 14 A.S.R.2d 100 (1990); Crispin v. ASG, CA No. 03-91, unreported (Opinion and Order, May 21, 1992). The F.T.C.A. also does in fact provide an exception to this requirement for third-party complaints. This exception allows a third-party plaintiff to bring the government into federal district court as a third-party defendant without first filing an administrative claim, because "the third party plaintiff is forced into the action by the plaintiff and has no choice but to assert any claims he might have against those who might be responsible for the acts he is charged with in the plaintiff's complaint." Rosario v. American Export-Isbrandtsen Lines, Inc., 531 F.2d 1227, 1234 (3rd Cir. 1976). This reasoning would persuade us in favor of SWM Samoa, but the historical legislative relationship between the federal and American Samoa acts compels us otherwise. [22ASR2d25]

The F.T.C.A. was adopted in 1946 and amended in 1966. This amendment inserted the exception of third-party complaints, cross-claims and counterclaims from the requirement of filing an administrative claim prior to asserting the claim in the lawsuit. The American Samoa Government Tort Liability Act (G.T.L.A.) was adopted in 1967, one year after the 1966 amendment, yet it did not adopt the exceptions for third-party complaints, cross-claims and counterclaims. No direct legislative history is known to exist regarding the adoption of the G.T.L.A., but this procession of events leads us to inevitably infer that the omission was a deliberate act by the Legislature. For us now to apply this omitted sentence as though it were part of the G.T.L.A. as well as the F.T.C.A. would be a judicial usurpation of legislative power. The Legislature would be well advised to amend the G.T.L.A. to include this exception, but despite the wisdom of SWM Samoa's position, we are constrained to hold that ASG prevails. SWM Samoa should file an administrative claim with ASG forthwith if it wishes to join ASG as a third-party defendant. The motion to dismiss is GRANTED.

**********

Alaimalo; Utu v.


UTU SINAGEGE MORRIS, DAVID and
SOPO ETIMANI, Plaintiffs

v.

ALAIMALO TUMUAIALI'I, ROBERT F. PORTER,
and SIVIA JR. PAOLO, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 22-91

September 9, 1992

__________

A matai may not revoke a previous matai's assignment of communal land without cause.

An objection to a proposed lease, when found to be nothing more than an attempt to revive a previously litigated ownership question, will not be entertained due to res judicata.

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

Counsel: For Plaintiff Utu, Falefatu A. Utu
For Defendant Paolo, Togiola T. A. Tulafono
For Defendant Alaimalo, Pro Se

Plaintiff Utu Sinagege is the senior matai of the Utu family. He proposes to lease to plaintiffs David and Sopo Etimani, Utu family members, a 60' x 60' homesite on a certain portion of land which the parties refer to as Oloie, located in Auasi, Eastern District. The Etimani's would like to build a home, and a leasehold interest would facilitate financing. After the proposed lease was filed with the Secretary of the Land Commission, pursuant to A.S.C.A § 37.0203, it attracted the objections of the defendants. The Land Commission then referred the matter to the Land and Titles Division.

The objection by Alaimalo Tumuaiali'i and Robert F. Porter is nothing more than an attempt revive a claim to ownership by Alaimalo, which was previously ruled against by the Land and Titles Division in Sivia v. Alaimalo, 13 A.S.R.2d 95 (1989), appeal dismissed 17 A.S.R.2d 25 (1990). The court there held that the Alaimalo family's entitlement to [22ASR2d93] Oloie was derived through membership in the Utu family. That holding is res judicata.

We also consider here whether Alaimalo, as a member of the Utu family, held an "assignment" of communal land from a former Utu titleholder, which a subsequent matai may not thereafter undo without cause. See Taesaliali'i v. Samuela, 3 A.S.R. 359 (1958); Lutu v. Taesaliali'i, 11 A.S.R.2d 80 (1989). However, the preponderance of the evidence is that the disputed site has been in the use and occupation of defendant David Etimani's side of the family for many years.

Defendant Sivia's objection is grounded on the submission that the disputed site is part of that land Oloie which was the subject matter of the dispute in Utu and Paolo v. Fonoti, 1 A.S.R. 208 (1907), and which the court had awarded to both Utu and Paolo. Sivia thus claims that Paolo's permission must also be sought with respect to the disputed homesite.

As to this objection, we are unable to conclude on the extent of the evidence presented that the site in dispute is indeed within the subject matter of the 1907 case. There was no attempt by Sivia to show this. On the other hand, the evidence, as above noted, showed use and occupation of the disputed site by the Utu family members and a marked absence of anyone from the Paolo family. A visit to the site by the Court revealed a cluster of Utu family homes, as well as the sites of Utu homes removed by recent hurricanes, surrounding the disputed site.

On the foregoing, we conclude that the 60' x 60' site in question is Utu communal property available for lease by the senior matai to David and Sopo Etimani. Accordingly, the objection of Alaimalo and the Paolo family are hereby dismissed.

It is so ordered.

**********

Alailima-Utu v. Tufele,


PENELOPE ALAILIMA-UTU, MATAVAI SAUNI, TASI LILI'O,
and YWCA OF SAMOA, Plaintiffs

v.

TOFIGA TUFELE, BERTHA SAMUELU, FAIVA PEREIRA,
LA'ALOI LILI'O, and YWCA OF AMERICAN SAMOA,
Defendants

High Court of American Samoa
Trial Division

CA No. 25-90

August 12, 1992

__________

In the absence of an authorizing statute, the general rule at common law is that an unincorporated association is not a legal entity capable of holding or acquiring property.

In the absence of a provision in the constitution or bylaws of an unincorporated association giving its members a severable interest in the association's assets, the general rule is that a withdrawing member loses title to associational property, which stays with the members remaining in the association.

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

Counsel: For Plaintiffs, Charles V. Ala'ilima
For Defendants, Gata E. Gurr

The individual litigants here were all, at one time, members of an unincorporated association which publicly held itself out as the Tutuila and Manu'a branch of the YWCA of Samoa (hereinafter the "association"). The Association was affiliated with the "YWCA of Samoa," a corporate body (hereinafter the "corporation") organized in 1977 under the laws of Western Samoa. The corporation was, in turn, [22ASR2d35] affiliated with the YWCA World council (hereinafter the "world body"), to which the corporation pays an annual affiliation fee. (1) This fee was collected from the membership-which no only comprised the association but also separate branches from the islands of Upolu and Savai'i-in the way of annual dues. These dues were determined at the fono tele, the annual general meeting of the three island branches, convened at the end of each year. Save for certain collective concerns like the annual affiliation fee payable to the world body, each island branch operated more or less autonomously, raising its own funds and developing its own parochial programs and projects.

In 1989, however, the defendants, who were then principal officers of the association, instituted a secessionist movement to get out completely from under the umbrella of the corporation. They stopped paying the annual dues to the corporation and incorporated a local entity named the "YWCA of American Samoa, " apparently with the objective of dissolving the association and assuming its assets, as well as its role, in the territory. Since incorporating, however, the defendants have failed to secure world-body recognition as a YWCA affiliate in its own right. The world body continues to recognize the corporation and its three island branches as the only affiliated YWCA for the Samoas.

Plaintiffs oppose the secession and they filed suit to freeze the association's assets to prevent the defendants' use thereof. These assets are essentially finds-$7,800 now on deposit with the Clerk of Courts-comprised of dues and monies which were publicly solicited through the association's various fund-raising activities in 1987-1988 under the YWCA banner. At the time, fund-raising was geared towards securing a clubhouse for association activities. Since the split, the plaintiffs and those members opposed to a divorce with Western Samoa have actively continued to promote the activities of the association with, among other things, a renewed membership drive; they continue to pay the annually assessed dues towards the world body's affiliation fee; they have organized as a local eleemosynary corporation known as the "YWCA of Tutuila and Manu'a," and as such have rented a building in Tafuna for corporate headquarters. Plaintiffs seek to retain use of all the funds. [22ASR2d36]

Defendants argue that the American Samoa branch as an unincorporated association was not a legal entity capable of holding property in American Samoa. They claim dissolution of the association and thus seek to have the funds divided up among the members as tenants in common. (2) Alternatively, defendants suggest a 50%-50% split of the assets as being an equitable division. The defendants further argue that the disputed funds cannot be claimed by the corporation since it could not have done business in the territory without first complying with the requirements of local law, A.S.C.A Title 30, Chapter 3, pertaining to the registration of foreign corporations.

DISCUSSIONS

The issue before us is what to do with these funds. We need not here address the issue whether a foreign corporation, operating within American Samoa without complying with the provisions of A.S.C.A. Title 30, Chapter 3, can hold property in the territory; the funds in question were undisputedly held by the YWCA branch in American Samoa and not by the corporation.

For the reasons given, we conclude that the funds should be awarded to the plaintiffs on behalf of the association. First, the evidence does not sustain the conclusion that there was a voluntary dissolution of the association by common consent of its members. Notwithstanding the actions of the defendants, the association continued to remain alive and active, pursuing the ends of its existence. Significantly, it alone continues to enjoy the recognition of the world body as the legitimate YWCA affiliate in the territory. We see nothing on the facts to warrant a decree of involuntary dissolution.

On the other hand, the defendants, in their ceasing to pay the customary annual dues, widely acknowledged by the members as a prerequisite to membership, had thereby effectively withdrawn from the association. In the absence of a provision in the constitution or bylaws of an unincorporated association giving its members a severable interest in the association's assets, the general rule is that a withdrawing member [22ASR2d37] loses title to associational property, which stays in the members remaining in the association. 6 Am. Jur. 2d Association & Clubs § 23; 7 C.J.S. Associations § 26(b). Indeed,

[t]his rule applies even where a number of members secede in a
body, and although they constitute a majority, and organize a new
association. In such case, the remaining members, and only they, are
entitled to the entire funds and property of the association, so long as
they continue to keep it alive and adhere to its purposes.

7 C.J.S. Associations § 26(b), at 71. Here, we find nothing in the association's organic law giving its individual members a severable interest in the association's assets and accordingly find no reason to permit a diversion of funds from the organic purpose for which such funds were raised. See also Ligget v. Koivunen, 34 N.W.2d 345 (Minn. 1948).

Judgment will enter accordingly in favor of plaintiffs as aforesaid.

It is so ordered.

**********

1. For an extensive discussion of the general purposes and activities of the YWCA, see in re Briggs' Estate, 208 N.W. 247, 248-49 (Wis. 1926).

2. In the absence of authorizing statute, the general rule at common law is that an unincorporated association is not a legal entity capable of holding or acquiring property. See 6Am. Jur. 2d Associations & Clubs § 13. Property ostensibly held by such unincorporated bodies is deemed to belong to the members jointly or as tenants in common."Id.

Adams; Amerika Samoa Bank v.


AMERIKA SAMOA BANK, Plaintiff

v.

BILL ADAMS and QUALITY FURNITURE, Defendants

and

PACIFIC ISLAND MANUFACTURING COMPANY,
INC., Garnishee

High Court of American Samoa
Trial Division

CA No. 109-89

August 17, 1992

__________

Shareholders' immunity for corporate debts is absolute unless circumstances justify disregarding the corporate entity to prevent abuse of corporate privileges by an individual or another corporation having domination or control; in such cases, the issue is whether limiting corporate privileges will accomplish justice and defeat fraud or other unfairness in a court's resolution of the issues before it. A.S.C.A. § 30.0114(6).

The court found that a corporation was the alter ego of an individual and its assets subject to garnishment when the totality of the circumstances showed that this individual dominated and controlled the corporation and was its real owner. A.S.C.A. § 43.1811(a).

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

Counsel: For Plaintiff, William H. Reardon
For Defendant Bill Adams, Pro Se

Judgment Against Gamishee and Modification of Original Judgment:

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

Counsel: For Plaintiff, William H. Reardon
For Defendants, Bill Adams Pro Se
For Garnishee, Pro Se

Plaintiff is presently seeking a judgment in the sum of $7,115.35 in this action against the garnishee pursuant to the garnishment laws of American Samoa, A.S.C.A. §§ 43.1801 et seq. Plaintiff's application for an order to show cause for this purpose and affidavit in support of issuance of the order were filed on May 5, 1992. The order to show cause was issued on May 6, 1992, and an evidentiary hearing was held [22ASR2d39] on May 20, 1992 as scheduled. Bill Adams (Adams) and Saipai Adams (Saipai), his wife, appeared and testified.

FINDINGS OF FACT

On May 27, 1987, Adams signed a promissory note on behalf of Quality Furniture, which is a domestic American Samoa corporation fully named Quality Furniture Manufacturing, Inc., in the principal sum of $12,441.26, with interest at the rate of 12% per annum on the decreasing balance of the principal, payable to the Amerika Samoa Bank (the Bank) in 48 monthly installments of $327.63 each, on the 27th day of each month beginning on June 27, 1987. The principal sum represented the combined balance of two loans by the Bank to Quality Furniture. Payments on the promissory note were made sporadically, the first one on July 15, 1987, and the last one on February 21, 1989.

On December 15, 1989, the Bank commenced this action against Adams and Quality Furniture for damages on default of the unpaid amount of the promissory note in the sum of $6,028.07, plus prejudgment and postjudgment interest, costs of suit, and attorney's fees. Following trial on August 1, 1990, at which Adams did not appear, the Bank was awarded judgment against Quality Furniture. The written judgment, issued on August 7, 1990, is in the principal amount of $6,028.07, plus prejudgment interest of $390.43, attorney's fees of $641.85, and costs of $55, a total of $7,115.35.

The Bank served a notice of garnishment on the Bank of Hawaii on June 17, 1991, which did not reveal any property belonging to Adams or Quality Furniture in the Bank of Hawaii's possession or debts due to Adams or Quality Furniture by the Bank of Hawaii.

The Bank then served Adams with interrogatories in aid of judgment on August 28, 1991, which were returned on October 1, 1991 with Adams' unsigned answers. In one answer, Adams stated that he was a consultant to Pacific Island Manufacturing and was paid $200 on the 5th and 20th of each month, a total of $400 per month.

The Bank next served Pacific Island Manufacturing with a notice of garnishment on April 7, 1992. The interrogatories were answered and signed by Saipai, and were filed with the Court on April 24, 1992. In one answer, Saipai stated that Adams "is not an employee or owner, partner, officer or any other of Pacific Island Mfg. Inc." The Bank followed with this proceeding for a judgment against the garnishee. [22ASR2d39]

Pacific Island Manufacturing was incorporated as a domestic American Samoa corporation on June 27, 1986, with its principal place of business in Nu`uuli, American Samoa. Saipai is one of the three incorporators. According to Saipai, the present shareholders or owners and managing Directors of the corporation are her sister and brother and herself. She is also the President of the corporation, but does not recall when she took office. The last meeting of the Board of Directors was in 1991, but she is uncertain which Directors attended the meeting.

Saipai states emphatically that Adams has nothing, and never had anything, to do with Pacific Island Manufacturing's business affairs. However, there are numerous significant indications to the contrary. One of Pacific Island Manufacturing's main business activities is selling furniture. Adams has been in the furniture business for some 32 years. This experience includes the operation of Quality Furniture in American Samoa, which he closed down in 1986, after a judgment of $40,000 in damages was rendered against him and Quality Furniture by this Court. He claims that he was tired of and experiencing burn-out from the furniture business. Pacific Island Manufacturing commenced business operations the same year. Both Adams and Saipai, his wife of 10 years, admit that her knowledge of the furniture business was gained from him.

Pacific Island Manufacturing also operates a tour and travel agency, doing business as "Pacific Island Tour & Travel." For this activity, it registered with the American Samoa Government's Territorial Registrar in 1986, after Pacific Island Manufacturing was incorporated, a seven-day tour itinerary in American Samoa, including a daily schedule of events, as its purported "sole and exclusive property." This registered document is signed by Adams. He states that he was running the tour and travel operation for Saipai in 1986.

Saipai's knowledge of Pacific Island Manufacturing's business, as well as business matters generally, is largely superficial. In addition to her vagueness on formal corporate affairs noted above, she does not know the amount of the original investment in the corporation, which came from funds provided by her parents, or the amount invested in the beginning inventory of the business. She also did not recognize a number of technical English terms for furniture items when she was questioned about them, although this may be attributable in part to a lack of familiarity with this terminology.

More significantly, while she runs the store and at times consults with her sister and brother, she looks to Adams for advice on business [22ASR2d40] matters. As specific examples, she answered the interrogatories to garnishee after discussing the questions asked with Adams; and Pacific Island Manufacturing's tax returns are prepared by an accountant, but she signs them only after discussing the returns with Adams. The company's business premises are located on land that Quality Furniture leases, under a lease signed by Adams, and in turn subleases to Pacific Island Manufacturing.

Saipai left American Samoa in the early part of September 1991 and returned from California in February 1992. According to Adams, he looked after Pacific Island Manufacturing's business affairs and was paid $400 per month as a consultant for his oversight services, during the first two months or so of his wife's absence. He continued to provide these services without any compensation after Hurricane "Val" struck American Samoa in the early part of December 1991 causing extensive damage to the furniture inventory at Pacific Island Manufacturing's store. The inventory damage made it necessary for Saipai to stay in California longer than intended to replace the damaged items. On-hand replenishment of the inventory was accomplished in February and March of this year.

Adams went on to explain that Saipai's continued absence required him to submit to the Government in December 1991 two business license renewal applications for calendar year 1992 on behalf of Pacific Island Manufacturing. One of these applications was for the furniture business, while the other was for the tour and travel agency operation. Adams signed both applications as the Manager of Pacific Island Manufacturing.

Saipai stated that Adams is not now receiving any money from Pacific Island Manufacturing, and that she is the sole signatory on the company's bank account. She professed that she has no knowledge about Adams' remunerative activities or any debts he may have.

Adams stated that he has no financial interest in Pacific Island Manufacturing, and that his only present business activity, which began a few months ago, is in wholesale produce, dealing with a company in Los Angeles. He also stated that his only present indebtedness, except to his parents, is the one to the Bank involved in this action.

DISCUSSION
[22ASR2d41]

The ultimate resolution of the present proceedings in this action depends upon the application of A.S.C.A. § 43.1811(a), which reads in pertinent part as follows:

43.1811 Judgment.
(a) If it is made to appear that the garnishee
was indebted to the defendant or had any of his
property in his hands at the time of being served
with the notice of garnishment, the garnishee
shall be liable to the plaintiff . . . to the full
amount of the judgment, or to the amount of such
indebtedness or property held by the garnishee.

The application of this statute in this case in turn requires analysis of the sequential relationship of Quality Furniture and Pacific Island Manufacturing and Adams' relationship to both corporations.

The Bank's underlying judgment in this action is only against Quality Furniture as a corporation. Judgment was not awarded against Adams. The fundamental purpose of incorporating is to create a legal entity having an existence separate from that of its shareholders and thereby exempting the shareholders' property from corporate debts. The corporation laws of American Samoa recognize this purpose. A.S.C.A. §30.0114(6). This immunity is absolute unless there are circumstances justifying disregard of the corporate entity to prevent abuse of corporate privileges either by one or more individuals or by another corporation. B.E. Witkin, 9 Summary of California Law, Corporations § 12(1) at 524-25 (Bancroft-Whitney Co., 9th ed. 1989). In such cases, the issue is not whether the corporate entity should be disregarded for all purposes, but whether limiting corporate privileges will accomplish justice and defeat fraud or other unfairness in resolving the particular issues before the court. Id. § 12(2) at 525.

It must be shown that the corporation is dominated or controlled by one or more individuals or another corporation. As stated in Minifie v. Rowley, 187 Cal. 481, 202 P. 673, 676 (1921), domination or control in this context means:

Before the acts and obligations of a corporation can be legally
recognized as those of a particular person, and vice versa, the
following combination of circumstances must be made to appear:
First, that the corporation is not only influenced and governed
by that person, but [22ASR2d43] that there is such a unity of
interest and ownership that the individuality, or separateness,
of said person and corporation has ceased; second, that the facts
are such that an adherence to the fiction of the separate existence
of the corporation would, under the particular circumstances,
sanction a fraud or promote injustice."

The totality of the circumstances set forth above and the manner in which Adams and Saipai testified provide ample basis to find, and we do find, that in reality Adams was, and still is, the dominating force in control of both corporations and their alter egos. We further find from these circumstances that Adams is the dormant but nonetheless real owner of Pacific Island Manufacturing, whether or not his equity interest is shared in some manner with Saipai or any other persons. See Nelson v. Tarman, 163 Cal. App. 2d 714, 329 P.2d 953 (1958). The creation of Pacific Island Manufacturing simultaneously with the operational demise of Quality Furniture were Adams' means of relieving the financial pressures on Quality Furniture and continuing the same business afresh in an ostensibly different format as Pacific Island Manufacturing. While not defrauded outright, the Bank was clearly the object of unfairness. These findings lead us to recognize that the acts and obligations of Quality Furniture are also those of Adams and Pacific Island Manufacturing, as both corporations are Adams' alter egos.

In light of the present finding of Adams' alter ego relationship with Quality Furniture, the judgment in this action excluding Adams as a judgment debtor needs reconsideration. The alter ego issue was not raised during the trial of this action. Hence, this Court then had no basis to look behind the protective corporate clothing of Quality Furniture. Now that Adams' alter ego relationship with Quality Furniture has been found to exist, it is apparent that the judgment in this action requires amendment to designate the correct judgment debtors. An amendment of this nature is proper whenever the necessity becomes evident during proceedings after the judgment, so long as there was jurisdiction over the omitted defendant at the time of trial. Thomson v. L.C. Roney & Co., 20 Cal. App. 2d 456, 246 P.2d 1017 (1952).

At this point, we take note that A.S.C.A. § 43.1812 precludes a judgment against a garnishee unless the principal defendant, or in this case judgment debtor, has had seven days' notice of the garnishment proceedings and a marshal's return of that notice is of record. There is a marshal's return showing service of the writ of garnishment and related documents on Adams as Pacific Island Manufacturing's [22ASR2d44] manager on April 7, 1992, 52 days before the hearing on the order to show cause. The order to show cause was served on Saipai on May 7, 1992, 13 days before the order to show cause hearing. Adams did testify at the order to show cause hearing, and clearly, he had more than seven days' notice of that hearing. However, there is no marshal's return showing service of the order to show cause on Adams or Quality Furniture.

The purpose of A.S.C.A. § 43.1812 is to ensure that the principal defendant has adequate opportunity to participate and protect his property interests in proceedings against a garnishee allegedly indebted to or holding property of the defendant. Notice of the order to show cause hearing or other evidentiary proceeding is particularly important in this respect and is the object of the marshal's return required under A.S.C.A. § 43.1812.

In this case, however, in view of Adams' actual participation in the order to show cause hearing and alter ego relationship with Pacific Island Manufacturing and Quality Furniture, the marshal's return of service of the order to show cause on Saipai is substantial compliance with the requirement of a marshal's return of service on Adams and Quality Furniture.

CONCLUSIONS OF LAW

1. The Amerika Samoa Bank is entitled to a judgment against garnishee Pacific Island Manufacturing Company, Inc. in the sum of $7,115.35, plus interest at the rate of 12% per annum from August 1, 1990.

2. The Bank is entitled to a judgment against defendant Bill Adams individually, in addition to defendant Quality Furniture, on the underlying promissory note, dated May 27, 1987, in the sum of $7,115.35, nunc pro tunc to August 1, 1990, and the judgment, which was awarded on August 1, 1990 and signed on August 7, 1990, is so modified.

Judgment shall enter accordingly.

It is so ordered.

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