24ASR2d

24ASR2d

Maiava; Mulitauaopele v.


ALAMOANA S. MULITAUAOPELE, Petitioner

v.

ARONA MAIAVA, JR., Acting Territorial Auditor,
and TERRITORIAL AUDIT OFFICE OF THE
AMERICAN SAMOA GOVERNMENT, Respondents

High Court of American Samoa
Trial Division

CA No. 73-93

August 25, 1993

__________

A writ of mandamus will not be issued if the application or interpretation of a statute is discretionary.

The party seeking a writ of mandamus bears the burden of showing a clear and indisputable right to it. [24ASR2d135]

Although constraining government decisions which deprive an individual of some "property" or "liberty" interest, procedural due process does not prohibit the government's taking of property but requires that a person have an opportunity to be heard before his property is finally taken.

A court exercising judicial review starts with the presumption that a statute is valid and will construe a statute so as to avoid finding it unconstitutional.

In light of the constitutional doctrine of separation of powers, a court will not inquire into the wisdom of public policy but will sustain a challenged action as long as it does not violate the Constitution.

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

Counsel: Petitioner, Pro Se

Order Denying Motion for Reconsideration:

On August 2, 1993, this court issued its order denying petitioner's request for a writ of mandamus. Petitioner filed a motion for reconsideration on August 4, 1993. For the reasons enumerated below, his motion for reconsideration is denied.

First, mandamus is inappropriate in this case. As this court previously noted, mandamus will not be issued if the application or interpretation of a statute is discretionary .Reckless v. Heckler, 622 F. Supp. 715, 720 (N .D. Ill. 1985) (citing Mid-American Regional Council v. Mathews, 416 F. Supp. 896 (W.D. Mo. 1976)). The party seeking a writ of mandamus bears the "burden of showing that [his] right to issuance of the writ is 'clear and indisputable.'" Kerr v. United States Dist. Court, 426 U.S. 394, 403 (1976) (quoting Rankers Life & Casualty Co. v. Holland, 346 U .S. 379, 384 (1953); United States v. Duell, 172 U.S. 576, 582 (1899)). Petitioner has failed to show that the statute mandates certain types of audits, let alone the particular audit which he has requested. Indeed, petitioner bases one of his challenges on the premise that the statute purports to give the Territorial Audit Office the discretion as to which audits to conduct. Because petitioner has failed to show that the statute is not discretionary, mandamus was properly denied.

Second, petitioner's due process rights have not been violated. See Rev. Const. Am. Samoa Art. I, § 2. Procedural due process [24ASR2d136] constrains government decisions which deprive an individual of some "property" or "liberty" interest. Furthermore, due process does not prohibit the government's taking of property but requires that a person have an opportunity to be heard before his property is finally taken. Mathews v. Eldridge, 424 U.S. 319, 332-33 (1976); see Parratt v. Taylor, 451 U.S. 529, 540 (1981); Ferstle v. American Samoa Gov't, 7 A.S.R.2d 26, 49 (Trial Div. 1988). Petitioner has neither shown the existence of a property interest nor that his property has been taken. Thus, petitioner has not demonstrated a due process violation of any sort.

Third, this court rejects petitioner's argument that the statutory provision giving the Territorial Audit Office the discretion to conduct audits is unconstitutional. A court exercising judicial review starts with the presumption that a statute is valid. Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 944 (1983) (citing TVA v. Hill, 437 U.S. 153, 194-95 (1978)). Similarly, "it is the duty of [] courts to construe a statute in order to save it from constitutional infirmities." Mistretta v. United States, 488 U.S. 361, 406 n.28 (1989) (quoting Morrison v. Olson, 487 U.S. 654,682 (1988)); see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 595 (1952) (Frankfurter, J., concurring). As such, this court will not find a statute unconstitutional unless it cannot be plausibly construed otherwise.

Petitioner also repeatedly states his belief that the statute operates unfairly. However, the job of this court is not to determine public policy. A statute's "wisdom is not the concern of the courts; if a challenged action does not violate the Constitution, it must be sustained" because courts "do not sit as a committee of review." Chadha, 462 U.S. at 944 (citing TVA, 437 U.S. at 194-95); see also Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190,223 (1983) ("The courts should not assume the role which our system assigns to Congress."); Mistretta,488 U.S. at 415 ("the basic policy decisions governing society are to be made by the Legislature") (Scalia, J., dissenting). In short, separation of powers is a fundamental constitutional doctrine, which constrains each governmental branch from intruding into the legitimate functions of the others. See Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. ___, ___, 115 L. Ed. 2d 236,256-57 (1991); Chadha, 462 U.S. at 951.

The legislation creating the Territorial Audit Office, including the discretionary audit provision, was properly enacted by the territory's duly -chosen Legislature and Governor. These policymaking branches of [24ASR2d137] government rationally decided the structure and powers of this office. Even if petitioner is correct that the law is badly written, he should turn to the lawmaking branches for rectification. If this court were to accept his invitation to intrude into the policymaking decisions of the legislative and executive branches, this action would itself violate the separation of powers. Petitioner's attempt to have the statute declared unconstitutional is therefore unwarranted.

Accordingly, petitioner's motion for reconsideration is denied.

It is so ordered.

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Maiava; Mulitauaopele v.


ALAMOANA S. MULITAUAOPELE, Petitioner,

v.

ARONA MAIAVA, JR., Acting Territorial Auditor,
and TERRITORIAL AUDIT OFFICE OF THE
AMERICAN SAMOA GOVERNMENT, Respondents.

High Court of American Samoa
Trial Division

CA No. 73-93

August 2, 1993

__________

The extraordinary writ of mandamus will not be issued unless (1) other forms of relief are unavailable, (2) the alleged duty is clearly mandatory and not discretionary, and (3) defendant owes the duty to the plaintiff. [24ASR2d98]

Before RICHMOND, Associate Justice

Order Denying Petition for Writ of Mandamus

Counsel: For Petitioner, Pro Se

On July 13, 1993, Alamoana S. Mulitauaopele petitioned for a writ of mandamus to require the acting territorial auditor and the territorial audit office to audit alleged overexpenditures and misuse of public funds by the House of Representatives of the Legislature of American Samoa. On July 21, 1993, proceedings were suspended, pending compliance with the service and proof of service requirements under T.C.R.C.P. Rule 91 and the complete filing of requisite documents under T.C.R.C.P. Rule 89. With substantial compliance with these court rules achieved as of July 27, 1993, the court will act to grant, partially grant or deny the petition in accordance with T.C.R.C.P. Rule 92.

The extraordinary writ of mandamus will not be issued unless "(1) the plaintiff has a plain right to have the act performed; (2) the defendant has a plain duty to perform it; and (3) there is no other adequate remedy available to the plaintiff." Gifford Pinchot Alliance v. Butruille, 742 F. Supp. 1077, 1082-83 (D. Ore. 1990); seeSiofele v. Shimasaki, 9 A.S.R.2d 3, 11 (Trial Div. 1988); Beckless v. Heckler, 622 F. Supp. 715, 720 (N.D. Ill. 1985) (citing Kennecott Copper Corp., Nevada Mines v. Costle, 572 F.2d 1349, 1356 (9th Cir. 1978); City of New York v. Heckler, 742 F.2d 729 (2d Cir. 1984),aff'd sub nom. Bowen v. City of New York, 476 U.S. 467 (1986)). As such, "[t]he common-law writ of mandamus . . . is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 616 (1984) (citing Kerr v. United States Dist. Court, 426 U.S. 394, 402-03 (1976); United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 543-44 (1937)).

First, mandamus is available only if other forms of relief are unavailable. Ringer, 466 U.S. at 616 (citing Kerr, 426 U.S. at 402-03; Helvering, 301 U.S. at 543-44); American Samoa Gov't v. District Court, 10 A.S.R.2d 18, 19 (Trial Div. 1989); Siofele v. Shimasaki, 9 A.S.R.2d 3, 11 (Trial Div. 1988). Petitioner states that he has exhausted "all prerequisite administrative procedures," which would fulfill this requirement. As a taxpayer, petitioner also has the requisite standing to pursue this matter. "As a broad proposition, state taxpayers have [24ASR2d99] standing to challenge the legality of the expenditure of public funds by any governmental agency . . . and, unlike federal courts, most states permit such citizen-taxpayer suits even on nonfiscal issues." Carsten v. Psychology Examining Comm. of the Bd. of Medical Quality Assurance, 614 P.2d 276, 279 (Cal. 1980) (citing 3 Davis, Administrative Law Treatise 245, 249 (1958)).

Second, the alleged duty must be "mandatory or ministerial," not "discretionary or directory." Maczko v. Joyce, 814 F.2d 308, 310 (6th Cir. 1987), cert. denied 484 U.S. 828 (1987). Thus, if the application or interpretation of a statute is discretionary, a writ of mandamus will not be issued. Beckless, 622 F. Supp. at 720 (citing Mid-American Regional Council v. Mathews, 416 F. Supp. 896 (W.D. Mo. 1976)). Furthermore, the party seeking mandamus bears the "burden of showing that [his] right to issuance of the writ is 'clear and indisputable.'" Kerr v. United States Dist. Court, 426 U.S. 394, 403 [48 L. Ed. 2d 725, 733] (1976) (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384 (1953); United States v. Duell, 172 U.S. 576, 582 (1899)). Thus, mandamus is appropriate only if "the claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt." Elliott v. Weinberger, 564 F.2d 1219, 1226 (9th Cir. 1977) (quoting Jarrett v. Resor, 426 F.2d 213, 216 (9th Cir. 1970)), modified on other grounds sub nom. Califano v. Yamasaki, 442 U.S. 682 (1979); see Pittston Coal Group v. Sebben, 488 U.S. 105, 121 (1988) ("clear nondiscretionary duty") (quoting Ringer, 466 U.S. at 616); Beckless, 622 F. Supp. at 720 ("clear and unmistakable" duty) (citing Gillis v. IRS, 578 F. Supp. 69, 71 (D.N.H. 1983)); Butruille, 742 F. Supp. at 1083.

The territorial audit office, headed by the territorial auditor, exists as an independent agency of the American Samoa Government. A.S.C.A. § 4.0402. This statutory independence guarantees that any agency of the government is subject to audit, unimpeded by the head of that agency or any other government official. See A.S.C.A. § 1.0419 (auditor's access to records). Decisions to audit and the conduct of each audit must be uninfluenced and unfettered by partisanship or bias. A.S.C.A. § 4.0411(b). Clearly, petitioner's allegations that the American Samoa House of Representatives overspent its budget for four consecutive fiscal years, 1989 through 1992, and misused public funds could justify an independent audit.

Nevertheless, the decision as to whether this or any other audit is warranted in light of the circumstances is one of policy. Neither the territorial audit office nor the territorial auditor is statutorily [24ASR2d100] compelled to undertake any particular audit; instead, the statute gives them discretion to conduct audits as they deem appropriate. See A.S.C.A. §§ 4.0401-4.0420. Even if this audit is desirable, this court does not have the power to order the territorial audit office or the territorial auditor to take discretionary action. Mandamus is not a remedy available to petitioner.

Therefore, the petition for a writ of mandamus must be and is denied. It is so ordered.

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Pula v. Pula,


SINAUKOFE PULA, Petitioner

v.

VALERIE PULA, Respondent

High Court of American Samoa
Trial Division

DR No. 20-93

September 9, 1993

__________

When personal service cannot be made upon a respondent in a divorce action within American Samoa, a petitioner may apply for an order authorizing issuance of a notice for service by publication, supported by an affidavit or another acceptable, verified statement of nonresidency or unknown residency. A.S.C.A. §§ 43.0501-43.0504; T.C.R.C.P. 4(e).

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

Counsel: For Petitioner, Albert Mailo
For Respondent, Marshall Ashley

Supplemental Order Permitting Service by Publication or by Personal Service or Registered Mailing:

On July 20, 1993, an order permitting service by publication or registered mailing was issued in this action. That order inadvertently omitted the option of personal service authorized by A.S.C.A. § 43.0504 when service of process is to be made upon a party who is not an inhabitant or found in American Samoa. This order supplements the order of July 20, 1993, to address this oversight.

When personal service cannot be made upon a respondent in a divorce action within American Samoa, service of process must be made pursuant to A.S.C.A. §§ 43.0501-43.0504. An application for an order authorizing issuance of a notice for service by publication, supported by an affidavit or another acceptable, verified statement of nonresidency or unknown residency, is required. The court order granting the application authorizes service by publication, in compliance with A.S.C.A. §§ [24ASR2d152] 43.0302 and 43.0503, or service by either personal service or registered mailing, pursuant to A.S.C.A. § 43.0504.

Good cause appearing, IT IS ORDERED that, in accordance with A.S.C.A. § 43.0504 and T.C.R.C.P. Rules 4(c) and (e), service of process by publication is also not necessary if this order, the order of July 20, 1993, and the petition are served by a person, who is not less than 18 years of age and is not a party to this action, on respondent in person at least two months and 10 days before trial and proof of such service by the process server's affidavit is filed in this action.

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Pula v. Pula,


SINAUKOFE PULA, Petitioner,

v.

VALERIE PULA, Respondent.

High Court of American Samoa
Trial Division

DR No. 20-93

July 20, 1993

__________

When a petitioner files an affidavit that personal service cannot be made upon a respondent in a divorce action within American Samoa, due to nonresidency or unknown residency, service of process may be made by publication or registered mailing. A.S.C.A. §§ 43.501-43.504; T.C.R.C.P. 4(e), 12(a).

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

Counsel: For Petitioner, Albert Mailo
For Respondent, Marshall Ashley

Order Permitting Service by Publication or Registered Mailing:

On July 9, 1993, in light of the engagement of petitioner's counsel in a criminal trial by jury and nonappearance by respondent's counsel, the hearing on petitioner's "motion for leave to file an amended summons" was taken off calendar. Upon representation by respondent's counsel that respondent did not oppose petitioner's motion, the hearing was rescheduled and conducted on July 13, 1993.

The styling of the motion for "an amended summons" is directed at correcting the English version of the original summons, which omitted reference to the usual 20-day period, under T.C.R.C.P. Rule 12(a), in which respondent may serve an answer to petitioner's petition for divorce, by utilizing an alternative means of service of process.

T.C.R.C.P. Rule 12(a) also permits a different time, prescribed by court order, in which to appear and defend when, under T.C.R.C.P. Rule 4(e), service is to be made upon a party who is not an inhabitant or [24ASR2d94] found in American Samoa. When a party is outside the Territory, T.C.R.C.P. Rule 4(e) authorizes service of a summons, notice, or order in lieu of a summons in the manner prescribed by statute or order.

When an affidavit is filed that personal service cannot be made upon a respondent in a divorce action within American Samoa, due to nonresidency or unknown residency, A.S.C.A. § 43.0501, complemented by A.S,C.A. § 43.0504, permits service of process by publication or registered mailing after issuance of a court order authorizing service of process pursuant to A.S.C.A. §§ 43.0501-43.0504.

Hence, petitioner's motion is treated as an application for an order authorizing issuance of a notice for service of process by publication or registered mailing, pursuant to statute and supplemented by court order.

Petitioner's verified petition for divorce, alleging respondent's residency in Hawaii, meets the affidavit requirement and justifies issuance of a court order allowing service of process by publication or registered mailing, as contemplated by T.C.R.C.P. Rules 12(a) and 4(e), by further compliance with A.S.C.A. §§ 43.0502 and 43.0503 or 43.0504.

Accordingly, good cause appearing, IT IS ORDERED that:

1. Service of process by publication is permitted. Petitioner's notice shall contain and inform respondent of the following, as required by A.S.C.A. § 43.0502(b): (a) petitioner's name; (b) this court's name and that the petition is on file in this court; (c) a statement of the cause of action in general terms; and (d) a statement that unless respondent appears and defends within two months and 10 days from the date of the first publication, which date shall be published as part of the notice, a default will be entered against her and a decree rendered thereon.

2. In accordance with A.S.C.A. § 43.0502(a) and T.C.R.C.P. Rule 4(e), service of process by publication shall be accomplished only by: (a) publication of the notice once each month for two consecutive months in a newspaper of general circulation, genuinely calculated to notify respondent, in this case in Hauula, Hawaii; (b) posting the notice in front of the court house in Fagatogo, American Samoa, for the same two-month, 10-day period; (c) mailing the notice and the petition by registered United States mail to respondent at her last known address; and (d) filing with the court proof of service by publication by affidavits [24ASR2d95] prepared in accordance with A.S.C.A. § 43.0503. See Memorandum of the Justices, 3 A.S.R.2d 33 (1986).

3. Alternatively, in accordance with A.S.C.A. § 43.0504 and T.C.R.C.P. Rule 4(e), service of process by publication is not necessary if this order and the petition are served on respondent by registered United States mail at least two months and 10 days before trial and an official return receipt signed by respondent is attached to an affidavit of service by registered mail.

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Rocha v. Rocha,


JEANETTE P. ROCHA, Petitioner

v.

JOSE M.B. ROCHA, Respondent

High Court of American Samoa
Trial Division

DR No. 74-89

June 7,1993

__________

The rules of civil procedure do not limit a court's power to (1) entertain an independent action for relief from a judgment, order, or proceeding, or (2) set aside a judgment for fraud upon the court. Fed. R. Civ. P. 60(b); T.C.R.C.P. 60(b).

When an adverse party would not be prejudiced, an independent action for equitable relief from judgment may be treated as a motion for relief from final judgment, and vice-versa. Fed. R. Civ. P. 60(b); T.C.R.C.P. 60(b).

The elements of an independent action for equitable relief from judgment require (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of defendant; and (5) the absence of any adequate remedy at law.

Because the fraud which is the basis of an independent action for equitable relief from judgment must be "extrinsic, " the fraud must have prevented the raising of an argument or the assertion of a claim or defense at trial, or deprived a party of his right to a "day in court"; as such, perjury and false testimony are inadequate grounds for relief.

As the "saving clause" permitting a court "to set aside a judgment for fraud upon the court" is narrowly construed, only a deliberate scheme to subvert or corrupt the court's impartial functions constitutes "fraud upon the court." Fed. R. Civ. P. 60(b); T.C.R.C.P. 60(b).

Because of the interest in the finality of judgments, "fraud on the court" (1) is typically confined to the most egregious cases, such as an attorney's exerting improper influence on the court or the bribery of a judge or juror, in which the integrity and impartial functioning of the court is directly impinged; and (2) must be proven by "clear and convincing evidence."

Before KRUSE, Chief Justice, and BETHAM, Associate Judge. [24ASR2d56]

Counsel: For Petitioner, Robert A. Dennison III
For Respondent, Asaua Fuimaono

On Motion for Reconsideration:

Rule 60(b), T.C.R.C.P., enumerates six, specific grounds for relief from a final judgment. The rule also contains two "saving clauses," which state that the rule does not limit a court's power "[1] to entertain an independent action to relieve a party from a judgment, order , or proceeding, ...or [2] to set aside a judgment for fraud upon the court." T.C.R.C.P. 60(b); Fed. R. Civ. P. 60(b); see generally 7 Moore's Federal Practice paras. 60.31,60.33, at 60-348 to 60-362 (1985 & Supp. 1984-85). When an adverse party would not be prejudiced, this independent action for equitable relief may be treated as a Rule 60(b ) motion, and vice-versa. Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 n.7 (5th Cir. 1970), cert. denied 399 U.S. 927 (1970); Budge v. Post, 544 F. Supp. 370, 376 n.4 (N.D. Tex. 1982) (citing Bankers Mortgage Co.); H.K. Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d 1115, 1118 (6th Cir. 1976) (citing Bankers Mortgage Co.).

A successful independent action in equity requires the following elements:

(1) a judgment which ought not, in equity and good
conscience, to be enforced; (2) a good defense to the
alleged cause of action on which the judgment is founded;
(3) fraud, accident, or mistake which prevented the
defendant in the judgment from obtaining the benefit of
his defense; (4) the absence of fault or negligence on the
part of defendant; and (5) the absence of any adequate
remedy at law.

Bankers Mortgage Co., 423 F.2d at 79 (quoting National Surety Co. v. State Bank, 120 F. 593,599 (8th Cir. 1903)).

The fraud which is the basis of an independent action must be "extrinsic;" that is, the fraud must have prevented the raising of an argument or the assertion of a claim or defense at trial. Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 675 F.2d 1349, 1358 (4th Cir. 1982) (citing United States v. Throckmorton, 98 U.S. 61 (1878)), cert. denied 459 U .S. 1128 (1983); Green v. Ancora-Citronelle [24ASR2d57] Corp., 577 F.2d 1380,1384 (9th Cir. 1978) (citing Pico v. Cohn, 25 P. 970,970-71 (Cal. 1891); Kulchar v. Kulchar, 462 P.2d 17 (Cal. 1969); Kachig v. Boothe, 99 Cal. Rptr. 393 (Ct. App. 1971)) (refusing to set aside state court's judgment). Depriving a party of his right to a "day in court" also qualifies as "extrinsic" (or "collateral") fraud. Green, 577 F.2d at 1384 (citing Pentz v. Kuppinger, 107 Cal. Rptr. 540, 543 (Ct. App. 1973); Robinson v. Robinson, 17 Cal. Rptr. 786, 788 (Ct. App. 1961)). Perjury and false testimony, though, are inadequate--for many of the same reasons applicable to "fraud on the court." Great Coastal Express, 675 F.2d at 1358 (citing Durham v. New Amsterdam Casualty Co., 208 F.2d 342,345 (4th Cir. 1953); Aetna Casualty & Surety Co. v. Abbott, 130 F.2d 40, 43-44 (4th Cir. 1942); Chrysler Corp. v. Superior Dodge, Inc., 83 F.R.D. 179, 186 (D. Md. 1979); Prickett v. Duke Power Co., 49 F.R.D. 116, 118 (D.S.C. 1970)).

Furthermore, the parallel "saving clause" permitting a court "to set aside a judgment for fraud upon the court" has been construed very narrowly. Great Coastal Express, 675 F.2d at 1356 (citing Kerwit Medical Products, Inc. v. N & H Instruments, 616 F .2d 833, 836-37 (5th Cir. 1980); Senate Realty Corp. v. Commissioner, 511 F.2d 929,931-33 (2d Cir. 1975)). "[O]nly a small number of those acts that can be considered fraud amount to 'fraud upon the court."' Budge, 544 F. Supp. at 377 (quoting Kerwit Medical Products, 616 F.2d at 836-37). This narrow construction arises from a concern that it could be used to entirely circumvent the time limits of Rule 60(b)(3). Great Coastal Express, 675 F.2d at 1356 (citing Kupferman v. Consolidated Research & Mfg. Corp., 459 F.2d 1072,1078 (2d Cir. 1972); 7 Moore's Federal Practice §§ 60.33, at 511 (1971)).

All fraud is not "fraud on the court," but only that which constitutes "a deliberate scheme to directly subvert the judicial process." Great Coastal Express, 675 F .2d at 1356 (citing 11 Wright & Miller , Federal Practice and Procedure § 2870, at 253 (1973)); see Budge, 544 F. Supp. at 377 (citing Rozier v. Ford Motor Co. , 573 F .2d 1332, 1338 (5th Cir. 1978)). This type of fraud occurs when "the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function--thus where the impartial functions of the court have been directly corrupted." Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985) (en banc), cert. denied 474 U.S. 1086 (1986); see Budge, 544 F. Supp. at 377 (citing United States v. International Tel. & Tel. Corp., 349 F. Supp. 22, 29 (D. Conn. 1972), aff'd without opinion sub. nom Nader v. United States, 410 U .S. 919 (1973)). Fraud which mainly concerns the opposing parties and [24ASR2d58] which does not threaten harm to the public does not meet this standard. Great Coastal Express, 675 F.2d at 1356 (citing Hazel-Atlas Glass Co. v. Hartford Empire Co. , 322 U .S. 238 (1944); Comment, 60 Cal. L. Rev. 531,557 (1972)). Only fraud which normally cannot be exposed during trial will suffice. Nondisclosure of evidence in pre-trial discovery is likewise not "fraud on the court." Bulloch, 763 F.2d at 1121 (citing H.K. Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d 1115 (6th Cir. 1976)). In short, "[p]erjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out as early as possible," Great Coastal Express, 675 F.2d at 1357 (citing Hazel-Atlas, 322 U.S. at 245; Pfeizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 193-95 (8th Cir. 1976), cert. denied 429 U .S. 1040 (1977); Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 702 (2d Cir. 1972), cert. denied 409 U.S. 883 (1972); Porcelli v. Joseph Schlitz Brewing Co., 78 F.R.D. 499 (E.D. Wisc. 1978), aff'd without opinion 588 F.2d 838 (7th Cir. 1978); Koningsberg v. Security Nat'l Bank, 66 F.R.D. 439,442 (S.D.N.Y. 1975); Lockwood v. Bowles, 46 F.R.D. 625,630 (D.D.C. 1969)).

Because of the interest in the finality of judgments, fraud sufficient to constitute "fraud on the court" is rarely present. First, "'fraud on the court' is typically confined to the most egregious cases, such as bribery of a judge or juror, or improper influence exerted on the court by an attorney, in which the integrity of the court and its ability to function impartially is directly impinged." Great Coastal Express, 675 F.2d at 1356 (citing Addington v. Farmer's Elevator Mutual Ins. Co., 650 F.2d 663,668 (5th Cir. 1981), cert. denied 454 U.S. 1098 (1981); Lockwood v. Bowles, 46 F.R.D. 625, 630 (D.D.C. 1969)). Second, this fraud must be proven by "clear and convincing evidence. .., and all doubts must be resolved in favor of the finality of the judgment." Bulloch, 763 F.2d at 1121.

On April 26, 1993, this court decided that respondent's motion for relief from judgment, though seeking to take advantage of subsection (6), was based on petitioner's fraud and so was properly categorized under subsection (3). Having been filed more than one year after the judgment, the Rule 60(b)(3) motion was denied as untimely. On May 6, 1993, respondent filed a motion for reconsideration of the order denying relief.

Also on the basis of fraud, respondent seeks to assert an independent action for relief from the judgment. However, he has not proven that he was prevented from raising an issue or defense at trial.[24ASR2d59] Indeed, the issue of paternity is frequently a central issue in divorce cases. Rather, respondent merely alleges that petitioner concealed the fact that he was not the child's natural father. Even if this allegation were true, respondent could and should have raised this issue at trial. He did not to do so. Thus, the fraud alleged does not constitute "extrinsic" fraud and does not overcome the strong public interest in the finality of judgments. Therefore, respondent's motion for reconsideration is DENIED.

It is so ordered.

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Rocha v. Rocha,


JEANNETTE P. ROCHA, Petitioner

v.

JOSE M.B. ROCHA, Respondent

High Court of American Samoa
Trial Division

DR No. 74-89

April 29, 1993

__________

Motions for relief from judgment on the basis of fraud must be made within a "reasonable time" and not more than one year after judgment. T.C.R.C.P. 60(b)(3).

Relief from judgment under the "catch-all" clause is only available if made within a "reasonable time" and if the grounds do not fall under one of the rule's enumerated subsections. T.C.R.C.P. 60(b)(1)-(6).

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

Counsel: For Petitioner, Robert A. Dennison III
For Respondent, Asaua Fuimaono [24ASR2d31]

On Motion for Relief from Judgment:

Respondent, Jose M.B. Rocha, seeks relief from final judgment under T.C.R.C.P .Rule 60(b), on the grounds of "extrinsic fraud." Rule 60(b)(3), however, requires that motions grounded on fraud "shall be made within a reasonable time. ..and not more than one year after judgment. " (Emphasis added. ) The motion here was not made within one year and is therefore untimely.

Alternatively, plaintiff moves under Rule 60(b)(6), which provides for relief for " any other ground justifying relief from the operation of judgment." Subsection (6) motions are subject to a "reasonable time" limitation. Notwithstanding, respondent is not entitled to relief hereunder, since Rule 60(b)(6) and Rule 60(b)(3) are mutually exclusive. Taulaga v. Patea, 12 A.S.R.2d 64, 65-66 (1989). That is, the claimed grounds for Rule 60(b)(6) relief must not also fall under subsections (1)-(5). Liljeberg v. Health Services Acquisition Corp. ,486 U.S. 847,863 (1988); Davidson v. Dixon, 386 F. Supp. 482,493 n.2 (D. Del. 1974), aff'd without opinion 529 F.2d 511 (3d Cir. 1975); Stradley v. Cortez, 518 F.2d 488,494 (3d Cir. 1975). See also Smith v. Secretary of Health and Human Services, 776 F.2d 1330, 1332-33 (6th Cir. 1985) (because "[i]t has been suggested" that Rule 60(b)(6) only applies when (1)-(5) do not, the court did not abuse its discretion in denying relief).

For the reasons given, the motion is DENIED.

It is so ordered.

*********

Registration of Matai Title Le'aeno,


FAGAFAGA DANIEL LANGKILDE, Claimant,

v.

UIAGALELEI GAFOA LE`AENO and FRANK W. REED,
Counterclaimants.

[Registration of the Matai Title "LE`AENO"
in the Villages of Matu`u and Faganeanea]

LT No. 2-89

August 6, 1993

__________

Regarding the statutory exception for families having fewer than 25 adult, blood family- members, the term "family" is equated with the claimant's or counter-claimant's clan for purposes of testing the validity of matai-title petitions. A.S.C.A. § 1.0405, 1.0407.

Determining best hereditary right is traditionally guided by the percentage of matai-title candidates' blood relationship to a former titleholder, though in unusual cases it may be appropriate to calculate blood relationships from the original titleholder or the nearest common ancestor. A.S.C.A. § 1.0409(c)(l).

Clan support for matai-title candidates is traditionally measured by consensus and not by a mere numerical majority. A.S.C.A. § 1.0409(e)(2).

Regarding the criterion of the forcefulness, character, and personality of a matai-title candidate and his knowledge of Samoan customs, factors considered include leadership ability, honesty, education, public service, involvement in church and village affairs, and previous experience as a matai. A.S.C.A. § 1.0409(c)(3).

The matai-title criterion of value to family, village, and country seeks to evaluate a candidate's prospective value to his family, village, and American Samoa as holder of the title, in light of the first three statutory criteria and his leadership potential and plans. A.S.C.A. § 1.0409(c)(4).

Matai titles created after the matai-title registration process closed on January 1, 1969, are not legally recognizable.

Before OPINION AND ORDER

Before RICHMOND, Associate Justice, VAIVAO, Associate Judge, AFUOLA, Associate Judge, MAILO, Associate Judge, and LOGOAI, Associate Judge. [24ASR2d118]

Counsel: For Claimant, Tauese P.F. Sunia
For Counterclaimant Uiagalelei Gafoa Le`aeno, Togiola T.A. Tulafono
For Counterclaimant Frank W. Reed, Tauana`itau F. Tuia

This protracted proceeding for selection of the next registrant of the matai title Le`aeno of the Villages of Matu`u and Faganeanea, American Samoa, began in 1987. Claimant Fagafaga Daniel Langkilde ("Fagafaga") submitted his claim of succession to the territorial registrar on April 21, 1987. The 60-day notice of the proposed registration of this matai title was posted on the same date. Counterclaimants Uiagalelei Gafoa Le`aeno ("Uiagalelei") and Frank W. Reed ("Falani") presented their claims on June 18 and 22, 1987, respectively.

Pursuant to A.S.C.A. § 43.0302, the matter was referred to the secretary of Samoan affairs on June 24, 1987, for dispute resolution, and the secretary's certificate of irreconcilable dispute was issued by the deputy secretary on February 15, 1989. On February 16, 1989, the territorial registrar referred the matter for judicial settlement, and this judicial proceeding was commenced. On July 8, 1993, Uiagalelei withdrew his candidacy. Trial finally began on the following day, July 9, 1993, and was concluded on July 12, 1993.

ADEQUACY OF THE PETITIONS FOR REGISTRATION

The adequacy of the petitions filed by Fagafaga and Falani with the territorial registrar for registration of the matai title Le`aeno must be addressed first. Fagafaga's petition was signed by 17 persons. One signer is eliminated as a non-blood member of the Le`aeno family. The remaining 16 are members of Fagafaga's clan, the extended Amio family. Falani's petition was signed by 11 members of his clan, the same extended Amio family. Uiagalelei's petition was signed by 53 members of his clan, the extended Ugaloto family.

A.S.C.A. § 1.0405(b) sets forth the requirements for valid petitions. Among other elements, the petition must be signed by 25 blood members of the matai title claimed. These persons must be at least 18 years of age and residents of American Samoa at the time the petition is filed with the Territorial Registrar. If the family has less than 25 qualified members, the petition is still valid when it is supported by the claimant's affidavit of an insufficient number of blood members. Under A.S.C.A. § 1.0405(c), the Territorial Registrar, if not satisfied with the [24ASR2d119] information provided in the petition, must require proof of blood relation to the title, age, residency, or insufficiency of blood members. A.S.C.A. § 1.0407(b), (c) and (d) essentially establishes the same requirements for petitions submitted by counter-claimants or objectors.

An important factor for present purposes is the interpretation of the word "family" in the context of an insufficient number of qualified blood members. The plain meaning of the word connotes all such persons in the entire, extended family related to the title. However, this definition virtually renders a very small-clan member's aspirations to a title futile when candidates come forth from each clan in a family and his or her clan has fewer than 25 adult, resident blood members. The problem becomes even more difficult when, as in this case, more than one aspirant comes from the same small clan.

To serve as a guide until there is further legislated direction, we equate the word "family" with the claimant's or counterclaimant's clan for purposes of testing the validity of the petitions. Cf. In re Matai Title "Mauga", 4 A.S.R. 616, 619-622 (Trial Div. 1965) ("intention of the Legislature is not and should not be to frustrate or make impossible the selection of a matai when a title becomes vacant").

Nevertheless, since the Amio clan had at least 27 members qualified to sign petitions to register matai titles, this interpretation does not definitively resolve the issue in this case. We are tempted to further interpret the statutes to allow two or more candidates from the same clan to file petitions with less than 25 signatories whenever the clan has fewer than 49 qualified members. However, judicial constraint precludes such creative construction.

Instead, we will simply follow the precedent of In re Matai Title "Mauga", 4 A.S.R. at 619-622, which dealt with similar factual matters and inadequate statutory guidance, and proceed with awarding this title. We believe that both candidates' affidavits stating that there were less than 25 qualified family members were made in good faith. In any event, the family is entitled to the judicial resolution it seeks after so many years without a Le`aeno titleholder.

FINDINGS ON STATUTORY CRITERIA

Based on the evidence submitted to the court, the following findings of fact are made with respect to the four criteria set forth in A.S.C.A. § 1.0409. [24ASR2d120]

1. Best Hereditary Right.

This factual determination is traditionally guided by the percentage of the candidates' blood relationship to a former holder of the matai title (though in unusual cases it may be appropriate to calculate blood relationships from the original title holder or from the nearest common ancestor, the so-called "Sotoa" rule and its variant). See In re Matai Title "Iuli", 14 A.S.R.2d 116, 117-18 (Land & Titles Div. 1990); In re Matai Title "Tuiteleleapaga", 15 A.S.R.2d 90, 90-91 (Land & Titles Div. 1990); In re Matai Title "Sotoa", 2 A.S.R.2d 15 (Lands & Titles Div. 1984); see also In re Matai Title "Mulitauauopele", 17 A.S.R.2d 75, ___ (Land & Titles Div. 1990). By the traditional measure Falani, as the son of Le`aeno Viliamu Reed, has 1/2 or 50% Le`aeno blood. On the other hand, Fagafaga is the great-great-grandson of Le`aeno Fagafaga and, on this basis, has 1/16 or 6.25% Le`aeno blood.

No circumstances in this case justify application of the "Sotoa" rule. However, even under this approach, Falani possesses a superior hereditary right to the title. The candidates concur on the names of the original Le`aeno and his successors, including their nearest common ancestor, Le`aeno Fagafaga. While Fagafaga is four generations removed from the nearest common ancestor, Falani is only three generations removed from this ancestor.

Indeed, Fagafaga readily conceded that Falani prevails on the hereditary right criterion.

2. Wish of Majority or Plurality of the Clans of the Family.

This consideration seeks to weigh the candidates' support within the family by accounting for the wish of the majority or plurality of the customarily recognized clans in the family at the time of trial. A.S.C.A. § 1.0409(c)(2); In re Matai Title "Tauala", 15 A.S.R.2d 65, 68 (Land & Titles Div. 1990). The candidates also at least partially agree on this issue. The family has two clans established through Le`aeno Galeva`a's progeny, his daughter Amio and son Ugaloto. Both candidates are members of the Amio clan. However, their respective assessments of the wish of the clans diverge at this point.

During this vacancy in the Le`aeno title, the Amio clan met either separately or with the Ugaloto clan some eight or nine times in efforts to choose a successor for the title. The last time was after a [24ASR2d121] continuance of the trial for this purpose and only a few days before trial. One overall result of these meetings is that both Fagafaga and Falani still want to be the Amio clan's choice, and each refuses to concede to the other. Apparently, Fagafaga can command a numerical majority within the clan. However, clan support can not be evaluated by counting heads and is traditionally measured by consensus. In re Matai Title "Tauala", 14 A.S.R.2d 83, 88 (Lands & Titles Div. 1990). Amio's and her offsprings' marriages have produced several genealogical lines. Most of these lineages favor and, thus, forge consensus for Falani. Viewed in this traditional perspective, Falani has the Amio clan's support.

During the last few days before trial, Uiagalelei made his decision to withdraw his candidacy and conveyed to Fagafaga and Falani that they and the Amio clan should decide upon the title registrant. This turn of events could be interpreted as signifying that the Ugaloto clan does not support either Fagafaga or Falani. It could also mean that the Ugaloto clan supports either of them upon selection by the Amio clan. At one time, a minister's blessing, ava cup ceremony, and related rituals were held for Uiagalelei and Falani jointly. This event certainly indicates that the Ugaloto clan supports Falani if he is the Amio clan's choice.

Given the Amio's clan consensus support for Falani and the reasonable inference of the Ugaloto clan's support for Falani if he is the Amio clan's choice, Falani has dominance on this issue.

3. Forcefulness, Character, and Personality; Knowledge of Samoan Customs.

Leadership ability, honesty, education, public service, involvement in church and village affairs, and previous experience as a matai are some of the factors which aid in meeting this criterion. See, e.g. In re Matai Title "Tauala", 14 A.S.R.2d at 89-93; In re Matai Title "Tuiteleleapaga", 15 A.S.R.2d at 90-93; In re Matai Title "Mauga", 4 A.S.R. at 628-29 (predecessor Code Amer. Samoa, 1961 ed, § 6.0107).

Unquestionably, Fagafaga is a highly visible member of the generation that must succeed to leadership in American Samoa in the foreseeable future. He sought out educational goals, having graduated at the secondary level, attended institutions of higher learning off-island, and completed specialty training for radio broadcasting and disaster emergency communications. He has hands-on experience in supervisory and managerial roles. He is an accomplished master-of-ceremonies and broadcaster of events. He has served in the House of Representatives of [24ASR2d122] the Legislature of American Samoa, on various governmental committees, boards and commissions, and in several diverse church functions. He demonstrated initiative in enabling his fellow villagers to cope with the hurricane disasters in 1990 and 1991 and in dealing with other village needs. He has also been a matai for some 14 years. On the other hand, his matai title was created by a former Le`aeno after the matai title registration process closed on January 1, 1969, and, thus, is not legally recognizable.

Falani's record is less impressive in some particulars. He did not complete secondary education, where his formal education ended. He admitted to a serious violation of the law outside of American Samoa while still a juvenile. Although he worked in several responsible occupational positions, both in the private sector and with the American Samoa Government, they largely lacked supervisory or managerial functions. The prime exception is his eight years of service as a member of the House of Representatives, including chairmanship of the House Rules Committee and vice speakership of the House. His other activities also include service on various government committees, boards and commissions, and in several church positions. He has never been a matai, but he turned down several requests to accept a title in the Village of Matu`u because he was then residing in another village and representing that area in the House of Representatives.

Both contenders confirmed their knowledge of Samoan customs well. Both honor those customs and rendered loyal and respectful service, or tautua, to Le`aeno titleholders.

Fagafaga's educational and career accomplishments give him a distinct but not overwhelming advantage in this category. Falani has overcome in maturity and humility any deficiencies from his younger years. However, Fagafaga does slightly prevail on this standard.

4. Value to Family, Village, and Country.

This consideration seeks to evaluate the candidates' prospective value to his family, village, and American Samoa as holder of the title, in light of the first three criteria and their leadership potential and plans. See In re Matai Title "Tauala", 14 A.S.R.2d at 93-94); In re Matai Title "Sala", 4 A.S.R. 21, 23 (Land & Titles Div. 1971) (predecessor Code Amer. Samoa § 6.0107 (1961 ed.)). [24ASR2d123]

As indicated above, both aspirants' projected a high-minded willingness to undertake responsibilities and a resolute devotion to duty, including plans to unify the family after the court's decision. Fagafaga's activities tend to be publicly noticeable, while Falani proceeds more quietly and less ostentatiously. Both manifest potential for greater leadership roles, though Falani's older, generational position in the family must also be taken into account. Overall, each contestant is prepared and well-suited to assume the obligations of this title. They are ranked equally on this criterion.

CONCLUSIONS OF LAW

Based on the foregoing findings of fact, the following conclusions of law are reached.

1. Falani has the best hereditary right to the Le`aeno title.

2. Falani enjoys the support of the majority of the clans of the family.

3. While both candidates are relatively equal on knowledge of Samoan custom, Fagafaga has the edge on forcefulness, character and personality. Fagafaga prevails by a narrow margin on this consideration.

4. Despite different leadership styles, both candidates are evenly matched in their potential value to family, village and country. Neither one is superior in this category.

5. A.S.C.A. § 1.0409(b) gives statutory priority to the four considerations in the order listed. More weight is given to each criterion than to those following it, taking into account the relative margins by which the candidates may win on each of the four categories. In re Matai Title "Tauala", 15 A.S.R.2d at 69. Recognizing the priority assigned to the best hereditary right over majority clan support, and majority clan support over forcefulness, character and personality and knowledge of Samoan customs, as well as the relatively narrow advantage Fagafaga has over Falani in the latter consideration, the matai title Le`aeno is awarded to Falani.

The territorial registrar shall register the Le`aeno title in the name of Frank W. Reed.

Judgment shall enter accordingly. It is so ordered.

**********

Southwest Marine of Samoa, Inc. v. M/V Kwang Myong #71,


SOUTHWEST MARINE OF SAMOA, INC., Plaintiff

v.

The M/V KWANG MYONG #71, its Cargo, Freight,
Equipment, Engines, Mast, Boats, Anchors,
Cables, Chains, Rigging, Tackle, Furniture
and All Other Necessaries Appertaining to the Vessel,
Defendant in Rem, and
KOREA WONYANG FISHERIES CO. LTD.,
a Korean Corporation,
STAR-KIST FOODS, INC., and STAR-KIST SAMOA INC.,
Defendants in Personam

High Court of American Samoa
Trial Division

CA No. 105-92

September 14, 1993

__________

Under the dead-ship doctrine, a vessel which has been permanently removed from navigation (and so is a "dead" ship) does not attract liens of a maritime nature, and any watercraft deemed to be "dead" are outside a court's admiralty jurisdiction.

Before KRUSE, Chief Justice, TAUANU'U, Chief Associate Judge, and BETHAM, Associate Judge.[24ASR2d153]

Counsel: For Plaintiff, Robert A. Dennison III
For Defendant Star-Kist Foods, Inc., and Star-Kist Samoa, Inc., Roy J.D. Hall, Jr.

On Motion for Reconsideration:

Plaintiff seeks reconsideration of the court's decision and order denying plaintiff's motion for "default judgment in rem." Among other things, plaintiff argues clear error on the court's part "in concluding that the Plaintiff's claim for moorage charges is not maritime in nature and that a maritime lien against the vessel does not therefore exist."

The court did not, as plaintiff seems to argue, hold that moorage charges may not give rise to maritime liens. (1) Rather, the court found on the evidence that the M/V Kwang Myong #71 was not a vessel in [24ASR2d154] navigation and therefore concluded under the dead-ship doctrine that plaintiff's moorage charges were not maritime in nature and enforceable under in rem process.

Under the dead-ship doctrine, a vessel which has been permanently removed from navigation (and so is a "dead" ship) does not attract liens of a maritime nature, and any watercraft deemed to be "dead" are outside a court's admiralty jurisdiction. Annotation, What Is a "Vessel" Subject to a Maritime Lien Under 46 USC § 971, 3 A.L.R. Fed. 882, 891-95 (1970 & Supp. 1990); see Goodman v. 197326 Foot Trojan Vessel, 859 F.2d 71, 73 (8th Cir. 1988) (citing Mammoet Shipping Co. B.V. v. Mark Twain, 610 F. Supp. 863,866-67 (S.D.N.Y. 1985)). (2)

Additionally, plaintiff argues clear error on the court's part in finding that the M/V Kwang Myong #71 was not a vessel in navigation. This is essentially a quarrel with the trial court's findings of fact. Even under the newer, broadened definition of a vessel in navigation, (3) the evidence on record is ample to support the court's finding that the M/V Kwang Myong #71 was, at all relevant times, no longer a vessel in navigation. The vessel was abandoned by her owner--after the crew left, [24ASR2d155] the ship lay tied to the wharf and was "substantially deteriorating... [ and accumulating] heavy rust allover the decks and decking machinery" and posed a "hazardous threat" to navigation. Order of March 22, 1993, at 2. This ship sat through two hurricane seasons without even the necessary maintenance to her hull, decking, or machinery.Id. at 4. Furthermore, as pointed out by defendants (in personam), plaintiff previously obtained a judicial sale of the ship by proving her abandonment, decay, and threat to shipping. To argue the contrary now is rather disingenuous. Having been abandoned and progressively deteriorating, the M/V Kwang Myong #71 is a "dead" ship, meeting the description of a vessel which has been withdrawn from navigation.

Plaintiff also argues clear error on the court's part "in failing to award judgment (in personam and in rem) to Plaintiff for the indebtedness arising after October 23, 1992 judgment in Civil Action No. 15-92."

With regard to moorage charges accruing after the date of judgment in Civil Action No.15-92, the dead-ship doctrine is equally applicable in this instance to deny plaintiff's claim of maritime liens. With regard to plaintiff'sin personam claim against the vessel's owner for wharfage accruing after October 23, 1992, to the date of the vessel's sale, February 22, 1993, this matter was not addressed as the parties were preoccupied in the argument with the "in rem" issue. (4) The ensuing order accordingly responded only to the in rem issue.

However, upon reconsideration of the record, and given the owner's default, we see no reason why plaintiff's in personam claim may not be addressed at this time. On the evidence, we fix moorage charges at the rate of $4,340 per month. Plaintiff Southwest Marine of Samoa, Inc. shall, therefore, have judgment in the sum of $17,360.00 against defendant Korea Wonyang Fisheries Co. Ltd. Plaintiff's claim for "contractual " interest is not supported on the evidence and is, therefore, disallowed.

Judgment will enter accordingly.

It is so ordered.

**********

1. Indeed, we cited to Miles v. States Marine & Commercial Co., 286 F. 286, 288 (E.D.N.Y. 1922), and 1 Benedict on Admiralty § 233, at 15-26 to 15-27, for the exact opposite proposition, to wit; "[w]harfage charges can give rise to a maritime lien." 23 A.S.R.2d 156, 158 (Trial Div. 1993) (emphasis added). However,

[n]ot every contract for wharfage. ..will provide a sufficient
ground to invoke the admiralty jurisdiction. The agreement must,
additionally, aid or abet maritime commerce or navigation.
Illustrative of this is Boera Brothers v. United States, (ED NY
1924) 1924 AMC 1474, where the admiralty court rightly
refused jurisdiction of an action to recover compensation for
wharfage furnished a vessel laid up and withdrawn from navigation.
The soundness of this decision cannot be questioned when it is
remembered that the only justification for the existence of a
separate body of admiralty laws is to further maritime commerce
or, arguably, navigation. Most certainly providing wharfage to a
structure withdrawn from navigation for an indefinite future period
does not measurably enhance either maritime commerce or
navigation and, consequently, cannot logically be deemed
maritime.

7A Moore's Federal Practice ¶ .230[4.-4], at 2822-2823.

2. Adapting to new conditions, "[a]dmiralty jurisdiction has. .. changed as 'new conditions give rise to new conceptions of maritime concerns."'American E. Dev. Corp. v. Everglades Marina, Inc., 608 F.2d 123, 125 (5th Cir. 1979) (quoting Alabama Dry Dock & Shipbuilding Co. v. Kininess, 554 F.2d 176, 179 (5th Cir. 1977), cert. denied 434 U.S. 903 (1977)). It thus appears that the rule concerning what is a "vessel " subject to maritime jurisdiction has been liberalized. Over the years, courts have departed from "an older, more restrictive interpretation of the maritime lien " by broadening the definition of a "vessel " in navigation. See City of Erie v. S/S North American, 267 F . Supp. 875,878-79 (W.D. Pa. 1967) (comparing The Poznan, 9 F.2d 838 (2d Cir. 1925), with The Artemis, 53 F.2d 672 (S.D.N. Y. 1931), and The Showboat, 47 F.2d 286 (D. Mass. 1930)). Nevertheless, while courts are now more reluctant to find that a ship has been withdrawn from navigation, the dead-ship doctrine remains viable. See, e.g., Goodman, 859 F.2d at 73; Mercereau v. M/V Woodbine, 551 F. Supp. 811,815 (N.D. Ohio 1982); Mammoet Shipping Co., 610 F. Supp. at 866-67; American E. Dev. Corp., 608 F.2d at 125.

3. See Footnote 2

4. Although the res only realized $1000 upon interlocutory sale, the "in rem" issue apparently had some significance to the parties' respective concern for collateral claims either pending or in the pipeline.

Shon v. Mollerup Moving & Storage Co.,


DARRYL SHON for Himself and on Behalf of the SHON Family, Plaintiff

v.

MOLLERUP MOVING & STORAGE CO.,
and JOHN DOE, UNITED VAN LINES,
CORPORATE WORLD INTERNATIONAL,
BLUE STAR LINE LTD., SAMOA SOFRANA SHIPPING INC.,
PORT ADMINISTRATION and JOHN DOES 1 to 10,
and AMERICAN SAMOA GOVERNMENT, Defendants

High Court of American Samoa
Trial Division

CA No.74-91

May 21, 1993

__________

Dismissal of the complaint, not summary judgment, is the appropriate method of disposing of a case for failure to join an "indispensable party"; the rationale is that summary judgment is a judgment on the merits and bars the cause of action, whereas an order of dismissal only "abates" the claim and is without prejudice to the institution of a later action. T.C.R.C.P. 12(b)(7), 19, 56.

The court determines whether or not it is feasible to join a person as a party , as a difference exists between necessary parties who cannot be served process and those who may be subject to process but who simply have not been served. T.C.R.C.P. 19. [24ASR2d51]

The party raising the defense of failure to join an indispensable party bears the burden of showing that the absent party would be prejudiced by proceeding with the action and so is needed for a just adjudication. T.C.R.C.P. 12(b)(7), 19.

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

Counsel: For Plaintiff, Asaua Fuimaono
For Defendants Blue Star Line and Samoa Sofrana Shipping, Roy J.D. Hall, Jr.

On Motion to Dismiss or for Summary Judgment:

Defendants Blue Star Line, Ltd. , and Samoa Sofrana Shipping Line, Inc., (hereinafter "movants") have moved for dismissal under T.C.R.C.P. 12(b)(7) for non-joinder of "indispensable parties" in accordance with T.C.R.C.P. 19. Movants argue that plaintiff has failed to perfect service on the defendant United Van Lines and has failed to serve both Mollerup Moving & Storage Co. and Corporate World International; that all three are indispensable to the dispute; and that such failure on the part of plaintiff is tantamount to non-joinder . Alternatively, movants seek summary judgment. (1)

For the reasons given, we deny the motion. First, it is not entirely clear to us that what we have here is a problem with non-joinder but rather a situation in which plaintiff simply has not gotten around to serving these other defendants. There is a difference between necessary parties who cannot be served process and those who may be subject to process but simply have not been served at all. The record before us does not suggest that service of process on the other defendants is not [24ASR2d52] feasible. (2) On the other hand, plaintiff's motion seems to be premised on an assumption of infeasibility, coupled with reliance on the contention that a plaintiff must disprove the indispensability of the unserved party. However, the burden is on the moving party to show that these other defendants are indispensable to the dispute. (3)

The motion is denied. (4)

It is so ordered.

*********

1. Movants are not entitled to summary judgment under T .C.R.C.P .12(b)(7); dismissal of the complaint (if supported) is the appropriate method of disposing of a case for failure to join an indispensable party. Ricci v. State Ed. of Law Examiners, 569 F.2d 782, 784 (3d Cir. 1978) .The rationale is that summary judgment under Rule 56 is a judgment on the merits and bars the cause of action, whereas an order of dismissal only " abates " the claim and is without prejudice to the institution of a later action. Martucci v. Mayer, 210 F.2d 259,260 (3d Cir. 1954).

2. Under Rule 19(a), the court determines whether or not it is feasible to join a person as a party. Lomayaktewa v. Hathaway, 520 F. Supp. 1324, 1326 (9th Cir. 1975); see Nofziger Communications, Inc. v. Birks, 757 F. Supp. 80, 85 (D.D.C. 1991) (Rule 19 motion denied; defendant failed to discuss the feasibility of joinder) .

3. The moving party bears the burden of showing that the absent party would be prejudiced by proceeding with the action. Ilan-Gat Engineers, Ltd. v. Antigua Int'l Bank, 659 F.2d 234, 242 (D.C. Cir. 1981) (citing Meyerding v. Villaume, 20 F.R.D. 151 (D. Minn. 1957); 5 C. Wright & A. Miller, Fed. Pract. & Proc. §§ 1359 (1969)); Nevada Eighty-Eight, Inc. v. Title Insurance Co. of Minn. , 753 F. Supp. 1516, 1522 (D. Nev. 1990) ("the burden of proving that joinder is necessary rests with the party asserting it") (citing Sierra Club v. Watt, 608 F. Supp. 305, 319-21 (E.D. Cal. 1985)); Federal Deposit Ins. Corp. v. BeaU, 677 F. Supp. 279,283 (M.D. Penn. 1987) ("The party raising the defense of failure to join an indispensable party has the burden to show that the person who is not joined is needed for a just adjudication.") .

4. Even if a person is a party who should be "joined if feasible" under Rule 19(a), the court must use Rule 19(b)'s criteria to determine whether to dismiss the lawsuit or proceed without that party. Provident Tradesmen's Bank & Trust Co. v. Patterson, 390 U .S. 102, 108-11 (1968); see Temple v. Synthes Corp. , 498 U .S. 5 (1990) (per curiam) (tortfeasors having normal joint-and-several liability are not "indispensable" parties under Rule 19(b)).

Tunu; Savea v.


LAGALEPATU S. SAVEA and
MO'OMIA SA VEA LEATIGAGA, for Themselves
and on Behalf of the SAVEA FAMILY, Plaintiffs

v.

ELEKISE TUNU, LUKI TUNU, MAKELITA TOSI SAVEA,
AOLELE AGAESE and cmLDREN, ALESANA FITIAO,
MATAUAINA FITIAO and CHILDREN, and
TAUGAOLA and CHILDREN, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 14-92

June 9, 1993

__________

The sa'o of a family is the only person who is authorized to seek injunctive relief in actions concerning disputes or controversies over communal land; if the title is vacant or the sa'o is incapacitated, the application may be brought by (1) two blood matai male members of the family over age 18, or (2) if the family lacks two blood matai male members, two blood members of the family over age 18, if either is untitled or a female. A.S.C.A. § 41.1309(b).

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

Counsel: For Plaintiffs, Gata E. Gurr
For Defendants Elekise Tunu, Luki Tunu, Makelita Tosi Savea,
Aolele Agaese and Children, and Taugaola and Children,
Afoa L. Su'esu'e Lutu
For Defendants Alesana Fitiao, and Matauaina Fitiao
and Children, Steven H. Watson

This action seeks injunctive relief for eviction from communal land and compensation for damage to a house on the land, the land itself, and a water well on the land. Trial was held on May 5-6, 1993. After plaintiffs Lagalepatu S. Savea ("Lagalepatu ") and Mo'omia Savea Leatigaga ("Mo'omia") completed the presentation of the plaintiffs' evidence, defendants moved for dismissal, pursuant to T .C.R.C.P .Rule 41(b), on the ground that upon the facts and the law plaintiffs had shown [24ASR2d64] no right to relief. The motion was granted with respect to the action for eviction, and the decision was deferred with respect to the action for damages until the close of all the evidence.

FINDINGS Of: FACT

1. Lagalepatu is a blood matai (or chief) male member of the Savea family over age 18. Mo'omia is his sister. The matai title Savea, as the sa'o (or head) of the extended Savea family, is vacant. However , at least two blood matai male members of the family are living.

2. The land at issue is a portion of the Savea family's communal land, known as "Tagapofu, " located in the Village of Matu 'u, American Samoa.

3. Lagalepatu lived on the land from his birth in 1929 until 1978. He lived in California from 1978 until early 1992, when he returned following the last Savea's death. His overseas residency was interrupted by one six-month visit to American Samoa in 1986-1987.

4. The water well at issue on the land was developed by Lagalepatu' s parents .

5. The house at issue on the land was constructed in 1966 and is owned by Lagaleatu.

6. Defendants Luki Tunu aIld Elekise Tunu (the "Tunus"), who are husband and wife, lived in the house from 1987 until shortly after Hurricane "Val" struck American Samoa in December 1991. They now live in a nearby house, which was constructed in 1992.

7. Thinking that they were buying the house, the Tunus paid $2,000 to one of Lagalepatu's sons, who was living in the house in 1987. The Tunus also made some improvements to the house. However, they learned about Lagalepatu' s claim to the house upon his return in 1992 and now concede his ownership of it.

8. Hurricane "Val" rendered the remaining defendants' neighboring houses uninhabitable. They moved into the house as the most suitable place for temporary shelter during or immediately after the hurricane. They have since relocated to other structures.

9. Except for the center post and some wall and ceiling holes in the house and the water well, the damage to the house and debris on the surrounding land was proximately caused by Hurricane "Val" and not by any of the defendants. This hurricane either destroyed or damaged all houses in the Village of Matu`u. Judicial notice is taken of the devastation it wrought throughout much of American Samoa, lingering for some five days in the Territory.

10. Because the center post was rotten when they moved into the house and their daughter had been injured due to its deterioration, the Tunus did cut out the post in 1987. No evidence was presented on the repair or replacement cost. The wall and ceiling holes not caused Hurricane "Val" were also present in 1987.

11. The water well had become unfit for human use by 1980. In 1986 or 1987, public health officials of the American Samoa Government and the sa`o of the Savea family directed that it be filled. The fill was done by Lagalepatu's son, who was then living in the house.

CONCLUSIONS OF LAW

1. A.S.C.A. § 41.1309(b) strictly defines the persons who are authorized to seek injunctive relief in actions concerning disputes or controversies over communal land. The sa`o of a family is the only person who bring such an application in the first instance. Alternatives are available only if the matai title of the sa`o is vacant or the sa`o is incapacitated. In that event, the application must first be sought by two blood matai male members of the family over age 18. Two blood members of the family over age 18, if either is untitled or a female, may apply for injunctive relief only when the sa`o position is vacant or the sa`o is incapacitated and the family does not have two blood matai male members. Since the Savea family has two or more blood matai male members, Lagalepatu and Mo`omia lack the requisite capacity to sue for an injunction to evict defendants. Thus, the aspect of the action must be and was dismissed as to all defendants.

2. The concession by the Tunus to Lagalepatu's ownership of the house may well lead to some liability on their part for removing the center post. However, the post's deteriorated condition, requiring repair or replacement, was Lagalepatu's responsibility. Moreover, one of his sons victimized the Tunus into thinking that they were buying the house. The amounts that they paid for this purported purchase and later improvements certainly exceeded the unestablished cost of the post's repair or replacement. Lagalepatu or this son was also responsible for the wall and ceiling holes existing at the time the Tunus moved into the house. Hurricane "Val," not any of the defendants, was the sole proximate cause of the remaining damage to the house and the debris deposited on the land. Thus, the action for compensatory damages must be and is also dismissed.

3. In accordance with T.C.R.C.P. Rule 41(b), the dismissals of both causes of action operate as an adjudication on the merits.

Judgment shall enter accordingly. It is so ordered.

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Toilolo v. Poti,


TOILOLO SIU, Plaintiff/Objector
and Counter-Claimant

v.

POTI AMOSA, Defendant/Claimant
and Counter-Defendant

High Court of American Samoa
Land and Titles Division

LT No. 48-91

April 5, 1993

__________

A person born outside American soil is eligible for a matai title only if both parents were inhabitants of American Samoa and were temporarily residing outside of American Samoa or engaged in foreign travel at the time of that person's birth. A.S.C.A. § 1.0403.

If done within the scope and by the apparent authority of a de jure public officer, a de facto public officer's acts are binding on third parties; it is as if the de facto public officer were legally selected, qualified and in possession of the office.

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

Counsel: For Plaintiff/Objector and Counter-Claimant, Afoa L. Su'esu'e Lutu
For Defendant/Claimant and Counter-Defendant, Tauese P.F. Sunia

Order Denying Motion for Reconsideration or New Trial:

Plaintiff's motion for reconsideration or new trial came regularly on March 26, 1993 for hearing. Plaintiff's counsel appeared. Though given notice, defendant's counsel was not present. The court, having considered the points raised by plaintiff's motion, has concluded that all but one of them are adequately addressed and appropriately resolved in the court's opinion and order of February 23, 1993.

The remaining point concerns plaintiff's matai-title status. Plaintiff has taken issue with the factual basis of footnote number 3 in the [24ASR2d2] opinion and order. He has asserted that the court took judicial notice, without any other evidentiary support, that plaintiff is a Western Samoa citizen, born in that country of parents who were not inhabitants of American Samoa, when in fact both his father and grandfather were born in this Territory.

However, these factual findings were based on affirmative evidence and not on judicial notice. Plaintiff testified that he was born in Western Samoa and first came to American Samoa as a young man during the World War II era, after which he returned to Western Samoa until he undertook permanent residence here in 1968. The court's findings as to plaintiff's citizenship and his parents' nationality and residency as inhabitants are reasonable inferences from this evidence.

Even if one assumes the American Samoan heritage of his father and grandfather, plaintiff is still disqualified, under A.S.C.A. § 1.0403, from holding a matai title in American Samoa. The law excepts birth outside American soil only if both parents were inhabitants of American Samoa and were temporarily residing outside of American Samoa or engaged in foreign travel at the time of the person's birth. Plaintiff now claims that his father but not his mother was an inhabitant of American Samoa, in a nationalistic sense. Clearly plaintiff's long-term residency in Western Samoa, the country of his citizenship, refutes any basis for finding that his parents transitorily resided in Western Samoa or were merely traveling abroad at his birth.

The purpose of footnote number 3 was to demonstrate plaintiff's ineligibility to hold the Toilolo matai title and to forestall any credence the court's opinion and order might otherwise lend to recognition of plaintiff's right to hold this title. This purpose is still served.

Plaintiff has carried his argument on this point another step by contending that if he is disqualified from holding a matai title, he is also ineligible to be a pulenu'u, who under A.S.C.A. § 5.0301 must be appointed "from the ranks of the chiefs in each village." Thus, he argues that the surveyor and pulenu'u certificate, which he signed as the pulenu'u of the Village of Failolo to accompany the survey of the land at issue, was an invalid document.

However, a pulenu'u is a de jure public officer, and at the time of the survey, plaintiff was a de facto occupant of that position. A de facto public officer's acts, if done within the scope and by the apparent authority of a de jure public officer, are binding, insofar as the rights of [24ASR2d3] third persons are concerned; it is as if the de facto public officer were legally selected, qualified and in possession of the office. In re Redevelopment Plan for the Bunker Hill Urban Renewal Project 1B, 389 P.2d 538 (Cal. 1964), cert. denied and appeal dismissed, 379 U.S. 28 (1964), cert. denied, 379 U.S. 899 (1964).

Plaintiff has also referred to his testimony that the pulenu'u's notice of a proposed survey was not actually given in Failolo, as A.S.C.A. § 37.0102(c) requires. However, this testimony was clearly contradicted by the surveyor and pulenu'u certificate, which is regular on its face. We found, and continue to find, that plaintiff was fully aware of the purpose of the survey and the certificate. The notice requirement was met.

Plaintiff's motion for reconsideration or new trial is denied. It is so ordered.

**********

Thompson v. Toluao


MINARETA THOMPSON, Plaintiff

v.

TOLUAO FETALAIGA, SEUTA'ATIA TOLUAO,
and DOES 1 through 10, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 52-92

August 24, 1993

__________

As an equitable remedy, the most distinguishing prerequisite of permanent injunctive relief is the inadequacy of a remedy at law, usually money damages. A.S.C.A. § 43.1302.

Actual physical interference with the use and enjoyment of another's land constitutes the most common type of nuisance and is subject to the issuance of a permanent injunction. A.S.C.A. § 43.1302.

A court may dispose of an entire controversy by granting both equitable relief and damages, in order to avoid a multiplicity of lawsuits.

Amendments to pleadings should be freely made in the interest of full consideration of the merits, unless the objecting party is prejudiced by lack of notice and surprise.

A plaintiffs attorney's fees are ordinarily excluded from judgments for injunctive relief in the absence of statutory authorization or special circumstances.

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

Counsel: For Plaintiff, Afoa L. Su'esu'e Lutu
For Defendants, Asaua Fuimaono

Trial of this action brought by plaintiff Minareta Thompson ("Minareta") for a permanent injunction preventing interference with her use and enjoyment of certain land was held on July 22, 1993. Minareta appeared in person and by counsel. Defendants Toluao Fetalaiga [24ASR2d128] ("Toluao") and Seuta'atia Toluao ("Seuta'atia") also appeared in person and by counsel. The court viewed the land in question and the surrounding area on August 10, 1993.

FINDINGS OF FACT

In 1989, Minareta cleared a small parcel, approximately 0.509 acres, of land ("the small parcel") in preparation for constructing a new home for her present, immediate family. Minareta is a member of the extended Moananu family of the Village of A'oloau, American Samoa. She lived with her parents and other family members on the small parcel and immediately surrounding land during a substantial portion of her childhood until the time she left American Samoa for further education. However, on at least two occasions during the clearing work, Toluao, the senior matai or sa'o of the extended Toluao family of the neighboring Village of Pava'ai'i, told Minareta not to proceed with construction, claiming the small parcel was the Toluao family's communal land.

The small parcel is within a larger portion of land, approximately 2. 0803 acres and known as "Saiaulama- Pita." "Saiaulama-Fita" is within and near the mid-point of the eastern boundary of an even larger area of approximately 353.8697 acres, which was surveyed in 1985 by matais of the Village of A'oloau and designated as "A'oloau-fou, Parcel B-One" ("the A'oloau survey"). The A'oloau survey also included a separate parcel of approximately 66.6936 acres, designated as "A'oloau-fou, Parcel B- Two." A substantial area in the eastern and southern portions of "Parcel B-One" of the A'oloau survey is also within another large area, generally known as "Lago." This portion of "Lago," consisting of some 69.403 acres, was surveyed by matais of the Village of Pava'ia'i in 1988 ("the Pava'ai'i survey").

In 1989, resolution of the A'oloau survey with the Pava'ai'i survey, among other issues, was before this court in consolidated actions LT No.29-86, LT No.41-86, and LT No.12-87 .The Village of A 'oloau was a plaintiff, and Toluao was the defendant in LT No. 12-87. Toluao, other village matais, and the Village of Pava'ai'i intervened in LT No.29-86, although their real interest was in the portion of "Lago" within the A'oloau survey, the registration of which was the subject of [24ASR2d129] LT No. 41-86. (1) Upon the advice of the Village of A'oloau's legal counsel, Minareta decided to delay her construction project until the outcome of these consolidated cases was known.

As relevant to this action, the court held that almost all of the land within the A'oloau survey that is also within the Pava'ai'i survey is within the Village of A'oloau and, therefore, is subject to title registration by families and others from A'oloau who own land communally or individually. Lualemana v. Asifoa, 16 A.S.R.2d 34, 38- 39 (Land & Titles Div. 1990), aff'd Asifoa v. Lualemaga, 21 A.S.R.2d 91 (App. Div. 1992).

The exception was a small strip of apparently uncultivated land along the eastern boundary of the A'oloau survey on the eastern slope of an 1183-foot peak and located immediately uphill from a cinder pit. The cinder pit was held to be separate communal properties of the Tuana'itau and Toluao families of Pava'ai'i in Leomiti v. Toluao, 11 A.S.R.2d 49, 53 (1989). The small parcel is clearly within the A'oloau survey and is well-removed from the excepted strip of land.

Moreover, Minareta and members of the Toluao family are not immediate neighbors. The Fuimaono, Leota and Lefotu families of the Village of A'oloau occupy the lands immediately bordering "Saiaulama-Fita."

After the decision in the consolidated cases was issued on August 6, 1990, Minareta returned to her construction project. On May 18, 1992, title to "Saiaulama-Fita" was duly registered with the Territorial Registrar as Minareta's and Moananu Va's individually owned land. Moananu Va is the sa'o of the extended Moananu family. On August 13, 1992, the small parcel was conveyed to Minareta as her individually owned land by Moananu Va and herself, and the deed was duly registered or recorded with the registrar. [24ASR2d130]

In late September of 1992, Minareta commenced actual construction of her new home on the small parcel. Almost immediately, she was stopped by Toluao once and by Seuta'atia on two occasions. Seuta'atia was particularly aggressive and made at least implied threats of physical violence. Some members of her construction crew were convinced that Seuta'atia carried firearms in the vehicle he was driving to the construction site. Faced with reluctant carpenters and rather than confront Toluao and Seuta'atia by continuing construction, Minareta opted to protect her legal rights through this proceeding.

On November 18, 1992, the court ordered issuance of a preliminary injunction upon the filing a written undertaking. This injunction, prohibiting interference by any means with the construction of Minareta's house, was issued on December 1, 1992. When Minareta resumed construction, Toluao and Seuta'atia once more came to the site and told her to stop construction. Seuta'atia's manner was again threatening and suggested physical violence as a consequence. Police were called and shown the preliminary injunction. On December 8, 1992, contempt proceedings were commenced, and on December 23, 1992, Toluao and Seuta'atia were held in contempt. (2) A $3,000 fine was [24ASR2d131] imposed, but execution was suspended on the condition that they comply with the preliminary injunction. They were required to pay Minareta's counsel $100 in attorney's fees.

In January 1993, Minareta once again began construction of her new home, without further direct interference by Toluao or Seuta'atia. Seuta'atia did complain that the fence Minareta had erected around her house was too close to a dirt road, crossing a small portion of the contested parcel of land and accessing the cinder pit on the communal lands of the Toluao and Tuana'itau families. However, apparently this dispute was satisfactorily resolved.

Nonetheless, Minareta believes that incidents of vehicles exiting from the dirt road with excessive noise and flying dust are attributable to Toluao family members and vehicles and are intentional act of harassment. She fears further retaliation from Toluao and other Tuluao family members. Indeed, Toluao testified that he might be unable to resist disobedience of any court order to refrain from interfering with Minareta' use and enjoyment of the contested parcel of land if "the devil takes over" control of him.

Minareta also presented evidence other financial losses resulting from Toluao's and Seuta'atia's conduct. Since she was unable to remove her building materials from the American Samoa Government's port facilities for an extended period of time, she incurred and was billed for $17,600 in storage charges. The prospect of this financial detriment as a result of Toluao's and Seuta'atia's interference with the construction was brought out at the hearing on issuing a preliminary injunction. However, because of this litigation, the government settled this account for $1,500, representing charges to thc time of filing this action. Apparcntly, she is satisfied with this resolution of that problem.

She also paid her carpenters an additional $5,000 due to the delay in proceeding with the work and their giving up other contracts from October 1992 to January 1993. She would like to recoup this expense. Both of these cost items, excess storage and carpenters charges, are reasonably foreseeable effects of Toluao's and Seuta'atia's interferencc with Minareta's construction project.

Other than modcration of the characterization of their conduct, the evidcnce presentcd by both Toluao and Seuta'atia did not contradict Minareta's testimony. Particularly noteworthy, they did not present any evidcnce of the Toluao family's title or defects in Minareta's title to the [24ASR2d132] small parcel. Toluao's only legitimate interest in this land is retaining access to the cinder pit via the dirt road crossing a corner of the small parcel. This road has existed for a considerable period of time, perhaps from the early 1960s. However, Minareta has neither encroached, threatened to encroach, nor otherwise obstructed passage upon this road.

CONCLUSIONS OF LAW

1. The procedurally valid title and deed registrations, in the absence of any showing of irregularity in the Territorial Registrar's certificates, clearly and unequivocally establish Minareta's title to the small parcel. See Vaimaona v. Tuitasi, 13 A.S.R.2d 76, 79-81 (Land & Titles Div. 1989) .As between the parties to this action, this conclusion is further buttressed by the res judicata effect of Lualemana v. Asifoa, 16 A.S.R.2d 34 (Land & Titles Div. 1990),aff'dAsifoa v. Lualemaga, 21 A.S.R.2d 91 (App. Div. 1992). Lualemana effectively placed the small parcel within the Village of A'oloau and determined its ownership by an A 'oloau landowner. Toluao was a party to that action. As a member of the Moananu family of A'oloau, Minareta was represented by the A 'oloau matais, who were also parties to that action. See Taulaga M. v. Patea S., 4 A.S.R.2d 186, 186-87 (Land & Titles Div. 1987).

2. As an equitable remedy, the most distinguishing prerequisite of permanent injunctive relief is the inadequacy of a remedy at law, usually in the form of money damages. A.S.C.A. § 43.1302; see Nissan Motor Corp. v. Maryland Shipbuilding & Drydock Co., 544 F. Supp. 1104, 1122 (D. Md. 1952); Int'l Union, United Auto., Aerospace & Agric. Implement Workers v. Mack Trucks, Inc., 820 F.2d 91, 95 (3d Cir. 1987); see also Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1527 (D.C. Cir. 1984), vacated 471 U.S. 1113 (1985). Actual physical interference with the use and enjoyment of another's land, as occurred in this case, constitutes the most obvious and common type of nuisance and is properly subject to the issuance of a permanent injunction. See Ramirez, 745 F.2d at 1527-28 & nn.119-120; Maryland Shipbuilding, 544 F. Supp. at 1116-17, 1122 & n.21.

Minareta is entitled to an injunction permanently prohibiting Toluao and Seuta'atia, their officers, agents, servants, employees, attorneys, other family members, and those persons in active concert or participation with them from interfering with the use and enjoyment of the contested parcel of land by Minareta, her other family members, invitees, licensees, servants, and employees through the use or threatened use of physical violence, harassment, or any other means. [24ASR2d133]

3. Although equity acts specifically, a court having equity jurisdiction will dispose of the entire controversy, granting both specific relief and damages, to avoid a multiplicity of suits. See Samuel v. University of Pittsburgh, 538 F.2d 991,994 (3d Cir. 1976) (court having equity jurisdiction over injunction claim may also decide "intertwined question of restitution"); Local 391, Int'l Brotherhood of Teamsters v. City of Rocky Mount, 672 F.2d 376, 379 (4th Cir. 1982) (affirming district court's grant of an injunction and award of damages).

Clearly, Minareta has suffered special damages in the sum of at least $5,000, though she failed to specifically allege and pray for money damages. T.C.R.C.P. Rule 15(b) directs that issues tried with the parties' express or implied consent shall be treated as if they had been raised by the pleadings and authorizes, but does not require, amendments to pleadings to conform to the evidence. Even over objection, amendments to the pleadings should be freely made in the interest of full consideration of the merits, unless the objecting party is prejudiced by lack of notice and surprise. 6A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1491, at 6-7 (West, 2d ed. 1990); see Ah Ching v. Ah Ching, 13 A.S.R.2d 34, 37 (Trial Div. 1989) (denying a collateral, unpled claim in divorce proceedings for possible additional renumeration that might be sought by carpenters who constructed a family home under a fa'a Samoa arrangement).

Despite Minareta's focus on injunctive relief in her complaint, the prospect of money losses resulting from Toluao's and Seuta'atia's interference with her construction project was raised during the hearing on the preliminary injunction and was, in any event, a reasonably foreseeable issue. Moreover, objection was not interposed to the evidence on money damages but only during argument. An award of money damages in this case is just and is granted in the sum of $5,000.

4. The testimony during trial on Toluao's and Seuta'atia's conduct after they were held in contempt on December 23, 1992, with respect to Minareta's use and enjoyment of the small parcel, sufficiently raises for purposes of constructive contempt proceedings under H.C.R. Rules 114 and 115 the issue of setting aside the suspended execution and requiring payment of the $3,000 fine imposed for the violations of the preliminary injunction. An order to show cause will be issued, and the hearing on the order is scheduled on October 7, 1993, at 9:00 a.m.

5. A plaintiff's attorney's fees are ordinarily excluded from judgments for injunctive relief in the absence of statutory authorization [24ASR2d134] or special circumstances. See Chambers v. NASCO, Inc. , 501 U .S. ___, ___, 115 L. Ed. 2d 27, 45 (1991) (citing Alyeska Pipeline Serv. v. Wilderness Sac., 421 U .S. 240,259 (1975)); Ruckelshaus v. Sierra Club, 463 U.S. 680,683-84 (1983) (citing Alyeska Pipeline). Attorney's fees have been permitted by statute in connection with injunctions against harassment in at least one jurisdiction. See Cal. Civil Proc. Code § 527.6(h) (West 1985). They were awarded in a land case involving res judicata in this jurisdiction. Taulaga M., 4 A.S.R.2d at 187.

Given the undue interference and harassment without any legitimate claim or color of title, recovery of attorney's fees are also appropriate in this action. In addition to her costs of suit, Minareta is awarded reasonable attorney's fees in an amount to be approved by court upon her verified application. The hearing on attorney's fees is also scheduled on October 7, 1993, at 9:00 a.m.

Judgment shall enter accordingly. It is so ordered.

*********

1. The Pava'ai'i matais had missed the statutory 60-day deadline for filing objections to the proposed title registration of the A'oloau survey and, rather than alleging lack of notice in Pava'ai'i as an excuse for their untimely objection, sought intervention through LT No. 29-86, an injunctive relief action. Hearing no objection, the court allowed this intervention and proceeded on its merits, even though LT No. 29-86 dealt with land at the western end of the A'oloau survey not claimed by the Pava'ai'i matais.

2. The decision of August 6, 1990, in the consolidated cases also declared that another portion of the land, about 2.076 acres within the A'oloau survey and south of the contested parcel of land in this case, was the communal land of the Utu family (represented by Lepuapua Stanley Massey Utu). The court enjoined Toluao from further activities within the A'oloau survey area. As amended on August 9, 1990, Toluao and the Toluao family were given until September 10, 1990, to harvest their crops within the A'oloau survey; but Toluao and the Toluao family, acting principally through Pepe Lam Yeun, continued to occupy and cultivate the Utu family land. On April 24, 1991, when both were in court, Toluao and Lam Yeun were held in contempt. Although their counsel at that time, a legal practitioner or his unlawfully practicing associate, may have misled Toluao and Lam Yeun into thinking the decision in the consolidated cases was not final, their contemptuous conduct continued unabated, even after Toluau's present counsel was retained on or about September 14, 1992. On October 7, 1992, sanctions were imposed for their continuing contempt. These contempt proceedings in the consolidated actions clearly confirm that Toluao was well aware of the significance of the August 6, 1990, decision with respect to the A'oloau survey when the hearing on issuance of a preliminary injunction took place in this case on November 16, 1992.

Tauoa v. Tino,


LAVASI`I TAUOA, Plaintiff,

v.

EKI TINO and MULIAGA TINO, Defendants.

High Court of American Samoa
Trial Division

LT No. 22-93

July 6, 1993

__________

The court treated a motion for default judgment as a motion for summary judgment when plaintiff had documents admitted into evidence and when a pro se defendant's unsigned, typed statement was treated as an answer. T.C.R.C.P. 55, 56.

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

Counsel: For Plaintiff, Afoa L. Su`esu`e Lutu
For Defendants, Pro Se

Opinion and Order for Summary Judgment:

This action was brought by plaintiff Lavasi`i Tauoa ("Lavasi`i") to evict defendants Eki Tino ("Eki") and Muliaga Tino ("Muliaga") from [24ASR2d89] a portion of land called "Ogevai" in Tafuna, American Samoa. Eki and Muliaga were personally served with the summons and complaint on March 29, 1993, and when they failed to file an answer to the complaint or otherwise appear in the action by April 23, 1993, Lavasi`i employed the procedures for a judgment by default under T.C.R.C.P. Rule 55.

Lavasi`i's motion to enter a judgment by default came on regularly for hearings on May 20, June 1, and June 30, 1993. Lavasi`i appeared in person and by counsel at each hearing. Muliaga was also present at each hearing.

On May 20, 1993, the hearing was continued at Lavasi`i's request to afford the parties further opportunity to mutually resolve this matter. On June 1, 1993, Lavasi`i offered a negotiated stipulation under which Muliaga, his wife Eki, and any other persons living with them, would have six months to vacate the land at issue. However, when Muliaga indicated disagreement with, or at least reservations about, the offered stipulation, the hearing was again continued, until June 30, 1993, and Muliaga was instructed to file an answer by that date if he intended to defend against the complaint.

Muliaga brought an unsigned, four-page, typed statement to the hearing on June 30, 1993. In view of his continuing presence at the scheduled hearings, and despite its formal deficiencies, we are treating this statement as an answer. In addition, Lavasi`i testified and identified two documents: (1) an agreement, dated May 29, 1989, and signed by Lavasi`i, Eki and Muliaga; and (2) a letter, dated February 19, 1993, signed by Lavasi`i, and delivered to Muliaga. These documents were admitted into evidence. Hence, we consider Lavasi`i's motion to be for summary judgment under T.C.R.C.P. Rule 56.

The land at issue is Lavasi`i's individually owned land. The agreement of May 29, 1989, created a license, revocable at will by Lavasi`i, allowing Eki and Muliaga to occupy that land at issue solely for residential purposes. The letter of February 19, 1993, revoked the license. Muliaga's statement failed to raise any factual issue that might negate the legal effect of either the license agreement or revocation letter.

Since there is no genuine issue as to any material fact, Lavasi`i is entitled as a matter of law to a summary judgment of eviction of Eki and Muliaga from the land at issue, subject to their right to reenter solely to remove their personal property and any improvements they have made to the licensed land, within 60 days of this judgment. [24ASR2d90]

Judgment shall enter accordingly. It is so ordered.

**********

Tago; Shadow Yacht v.


SHADOW YACHT, in rem, and CURTIS EMMER, Appellants

v.

ACE TAGO, TREASURER OF AMERICAN SAMOA, Appellee

High Court of American Samoa
Appellate Division

AP No. 15-93

September 24, 1993

__________

Before RICHMOND, Associate Justice.

Counsel: For Appellants, Curtis Emmer, pro se
For Appellee, Cheryl A. Quadlander, Assistant Attorney General

On May 11, 1993, Curtis Emmer filed an appeal of CA No. 52-92, which concerns a forfeiture claim of the yacht "Shadow." However, the Trial Division has not rendered a decision in this matter.

An appeal in a civil case is only permitted after an entry of judgment. A.C.R. Rule 4(a). As such, the jurisdictional requirements of Rules 3 and 4 must be followed. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 (1988); cf. Bandag, Inc. v. Al Bolser Tire Stores, Inc., 719 F.2d 392, 393 (Fed. Cir. 1983) ("the time for filing notice of appeal under Rule 4(a) begins to run only upon 'entry' of the 'final judgment'").

Because no judgment has been rendered in this case by the Trial Division, and for good cause shown, the limitation in A.C.R. Rule 27(c) on dismissal of an appeal by a single justice is suspended, in accordance with A.C.R. Rule 2, and this appeal is dismissed.

It is so ordered.

***********

Lutali; Mackenzie v.


NOFO MACKENZIE, SAUMANIA CHOI, FIATAGATA FULU,
ATAPO SATELE, FA'AFOITA TUIOTI, VIANE ULUGIA,
ROSALIA BURGESS, BERRY JOE, NAMELI NU'USILA,
SAMUELU TA'ASE, MARK MEREDITH, SIASAU MAMEA,
FA'AFOUINA THOMPSON, TUAOLOINA TA'ASE,
MALAMALAMA SO'O, RAYMOND TAUTALA, SITA P. FE'A,
FALANIKO FELISE, PAULO LIULEV AEGA, SUITOA KELETI,
ETUALE BURGESS, IUPELI SITALA, TAUMATA GASIO,
GALUEGA GASIO, MARY ANN TA'ASE, FRED BURGESS,
TI TIMALILI, and MICHAEL AETUI, on Behalf of Themselves
and All Others Similarly Situated, Plaintiffs

v.

GOVERNOR A.P. LUTALI, LT. GOVERNOR TAUESE SUNIA,
and FRED MAMEA, Director of Human Resources,
Defendants

High Court of American Samoa
Trial Division

CA No. 44-93

June 15, 1993

__________

Although a court has an obligation to liberally construe pleadings to avoid injustice, this does not extend to refashioning a plaintiff's theory of relief in order to withstand a motion to dismiss for failure to state a claim upon which relief can be granted. T.C.R.C.P. 12(b)(6).

Before RICHMOND, Associate Justice, MATA'UTIA, Associate Judge, and VAIVAO, Associate Judge. [24ASR2d76]

Counsel: For Plaintiffs, Albert Mailo
For Defendants, Malaetasi M. Togafau, Attorney General,
and Jennifer Joneson, Assistant Attorney General

Order Dismissing Plaintiffs' Action:

This motion to dismiss plaintiffs' complaint for failure to state a claim upon which relief could be granted, failure to properly plead a class action suit, and failure to join a necessary party came regularly for hearing on June 13, 1993. Defendants' separate motion to disqualify plaintiffs' counsel was heard and denied at this hearing. We are, however, unable to treat the motion to dismiss in a like manner .

Plaintiffs' complaint suffers from several serious flaws, which the defendants have ably noted in their memorandum in support of dismissal. First, the defendants point out that the plaintiffs failed to join the American Samoa Government (ASG) as a defendant, but this seems to be an oversight; ASG is named as a defendant in the body of the pleading but is omitted in the caption. In any event, the plaintiffs would be free to amend their complaint to correct this omission, as no responsive pleading has been filed. Given our decision today, however, amending the complaint would be pointless, as there are other, more grievous problems with the pleading.

The plaintiffs seek declaratory relief, which is inappropriate in the present situation, as it would necessitate a lengthy factual inquiry on the part of the court and would not address adequately the wrongs to which the plaintiffs feel they have been subjected. While the court has an obligation to liberally construe pleadings to avoid injustice, this does not extend to refashioning plaintiffs' theory of relief.

In addition, the plaintiffs have not begun to lay the detailed, technical foundation required to bring a class action suit. Mere assertions, such as "[t]he local newspapers estimated that over 400 people were laid off," are insufficient. A class action suit is neither lightly nor casually plead. It requires much greater research than the mere reading of a local newspaper.

For these reasons, the defendants' motion to dismiss is GRANTED. The complaint is dismissed without prejudice; should the plaintiffs succeed in clarifying their form of relief and establish a proper [24ASR2d77] class, there is nothing to prevent them from bringing this before the court at a later date.

It is so ordered.

*********

Lutali v . Foster,


GOVERNOR A.P. LUTALI, on Behalf of 
DEVELOPMENT BANK OF AMERICAN SAMOA, 
Plaintiff

v.

MABEL FOSTER and 
AMERICAN SAMOA DEVELOPMENT CORP., 
Jointly and Severally, Defendants

High Court of American Samoa 
Trial Division

CA No. 37-93

June 30, 1993

__________

Similar to a petition for a preliminary injunction, the decision to grant or deny a motion for a stay of an injunction pending appeal depends partly on the "balance of equities" and partly on the likelihood of appeal's success. A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8.

Corporate directors claiming economic loss are not entitled to a stay of an injunction pending appeal when they lack standing because they are not parties to the lawsuit against the corporation and when their individual economic interests are not coincidental with or necessarily those of the corporation; in any event, prospective monetary loss as a result of an injunction is insufficient to suspend an injunction. A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8. [24ASR2d82]

Regarding a motion to stay pending appeal, the moving party bears the burden of showing "cause" as to why an injunction should be stayed and must show that he is likely to prevail on the appeal's merits. A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8.

Before KRUSE, Chief Justice.

Counsel: For Plaintiff, Malaetasi M. Togafau, Attorney General, 
and Jennifer L. Joneson, Assistant Attorney General 
For Defendants, Asaua Fuimaono

On Motion to Stay:

Defendants seek a stay, pending appeal, of the court's final order entered herein enjoining the defendant Mabel Foster, Secretary of the American Samoa Development Corporation (ASDC), from failing to call certain shareholders' meetings as demanded by plaintiff, the majority shareholder of ASDC. In these matters, where the order sought to be stayed is an injunction, "the decision to grant or deny a stay pending appeal is similar to that on a preliminary injunction, depending partly on the 'balance of equities' and partly on the likelihood that the appeal will be successful." Asifoa v. Lualemana, 17 A.S.R.2d 10, 13 (App. Div. 1990). At the same time,

[a] court should not grant a stay of judgment pending 
appeal automatically or casually. To do so would encourage 
losing litigants to file appeals in which they had no serious 
hope of prevailing, simply in order to postpone the effective 
date of judgment. The court's discretion to grant a stay 
should therefore be exercised only "for cause shown."

Id. at 12 (citing A.S.C.A. § 43.0803; T.C.R.C.P .62(a), (c); A.C.R. 8).

On the first consideration, balancing equities between the parties, the defense claims that their appeal will become moot if the injunction is not stayed. In this regard, counsel at the hearing explained irreparable injury to his clients in terms of economic loss to the current [24ASR2d83] directors (1) if in fact they are voted out of office before the time the appeal can be heard.

The immediately glaring problem with this ground is that the directors are not parties in these proceedings, and hence are without standing, nor are their individual economic interests coincidental with or necessarily those of ASDC. In any event, a prospective monetary loss as a result of an injunction is insufficient ground to suspend the injunction. Stop H-3Associationv. Volpe, 353 F. Supp. 14 (D.C. Haw. 1972).

As to likelihood of prevailing on appeal, the defendants here simply submit, without further evidence, that they will prevail on appeal. They essentially premise this submission upon the "conviction" that the appellate court will opt for their legal position (or construction argument) over that of the trial court. Indeed, at the hearing on the motion, counsel's submission was simply that the appellate court "might" see things otherwise.

As alluded to above, the burden in these matters is on the movant to show "cause" as to why the court's injunctive order should be stayed. A.S.C.A. § 43.0803. Part and parcel of that burden requires some sort of showing that movant is likely to prevail on the merits of the appeal. Asifoa v. Lualemana, supra; T .C.R.C.P .Rule 62(c). Defendants' subjective and self -serving declaration, upon mere "conviction," hardly meets this aspect of the required showing.

We conclude that the defendants have failed to show "cause," A.S.C.A. § 43.0803, and accordingly exercise our discretion against granting a stay. The motion is, therefore, DENIED.

It is so ordered.

*********

1. The testimony on record reveals that the various benefits and fees presently accruing to the ASDC directors and officers include: a director's fee of $200 per "regular" board meeting and $100 per "special" board meeting; attorney's fees for such legal services as may be rendered at these board meetings by the chairman of the board, who is also an attorney-at-law; an additional remuneration package for the president consisting of $1000 per month, a credit allowance of $500 per month for "promotional " purposes, a room at the hotel, and access to a corporate vehicle.

Lutali v. Foster ,


GOVERNOR A.P. LUTALI, on Behalf of 
DEVELOPMENT BANK OF AMERICAN SAMOA , 
Plaintiff

v.

MABEL FOSTER and 
AMERICAN SAMOA DEVELOPMENT CORP., 
Jointly and Severally, Defendants

High Court of American Samoa 
Trial Division

CA No. 37-93

June 3, 1993

__________

A court's mandate is to decide controversies between adverse parties and their respective viewpoints, not to decide which policies. public or otherwise, are best; such policy decisions properly belong to other branches of government.

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

Counsel: For Plaintiff, JenniferL. Joneson, Assistant Attorney General 
For Defendants, Asaua Fuimaono

On Motion to Reconsider:

Defendants move the court to reconsider its decision and order entered May 3, 1993, in the above-entitled matter. Defendants , submissions are twofold: a) "that the court erred by alluding to possible breach of fiduciary duty owed by Board of Directors to the shareholders," an issue which, while not before the court, was "at least partially" the premise for the decision; and b) that the court "overlooked" defendants' argument relating to the construction of A.S.C.A. § 30.0141(a).

I. Contrary to defendants' assertions, the issue before this court at trial was not whether ASDC's board of directors violated its fiduciary duty as such, but whether it improperly tried to insulate itself from the stockholders' control by failing to call a special meeting. This court merely noted the fiduciary duty owed by a corporation's board of [24ASR2d54] directors to the stockholders and observed that a board's attempt to insulate itself from accountability to the shareholders is inconsistent with this duty. A finding that ASDC's board acted contrary to ASDC's articles of incorporation and bylaws by failing to call the mandated special shareholders' meeting is thus separate from an evaluation of the board's competence regarding the corporation's management and operation. Thus, the decision did not "rel[y] , at least partially," on other matters falling within the general rubric of "fiduciary duty," nor did this court make its decision "armed with the knowledge" that the incumbent board was denied the opportunity to defend its competence.

II. This court did not "overlook[] defendant's [sic] [construction] argument" ; rather, the argument was considered and rejected because it lacked, in our view, a legal and evidentiary basis. Defendants' assertion that A.S.C.A. § 30.0141 "is subject, at the maximum, to two differing interpretations" simply fails to acknowledge this court's interpretation--that the statutory requirement of electing members of a board of directors at the stockholders' annual meeting is distinct from removing and subsequently replacing those members.

Defendants' "ordinary meaning of language" argument is also baseless. Use of this rationale undermines defendants' position, as "shall " is clearly not a synonym for "only. " Indeed, the absence of the express limitation that elections may "only" be held at the regular, annual stockholders' meeting supports the premise that other directors' elections may be held at special, stockholders' meetings.

In short, the opinion of this court did not concern the competence of the current board of directors, nor did it conflict with the applicable statutory provisions. Furthermore, the mandate of this court is to decide controversies between adverse parties and their respective viewpoints, not to decide which policies, public or otherwise, would best promote the" smooth operation of the hotel. "Such policy decisions are separately and properly placed elsewhere in government. Thus, this court confined itself to ordering ASDC's secretary to carry out her duty to call, as required by ASDC's articles of incorporation and bylaws, the special, shareholders' meeting requested by the plaintiff.

Defendants' motion for reconsideration is DENIED.

It is so ordered.

*********

Lutali v. Foster,


GOVERNOR A.P. LUTALI, on Behalf of 
DEVELOPMENT BANK OF AMERICAN SAMOA, 
Plaintiff

v.

MABEL FOSTER and 
AMERICAN SAMOA DEVELOPMENT CORP., 
Jointly and Severally, Defendants

High Court of American Samoa 
Trial Division

CA No. 37-93

May 3, 1993

__________

A statutory provision that corporate directors be elected at the annual meeting does not preclude the shareholders from removing members of the board of directors and holding a special election to elect replacement directors. A.S.C.A. § 30.0141(a).

A corporate board of directors has a fiduciary duty to the corporation and its shareholders, and an attempt by a board to insulate itself from accountability to the shareholders is inconsistent with this duty.

The High Court possesses the statutory authority to issue an injunction if it deems money damages to be an inadequate remedy; as such, it may order a special shareholders' meeting if a board of directors, though lacking any discretion in the matter, fails to call a meeting. A.S.C.A. § 43.1302.

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

Counsel: For Plaintiff, Jennifer L. Joneson, Assistant Attorney General 
For Defendants, Asaua Fuimaono

This matter came on regularly for trial on Apri130, 1993, upon plaintiff's complaint for injunctive relief. Prior to filing suit, plaintiff had thrice requested the secretary of the American Samoa Development Corporation (hereinafter ASDC) to call a special shareholders' meeting. In letters dated February 11 and 25, 1993, plaintiff sought a shareholders' meeting to vote upon whether to remove the current board [24ASR2d40] members and, if they were removed, to replace them. Also requested in the second letter was a vote to repeal the board's February 5th amendment to the bylaws.

In his letter dated March 15, 1993, plaintiff requested a special shareholders' meeting to amend the ASDC's articles of incorporation. Among other things, a vote would be taken to transfer from the board to the shareholders the power to amend the bylaws. However, the board met and voted to reject the first two requests for a special shareholders' meeting and never responded to the third request. As such, Mabel Foster, ASDC's secretary , has failed to call such a meeting.

The two issues in this case, then, are whether Mabel Foster should be enjoined from failing to call a special shareholders' meeting to (1) amend ASDC's articles of incorporation and (2) remove the current board of directors and elect a new board.

According to ASDC Articles of Incorporation § 11, the articles of incorporation may be amended by a majority vote of the stockholders. At trial, defendants conceded that Mabel Foster should call within sixty days a special shareholders' meeting for this purpose, and they stipulated to an injunction to that effect. Defendants' objection to the meeting's purposes of removing and electing new directors, though, misses the point. Even if such actions were currently prohibited, they would be entirely proper if the proposed changes in the articles of incorporation and the bylaws were adopted by the shareholders. Mabel Foster, as secretary of the ASDC, is thus obligated to call a special shareholders' meeting for the purposes enumerated in plaintiff's letter of March 15, 1993.

Likewise, plaintiff seeks to hold a special shareholders' meeting for the purposes of removing the current members of the Board of Directors and electing replacements for them. According to ASDC Bylaw § 2(b), special meetings of the stockholders may be called for any purpose, and the secretary shall call a meeting when a written request has been signed by owners of at least ten percent of the common stock entitled to vote. Both parties have stipulated that the Development Bank holds at least ten percent of ASDC's shares.

Previously, defendants had challenged plaintiff's right to vote the Development Bank's stock. Nevertheless, ASDC Bylaw § 2(j) provides that an officer designated by the Governor may vote the government-owned shares. Furthermore, in a letter dated April 15, 1993, the [24ASR2d41] those members, even if the latter results in a special election to choose new directors. That members of a board of directors are elected at an annual meeting by the stockholders does not mean that the former are entitled to hold their offices, without any interference, for their entire terms. Indeed, ASDC Bylaw § 4(b) specifically provides that the stockholders may remove a member of the board of directors.

In short, the election procedures set forth in the statutes, articles of incorporation, and bylaws are just that--procedures by which a corporation regularly selects its officials. These procedural provisions, though, do not confer additional authority on a board of directors, nor do they impose additional limits on the stockholders.

A corporate board of directors has a fiduciary duty to the corporation and its stockholders. See, e.g., Norlin Corp. v. Rooney, Pace Inc., 744 F.2d 255,264 (2d Cir. 1984) (New York law); In re Slack, 787 F.2d 503,506 (loth Cir. 1986) (Utah law); Delano v. Kitch, 663 F.2d 990, 997 (loth Cir. 1981) (Kansas law), cert. denied 456 U .S. 946 (1982); Ohio Drill & Tool Co. v. Johnson, 625 F.2d 738,742 (6th Cir. 1980) (Ohio law). An attempt by a board to insulate itself from accountability to the shareholders is inconsistent with this duty. "[N]o board can ...usurp the power of control of the corporation vested by law in the shareholders." Czech Catholic Union v. Satla Realty Corp., 117 N.E.2d 610, 616 (Ohio 1954).

The High Court possesses the statutory authority to issue an injunction if it deems money damages to be an inadequate remedy. A.S.C.A. § 43.1302. This includes an order to hold a special shareholders' meeting after a board of directors, though lacking any discretion in the matter, fails to call a meeting. See Auer v. Dressel, 118 N.E.2d 590, 592 (N. Y. 1954) (mandamus to compel special stockholders' meeting); Sartlett v. Gates, 118 F. 66, 71-73 (C.C.D. Colo. 1902) (stockholders supporting the incumbent board of directors [24ASR2d42] engaged in a sham suit against the latter and obtained an ex parte injunction enjoining the annual stockholders' meeting; at trial this injunction was modified to order a stockholders' meeting and to appoint a special master to supervise the meeting); see generally Annotation, "Remedies to restrain or compel holding of stockholders' meeting," 48 A.L.R.2d 615 (1956 & Supp. 1986).

Because money damages would constitute an inadequate remedy in this case, this court grants the plaintiff an injunction against the defendants. Mabel Foster, ASDC's secretary, is hereby enjoined from failing to carry out her duty to call a special shareholders' meeting as requested by plaintiff. She is to call a special shareholders' meeting to amend ASDC's articles of incorporation and to remove and elect members of ASDC's board of directors, and she is to give the shareholders the requisite sixty-day a11d ten-day notice, respectively.

It is so ordered.

*********

Lefiti v. Tauaunu`u,


FAAFETAI LEFITI, SOTOA SAVALI, FOFO SUNIA,
FAAMAUSILI T. POLA, and TAUALA F. FALESIGAGO,
for Themselves and on Behalf of the
VILLAGE COUNCIL AND PEOPLE OF TA`U VILLAGE,
Plaintiffs,

v.

TAUANU`U LIAIGA, NUA TO`ATOLU,
LEASAU K. ESEROMA, and GAOA SALOFI, Defendants.

High Court of American Samoa
Trial Division

CA No. 63-93

June 14, 1993

__________

The power to govern a congregational church vests in the whole congregation, or in persons or entities which the majority of the congregation may select as the governing authority for general or particular purposes. U.S. Const. Amend. I; Rev. Const. Am. Samoa Art I, § 1.

Sufficient grounds for issuing a preliminary injunction requires showing (1) a substantial likelihood that the applicant will prevail at the trial on the merits and that a permanent injunction will be issued; and (2) great or irreparable injury to the applicant before a full and final trial can be held regarding a permanent injunction. A.S.C.A. § 43.1301(j).

When the identity of the governing authority or authorities within a church is substantially at issue, civil courts must refrain from delving into ecclesiastical laws and practices that may be paramount to resolving the controversy. U.S. Const. Amend. I; Rev. Const. Am. Samoa Art. I, § 1.

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

Counsel: For Plaintiffs, Gata E. Gurr
For Defendants, Charles V. Ala`ilima [24ASR2d69]

Order Denying Preliminary Injunction:

Plaintiffs' application for a preliminary injunction came regularly on June 11, 1993 for hearing. The court, having heard testimony and considered the evidence, makes the following findings, conclusions, and order.

FINDINGS OF FACT

This action has been brought by several, high ranking matais of Ta`u Village in the Manu`a Islands against several other matais of the same village to enjoin the second group: (1) from further publicizing and preparation for, and from holding the dedication of the Malamalama o le Lalolagi Church in the village, scheduled to take place on June 24-25, 1993; and (2) continuing to spend public funds of the Village Council for purposes of the church dedication.

The first group of matais wishes to restrain the second group from these activities until the factions within the village have settled their differences and a consensus is established on the dedication dates and on further expenditure of Village Council funds for this purpose. This sentiment is noble. The key immediate element in these differences appears to be the second group's refusal to recognize the titles of three matais, awarded judicially under the laws of American Samoa, and their membership on the Village Council accepted during a faleula, or customary installation ceremony, at the Malaetele, or traditional meeting ground, in the village on May 19, 1993. The first group characterizes this refusal as disrespect for the judicial process in this court and the institutional norms of the village. Thus, this aspect of their differences takes on a decidedly secular character involving quarreling matais.

While such disregard of fundamentals erodes the very fibers of a peaceful and civilized society and is to be abhorred, the solution to this particular grievance is not now before the court. Fortunately, there are still indications by both factions to this issue of willingness to discuss and find that solution within the process of the traditional village political system. The court wants to believe and certainly hopes that a sufficient reservoir of good will and adaptability exists among the village residents to accommodate that end.

The issue immediately before the court concerns a religious event. Church government and secular politics involve different[24ASR2d70] considerations from the perspective of legal principles. While the interplay between the religious issue and the temporal issue is evident in this case, neither issue can, under law, be used as the platform for the redress of the other issue.

The church is part of the family of churches within the Christian Congregational Church of American Samoa. The power to govern a congregational church vests in the whole congregation, or in such other person(s) or entity(ies) as the majority of the congregation may select as the governing authority for general or particular purposes. The evidence in this case does not persuasively establish any authoritative delegation of governing power over the church dedication by the congregation either to the first group of matais, individually or collectively, or to any other grouping or persons or entities described as plaintiffs, or for that matter to the second group of matais, individually or collectively, named as defendants.

CONCLUSIONS OF LAW

Sufficient grounds for the issuance of a preliminary injunction requires showing of: (1) a substantial likelihood that the applicant will prevail at the trial on the merits and that a permanent injunction will be issued against the opposing party; and (2) great or irreparable injury resulting to the applicant before a full and final trial can be held on whether a permanent injunction should issue. A.S.C.A. § 43.1301(j).

Where the identity of the governing authority or authorities within a church is substantially at issue, as in this case, civil courts must refrain from delving into ecclesiastical laws and practices that may be paramount to resolving the controversy. Tele`a v. Savea, 8 A.S.R.2d 110, 113, 115 (Trial Div. 1989). As enunciated in Tele`a, such authority in congregational churches is the congregation's exclusive province to define.

Under these circumstances, plaintiffs have not shown a substantial likelihood that any individual plaintiff or grouping of plaintiffs will prevail at trial on the merits and be entitled to a permanent injunction against any or all defendants. The members of the church congregation, not this court, must decide by majority rule, whether by vote or consensus when the church dedication takes place and other matters related to it, or who will make those decisions. [24ASR2d71]

Although the issue need not be analyzed now, the apparent involvement of the Village Council as a governmental entity and public funds in the church dedication program may also be a matter of concern. This involvement may well raise questions about transgressions of the constitutional principle of separation of church and state, which is embodied in the Bill of Rights, Section 1 of Article I of the Revised Constitution of American Samoa of 1967. The religious decisions at issue are also not, legally, the domain of secular politics.

Since plaintiffs have not met their burden on the likely outcome issue of the two-pronged prerequisites for issuance of a preliminary injunction, the court also does not need to definitively weigh the interim harm to either plaintiffs or defendants. Suffice it to observe that defendants' harm is significantly more measurable in quantitative terms. Moreover, the resiliency of the Samoan way is certainly able to constructively deal with and vigorously outlast this situation.

ORDER

Plaintiffs' application for a preliminary injunction is denied. It is so ordered.

**********

 

Lang v. American Samoa Gov’t,


MAANAIMA LANG, Individually and as Administrator 
of the Estate of SILIAGA LANG, and as Guardian 
for NELLY LANG, a Minor, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT and 
HAWAIIAN AIRLINES, INC., Defendants

High Court of American Samoa 
Trial Division

CA No. 13-91

June 9,1993

__________

In determining whether "no genuine issue as to any material fact" exists, a court views the pleadings and papers supporting the summary-judgment motion in the light most favorable to the non-moving party. T.C.R.C.P. 56(c).

Despite the high standard of care demanded of airlines, liability must be based upon negligence, and the mere fact that an injury occurred is insufficient to raise a presumption of the carrier's negligence.

The doctrine of res ipsa loquitur applies to an accident only under the following conditions: (1) it ordinarily does not occur without someone's negligence, (2) it was caused by an agency or instrumentality within defendant's exclusive control, and (3) it was not due to a voluntary action by the plaintiff. [24ASR2d60]

Before RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, and MAT A 'UTIA, Associate Judge.

Counsel: For Plaintiffs, Togiola T.A. Tulafono 
For Defendant American Samoa Government, 
Richard D. Lerner, Assistant Attorney General 
For Defendant Hawaiian Airlines, Robert A. Dennison III

Opinion and Order Granting Summary Judgment:

I. Standard of Review

Summary judgment is only appropriate when "no genuine issue as to any material fact" exists. T.C.R.C.P. Rule 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non-moving party. D. Gokal & Co. v. Daily Shoppers Inc., 13 A.S.R.2d 11, 12 (Trial Div. 1989) (citing United States v. Diebold, Inc., 369 U .S. 654 (1962); Lokan v. Lokan, 6 A.S.R.2d 44, 46 (1987)).

II. Discussion

Individually and in his capacities as administrator of Siliaga Lang's estate and as guardian for Nelly Lang, Maanaima Lang (hereinafter plaintiff) has filed a civil suit against the American Samoa Government and HawaiiaIl Airlines, Inc. to recover money damages. Hawaiian Airlines (hereinafter defendant) has moved for summary judgment under T.C.R.C.P. Rule 56 as to the claims against it.

In the face of a motion for summary judgment supported by affidavits or other evidence, a plaintiff may not rest on his pleadings or the statements of an attorney lacking personal knowledge. However, plaintiff attempts to do just that; in fact, he never filed any evidentiary response to defendant's motion for summary judgment.

The available evidence supports defendant's motion. Although plaintiff's attorney alleges that defendant failed to provide an adequate oxygen supply to Mrs. Lang, he presents no supporting evidence. In fact, Mr. Lang stated that oxygen remained in the bottle. Lang Deposition, pp. 37-38, 53. Registered Nurse Louise Tokumura also [24ASR2d61] believed that the oxygen was still flowing. Tokumura Deposition, pp. 16-17.

In asserting plaintiff's claims, his attorney wants this court to hold defendant to a novel standard of care--the duty to "deliver" a passenger in ''as good condition" as when he boarded. No such duty exists. Just because an airline passenger suffers illness or death does not mean that the airline is automatically liable. Despite the high standard of care demanded of airlines, "[a] common carrier by air is not an insurer of the safety of its passengers. Liability is based upon negligence." Haley v. United Airlines, Inc., 728 F. Supp. 374,376 (D. Md. 1989) (quoting Arrow Aviation, Inc. v. Moore, 266 F.2d 488, 491 (8th Cir. 1959)) (granting summary judgment for defendant airline), aff'd without opinion 927 F.2d 595 (1991), The mere fact that an injury occurred is insufficient to raise a presumption of the carrier's negligence. Id. (citing Wilson v. Capital Airlines, 240 F.2d 492, 494 (4th Cir. 1957)); cf. Air France v. Saks, 470 U.S. 392,404-06 (1985) (reversing court of appeals, which had reversed district court; the latter had granted summary judgment for defendant airline on the grounds that the mer" occurrence of an injury did not constitute an "accident" under the Warsaw Convention, Art. 17); Fischer v. Northwest Airlines, Inc. , 623 F. Supp. 1064, 1065 (N.D. Ill. 1985) (heart attack and subsequent death resulted from "an internal disability and was not the result of an unusual or unexpected occurrence connected with the flight, " so was not proximately caused by an "accident" under the Warsaw Convention, Art. 17).

Additionally, res ipsa loquitur does not apply to this case. The doctrine applies when the accident's nature is such that past experience has shown that it probably resulted from someone's negligence and that the defendant is probably responsible. Brown v. Poway Unified School Dist., 284 Cal. Rptr. 854, 858 (Ct. App. 1991) (citing Newing v. Cheatham, 540 P.2d 33,124 Cal. Rptr. 193 (1975); DiMare v. Cresci, 373 P.2d 860, 23 Cal. Rptr. 772 (1962)). The doctrine of res ipsa loquitur applies to an accident only under the following conditions: (1) it ordinarily does not occur without someone's negligence, (2) it was caused by an agency or instrumentality within defendant's exclusive control, and (3) it was not due to a voluntary action by the plaintiff. Id. (citing Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944)).

Mrs. Lang's death does not meet the criteria for applying the res ipsa loquitur doctrine. One, seriously ill persons often die in the absence of negligent conduct. Mrs. Lang was seriously ill even before she [24ASR2d62]boarded the plane; indeed, she was leaving American Samoa to be examined at the Tripler Army Medical Center in Honolulu, Hawaii. Two, the cause of Mrs. Lang's death was outside defendant's control, as it was merely transporting passengers aboard a regularly scheduled flight. Although defendant provided the oxygen bottles used on the flight, both Mr. Lang and the nurse from L.B.J. Hospital changed the oxygen bottles and were solely in control of the flow of oxygen. Lang Deposition, pp. 30-32. Three, plaintiff accompanied his wife and, among other things, controlled the oxygen flow. As such, it is not clear that his voluntary actions were not a cause of his wife's death.

III. Conclusion

Plaintiff Maanaima Lang has not presented any affidavits or other evidence to contradict defendant airline's proof that its conduct was not responsible for Mrs. Lang's death. Furthermore, plaintiff cannot rely on a self -created duty to " deliver in the same condition." For the aforementioned reasons, defendant's motion for summary judgment is granted, and this action is dismissed with prejudice as to Hawaiian Airlines, Inc.

It is so ordered.

**********

Interocean Ships , Inc. v. Samoan Gases,


INTEROCEAN SHIPS, INC., a Delaware Corporation,
Plaintiff

v.

SAMOAN GASES, a Corporation, Defendant

High Court of American Samoa
Trial Division

CA No. 123-85

September 3, 1993

__________

The equitable alter ego doctrine is applicable in admiralty but will only disregard a corporate entity upon a proper factual showing.

An attorney acting without permission from his client must either show good cause for withdrawal or show that withdrawal can be accomplished without a material, adverse effect on the client's interests; as such, good cause does not include counsel's threatening to withdraw from representation unless the court rules favorably upon a motion. H.C.R. 104.

Improper withdrawal of representation may expose counsel to liability for the resultant harm to the client, and any intentional breach of the Model Rules of Professional Responsibility is sufficient grounds for the imposition of disciplinary sanctions. H.C.R. 155.

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

Counsel: For Plaintiff, William H. Reardon and William L. Banning For Defendant, Gata E. Gurr and Arthur Ripley, Jr.

Opinion and Interim Orders:

Defendant's motions for reconsideration and continuance and plaintiff's motion to amend the complaint came regularly for hearing on August 20, 1993. We consider them below.

I. Motion to Amend Complaint

Plaintiff asks the court's permission to amend its complaint to include the major shareholder and president of Samoan Gases as an additional defendant, under the theory that he is the "alter ego" of [24ASR2d146] defendant corporation. Plaintiff provides numerous citations indicating that the court has the authority to allow amendment of a complaint to include an alter ego defendant, if such amendment should be found to be proper. We also note that the doctrine does have its place in admiralty law. See, e.g., Swift and Company Packers v. Compania Colombiana Del Caribe S.A., 339 U .S. 684 (1950); Talen's Landing, Inc. v. M/V Venture, 656 F.2d 1157 (5th Cir. 1981). But plaintiff has failed to convince us, at this time, that the alter ego doctrine is applicable in the instant case. "Whether a corporate entity will be disregarded depends upon the trial court's findings of fact." Talen's Landing, Inc. v. M/V Venture, 656 F.2d at 1160. Plaintiff has not proved such facts as would be necessary to the application of the doctrine. Contrary to assertions by plaintiff's counsel, the alter ego doctrine is not simply a "collection matter" but is an equitable doctrine which disregards the legal theory upon which "large undertakings are rested, vast enterprises are launched, and huge sums of capital attracted." Anderson v. Abbott, 321 U. S. 349, 362 (1944). As such, it is to be applied cautiously and only upon a proper showing, which has not yet been done. The motion to amend the complaint, therefore, is denied.

II. Motion for Reconsideration of Denial of Summary Judgment

Defendant notes that we misread the previous memorandum in support of its motion for summary judgment. (1) We apologize. We also deny his motion for reconsideration.

Having carefully reread, as requested, the memoranda in support of the initial motion and the motion for reconsideration, we find no serious error in the result of our August 3, 1993, opinion and interim orders. While it is true that we misinterpreted the basis of defendant's initial motion, our further discussion in that opinion on the matter of subrogation supported our ultimate decision. We will restate our reasoning.

Defendant's position, as we understand it, is that there are five separate areas of claimed damage: 1) seamen injury and death settlements; 2) seamen maintenance-and-cure payments; 3) repairs for the [24ASR2d147] vessel Ocean Pearl; 4) lost profits; and 5) attorney's fees. Defendant argues that items one and two have been fully paid by the plaintiff's insurer, transforming the latter into the real party in interest with respect to those two items of damages and thus rendering plaintiff unable to claim them. Defendant would have item three fall into this category as well, but for the fact that plaintiff had to pay a deductible amount of $20,000 or $30,000 on the policy. Defendant then states that the amount of this payment should be treated identically to item four; that settlement payments from other tortfeasors be applied against these amounts pro tanto. The result, by defendant's calculus, is that plaintiff has received an impermissible "windfall," i.e. a greater amount than its damages. (2)

Defendant's arguments fail to persuade. With respect to items one and two, defendant states that we misinterpreted, "without justification, or authority of any kind," Shambley v. Jobe-Blackley Plumbing and Heating Co. , 142 S.E.2d 18 (N.C. 1965). Defendant argues that when the Shambley court said that an insurer becomes the real party in interest when it has compensated a plaintiff for its "entire loss," it meant by "entire loss" the entire amount of any single item of damages prayed for by a plaintiff. Therefore, the argument continues, with respect to the first two items of plaintiff's damages, the real party in interest, and thus the only party entitled to recover these damages, is the insurer and not plaintiff. Defendant seeks to distinguish our citation of Howard v. Smoky Mountain Enterprises, 332 S.E.2d 200 (N.C. 1985), on the basis that it was "about one particular claim," implying that Shambley was, in contrast, "about" more than one claim. We ask defendant's counsel to read Shambley once again. (3) [24ASR2d148]

Defendant further argues that if "entire loss" means the full amount claimed by a plaintiff, then all a plaintiff would need do to defeat the right of a defendant to confront the real-party insurer would be to invent an additional claim of damages not directly related to the actual loss. However, this approach would make an insurer a necessary party to virtually every action involving an insurance settlement. Confronted by this dilemma, the court chooses to remain with its original holding.

With respect to the third and fourth areas of damages, defendant takes exception to our application of the pro rata rule to the apportionment of damages. Defendant cites a legal encyclopedia for the general statement that damages are to be apportioned pro tanto among joint tortfeasors. However, the rule in this area of admiralty is that damages are to be shared pro rata. Defendant has not attempted to distinguish the cases cited in our previous decision, nor has it cited other applicable case law to the contrary .The practice of law would be easier , and law libraries much smaller, if all legal research could begin and end with Am. Jur. Unfortunately for defendant's argument, it does not. In this matter, damages are to be awarded in direct proportion to percentage of liability, regardless of the dollar amounts paid by other settling parties.

The motion for reconsideration is, therefore, denied.

III. Motion for Continuance

Defendant has made a motion to continue the remainder of this trial beyond September 13, 1993, stating that it requires additional time to locate and depose witnesses. Defendant professes "complete surprise" that it is required to bear the burden of showing the degree of fault of other alleged tortfeasors. Counsel for defendant have filed a memorandum in support of this motion, in which they have threatened to withdraw from representation if the court does not grant the continuance .

First, it should not be a "complete surprise" to such competent counsel that their client bears the burden of proof of an affirmative

opposing counsel. [24ASR2d149] defense. (4) This sudden realization of the law can hardly be "unexpected." This action commenced nearly eight years ago, and there has been more than ample time to prepare an adequate defense. That "[t]he Court gave no indication of its concern or interest in this issue during the trial on liability, or at any time in the hearings in the prior 8 years," as defendant states, is hardly dispositive and barely relevant. The court cannot, at the outset of or during any litigation, inform parties of all of the legal rights and duties involved in their particular theories of the case and litigation strategies. Our legal system assigns such responsibilities to attorneys, not courts.

Plaintiff's June 28, 1993, "Request for Clarification," evinced nothing more than that party's uncertainty, at that time, of the court's view of the applicable law. (5) Defendant asserts that this document created confusion. Even so, such confusion could have arisen only eight to ten weeks prior to the scheduled conclusion of this trial. In addition, defendant claims to have realized that it carried the burden of proof on this issue on August 3, 1993; thus, if it was indeed misinformed, it was only for a period of five weeks, at most. This time is insignificant in comparison with both the inception of this action in 1985 and the beginning of the instant trial in December of 1992.

Furthermore, the threat by defendant's counsel to withdraw from defendant's representation if the court refuses to grant the requested continuance is grossly inappropriate. It evinces a sorely deficient understanding of the ethical and legal responsibility an attorney bears towards his client and to the court. It is also poor trial strategy.

High Court Rule 104, as amended on May 17, 1993, states that the conduct of attorneys in American Samoa shall be governed by the [24ASR2d150] American Bar Association Model Rules of Professional Responsibility. Model Rule 1.16 discusses the withdrawal of counsel. It states, inter alia, that an attorney acting without permission from his client must either show good cause for withdrawal or show that withdrawal can be accomplished without a material, adverse effect on the client's interests. Good cause does not include an inability to persuade a court to rule favorably on a motion. Casting a client adrift on the eve of trial has serious adverse consequences.

Model Rule 1.16(c) states that "[w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation." See Permissive Withdrawal/Representation, Law. Man. on Prof. Conduct (ABA/BNA) 31:1101 (1984), and cases cited infra. See also Rakhshan v. Fuimaono, 18 A.S.R.2d 77 (Trial Div. 1991). The court has discretion in granting motions to withdraw. See, e.g., Hodcarriers, Building and Common Laborers Local Union No. 89 v. Miller, 53 Cal. Rptr. 251 (1966); Goldsmith v. pyramid Communications, 362 F. Supp. 694 (S.D.N.Y. 1973). Improper withdrawal of representation may expose counsel to liability for the resultant harm to the client. In addition, any intentional breach of the Model Rules of Professional Responsibility is sufficient grounds for the imposition of disciplinary sanctions. H.C.R. Rule 155.

Setting aside these questionable trial tactics, defendant has plainly not presented any justification to continue the final stages of this trial. The motion for continuance is, therefore, denied. This further trial has been scheduled for September 13, 1993, at 9:00 a.m. Both of defendant's counsel shall then personally appear.

It is so ordered.

*********

1. Defendant has retained additional counsel, who appeared on his behalf at the hearing on the present motions and who, from the change in tone and approach, we assume has prepared the concomitant memoranda.

2. A necessary element in arriving at this solution is that item five (attorney's fees) are not recoverable. We mention here, to avoid misunderstanding, that we have not yet ruled on the recoverability of attorney's fees in this action.

3. We note that counsel was given several days to provide the court with additional authority for its arguments. Since we assume counsel capably researched the matter, the failure to provide such additional authority gives us that much more confidence in our "plain meaning" interpretation of the instant case law, as opposed to defendant's rather strained interpretation. In the future, when confronted with a valid difference of interpretation, it would be wise for defendant's counsel to find additional authority for his position, rather than baldly assert plain error on the court's part. We remind counsel that the court is not

4. It seems somewhat ironic that the court's first opinion and interim orders issued on August 3, 1993, rejected plaintiff's argument that, having failed to raise the affirmative defense of third-party fault, defendant should be precluded from making a showing of such fault at trial.

5. Defendant's memorandum suggests that the court and the plaintiff were in collusion, keeping silent as to the issue of burden of proof that they had mutually agreed to place upon the defendant. However, at this time at least, we decline to read into that document any deliberate intent by defendant to make such a serious, grave and blatantly false accusation.

Interocean Ships, Inc. v. Samoan Gases,


INTEROCEAN SHIPS, INC., a Delaware Corporation,
Plaintiff

v.

SAMOAN GASES, a Corporation, Defendant

High Court of American Samoa
Trial Division

CA No. 123-85

August 3, 1993

__________

Under the collateral source rule, which applies to torts in admiralty and virtually all other tort cases, an injured party's compensation from a source independent of the tortfeasor is not deducted from damages otherwise collectable from the tortfeasor.

In regards to subrogation. an insurance company must be joined as a necessary party plaintiff only if it has compensated an insured for his entire loss and if a danger exists that a defendant will face future lawsuits from the insurance company. T.C.R.C.P. 17(a), 19.

An administrative law judge's order or opinion which has been vacated is inadmissible as evidence in a subsequent judicial proceeding. [24ASR2d109]

Under the comparative fault doctrine, all parties to an occurrence have their fault determined in one action, even if some parties are absent because they cannot be formally joined or held legally responsible.

In admiralty , the defendant has the burden of proving the degree of fault of settling third- parties not present before the court; once the exact percentages of fault are established, liability and assessed damages are calculated on a pro rata basis.

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

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

Opinion and Interim Orders:

The bifurcated damage phase of this strict products-liability action came regularly for trial on July 14, 1993. Both plaintiff and defendant filed bench briefs on several issues of law, which we feel require clarification prior to the continuance of this trial on September 13, 1993. The defendant has also filed two motions; one for summary judgment and the other for continuance to join a real party in interest under T.C.R.C.P. 17(a). The merits of these motions are considered below.

I. Collateral Source Rule

Defendant asserts in support of its motion for summary judgment that the plaintiff has been compensated for any and all damages incurred due to the explosion on board the Ocean Pearl by its insurer and is, therefore, not entitled to further recovery .Defendant's theory seems to be that the plaintiff has already been fully reimbursed for all expenses incurred as a result of the explosion, making a showing of damages impossible as a matter of law. Under this reasoning, the only party with a cognizable claim against defendant is the plaintiff's insurer. We disagree.

Defendant's argument fails because of the well-established collateral source rule. This rule encourages the use of insurance by denying the tortfeasor the benefits of the plaintiff's foresight in purchasing insurance. Typically, the rule provides that "if an injured party receives some compensation for his injuries from a source wholly [24ASR2d110] independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor." Berg v. First State Insurance Co., 915 F.2d460, 467 (9th Cir. 1990) (quoting Helfend v. Southern California Rapid Transit Dist., 2 Cal. 3d 1, 6, 84 Cal. Rptr. 173, 175,465 P.2d 61 (1970)).

The collateral source rule is applicable in virtually all tort cases, and its applicability in admiralty has not been questioned. Cf. Dillingham Tug v. Collier Carbon & Chemical Corp. ,707 F.2d 1086, 1091 (9th Cir. 1983) (collateral source rule not applicable to admiralty case only because source was not "independent"). Plaintiff's right to recover from defendant is undisturbed by any insurance payments received. The motion for summary judgment must, therefore, be denied.

II. Subrogation

Defendant cites Shambley v. Jobe-Blackley Plumbing & Heating Co. , 142 S.E.2d 18 (N .C. 1965), in support of its position that full payment by the insurer of an insured's claim makes that insurer the real party in interest and, therefore, the exclusive plaintiff, as mandated by T.C.R.C.P. Rule 17(a). However, that case stands for the proposition that "[a]n insurance company is only a necessary party plaintiff when it has compensated the insured for the insured's entire loss." Howard v. Smoky Mountain Enterprises, 332 S.E.2d 200,202 (N.C. 1985) (citing Shambley, supra) (emphasis added).

Plaintiff's own memorandum in support of its motion for summary judgment reveals that the insurer did not pay for at least two items prayed for as damages: lost profits and attorney's fees. The payment of only part of the plaintiff's damages makes the insurer a real party in interest (along with the plaintiff), but not the real party in interest.

While Rule l7(a) does not, in this instance, necessarily mandate that the insurance company be made a party, there is support for the position that T.C.R.C.P. Rule 19 mandates such joinder. See United States v. Aetna Casualty & Surety Company, 338 U .S. 366 (1949). However, the facts before the Supreme Court in Aetna Casualty were quite different from those presently before this court. That opinion considered four consolidated cases; a subrogated insurance company was a party in all of these four. In Braniff Airways v. Falkingham, 20 F.R.D. 141, 144 (D. Minn. 1957), the court noted that in Aetna Casualty, [24ASR2d111]

none of the cases had the suit been brought by the insured
person alone. Thus, the issue of compelling the joinder as
a party plaintiff of a partial insurer subrogee in a suit brought
by the insured alone to recover the full loss was not before
the Court. This distinction is important because when partial
insurer subrogees bring suit and other insurer subrogees are
not joined, there is the possibility of a multiplicity of suits
being brought against the defendant and the compulsory
joinder of all of them is required to avoid such an occurrence
and to settle the controversy between them in one lawsuit,
but when the insured brings suit alone, to recover for the
whole loss, the controversy can be adjudicated completely
and finally without the joinder of the insurer subrogees, and
the defendant will have only one lawsuit to defend.

Braniff, 20 F.R.D. at 144 (emphasis omitted). Accord, Garcia v. Hall, 624 F.2d 150,152 (10th Cir. 1980); Dudley v. Smith, 504 F.2d 979 (5th Cir. 1975); Virginia Electric & Power Co. v. Westinghouse Electric Corp., 485 F.2d 78 (4th Cir. 1973).

Aetna Casualty may be further distinguished from the instant case in that it interpreted an older version of Fed. R. Civ. P. Rule 19, rather than the current version which T.C.R.C.P. Rule 19 more accurately reflects. See Dudley v. Smith, 504 F .2d at 983. The current Fed. R. Civ. P. Rule 19, like T.C.R.C.P. Rule 19, places explicit emphasis on the threat of multiplicity of suits in guiding the joinder of necessary parties; this emphasis was not present in the Rule 19 the Aetna Casualty court interpreted.

As there is no danger in the instant case that defendant will face future lawsuits from plaintiff's insurer, (1) the motion for continuance to allow the insurer as a real party in interest to join or file action under T.C.R.C.P. Rule 17(a) is denied. [24ASR2d112]

III. Admissibility of Administrative Law Judge's Ruling

Defendant seeks to admit into evidence a ruling issued by an administrative law judge, suspending the license of Richard Gonsalves, Chief Engineer of the Ocean Pearl at the time of the explosion. Plaintiff asserts that this decision is inadmissible because it was vacated upon appeal by the Vice Commandant of the Coast Guard (2) and because the administrative hearing was procedurally flawed.

We agree with plaintiff's position that an order or opinion, once vacated, is of no value to later inquiry .See O'Connor v. Donaldson, 422 U.S. 563 (1975). Having so held, we do not feel the need to consider the alleged procedural deficiencies. The ruling of the administrative law judge is, therefore, inadmissible.

IV. Apportionment of Fault Among Parties Not Present Before
the Court and Defendant's Failure to Plead Third-Party Fault as
an Affirmative Defense

Plaintiff argues that defendant has waived its right to offer proof of fault of other contributory parties (namely, the suppliers of the fuel and starter fluid), since it did not raise the issue of third-party fault as an affirmative defense in its answer. Plaintiff also asserts that this court may not decrease defendant's liability by considering the fault of third parties (namely the fuel and starter-fluid suppliers) not presently before the court.

In support, plaintiff cites Hardin v. Manitowoc-Forsythe Corp. , 691 F.2d 449 (lOth Cir. 1982). However, this case provides support for defendant's position, rather than plaintiff's view. The Hardin court, interpreting Kansas substantive law, noted that "[u]nder the doctrine of comparative fault all parties to an occurrence must have their fault determined in one action, even though some parties cannot be formally joined or held legally responsible." Id. at 454 (quoting Albertson v. Volkswagenwerk Aktiengesellschaft, 230Kan. 368,374,634 P.2d 1127, 1132 (1981)). The court went on to say that they "reject plaintiff's contention that the fault of phantom parties cannot be compared [with that of the parties presently before the court]." Id. at 454. Indeed, if it were [24ASR2d113] not possible to hold a trial with absent causal parties, then the entire scheme of comparative fault could be frustrated by the private settlement between a plaintiff and anyone of several joint tortfeasors.

Plaintiff's procedural objections regarding defendant's failure to plead third-party fault are similarly discussed in Hardin. In applying Rule 15(b) of the Federal Rules of Civil Procedure, (3) the Hardin court said that" [t]he test of consent is whether the opposing party had a fair opportunity to defend and whether he could have presented additional evidence had he known sooner the substance of the amendment. " Id. at 457. The court may allow amendment under Rule 15(b) even without consent, but it must be sure to carefully consider the potential for unfair surprise which may result. See 6A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1491 (1990).

We find no indication that plaintiff would face unfair or prejudicial surprise by allowing the comparison of fault of nonparties. Our first opinion in this matter, dated December 22, 1992, clearly stated that "[t]he causal role of the suppliers of the diesel fuel and the starter [24ASR2d114] fluid will be considered [at the time of the trial on damages] ."Nearly six months passed between the time of that opinion and the date of the instant trial. Plaintiff requested further clarification as to this issue and was told that the causal role of these "phantom parties" would be considered. In any event, this trial has been continued until September 13, 1993; plaintiff now has over a month to prepare anew for any evidence which defendant may present with respect to the fault of these third-parties. Defendant will be allowed to present further evidence on the diesel fuel and starter fluid suppliers' fault.

V. Apportionment of Fault to Settling Third Parties

The rule in admiralty is that the burden lies upon the defendant to prove the degree of fault of settling third-parties not present before the court. See, e.g., Leger v. Drilling Well Control, Inc., 69 F.R.D. 358 (D. La. 1976), aff'd 592 F.2d 1246 (5th Cir. 1979). Once this burden has been met, and the exact percentages of fault are established, then liability will be calculated pro-rata. The percentage of fault assigned to defendant will be multiplied by the amount of damages proven at trial. The dollar amount of settlements made by third parties, as opposed to their percentages of fault, will not be considered. See Leger v. Drilling Well Control, Inc. , 592 F .2d 1246 (5th Cir. 1979); In re Incident Aboard D/B Ocean King, 813 F.2d 679 (5th Cir. 1987); United States v. Reliable Transfer, 421 U.S. 397 (1975). Damages will be apportioned according to the pro-rata rule.

It is so ordered.

*********

1. The court may exercise its equitable power to prevent such perils. See, e.g., Virginia Electric Power, 485 F.2d at 84 & n.15; Braniff, 20 F.R.D. at 145 n.9.

2. The Commandant of the United States Coast Guard has appellate jurisdiction over such administrative hearings, pursuant to 46 U.S.C. § 7702 and 46 C.F.R. § 5.30-1.

3. Fed.R.Civ.P. 15(b) tracks T.C.R.C.P. 15(b). T.C.R.C.P. 15(b) reads

Amendments to Conform to the Evidence. When issues not
raised by the pleadings are tried by express or implied consent
of the parties, they shall be treated in all respects as if they had
been raised in the pleadings. Such amendment of the pleadings
as may by necessary to cause them to conform to the evidence
and to raise these issues may be made upon motion of any party
at any time, even after judgment; but failure so to [sic] amend
does not affect the result of the trial of these issues. If evidence
is objected to at the trial on the ground that it is not within the
issues made by the pleadings, the court may allow the pleadings
to be amended and shall do so freely when the presentation of
the merits of the action will be subserved thereby and the
objecting party fails to satisfy the court that the admission of such
evidence would prejudice him in maintaining his action or defense
upon the merits. The court may grant a continuance to enable the
objecting party to meet such evidence.

In re Matai Title “Paopaoailua”,


JOE M. FIAUI, Claimant

v.

NIUMALELEG A K. SEMAIA and MALIA SIllMASAKI,
Counter-Claimants

[In the Matter of the Matai Title PAOPAOAILUA
of the Village of Aua]

High Court of American Samoa
Land and Titles Division

MT No. 1-92

April 28, 1993

__________

In a matai-title case, the court is guided by four statutory criteria: (1) best hereditary right; (2) clan support; (3) forcefulness, character and personality , and knowledge of Samoan customs; and (4) value to family, village, and country. A.S.C.A. § 1.0409(c).

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

Counsel: For Claimant, Aumoeualogo Salanoa Soli
For Counter-Claimants, Gata E. Gurr [24ASR2d8]

Following a series of family meetings, Joe M. Fiaui filed, with the Office of the Territorial Registrar, his claim to succession. to the matai title "Paopaoailua," pertaining to the Village of Aua. Niumalelega K. Semaia and Malia Shimasaki subsequently filed objections and their respective counter-claims to succession. After the Secretary of Samoan Affairs issued a certificate of irreconcilable dispute pursuant to A.S.C.A. § 43.0302, the matter was referred to the Lands and Titles Division of the High Court. Malia Shimasaki withdrew her objection and counter- claim in open court. We proceeded to trial upon the remaining claims to succession.

In these matters, the court is guided by the four criteria set out in A.S.C.A. § 1.0409(c): (1) best hereditary right; (2) clan support; (3) forcefulness, character and personality, and knowledge of Samoan customs; and (4) value to family, village, and country.

FINDINGS

1. Hereditary Right

Fiaui claims 50% entitlement; his father was the previous titleholder. Niumalelega claims 6.25% entitlement, claiming that his great -great -grandfather was the original titleholder. Measured according to the method which the Court has traditionally used to evaluate heredity, Fiaui prevails because he can show the shortest descent path to a past titleholder. However, Niumalelega, claiming the better right of entitlement, contends that Fiaui's ancestral roots derive from a titleholder who was adopted.

In re Matai Title Paopaoailua, LT No.496-67 (1970), established that Fiaui' s branch of the family is entitled, as Fiaui' s father, Fiaui, Sr., prevailed in that case. We accordingly hold that candidate Fiaui is entitled to succeed and find on the evidence that he has a heredity claim of 50% .He thus prevails over Niumalelega on this issue.

2. Wish of the Clans

We find on the evidence that at the very first family meeting held to select a successor matai, a clear consensus was reached selecting Fiaui to succeed his aging and infirm father, Paopaoailua Fiaui, Sr. At the conclusion of the meeting, Fiaui took the kava cup without objection from anyone. Even candidate Niumalelega held out in support of Fiaui, [24ASR2d9] as he had also participated in the kava ceremony. Following the family meeting, Fiaui accordingly applied to the Territorial Registrar to have the Paopaoailua title registered in his name. His application, however, was met with the subsequent objection of Niumalelega (as well as Malia Shimasaki); he had changed his mind about the outcome of the family's deliberations. This gave rise to a number of further family meetings to address Niumalelega's objection. The evidence is clear that even at these later meetings, Fiaui continued to hold the overwhelming weight of family opinion. We find that Fiaui has, at the very least, the support of the majority of the clans of the family.

3. Forcefulness, Character and Personalty, and Knowledge of Samoan Customs

In our evaluation of the parties, we find both candidates to be about equal on the question of forcefulness, character and personalty. As to knowledge of Samoan customs, both candidates fared roughly equal in their responses to the examination by the Associate Judges, with neither candidate appearing particularly impressive in this regard.

4. Value to Family, Village, and Country

Both candidates have been actively involved in both family and village concerns, including service to the church. While Fiaui has mostly worked in government service, Niumalelega has dedicated his career to private sector employment. In their own chosen fields, they have each contributed to the general well-being of the territory .Fiaui, however, impresses us as having the better leadership potential. He not only commands widespread support and following within the family, but he also has the stronger background in training and work experience. We find Fiaui to be better suited to head the family and rate him ahead of Niumalelega on this last criterion.

CONCLUSIONS

Based on the foregoing, we hold that Joe M. Fiaui is qualified to hold the title Paopaoailua. He prevails over Niumalelega K. Semaia on the first, second and fourth criteria. The Territorial Registrar shall accordingly register the Paopaoailua title from the Village of Aua in candidate Joe M. Fiaui, in accordance with the requirements of A.S.C.A. § 1.0409(b).

It is so ordered.

**********

Harris v . Comm’r of the American Samoa Gov’t Workmen's Comp. Comm’n,


FA'ALUA HARRIS, Petitioner

v.

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

VCS SAMOA PACKING COMPANY, Real Party in Interest

High Court of American Samoa 
Trial Division

CA No. 5-93

September 20, 1993

__________

The Workmen's Compensation Commissioner shall order a compensation-order hearing upon application of any interested party. A.S.C.A. § 32.0636(b).

Although a Workmen's Compensation order is "effective" when filed in the Commissioner's office, it does not become "final" until after 30 days; during this period of time, the Commissioner may reconsider his order. A.S.C.A. § 32.0651.

American Samoa's Workmen's Compensation Act is similar to and appears to have been based on the federal Longshoremen and Harbor Workers' Compensation Act. 33 U.S.C. §§ 901 et seq.; A.S.C.A. §§ 32.0501 et seq.

Before KRUSE, Chief Justice, and TAUANU'U , Chief Associate Judge. [24ASR2d159]

Counsel: For Petitioner, John L. Ward II 
For Respondents, Elvis R.P. Patea, Assistant Attorney General 
For Real Party in Interest, Roy J.D. Hall, Jr.

On Motion for Amended Judgment and/or New Trial:

On August 9, 1993, this court denied Fa'alua Harris' petition for review from the December 16, 1992, order of the Workmen's Compensation Commission (hereinafter WCC). On August 19, 1993, petitioner filed her "Motion for Amended Judgment and/or New Trial. " For the following reasons, the court's original decision stands.

First, petitioner argues that the Commissioner's December 16 order was wrongly issued because VCS's November 24, 1992, response was filed too late. However, VCS claims that it faxed a handwritten response to the WCC on November 11 and that the November 24 response was merely supplemental.

Petitioner, in effect, argues that VCS's timely response may not be considered (in VCS's favor) because the Commissioner's December 16 order (setting aside the earlier December 9 order) only recited the untimely response. This argument, if accepted, would elevate form over substance. Although the December 16 order does not specifically refer to VCS's November 11 response, this response is part of the record below. Furthermore, this handwritten response appears to have been timely filed as the record further contains a "Transmittal Memorandum" addressed to the "WC Office" for "Attn: La," requesting that the response be "deliver[ed] to the WC Office." At the same time, we note that a responsive pleading was also filed by VCS on March 6, 1992, "den[ying petitioner's] claims for Workmen's Compensation benefits." On the other hand, the December 9 order was issued ex parte on the Commissioner's assumption that VCS did not contest petitioner's request for benefits. That assumption was clearly erroneous on the record below.

According to statute, the Commissioner shall order a compensation-order hearing upon application of any interested party. A.S.C.A. § 32.0636(b). Once the Commissioner realized that VCS had objected to petitioner's compensation claim, he could, as he did, properly set aside the December 9 order and set the matter for a "formal " hearing. We conclude that the Commissioner's actions were thus in conformity to [24ASR2d160] the statute and that VCS should be afforded the inter partes hearing it seeks.

Second, we disagree with petitioner's contention that A.S.C.A. § 32.0654 prohibits the Commissioner from reconsidering his decision and setting aside the December 9 order. Although a compensation order is "effective" when filed in the Commissioner's office, it does not become "final " until after 30 days. A.S.C.A. § 32.0651. During this period of time, the Commissioner may reconsider his order. See Haleck v. Scanlan, AP No.3-76, slip op. at 4-5 (Feb. 16, 1977). (1) [24ASR2d161]

Third, contrary to petitioner's assertions, VCS's November 11 response appears, as we noted above, to have been faxed not only to petitioner's counsel but also to the WCC. Neither does VCS's submitting a "supplemental" response prove that it considered its November 11 response to be an insufficient objection to the compensation claim.

Petitioner's "Motion for Amended Judgment and/or New Trial" is denied.

It is so ordered.

**********





1. American Samoa's Workmen's Compensation Act is similar to and appears to have been based on the federal Longshoremen and Harbor Workers' Compensation Act. Haleck v. Scanlan, 4 A.S.R 998, 1002 (App. Div. 1975) (On Motion for Rehearing) (citing Hartford Fire Ins. Co. v. Workmen's Compensation Comm'n, CA No.74-76). Thus, case law dealing with this federal statute is helpful in construing American Samoa's workmen's compensation law. See also Etimani v. Samoa Packing Co., 19 A.S.R.2d 1 (Trial Div. 1991).

Under the federal Longshoremen and Harbor Workers' Compensation Act (LHWCA) and its extensions, a motion for reconsideration may be filed with the administrative law judge (AU) who issued the order. Unless "proceedings for the suspension or setting aside of such order" are properly instituted, the order becomes final 30 days after the date on which the order was filed in the deputy commissioner's office. Patton v. Director, Office of Workers' Compensation Programs, U.S. Dep't of Labor, 763 F.2d 553, 556 (3d Cir. 1985) (quoting 33 U.S.C. § 921(a)). Such "proceedings" include a motion for reconsideration, which if timely made suspends the running of the time for filing a notice of appeal. Jones v. Illinois Cent. Gulf R.R., 846 F.2d 1099, 1100 (7th Cir. 1988) (citing 20 C.F.R. § 802.205A(a)). Thus, if a motion for reconsideration is filed, any appeal to the Benefits Review Board (BRB) is premature until final action is taken by the ALJ. Jones, 846 F .2d at 1100 (quoting 20 C.F .R. § 802.205A(e)). A motion for reconsideration was thus deemed to be a proper procedural device, even without an express provision in the agency's enabling statute. Id. at 1102. This is summarized as follows:

When a party elects to seek reconsideration of a compensation 
order by the ALJ who issued it, there is always a possibility that 
the order complained of will be modified or changed in a way 
that will either render review by the BRB unnecessary or, on 
review, present the Board with a decision and/or supporting 
rationale different than that reflected in the original order. It is 
therefore reasonable to refrain from characterizing the original 
order of the ALJ as his/her final action . . . until the motion for 
reconsideration has been disposed of by the ALJ.

Id. at 1102 (internal citations omitted) (citing American Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 541 (1970); Outland v. Civil Aeronautics Bd., 284 F.2d 224, 227 (D.C. Cir. 1960)).

Harris v. Comm’r of the American Samoa Gov’t Workmen's Comp. Comm’n,


FA'ALUA HARRIS, Petitioner

v.

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

VCS SAMOA PACKING COMPANY, Real Party in Interest

High Court of American Samoa 
Trial Division

CA No. 5-93

August 9, 1993

__________

Statutory provision providing for judicial review of Workmen's Compensation Commission orders excludes other avenues of judicial review but does not preclude reconsideration proceedings at the administrative level. A.S.C.A. §§ 32.0652-32.0653.

A court utilizes a "clearly erroneous" standard of review in reviewing Workmen's Compensation Commission orders.

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

Counsel: For Petitioner, John L. Ward II 
For Respondents, Elvis R.P .Patea, Assistant Attorney General 
For Real Party in Interest, Roy J.D. Hall, Jr.

On Petition for Review:

Petitioner seeks relief from an order of the Workmen's Compensation Commissioner ("Commissioner") issued December 16, 1992. This order in effect set aside an earlier order of the Commissioner, dated December 9, 1992, which purported to award petitioner temporary total disability payments with 10% penalty, [24ASR2d125] retroactive to March 1, 1990. The earlier order was in fact proposed and submitted by petitioner and issued upon ex parte application. The second order explained that the earlier order was issued on the Commissioner's mistaken impression that the employer, VCS Samoa Packing Company ("VCS"), did not contest petitioner's claim for provisional benefits, and that in fact VCS had filed an objection and requested a hearing.

Petitioner contends that the Commissioner could not "set aside" the earlier order arguing that only the court may do so in the context of judicial review proceedings. Among other things, petitioner cites to A.S.C.A. § 32.0653(c), which provides that "[p]roceedings for. .. setting aside. ..a compensation order. ..may not be instituted otherwise than as provided in this section and 32.0652."

Both enactments, §§ 32.0652 and 32.0653, however, talk about review proceedings at the judicial level; that is, their purport is the exclusion of other avenues of judicial review--for example, review under the Administrative Procedures Act, A.S.C.A. § 4.0102 et seq. See Haleck v. Scanlan, 4 A.S.R. 998 (1975). Contrary to petitioner's contentions, these enactments do not purport to preclude reconsideration proceedings at the administrative level--that is, before the Commissioner . Accordingly, we see no basis for the contention that the Commissioner may not reconsider his prior order before it becomes final and unappealable, (1) nor any statutory provision which prohibits a petition to reconsider, whether on the Commissioner's or on a party's motion.

The record before us reveals that after the order of December 9, 1993, had been signed, VCS faxed a letter dated December 14, 1993, to petitioner's counsel, with a copy to the Commissioner. The letter asserted mistake on the part of the Commissioner, claiming that VCS had already filed its objection to petitioner's request for provisional benefits, and that reconsideration of the order was accordingly sought. The Commissioner apparently accepted VCS's claim of mistaken determination of fact, since the order here under review was issued two days after. This second order recited that: [24ASR2d126]

Due to an oversight, the commissioner was not made aware 
that a response was filed by the respondent, in which 
respondent opposed claimant's application and requested a 
hearing. Thus the proposed order was mistakenly signed on 
December 9, 1992.

Order Setting Side Proposed Order Received October 23, 1992 and Signed December 9, 1992; Notice of Formal Hearing, at 2.

In these matters, the standard of review utilized in reviewing the Commission's orders (whether "in accordance with law") is the same as that used by an appellate court in reviewing a trial court's decisions--the review court must accept the findings of the trier of fact unless "clearly erroneous." Hartford Fire Ins. Co. v. Workmen's Compensation Comm'n, CA No.74-76, slip op. at 2, 4-5 (July 18, 1977), aff'd AP No.19-77 (April 26, 1978). On the record before us we see no clear error; the Commissioner's decision is substantially supported. VCS's objection, dated November 11, 1992, is found handwritten, by counsel, on a copy of petitioner's "Notice of and Claim for Temporary Total Disability Benefits and Penalties." The original of this document was earlier filed with the Commissioner on October 23, 1992 and apparently transmitted to counsel for VCS on October 28, 1993.

For reasons given, the petition is denied and the matter remanded to the Commissioner for the "formal" hearing anticipated below. (2)

It is so ordered.

*********

1. Such order only becomes final at the expiration of the thirtieth day after it has been filed, "unless proceedings for the suspension or setting aside of such order are instituted." A.S.C.A. § 32.0651. Indeed, the institution of reconsideration proceedings at the administrative level also has the effect of tolling the statute of limitations, A.S.C.A. § 32.0651. Haleck v. Scanlan, AP No.3-76, slip op. at 4-5 (Feb. 16, 1977).

2. The procedural history of this matter bespeaks the need for promulgating rules, as envisioned by the Workmen's Compensation Act, e.g., A.S.C.A. §§ 32.067(g) and 32.0628, governing the procedure for processing workmen's compensation claims. Part of the procedural confusion evident here is due to the apparently ad hoc manner of developing a process. We note that after the filing of petitioner's claim for workmen's compensation benefits, the record reflects the scheduling and rescheduling of inter partes hearing opportunities, variously referred to as either "informal " or "formal." The matter was then continued "indefinitely" upon joint stipulation of the parties, although in the interim, a paper flow of letter exchanges as well as ex parte applications and counter-applications to the Commissioner seemed to be the order of business.

Groves; Amerika Samoa Bank v.


AMERIKA SAMOA BANK, Plaintiff

v.

ERIC GROVES, Doing Business as 
Groves Service Station, and ARTHUR MEREDITH, 
Defendants

High Court of American Samoa 
Trial Division

CA No. 49-88

June 29, 1993

__________

Although duplicates are generally admissible in lieu of originals, genuinely contested authenticity requires production of the original document; however, mere assertions do not create a genuine question as to authenticity. T.C.R.Ev. 1003.

Handwriting comparison by the trier of fact is a recognized means of authenticating documents. 28 U.S.C. § 1731; T.C.R.Ev. 901(a), (b)(3).

As the rules of evidence aim at obtaining the best available evidence when the contents of a document are intimately related to governing issues, photocopied duplicates are accurate and so are substantially given the status of originals. T.C.R.Ev. 1003.

Extrinsic evidence of a document's contents may be presented upon a showing of the practical inability to obtain the document itself. T.C.R.Ev. 1004.

Under the hearsay-rule exception for records of regularly conducted activity , any writing made as a record of acts, events, conditions, opinions or diagnoses may be admitted as evidence of those matters if the writing: (a) was made at or near the time of the acts, events, conditions, opinions, or diagnoses recorded; (b) was made by, or from information transmitted by, a person with knowledge; (c) is kept in the course of a regularly conducted activity; and (d) was made as the regular practice of that activity. T.C.R.Ev. 803(6). [24ASR2d78]

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

Counsel: For Plaintiff, William H. Reardon 
For Defendant Eric Groves, Asaua Fuimaono

Order Denying Motions for Reconsideration or New Trial and for Stay of Execution:

The motion by defendant Eric Groves ("defendant") for reconsideration or new trial came regularly for hearing on June 14, 1993. His motion for a stay of execution, which had been scheduled for hearing on June 16, 1993, was also heard upon counsel's stipulation.

Defendant has cited as error the admission in evidence of two documents, a general power of attorney and a promissory note, together with the attached loan-disbursement instruction and receipt ("loan disbursement"), which are key to the judgment against him. The power of attorney gave defendant's daughter, Lorina Meredith ("Lorina"), authority to obtain the loan from plaintiff Amerika Samoa Bank ("ASB"). The promissory note, with the loan-disbursement instruction and receipt, memorialized this indebtedness to ASB. Both of the admitted documents are photocopied duplicates.

I. Power of Attorney

Defendant challenged the power of attorney by claiming that a genuine question was raised as to the original's authenticity, and under that circumstance evidentiary admission of the duplicate was unfair to him. Thus, authenticity, specifically the genuineness of defendant's signature, became the issue as to this document during the trial.

Indeed, under T.C.R.Ev. Rule 1003, while duplicates are generally admissible in lieu of originals, genuinely contested authenticity requires production of the original document. Mere assertion, however, does not create a genuine question. Defendant relied on his answer to the first question, which pertained to defendant's signature on the power of attorney, in ASB ' s request for admissions: "The signature appears to be mine but I contest the contents of this document."

While not totally unambiguous in and of itself, this answer is reasonably interpreted as defendant's admission of the genuineness of his [24ASR2d79] signature on the power of attorney. Moreover, defendant's answers to the third and fourth questions in the request for admissions unambiguously admit that he signed two other documents. When the signatures on the three documents are compared, a recognized means of authentication by the court as the trier of fact under T.C.R.Ev. Rules 901(a) and (b)(3), (1) the genuineness of defendant's signature on the power of attorney is evident.

Urging the original's availability to ASH, defendant has also now argued in his motion that T.C.R.Ev. Rule 1004 limits the admissibility of photocopied duplicates to situations in which the original cannot be produced. This argument overlooks the preferential rather than exclusionary nature of the rules on the production of documents. The rules are aimed at obtaining the best available evidence when the contents of a document are intimately related to governing issues but not at hamstringing the presentation of a party's case. See the discussion on underlying policy in McCormick on Evidence § 237, at 570 (E. Cleary 2d ed. 1972).

T.C.R.Ev. Rule 1004 provides guidelines for the use of other evidence of the contents of a document upon a showing of the practical unobtainability of preferred evidence. Photocopied duplicates are accurate and implicitly minimize, and usually eliminate, error, and thus, they are substantially given the status of originals by T.C.R.Ev. Rule 1003. See the Advisory Committee's Notes on the 1972 proposed, comparable Fed. R. Ev. Rules 1001(4) and 1003 in Federal Civil Judicial Procedure and Rules, at 372 and 373 (West, rev. ed. 1991). T.C.R.Ev. Rule 1004 does not override that status.

The photocopy duplicate of the power of attorney was properly admitted in evidence.

II. Promissory Note

Defendant's principal argument on the inadmissibility in evidence of the promissory note and loan disbursement is based on lack [24ASR2d80] of adequate foundation established for admission as an exception to the hearsay rule.

The applicable exception to the hearsay rule pertains to records of regularly conducted activity, as set forth in T.C.R.Ev. Rule 803(6). Under this exception, any writing made as a record of acts, events, conditions, opinions or diagnoses may be admitted in evidence, when offered to prove those acts, events, conditions, opinions, or diagnoses, if the writing: (a) was made at or near the time of the acts, events, conditions, opinions, or diagnoses recorded; (b) was made by, or from information transmitted by, a person with knowledge; (c) is kept in the course of a regularly conducted activity; and (d) was made as the regular practice of that activity. These criteria must be shown by the testimony of the custodian of the writing or other qualified witness. The writing will be rejected if the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

The foundational witness for the promissory note and loan disbursement was ASB's senior loan-collection officer, who was certainly qualified to testify about ASB's loan-making policies and practices. His testimony persuasively confirmed the facial appearance of the promissory note and loan-disbursement instruction and receipt, both dated August 15, 1986, that these documents and the loan were made as contemporaneous events by or at the direction of ASB employees who processed the loan transaction. Further, as a banking institution, ASB regularly did and still does make loans and require the promissory note and loan-disbursement documents as an integral part of such transactions. Nothing in evidence suggests any untrustworthiness about these documents.

Since the borrower was identified in the promissory note and loan disbursement as Groves Service Station and the signatures on these documents were not legible, authenticity of the originals of these documents was also at some issue. ASB dealt with this question by presenting an original promissory note and loan-disbursement instruction and receipt for a separate loan by ASB to defendant Arthur Meredith and Lorina, his wife. Their signatures on these second loan documents are clearly the same as the signatures on the Groves Service Station loan documents. These second loan documents were equally admissible as records of regularly conducted activity and satisfactorily authenticated the promissory note and loan disbursement at issue.

The photocopy duplicates of the promissory note and loan disbursement were also properly admitted in evidence. [24ASR2d81]

III. Stay of Execution

There are no legitimate issues on appeal in this action. The injustice involved would be to further prolong ASH's opportunities to satisfy the judgment. Thus, a stay of execution is inappropriate.

IV. Orders

The motions for reconsideration or new trial and for stay of execution are denied.

It is so ordered.

*********

1. This approach is consistent with 28 U.S.C. § 1731: "The admitted or proved handwriting of any person shall be admissible for purposes of comparison, to determine genuineness of other handwriting attributed to such person."

Euta v. Etimani,


SIENI EUTA, Plaintiff

v.

RINI ETIMANI, CONTINENTAL TRANSPORT SERVICES, 
and INSURANCE COMPANY OF THE PACIFIC, Defendants

High Court of American Samoa 
Trial Division

CA No.134-91

September 3, 1993

__________

American Samoa's comparative-negligence statute does not alter the common-law rule of joint and several liability in a personal-injury case and does not require apportionment of negligent conduct by a defendant and a non-party so as to reduce a defendant's liability . A.S.C.A. § 43.5101.

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

Counsel: For Plaintiff, Robert A. Dennison III For Defendants Rini Etimani and Continental Transport Services, Afoa L. Su'esu'e Lutu For Defendant Insurance Company of the Pacific, Roy J.D. Hall, Jr.

This action for damages for personal injuries arising out of a motor vehicle accident was tried on June 29, 1993.

FINDINGS OF FACT

This three-vehicle accident occurred about noon on June 29, 1990, on the public highway in front of the Methodist church in Lauli'i, American Samoa.

Plaintiff Sieni Euta ("Sieni ") was a passenger, riding in the right front seat of one of the vehicles, a Suzuki jeep. The driver of this vehicle was Ipipaea Taliva'a ("Ipipaea"). A Ford commercial, family or aiga bus, owned by defendant Continental Travel Services ("CTS"), was also involved. Defendant Rini Etimani ("Rini") operated this vehicle [24ASR2d140] while employed by CTS. Defendant Insurance Company of the Pacific ("ICP") provided the liability insurance coverage for this vehicle. The third vehicle, a taxi, was a Toyota sedan.

Sieni, her husband, and one minor child live in Lauli'i with Ipipaea's family. At the time of the accident, Ipipaea was taking Sieni to the American Samoa Government's medical center at Faga'alu to take care of an itching hand. The rear seat of the jeep was occupied by Peti Tuia and two minors, Jerry Leung Wai, Jr. and Wayne Leung Wai.

They left home, which was inland of the public highway. When they reached the intersection with the highway, the CTS bus was stopped to the right of the jeep, unloading and loading passengers along the westbound side of the highway. The jeep turned right onto the westbound lane of the highway and passed the bus. The bus then followed the jeep.

Heading westward from this intersection, the road in this area makes an extended right-hand curve, somewhat sharp and blind at one point. Then it curves left into a short straight section before it reaches the Methodist church. At that point, a relatively steep uphill incline begins. At the time, the road was dry, and the weather was clear.

As the two vehicles approached the Methodist church, located on their right-hand side and north of the highway, the bus was in the eastbound lane attempting to pass the adjacent jeep in the westbound lane. The taxi was in the eastbound lane in the immediate vicinity of the church.

When Rini became aware of the situation, he tried to return the bus to the westbound lane. He also instinctively braked the bus. Some testimony indicated that the taxi driver was about to turn the taxi left towards the church, but he probably intuitively slowed down and otherwise reacted to try to avoid the impending impact. However, the bus, jeep and taxi collided almost instantly. The bus and truck essentially hit head-on. Whether the bus also struck the jeep, as Sieni and Ipipaea claimed but Rini disclaimed, the jeep swerved out of control to the left and slammed into the taxi. In colloquial terms, the taxi and the jeep were "totalled."

Significant differences exist in the testimony on events during the interval from the jeep's entry onto the main road until the point of impact of the three vehicles, approximately one-quarter mile in distance.[24ASR2d141]

Sieni was aware that the bus was behind the jeep. She testified that Rini sought to bring the bus past the jeep three times, the last ending in the accident. Ipipaea did not slow the jeep to give way to the bus at any time, and Sieni did not tell Ipipaea to slow down the jeep. Ipipaea testified that she noted the bus about one car-length behind the jeep in her rear-view and side-view mirrors, but she was only once aware that the Rini was seeking to overtake the jeep--the last attempt beginning near the Roman Catholic church, about 600 feet east of the Methodist church. She and Sieni were conversing, which she thought might possibly have diverted her attention from other passing attempts by Rini.

Rini testified that at first the jeep was moving slowly ahead of the bus. He cautiously tried to overtake the jeep three times, but each time Ipipaea first increased and then decreased the jeep's speed. During the last attempt to pass, he saw the taxi ahead of the bus, but when the jeep slowed, he thought he had room to return to the westbound lane. However, Ipipaea again accelerated the jeep, and Rini could not return to the westbound lane before the bus struck the taxi.

Rini was convicted by his plea of guilty to careless driving, a misdemeanor, in connection with the accident. However, recognizing that convenient disposition rather than guilt frequently motivates guilty pleas to traffic citations, we do not assign major significance to this conviction. This decision certainly does not turn on that fact.

Rather, we are persuaded that under either version of the sequence of events, Rini's conduct was negligent and proximately caused Sieni's injuries. Under Ipipaea's account of these events, Rini used poor judgment when he attempted to pass the jeep less than one-eighth of a mile before the relatively steep uphill incline begins and where the three vehicles collided. The visible presence of the taxi, either at or shortly after the time he started overtaking the jeep, further confirms his subnormal decision.

If, on the other hand, Rini's recitation of these events is accurate, and Sieni's testimony endorsed at least the multiple passing attempts in this version, Rini'sjudgment was even more inferior. Under this scenario, Ipipaea engaged in a "cat and mouse" game with the bus, and Rini's continuing attempts at overtaking were, at best, imprudent. Starting the third passing effort was a serious error on his part. His failure to back off from passing when the taxi appeared or Ipipaea accelerated the jeep was inexcusable. [24ASR2d142]

Whichever way events truly unfolded, and we are inclined to believe that Rini ' s account is closer to fact, his operation of the bus at the moment of and immediately before the accident was not the conduct of a person of ordinary prudence in the same situation and possessing the same information. Under either set of circumstances, a reasonably prudent person would have foreseen or anticipated that someone might be injured as a result of driving a bus in Rini's manner. Rini was negligent, without which Sieni would not have been injured.

At the time of the accident, Rini was clearly performing the duties for which he was employed by CTS and was acting within the scope of his employment.

While riding in the jeep, Sieni was conversing to some extent with Ipipaea, but she acknowledged awareness of Rini's several, unsuccessful attempts to overtake the jeep. A reasonably prudent person would have told Ipipaea to slow down or take some other precaution. Sieni's failure to speak up contributed at least slightly to her injuries, for which we attribute a proportionate 5% reduction in her recoverable damages.

Sieni's right hand was severely injured. An extensive and dirty, third-degree avulsion, or tearing away of tissue, occurred on the dorsum, or back, of the hand. This degree of avulsion is the most serious, exposing in this instance metacarpi, or the bones of the hand to which the bones of the fingers are attached.

At about 5:00 p.m. on June 29, 1990, in the operating room at the government medical facility, the wound was cleansed, and dead or devitalized tissue was debrided or removed by Dr. Vaiula Tuato'o, chief of surgery .Sieni remained an inpatient and was regularly given medications to reduce pain and the risk of infection, until her discharge on July 1, 1990. She was advised but declined to undergo skin-grafting procedures as soon as possible and to have whirlpool treatments and regular dressing changes to resist infection.

Sieni missed visits, and infection developed. On July 6, 1990, she was readmitted due to the infection and to further consider skin grafting, which she ultimately refused. She was last seen by Dr. Tuato'o on September 28, 1990. At that time, contracture restricting hand flexion and extension was pronounced, but only a small area was still raw. In the doctor's opinion, her right arm was 50% disabled from the impairments in her hand and wrist joints, excluding disfigurement from[24ASR2d143] the deformed hand and permanent scar. Based on her inability to hold objects, he considered her right hand to be useless. She did not make her doctor's appointment for a final examination three months later.

In the courtroom, Dr. Tuato'o observed that Sieni had regained some wrist movement and ability to hold things. He opined that her present hand disability was in the 70% to 80% range and that her arm disability was about 40%. However, if the skin grafting had been done immediately, as he had recommended, the present disabilities would probably be 20% to 30% better than they are today.

Skin grafting is still possible today and would improve the appearance of Sieni's hand significantly. Orthopedic surgery is also still an option, but the probability of success would first require special examination and assessment. These operations can be done locally at no cost, except for inpatient charges. However, Dr. Tuato'o recommended that these procedures, if now undertaken, be done off-island. In this event, surgical expenses would be approximately $50,000, excluding costs associated with a proper recovery and rehabilitation program after each of the surgeries were completed. We also sense, resorting to a slang expression, that the doctor's "nose was bent out of shape" somewhat by Sieni's rebuff of his surgical expertise.

Unquestionably, Sieni experienced acute immediate pain from her injury .This fact was vividly substantiated by her and Ipipaea' s testimony. In some mitigation, Dr. Tuato'o explained that while a third- degree avulsion is the most severe, it tends to be less painful than first-degree and second-degree avulsions, which expose nerves and bleed profusely. Certainly, physical pain has persisted, and Sieni has endured considerable suffering over her substantial disability and disfigurement. General damages are assessed at $40,000.

The evidence affirmatively authenticated only four days of hospital inpatient care. Given Sieni's staunch rejection of skin grafting and lack of firm total-cost estimates, we are not disposed to award damages for future and, at best, conjectural surgical procedures. Resident inpatient care at the government medical facility is $7.50 per day. Thus, special damages for medical expenses are $30.

Sieni was employed by StarKist Samoa, Inc. when the accident occurred. Her hourly wage was $2.92. She customarily worked 7.5 hours per day, five days per week. As a result of the accident, she did not work from June 29, 1990, until October 17, 1990. It was not until [24ASR2d144] A

Dr. Tuato'o's examination on September 28, 1990, that she was advised that she could return to work with light duties for the next six months. Based on her usual work-week and taking into account one week of company down-time in July 1990, she missed 547.5 hours of work. At $2.92 per hour, her special damages for lost wages are $1,598.70.

CONCLUSIONS OF LAW

1. Rini and CTS, his employer, are jointly and severally liable for Sieni's damages for personal injuries. See Saufo'i v. American Samoa Gov't, 14 A.S.R.2d 15, 19,22 (Trial Div. 1990); Kim v. Star- Kist Samoa, Inc., 7 A.S.R.2d 12, 15 (Trial Div. 1988), aff'd in part and rev'd in part on other grounds, 8 A.S.R.2d 146 (App. Div. 1988). The comparative-negligence statute, A.S.C.A. § 43.5101, does not alter the common-law rule of joint and several liability in this type of case. See generally 57B Am. Jur. 2d, Negligence § 1243, at 147-48 (1989 & Supp. 1993). This statute cannot be reasonably construed to require apportionment of negligent conduct by a defendant and a non-party so as to reduce a defendant's liability. See generally57B Am. Jur. 2d, Negligence § 1239, at 143-44; see, e.g., Peterson v. Pittman, 391 N.W.2d 235, 238 (Iowa 1986); Blocker v. Wynn, 425 So. 2d 166, 168 (Fla. App. 1983).

2. ICP, as CTS' insurer, is directly liable for $10,000 of Sieni's damages for personal injuries. A.S.C.A. §§ 22.2003(3)(A), 22.2018.

3. Sieni's general damages for pain and suffering, including disfigurement, are $40,000, and special damages for medical expenses and lost wages are $1,628.70. Thus, her total damages are $41,628.70.

4. In accordance with A.S.C.A. § 43.5101, Sieni's damages are reduced by 5% .Thus, she is entitled to receive and is awarded $39,547.27 in damages.

Judgment shall enter accordingly. It is so ordered.

(As corrected per order of October 3,1993)

*********

Cravens; Beaver v.


LEFAGA S. BEAVER, Plaintiff

v.

WILLIAM H. CRAVENS, W. SCOTT BARRETT, 
SOUTH PACIFIC TRADERS, INC., and DOES I-XX, 
Defendants

High Court of American Samoa 
Trial Division

CA No. 72-90

August 6, 1993

__________

The examining party may set a party's deposition at any place which he desires, though a court may issue a protective order specifying the time and place of a deposition upon a showing of good cause. T.C.R.C.P. 30.

What constitutes "reasonable notice" to other parties in setting the time and place for a deposition is quite flexible, depending on the circumstances. T.C.R.C.P. 30(b)(1).

Before KRUSE, Chief Justice.

Counsel: For Plaintiff, Charles V. Ala'ilima 
For Defendant W. Scott Barrett, N. George Daines

Defendant W. Scott Barrett scheduled a deposition of defendant William Cravens for August 9, 1993, in Logan, Utah. Plaintiff Beaver admits receiving notice of this deposition on August 3. In response to the scheduled deposition, plaintiff filed a motion for a stay of the deposition and for expedited hearing and notice on August 4, 1993. For the following reasons, plaintiff's motion is denied.

First, "the deposition-discovery rules are to be accorded a broad and liberal treatment" in order to accomplish the purposes of discovery . Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 616 (5th Cir. 1977) (quoting Hickman v. Taylor, 329 U.S. 495,507 (1947)), cert. denied 435 U.S. 996; see generally 8 C. Wright & A. Miller, Federal Practice & Procedure § 2101, at 366 (1970 & Supp. 1993). [24ASR2d116]

Second, the examining party may set the deposition of a party at any place which he desires, subject to the power of the court to grant a protective order if deemed necessary. Pinkham v. Paul, 91 F.R.D. 613,614 (D. Maine 1981) (quoting 8 C. Wright & A. Miller, Federal Practice & Procedure § 2112, at 403). Upon a showing of good cause, though, a court may issue a protective order specifying the time and place of a deposition. Such an order may be issued to protect the party from "undue burden or expense." In re Standard Metals Corp., 817 F.2d 625, 628 (10th Cir. 1987) (citing Fed. R. Civ. P. 26(c)), on rehearing sub nom. Sheftelman v. Standard Metals Corp., 839 F .2d 1383, cert. dismissed 488 U .S. 881 (1988).

Third, what constitutes "reasonable notice" under T.C.R.C.P. 30(b)(1) is quite flexible, depending on the circumstances. See 8 C. Wright & A. Miller, Federal Practice & Procedure § 2111, at 400. Even a one-day notice may be "reasonable." See, e.g., Natural Organics, Inc. v. Proteins Plus, Inc. , 724 F. Supp. 50, 52 n.3 (E.D.N.Y. 1989) (citing Radio Corp. of America v. Rauland, 21 F.R.D. 113, 124 (N.D. Ill. 1957)); State v. Superior Court of Pima County, 416 P.2d 435, 435-36 (Ariz. App. 1966) ("Twenty-four hours['] notice is not necessarily unreasonable.").

In short, scheduling a deposition when a witness is in the area is a reasonable way to save time and money. Thus, Barrett's taking Cravens' deposition in Utah is quite appropriate. The six-day notice is reasonable in that Barrett's counsel sent plaintiff a notice of the deposition as soon as he learned that Cravens would be in the area. Also, plaintiff's rights would not prejudiced in light of the availability of telephone and fax services during the deposition and plaintiff's option of conducting his own deposition of Cravens in the future.

The motion is DENIED.

It is so ordered.

*********

American Samoa Gov’t v. Tagaloa,


ÿWPCý  e!&ƒ&¨ÜmÀž=‡‚6€;½ÆŠ¦% i~ä™6ùRN!_¶u–%M¤8ƒ|ŒltÚGunÖé¥Ï´¥Sš ²®L!²H*ô^@ˆ_‰ËDý‘­#ª1žH3\X)‹Ûaq¹ž0ˆåÓbÒovò‡‚&ly\€œ4O(ï…Š+ÐLÍ_ØÈþl˜kËÅ2Û%ŽÈÉé v×Ü¥ns)P‡©Æ«Pnf=Nb“vv{þ˜“µPA†ÿa›I¸ÆœÅ3(ÑĻš…M¨Ë7¢4L~ñûtGußA+@‘§óû¼©U>‹o¢œýœ¡ÖÝ ï·SO÷0ŠËP$j_ŬO[ü€€ŠVÙ]èBÕŽÂÙàó>˜dy $ !Vê0óüQê䄲 ÷§29 ÔqßÍqÇ#´xÆ^DÎB™ÞŽ²ûøî+•g/Sy®ß†ˆKΗAëê[¬iFC˜QsFbëãüæÇä%ó:ú™µöÙó°f ç•gNÛâ×–¾î-ÅIÁÛ8M#•³£øZZ<ÁÞ1Zí¶‘£øw3XDÑŒ"ë4Ù«øº¬{aÀ}¦ ‰ÃËoáP*żÄIæ–)T­€ 0Ã4÷ m÷#ÁUNÏ %N# ~%¶£ D-YU >†pÄ?¢4^ Ö wâ 4æ ú   0l› 0ö (›Å©$¡¡ÔUSUS.,ÔÓK€ (€X°KÓÔ€ XîXXXÔÔ€ XîXXXîÔ ƒÿU‹ÿÀÀÀ˜0&Öd9 Z‹6Times New Roman RegularX ˜C:\PROGRA~1\Corel\WORDPE~1\Template\CUSTOM~1\Web\wp9web.wptC:\Program Files\Corel\WordPerfect Office 2000\Template\Custom WP Templates\Web\wp9web.wpt)!ÈÈÈÈdxdx&Öd9 Z‹&Times New RomanC:\PROGRA~1\Corel\WORDPE~1\template\CUSTOM~1\poplar.gif pC:\PROGRA~1\Corel\WORDPE~1\template\CUSTOM~1\poplar.gifC:\Program Files\Corel\WordPerfect Office 2000\template\Custom WP Templates\poplar.gif8Ï Ø.w(ìkDw(ìk,°ÑJ¬?$Ï\R¬?$Ï0¹k`ÔúO¬?ÿºk€YˆàΰÔ}qÝs ™ÿ0¹k™ÿ™ÿ™ÿ»š,L Ÿn,ê:i¢×+003|x †Ý ƒ ä%ÝÔUSUS.,ÔÓK€ (€X. . KÓÔ€ XîÌXXXÔÔ€ XîÌXX XîÌÔÚ  Ú1Ú  Ú.Ý  ÝÔ_Ô€Ô‡XîÌXX XîÌÔUnder€Ô_ÔA.S.C.A.Ô_Ô€ðð€3.0304,€the€district€court€is€authorized€to€issue€process.€As€an€arrest€warrant€is€process€(see€Ellis€v.€Ô_ÔGlascowÔ_Ô,€168Ð   ÐS.W.2d€946€(Tex.€Civ.€App.€1943)),€it€would€seem€that€the€district€court€judge's€signature€on€such€a€document€is€authorized€by€statute.€Ô#† XîÌXXXîÌÞ#Ô(.M)$‘‘ÔÿÔòòòò(Ú  Ú1Ú  Ú)óóóóÔÿÔ(·3 ä$¥¥Ý ƒÅ©!ÝÔUSUS.,ÔÓK€ (€X°KÓÔ€ XîÌXXXÔÔ€ XîÌXX XîÌÔÝ  ÝÚ  Ú0Ú  Ú.Ý ƒÅ©!ÝÔUSUS.,ÔÓK€ (€XKÓÔ€ XîÌXXXÔÔ€ XîÌXX XîÌÔÝ  ÝÔ_ÔÓ  Óò òAMERICAN€SAMOA€GOVERNMENT,€Plaintiff€ó óÐ ÜÜ Ðò òv.€ó óÐ ²² Ðò òÔ_ÔTUPULUAÔ_Ô€Ô_ÔTAGALOAÔ_Ô,€Defendant€ó óÐ ˆˆ Ðò òHigh€Court€of€American€Samoa€Ð ^^ ÐTrial€Division€ó óÐ XX Ðò òCR€No.€Ô_Ô12-93Ô_Ô€ó óÐ . .  Ðò òApril€30,€1993ó óÐ    Ðò ò__________€ó óÐ Ú Ú  ÐÓ  Óò òEven€if€an€arrest€was€illegal,€a€bill€of€information€setting€forth€criminal€charges€is€not€necessarily€void.€U.S.€Const.€Amend.Ð °° ÐIV.€ó óÐ ªª  Ðò òThe€district€court€is€authorized€to€issue€process,€and€an€arrest€warrant€is€a€form€of€process.€Ô_ÔA.S.C.A.Ô_Ô€ðð€3.0304,€Ô_ÔT.C.R.Cr.P.Ô_ÔÐ €€  Ð4(c)(1).€ó óÐ zz  ÐBefore€Ô_ÔKRUSEÔ_Ô,€Chief€Justice,€Ô_ÔMAILOÔ_Ô,€Associate€Judge,€and€Ô_ÔBETHAMÔ_Ô,€Associate€Judge.€Ð PP  ÐCounsel:€For€Plaintiff,€Donald€M.€Ô_ÔSheehanÔ_Ô,€Assistant€Attorney€General€Ð &&  Ѐ€€€€€€€€€€€€€For€Defendant,€John€L.€Ward€II€Ð    ÐDefendant€Ô_ÔTupuluaÔ_Ô€Ô_ÔTagaloaÔ_Ô€brought€two€pre-trial€motions.€Ð öö Ѐ€€€€A.€On€Motion€for€Relief€From€Prejudicial€Joinder€Ð ÌÌ Ѐ€€€€Defendant€seeks€a€separate€trial.€He€asserts€that€the€jury€will€be€unable€to€distinguish€or€compartmentalize€the€evidence€against€eachÐ ¢¢ Ðdefendant.€He€is€also€concerned€that€the€charges€being€brought€against€two€of€the€other€defendants€are€more€serious€than€those€beingÐ œœ Ðbrought€against€him,€creating€a€situation€where€he€might€be€found€guilty€by€association.€Ð –– Ѐ€€€€While€we€do€not€make€a€decision€on€the€merit€of€these€arguments€or€the€ability€of€proper€jury€instructions€to€adequately€address€theseÐ l l  Ðconcerns,€our€decision€to€grant€a€limited€severance€should€assuage€the€defendant's€fears.€Utilizing€the€sound€discretion€which€informs€theÐ f!f! Ðdecision€to€sever€co-defendants€under€Ô_ÔT.C.R.Cr.P.Ô_Ô€Rule€14,€we€order€ò ò[24ASR2d38]€ó óthat€defendant€Ô_ÔTupuluaÔ_Ô€Ô_ÔTagaloaÔ_Ô€shall€be€tried€withÐ `"`" ÐSwain€Ô_ÔMeleiseaÔ_Ô€and€Ô_ÔMasefauÔ_Ô€Ô_ÔSuiaunoaÔ_Ô.€Ð Z#Z# Ѐ€€€€The€Motion€for€Relief€From€Prejudicial€Joinder€is€therefore€GRANTED,€on€the€conditions€stated€above.€Ð 0%0% Ѐ€€€€B.€On€Motion€to€Quash€Arrest€Warrant€and€Dismiss€Information€Ð '' ÐThe€defendant€contends€that€the€warrant€for€his€arrest€was€issued€in€contravention€of€Ô_ÔA.S.C.A.Ô_Ô€ðð€46.0801€et€seq.€,€as€it€was€signed€by€theÐ Ü(Ü( Ðdistrict€court€judge€and€not,€as€the€statute€implies,€by€the€Chief€Justice,€the€Associate€Justice,€or€an€assistant€judge.€While€he€admits€thatÐ Ö)Ö) ÐÔ_ÔT.C.R.Cr.P.Ô_Ô€Rule€4(c)(1)€authorizes€the€district€court€judge€to€issue€arrest€warrants,€he€correctly€states€that€these€administrative€rules€ofÐ Ð*Ð* Ðprocedure€do€not€"trump"€statutory€declarations.€He€therefore€asserts€that,€his€arrest€being€invalid,€the€information€should€be€quashed.€WeÐ Ê+Ê+ Ðdisagree.€Ð Ä,Ä, Ѐ€€€€The€Supreme€Court€has€established€that€even€an€arrest€warrant€which€is€Ô_ÔviolativeÔ_Ô€of€the€Fourth€Amendment€does€not€always€negate€theÐ š.š. Ðvalidity€of€the€information.€"[Ô_ÔI]tÔ_Ô€does€not€follow€that€because€the€arrest€was€illegal,€the€information€was€or€became€void."€Albrecht€v.Ð ”/”/  ÐUnited€States,€273€U.S.€1,€5€(1926).€While€we€give€no€opinion€as€to€the€validity€of€a€warrant€bearing€the€signature€of€the€district€courtÐ Ž0Ž0! Ðjudge,€we€note€that€the€infringement€of€an€accused's€Fourth€Amendment€rights€seems€a€more€egregious€error€than€that€a€warrant,€issuedÐ ˆ1ˆ1" Ðupon€probable€cause,€was€signed€on€the€first,€rather€than€the€second,€floor€of€this€courthouse.×ƒÝ Í×Ý ƒM)ÝÔÿÔòòòò(Ú  Ú1Ú  Ú)óóóóÔÿÔÝ  Ý×Ý X×Ð ‚2‚2# Ѐ€€€€The€Motion€to€Quash€Arrest€and€Dismiss€Information€is,€therefore,€DENIED.€Ð ÜÜ Ѐ€€€€It€is€so€ordered.€Ð ²² ÐÓ  Ó*********€Ð ˆˆ ÐÓÓÐ Ð

American Samoa Gov’t v. Fealofa'i,


AMERICAN SAMOA GOVERNMENT , Plaintiff

v.

ETI FEALOFA'I, Defendant

High Court of American Samoa 
Trial Division

CR No. 3-93

April 28, 1993

__________

For double-jeopardy purposes, a crime is a separate offense and not a lesser-included offense if each statutory provision requires proving a fact which the other does not. U .S. Const. Amend. V; Rev. Const. Am. Samoa Art. I, § 6.

A statement made by a person who was not in a custodial situation is not subject to suppression on MirGnda grounds. U.S. Const. Amend. V.

Even an impermissibly suggestive identification procedure does not render identification testimony inadmissible if, in the totality of circumstances, the identification was nonetheless reliable.

In determining the admissibility of identification testimony, the corrupting effect of the suggestive identification is weighed against (1) the witness' opportunity to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and confrontation.

The decision to sever properly joined defendants is at the trial court's discretion and should be granted only if there is a serious risk that a joint trial would compromise a defendant's specific trial right or prevent the jury from making a reliable judgment about guilt or innocence. T.C.R.Cr.P. 8(b), 14.

A defendant does not have the right to a trial by any particular jury or jurors, but only to a trial by a competent and impartial jury. U.S. Const. Amend. VI.

Before KRUSE, Chief Justice, MAILO, Associate Judge, and BETHAM, Associate Judge.[24ASR2d11]

Counsel: For Plaintiff, Donald M. Sheehan, Assistant Attorney General 
For Defendant, Togiola T.A. Tulafono

Defendant Eti Fealofa'i brought a number of pre-trial motions.

A. On Motion to Dismiss

Defendant moves to dismiss Count II of the Information, on the grounds that Count II, Assault in the First Degree, is a lesser-included offense of Count I, Murder in the Second Degree. As we stated in American Samoa Government v. Moafanua, 4 A.S.R.2d 33, 35 (1987) (quoting Brown v. Ohio, 432 U .S. 161, 166 (1977)), offenses are not inclusive so long as "each provision requires proof of a fact that the other does not."

However, a close reading of the relevant statutes, A.S.C.A §§ 46.3503 & 46.3520, reveals no element of the latter which is not present in the former. A.S.C.A. § 46.3520, Assault in the First Degree, includes the inchoate offense of homicide and, as such, is necessarily a lesser-included offense of Murder in the Second Degree.

Defendant's Motion to Dismiss Count II of the Information is therefore GRANTED .

B. On Motion to Suppress Written Statement

Defendant also moves to suppress the written statement provided to a Special Investigator of the Department of Public Safety. He contends that the statement was made while he was in a custodial situation, as "the target of police investigation," and that the failure to provide him with his "Miranda rights" at that time prevents the admission of the statement.

We are not persuaded, however, that the defendant, a police officer himself, was in a custodial situation at the time the statement was made. Nor do we find any indication that the statement was less than fully voluntary. The Special Investigator testified that the defendant was not the "target" of the investigation when Fealofa'i provided his written statement, only hours after the alleged incident occurred. To the contrary, the Special Investigator merely wanted to find out "what had happened," in general terms, and did not question the defendant with an [24ASR2d12] eye towards confirming any pre-existing theory as to what had occurred. The defendant was not arrested after giving his statement.

While it is true that the statements were given at the Tafuna Police Substation, this was the defendant's place of employment, a familiar and non-threatening environment. The defendant was on duty at the time the statement was made. The Special Investigator was not wearing any sort of uniform which might intimidate the defendant, nor was it certain that he even outranked the defendant. There was no indication that defendant was not free to leave (save, perhaps, that he was still on duty) or that he was compelled to provide the written statement. In short, there was nothing in the evidence to suggest that the defendant was in a custodial situation at any time, or that a coercive atmosphere existed, when he provided his written statement.

The Motion to Suppress the Written Statement of the Defendant is, therefore, DENIED.

C. On Motion to Suppress Photographic Line-Up

Defendant's penultimate motion, to suppress any and all information obtained as a result of the photographic line-up conducted by the Attorney General's Office, alleges that the method of identification of the defendant was unduly prejudicial. According to the Attorney General's investigator, Sam Matagi, the alleged victims were shown an array of twenty-one photographs. Of these photographs, snipped from driver's licenses, seven were of the defendants in the present case, four were of other safety officers present at either Kanana Fou or the O.M.V. police substation on the night in question, while the balance was a mix of safety officers not present that night and ordinary civilians. According to Matagi, on the reverse of each of the photographs was a number . When the alleged victims singled out one of the photographs, Matagi would note down the number, then correlate that number with the appropriate name. In some instances, the alleged victims knew the name of the officer already. Matagi testified that under no circumstances did he suggest to the alleged victims the names of the defendants or single out one particular photograph for special attention.

The defendant alleges that this photographic line-up procedure was unduly suggestive and prejudicial. We disagree. In determining admissibility of identification testimony, "reliability is the linchpin." Government of American Samoa v. Afamasaga, 17 A.S.R.2d 145, 147 (1990) (quoting Manson v. Braithwaite, 432 U.S. 98, 114 (1977)). In [24ASR2d13] Afamasaga, we rejected the defendant's allegation that a one-on-one confrontation was unduly suggestive, after noting that "even an impermissibly suggestive identification procedure does not render an identification inadmissible if, in the totality of circumstances, the identification was nonetheless reliable." Id. at 146. Factors which are to be considered in judging reliability include

the opportunity of the witness to view the criminal at the time 
of the crime, the witness' degree of attention, the accuracy of 
his prior description of the criminal, the level of certainty 
demonstrated at the confrontation, and the time between the 
crime and confrontation. Against these factors is to be weighed 
the corrupting effect of the suggestive identification itself.

Id. at 147. The identification procedure used in the instant case is less susceptible to the charge of suggestiveness than the one challenged in Afamasaga. There is no reason to question either the reliability of the photo line-up or the sworn testimony of the Attorney General's investigator to the effect that he did not suggest the names of any of the defendants.

The Motion to Suppress the Photographic Line-Up is, therefore, DENIED.

D. On Motion for Severance

Defendant, in his final motion, seeks a separate trial. He asserts that if this is not done, the jury will infer conduct of his co-defendants upon him, in contravention of his right to an impartial jury . Additionally, he maintains that, due to the large number of defendants and the relatively small number of peremptory challenges, he will face a jury containing members that "he does not want there. "

We note at the outset that the decision to sever properly joined defendants (and all parties have agreed that defendants were properly joined, per T.C.R.Cr.P. 8(b)) is made at the sound discretion of the trial court. See, e.g., United States v. Lane, 474 U .S. 438,449, n.12 (1986). The United States Supreme Court has stated that a

court should grant a severance under Rule 14 [the equivalent 
of T.C.R.Cr.P. 14] only if there is a serious risk that a joint 
trial would compromise a specific trial [24ASR2d14] right of 
one of the defendants, or prevent the jury from making a reliable 
judgment about guilt or innocence..... For example, evidence 
of a codefendant's wrongdoing in some circumstances 
erroneously could lead a jury to conclude that a defendant 
was guilty. When many defendants are tried together in a 
complex case and they have markedly different degrees of 
culpability, this risk of prejudice is heightened.

Zafiro v. United States, 61 U.S.L.W. 4147, 4148 (U.S. Jan. 26, 1993) (No. 91-6824 ). While none of these factors mandates that a separate trial be granted, they are to be considered in deciding upon a severance motion.

Defendant's contention that he will be unable to utilize his peremptory challenges to screen-out jurors that he does not want is wholly lacking in merit. It is well settled that a defendant does not have the right to a trial by any particular jury or jurors, but only to a trial by a competent and impartial jury. American Samoa Government v. Agasiva, 4 A.S.R.2d 110, 112 (1987). In addition, T.C.R.Cr.P. 24(b) gives the trial court discretion, in joint trials, to grant additional peremptory challenges to the defendants, so as to relieve possible inequities of such trials.

Taking into account all of the above considerations, the court agrees to spare the defendant the possible burden of being tried together with eight other defendants. Instead, he will be tried with only a single co-defendant, Thomas Schuster. The similarity of the charges aimed at these two defendants makes theirs a logical pairing.

The Motion for Severance is, therefore, GRANTED, on the conditions stated above.

It is so ordered.

It is further ordered that trial in this matter shall be held as previously scheduled.

*********

American Samoa Gov’t; Alamoana Recipe, Inc. v.


ALAMOANA RECIPE INC., a Corporation; 
and ALAMOANA S. MULITAUAOPELE, Petitioners

v.

AMERICAN SAMOA GOVERNMENT; 
UNITED STATES INTERNAL REVENUE SERVICE; 
WILLIAM M. MELENDEZ, Internal Revenue Officer, 
United States Department of the Treasury; 
and UNITED STATES DEPARTMENT OF THE INTERIOR, 
Respondents

High Court of American Samoa 
Trial Division

CA No. 92-93

September 16, 1993

__________

Employers and employees within American Samoa must pay U .S. Social Security taxes, as the Federal Insurance Contributions Act applies to any employment performed within the United States or to any employment performed outside the United States by her citizens or residents for an American employer. 26 U.S.C. §§ 3101-3128.

American Samoa's income tax law does not conflict with or purport to supplant federal tax laws, but it merely creates an additional, territorial tax modeled on the federal tax law. A.S.C.A. § 11.0403.

The High Court may interpret territorial statutes differently than federal courts' interpretations of similar, but not identical, federal statutes, but this does not imply that territorial law supersedes federal law.

Territorial laws which are inconsistent with applicable U .S. laws violate the territorial constitution, which in turn was promulgated under the authority of the U.S. Secretary of the Interior. Rev. Const. Am. Samoa Art. II, § I (a), Art. V, § 11.

Suits to restrain assessment or collection of any federal tax in any court are prohibited by the federal Anti-Injunction Act. 26 U.S.C. § 7421(a).

Before KRUSE, Chief Justice. [24ASR2d157]

Counsel: Petitioner Alamoana S. Mulitauaopele, Pro Se

For Respondent American Samoa Government, 
Cheryl A. Quadlander, Assistant Attorney General

Opinion and Order Denying Petition for Temporary Restraining Order:

Alamoana S. Mulitauaopele filed a petition for a temporary restraining order on September 14, 1993. Assuming, without deciding, jurisdiction, this court holds that petitioner's request for a temporary restraining order must be denied.

Under the Federal Insurance Contributions Act (hereinafter FICA), the United States government has imposed on employees and employers what is commonly known as the social security tax. 26 U.S.C. §§ 3101-3128. FICA applies to any employment performed within the United States or employment performed outside the United States by her citizens or residents for an American employer. 26 U.S.C. § 3121(b). Employers and employees within American Samoa must pay these FICA taxes. See 26 U.S.C. § 3121(e). This applicability is buttressed by Congress' enacting payment and exemption provisions specifically applicable to American Samoa. E.g., 26 U .S.C. §§ 3121(b)(7)(B), 3125(c), 6205(a)(3), 6413(a)(3). Therefore, FICA applies to American Samoa, and petitioner cannot avoid paying his assessments by asserting the contrary.

Furthermore, American Samoa's tax law does not conflict with federal tax law concerning FICA. Contrary to petitioner's argument, A.S.C.A. § 11.0403 does not purport to supplant federal tax laws, but it merely creates an additional, territorial tax modeled on the federal tax. Likewise, the High Court's interpreting territorial statutes differently than federal courts' interpretations of similar, but not identical, federal statutes certainly does not imply that territorial law supersedes federal law. In any event, territorial laws which are inconsistent with applicable U.S. laws violate the territorial constitution, which in turn was promulgated under the authority of the U .S. Secretary of the Interior. Rev. Const. Am. Samoa Art. II, § l(a), Art. V, § 11.

Finally, suits to restrain assessment or collection of any tax in any court are prohibited by what is known as the Anti-Injunction Act. 26 U.S.C. § 7421(a) (1993). As such, "[t]he object of § 7421(a) is to withdraw jurisdiction from the state and federal courts to entertain suits seeking injunctions prohibiting the collection of federal taxes. "Enochs [24ASR2d158] v. Williams Packing & Navigation Co., 370 U.S. 1, 5 (1962). This policy would be thwarted if the High Court were to issue an injunction; thus, this court declines to do so.

Therefore, the petition for a temporary restraining order to enjoin the collection of FICA taxes is denied.

It is so ordered.

*********

In re Complaint of Voyager, Inc.,


In the Matter of the Complaint of VOYAGER, INC.,
as Registered Owner of the Fishing Vessel Voyager,
her Engines, Tackle, Apparel, etc., in a Cause
of Exoneration from or Limitation of Liability

BYRON BLOCKER, Intervenor

High Court of American Samoa
Appellate Division

AP No. 28-92

July 12, 1993

__________

A single justice has the authority to issue an alternative writ, schedule a hearing, and set a briefing schedule; however, resolution of substantive issues, other than in connection with any preliminary or supplementary matter, requires a quorum of two justices and one associate judge. A.S.C.A. §§ 3.0209, 3.0220.

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

Counsel: For Complainant, William H. Reardon
For Intervenor, Roy J.D. Hall, Jr.

Order Granting Special Appearance, Setting Briefing Schedule and Hearing, and Deferring Extraordinary Relief:

On June 23, 1993, intervenor Byron Blocker ("Blocker") moved to specially appear for the purpose of raising jurisdictional and venue issues with respect to the limitation of liability proceedings initiated by complainant Voyager, Inc. ("Voyager") through this action. At the hearing on Blocker's motion on July 6, 1993, Voyager raised no opposition to Blocker's special appearance, and the motion was granted by bench order. This order confirms the bench order. However, since two distinct legal processes are ongoing in this appeal, the setting of a [24ASR2d91] briefing schedule and hearing was taken under advisement to consider the most appropriate scheduling.

The first process is the direct appeal of the Trial Division's decision in 23 A.S.R.2d 47 (Trial Div. 1992), denying Voyager's ex parte motion for issuance of a notice to claimants and dismissing the action. The ex parte motion was denied on November 16, 1992. Voyager's motion for reconsideration or new trial was filed on November 25, 1992, and on December 14, 1992, this motion was denied and the action was dismissed, nunc pro tunc, as of November 16, 1992. Voyager appealed this decision on December 24, 1992, and filed an appellant's brief on February 24, 1993.

Meanwhile, on January 28, 1993, Voyager petitioned this court to mandate the Trial Division to issue the notice to claimants. On February 4, 1993, this petition was denied on the grounds that the petition did not set forth any basis upon which this court could conclude that the remedy by appeal was inadequate, an essential prerequisite for extraordinary relief by mandamus .

On June 21, 1993, Voyager again petitioned this court for the same extraordinary relief. In essence, it was alleged in the petition that the remedy by appeal was no longer adequate because trial of the action by Blocker and his wife ("the Blockers") against Voyager had already commenced in the Superior Court of California, County of San Diego. The complaint and plaintiffs' statement of damages filed in the California state action seek approximately $17.5 million in damages. The letter of undertaking filed in this present limitation of liability action stipulates to a marine surveyor's valuation of the Fishing Vessel Voyager at $3.0 million. (1)

On July 6, 1993, both counsel advised the court that the state- court trial was concluded. Blocker's counsel indicated that the Blockers were awarded $2.3 million in damages. Voyager's counsel thought that the award might be $3.2 million. In either event, it is probable that [24ASR2d92] either the Blockers or Voyager, or both, will appeal the result. Under these circumstances, the adequacy of the remedy by appeal is still viable. Should the situation materially change, Voyager can renew its effort to obtain an alternative writ setting a hearing on the order to show cause.

Resolution of substantive issues in this court, other than in connection with any preliminary or supplementary matter, requires a quorum of two justices and one associate judge. A.S.C.A. §§ 3.0209, 3.0220. At the present time, only a single justice will be available in this action until either the next appellate session is held (tentatively scheduled for the first full week in October 1993), or the present District Court judge is appointed as an acting associate justice by the Secretary of the Interior. While a single justice has authority to issue an alternative writ and set a hearing on the order to show cause, Blocker clearly intends to raise substantive issues, whether the hearing is scheduled in the context of the petition for extraordinary relief or the appeal. The practical direction, under the present circumstances, is to establish a briefing schedule consistent with the anticipated appellate session in October 1993 and, in due course, set oral arguments during that session.

Therefore, Blocker is directed to file an appellee's brief no later than 30 days after this order is issued, and Voyager is directed to file any reply brief no later than 14 days after Blocker's brief is submitted. Oral arguments, along with those in other pending appeals, will be scheduled in due course to take place during the next appellate session.

Any definitive decision on the present petition for extraordinary relief will be deferred until required or otherwise justified by the circumstances, vis-a-vis the pending appeal.

It is so ordered.

*********

1. The surveyor's affidavit and undertaking are not clear as to whether or not this sum includes the value of freight on board at the end of the voyage at issue. Note is also taken of the undertaking's stipulation of interest on the limitation fund at the rate of 4% per annum. T.C.R.C.P. Supplemental Rule F(1) requires an interest rate of 6% per annum.

Gibson v. Mulitauaopele,


HENRY GIBSON, Plaintiff

v.

ALAMOANA K. MULITAUAOPELE,
ALAMOANA MULITAUAOPELE, and
NATIONAL PACIFIC INSURANCE, LTD., Defendants

High Court of American Samoa
Trial Division

CA No. 19-92

August 3, 1993

__________

Under the family purpose doctrine, hereby adopted by American Samoa, a vehicle's owner may be held liable for the negligence of a driver who is using the vehicle with the former's express or implied permission for the family's purpose.

Factors used in determining whether the head of a household furnished the vehicle for a family member's use and so is liable under the family purpose doctrine include the following: (1) who holds legal title to the vehicle, (2) who paid for the vehicle, (3) who controlled the vehicle's use, (4) the intent of the vehicle's buyers and sellers, (5) the intent of the parents and child regarding who was the vehicle's owner, (6) who received delivery of the vehicle, and (7) who exercised property rights in the vehicle between the date of purchase and the date of the accident.

Even if an adult, a child residing with the head of household may nonetheless be a family member in regards to the family purpose doctrine.

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

Counsel: For Plaintiff, Charles v. Ala'ilima and Jill Crew
For Defendants Alamoana K. Mulitauaopele
and National Pacific Insurance, Ltd.,
Aitofele T. Sunia and John L. Ward II
For Defendant Alamoana Mulitauaopele, Gata E. Gurr

Order Denying Motion for Reconsideration or New Trial:

The Opinion and Order in this case was entered on March 11, 1993. On March 22, 1993, defendant Alamoana Mulitauaopele filed a [24ASR2d106] motion for reconsideration or new trial, raising as error the imputation of the negligent operation of a motor vehicle by defendant Alamoana K. Mulitauaopele ("Mulitauaopele I") to the owner of the vehicle, his father, defendant Alamoana Mulitauaopele ("Mulitauaopele II"). Following the hearing on this motion on May 3, 1993, the court ordered a further hearing for thorough consideration of this issue, as one which was not fully argued at the trial or discussed in the opinion and order and which involved an unsettled area of the law in this jurisdiction. This second hearing on the motion was held on July 15, 1993.

I. Family Purpose Doctrine

The owner of a vehicle may be held liable for the driver's negligence under the family purpose (or family car) doctrine. Under this doctrine, when "the head of a family owns, furnishes and maintains a vehicle for the general use, pleasure and convenience of a family, he is liable for the negligence of a member of the family having general authority to drive it while the vehicle is being so used. " Sweatt v. Norman, 322 S.E.2d 478, 480 (S.C. App. 1984) (citing Lucht v. Young blood, 221 S.E.2d 854 (S.C. 1976)); see Parries v. Labato, 597 P.2d356, 361 (Or. App. 1979) (quoting Kraxberger v. Rogers, 373 P.2d 647,651 (Or. 1962)); Tolbert v. Murrell, 322 S.E.2d 487,489-90 (Ga. 1984) (explaining statutorily adopted "family purpose car doctrine") (quoting Phillips v. Dixon, 223 S.E.2d 678 (1976)). As an extension of respondeat superior principle of liability, the owner is liable for the negligence of a driver who is using the vehicle "with the express or implied consent of the owner for purposes of the business or pleasure of the owner's family." Staroba v. Heitkamp, 338 N .W .2d 640,641 (N .D. 1983) (citing Lauritsen v. Lammers, 161 N.W.2d 804 (N.D. 1968)); see Bartz v. Wheat, 285 S.E.2d 894, 896 (W. Va. 1982) (though family purpose doctrine is analogous to agency, it has a different rationale and so cannot be used as a defense technique to bar recovery). The purpose of the family purpose doctrine is to permit an injured person to recover damages from a vehicle's owner if the driver is "financially irresponsible." Bartz, 285 S.E.2d at 895 (citing Freeland v. Freeland, 162 S.E.2d 922,925 (W. Va. 1968); Watson v. Burley, 143 S.E. 95 (W. Va. 1928)); Staroba, 338 N.W.2d at 641-42 (citing Michaelsohn v. Smith, 113 N.W.2d 571 (N.D. 1962)).

Legal title to a vehicle is an important, though not necessarily conclusive, factor in determining whether a head of household is an "owner" sufficient to apply the family purpose doctrine. See Staroba, 338 N.W.2d at 643-44 (court did not decide whether head of household's [24ASR2d107] legal title, in itself, is sufficient to apply doctrine); Parries, 597 P .2d at 361 (father's title to automobile driven by son sets forth a prima facie case of agency). Other factors used in determining whether the head of a household furnished the vehicle for a family member's use include the following: (I) who paid for the vehicle, (2) who controlled the vehicle's use, (3) the intent of the vehicle's buyers and sellers, (4) the intent of the parents and child regarding who was the vehicle's owner, (5) who received delivery of the vehicle, and (6) who exercised property rights in the vehicle between the date of purchase and the date of the accident. Staroba, 338 N .W .2d at 644 (quoting Herman v. Magnuson, 277 N .W .2d 445, 459 (N .D. 1979)). In short, an "owner" for the doctrine's purposes is one who owns, controls, has a property interest in, or supplies the vehicle. Tolbert, 322 S.E.2d at 490 (citing Prosser, The Law of Torts § 73 (4th ed. 1971); Murch v. Brown, 304 S.E.2d 750 (Ga. App. 1983)).

If the child resides with the head of household, the family purpose doctrine may still apply. Many jurisdictions hold that a child reaching the age of majority is nonetheless a family member in regards to the family purpose doctrine. E.g., Garska v. Harris, 109 N.W.2d 529, 535 (Neb. 1961); Cook v. Rafferty, 93 P.2d 376, 378-79 (Wash. 1939); Freeland, 162 S.E.2d at 925; Staroba, 338 N. W.2d at 642; Dunn v. Hemberger, 430 N.W.2d 516 (Neb. 1988).

II. Discussion

Families in American Samoa playa central role in its society. Similarly, its social functions are heavily influenced by the communal social structure. A large number of vehicles are on the road, and vehicles are frequently and routinely driven by various family members for purposes concerning them individually and the family-at-large. Many of these drivers do not have the financial resources to pay a negligence judgment, though the heads of the families often have adequate resources. The family purpose doctrine is thus well-suited to the conditions present in American Samoa.

The pickup truck driven by Mulitauaopele I is owned by and was driven with the permission of his father, Mulitauaopele II. The vehicle was available to be used for family purposes. Indeed, Mulitauaopele II expressly gave his son permission to drive the truck. These facts clearly place the accident within the boundaries of the family purpose doctrine. [24ASR2d108]

Mulitauaopele II argues that his son's negligence should not be imputed to him because his son is over 18 years old. However, Mulitauaopele I still lives at his parents' residence in the Village of Lauli 'i, as a member of the family. Thus, his having achieved the age of majority does not preclude the application of the family purpose doctrine.

Being appropriate for conditions in American Samoa, the family purpose doctrine is hereby adopted in this jurisdiction. Because the facts of this case clearly fit the criteria for applying the family purpose doctrine, Mulitauaopele I's negligence was properly imputed to his father, Mulitauaopele II. Therefore, Mulitauaopele II's motion for reconsideration or new trial is denied.

It is so ordered.

**********

American Samoa Gov’ t v. Schuster,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

THOMAS SCHUSTER, Defendant

High Court of American Samoa
Trial Division

CR No. 5-93

April 28, 1993

__________

For double-jeopardy purposes, a crime is a separate offense and not a lesser-included offense if each statutory provision requires proving a fact which the other does not. U .S. Const. Amend. V; Rev. Const. Am. Samoa Art. I, § 6.

Intended to give a criminal defendant adequate notice of the charge against him, a bill of information is made with sufficient specificity if it fully and unambiguously sets forth the elements constituting the offense.

The decision to sever properly joined defendants is at the trial court's discretion and should be granted only if there is a serious risk that a joint trial would compromise a defendant's specific trial right or prevent the jury from making a reliable judgment about guilt or innocence. T.C.R.Cr.P. 8(b), 14.

In exercising their discretion as to granting separate trials, most courts refuse to grant a severance despite the anticipated exculpatory testimony of a co-defendant. T .C.R.Cr.P .14.

Even an impermissibly suggestive identification procedure does not render identification testimony inadmissible if; in the totality of circumstances, the identification was nonetheless reliable.

In determining the admissibility of identification testimony, the corrupting effect of the suggestive identification is weighed against (1) the witness' opportunity to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and confrontation.

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

Counsel: For Plaintiff, Donald M. Sheehan, Assistant Attorney General
For Defendant, Steven H. Watson [24ASR2d16]

Defendant Thomas Schuster brought a number of pre-trial motions.

A. On Motion to Dismiss Count V of the Information

Defendant Thomas Schuster moves to dismiss Count V of the Information, on the grounds that Count V, Assault in the First Degree, is a lesser-included offense of Count IV, Murder in the Second Degree. As we stated in American Samoa Government v. Moafanua, 4 A.S.R.2d 33, 35 (1987) (quoting Brown v. Ohio, 432 U.S. 161, 166 (1977)), offenses are not inclusive so long as "each provision requires proof of a fact that the other does not."

However, a close reading of the relevant statutes, A.S.C.A §§ 46.3503 & 46.3520, reveals no element of the latter which is not present in the former. A.S.C.A. § 46.3520, Assault in the First Degree, includes the inchoate offense of homicide and, as such, is necessarily a lesser-included offense of Murder in the Second Degree.

Defendant's Motion to Dismiss Count V of the Information is, therefore, GRANTED.

B. On Motion to Dismiss Count VI, Murder in the Second Degree

At the outset, we note that the defendant must be referring to Count IV of the Information; Count VI of the Information contains the charge of Assault in the First Degree. Defendant Schuster asserts that the allegation of Count IV of the Information is not made with sufficient specificity, thus denying him adequate notice of the charge against him. He maintains that the term "recklessly," as used in A.S.C.A. § 46.3503 and in the Information, "carries with it no imputation of the conduct of Defendant which is alleged to constitute the basis of the offense charged. " We disagree. Unlike the statute cited by the defendant in his motion, A.S.C.A. § 46.3503 does not contain the word "willfully"; therefore, the dilemma facing the Ninth Circuit in U.S. v. Kurka, 818 F.2d 1427 (9th Cir. 1987), is not before us. The term "recklessly" is defined in A.S.C.A. § 46.3202(d). Consequently, Count IV of the Information "sets forth 'fully, directly and expressly, without any uncertainty or ambiguity, ...all the elements necessary to constitute the offense intended to be punished.'" Government of American Samoa v. Afamasaga, 17 A.S.R.2d 145, 150 (1990). [24ASR2d17]

Likewise, the defendant's assertion that Count IV of the Information is fatally flawed because it does not specify the location of the alleged unlawful activity leaves us unimpressed. It strikes us as an attempt to discover the prosecution' s trial strategy, rather than a valid request for greater clarity or specificity. There are no double jeopardy issues involved, for the "entire record of the proceedings, and not just the information alone, may be referred to if there is a claim of double jeopardy with a subsequent prosecution." Id. The material already provided by the government is sufficient to put the defendant on notice of the charges against him.

Defendant's Motion to Dismiss Count IV of the Information is, therefore, DENIED.

C. On Motion for Severance

Defendant seeks a separate trial. He asserts that if this is not done, he will be denied his constitutional right to cross-examine the other defendants, whose written statements will be introduced into evidence. He also claims that at least one other defendant is willing to testify in his favor, if severance is granted. If it is not, the witness/defendant will presumably exercise his Fifth Amendment right against self- incrimination, thus denying Schuster the benefit of this testimony.

We note at the outset that the decision to sever properly-joined defendants (and all parties have agreed that defendants were properly joined, per T.C.R.Cr.P. 8(b)) is made at the sound discretion of the trial court. See, e.g., United States v. Lane, 474 U .S. 438, 449, n. 12 (1986). The United States Supreme Court has stated that a

court should grant a severance under Rule 14 [the equivalent
of T.C.R.Cr.P.14] only if there is a serious risk that a joint
trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment
about guilt or innocence.

Zafiro v. United States, 61 U.S.L.W. 4147, 4148 (U.S. Jan. 26, 1993) (No. 91-6824).

We note that "[t]he 'great mass' of cases refuse to grant a severance despite the anticipated exculpatory testimony of a co-defendant." United States v. Gay, 567 F.2d 916, 919 (9th Cir. 1978). And we are not persuaded by the defendant's attorney's bare affidavit [24ASR2d18] that such a witness exists and will testify .Greater specificity should be provided in order for us to consider a severance on these grounds.

The defendant's Bruton concerns are a little more troubling. Fortunately, our decision to separate defendants Schuster and Fealofa'i from the other defendants eases our apprehensions at the possibility of conforming to the guidelines established by Bruton and its progeny. With only a single co-defendant, solutions such as redaction become much more tenable.

Taking into account all of the above considerations, the court agrees to spare the defendant the possible burden of being tried together with eight other defendants. Instead, as stated previously, he will be tried with only a single co-defendant, Eti Fealofa'i. The similarity of the charges aimed at these two defendants makes theirs a logical pairing.

The Motion for Severance is, therefore, GRANTED, on the conditions stated above.

D. On Motion to Suppress Photographic Line-Up

Defendant's final motion, to suppress any and all information obtained as a result of the photographic line-up conducted by the Attorney General's Office, alleges that the method of identification of the defendant was unduly prejudicial. According to the Attorney General's investigator, Sam Matagi, the alleged victims were shown an a~ray of twenty-one photographs. Of these photographs, snipped from driver's licenses, seven were of the defendants in the present case, four were of other safety officers present at either Kanana Fou or the O.M.V. police substation on the night in question, while the balance was a mix of safety officers not present that night and ordinary civilians. According to Matagi, on the reverse of each of the photographs was a number. When the alleged victims singled out one of the photographs, Matagi would note down the number, then correlate that number with the appropriate name. In some instances, the alleged victims knew the name of the officer already. Matagi testified that under no circumstances did he suggest to the alleged victims the names of the defendants or single out one particular photograph for special attention.

The defendant alleges that this photographic line-up procedure was unduly suggestive and prejudicial. We disagree. In determining admissibility of identification testimony, "reliability is the linchpin." Government of American Samoa v. Afamasaga, 17 A.S.R.2d 145, 147 [24ASR2d19]

(1990) (quoting Manson v. Braithwaite, 432 U.S. 98, 114 (1977)). In Afamasaga, we rejected the defendant's allegation that a one-on-one confrontation was unduly suggestive, after noting that "even an impermissibly suggestive identification procedure does not render an identification inadmissible if, in the totality of circumstances, the identification was nonetheless reliable." Id. at 146. Factors which are to be considered in judging reliability include

the opportunity of the witness to view the criminal at the
time of the crime, the witness' degree of attention, the accuracy
of his prior description of the criminal, the level of certainty
demonstrated at the confrontation, and the time between
the crime and confrontation. Against these factors is to be
weighed the corrupting effect of the suggestive identification
itself.

Id. at 147. The identification procedure used in the instant case is less susceptible to the charge of suggestiveness than the one challenged in Afamasaga. There is no reason to question either the reliability of the photo line-up or the sworn testimony of the Attorney General's investigator to the effect that he did not suggest the names of any of the defendants.

The defendant also attempts to argue that his photograph was unlawfully "seized" in violation of his Fourth Amendment rights. The photograph was obtained, as mentioned above, from a copy of the defendant's driver's license on file at the Office of Motor Vehicles. We find that there is no reasonable expectation of privacy in one's driver's license, and thus the argument is without merit.

The Motion to Suppress the Photographic Line-Up is, therefore, DENIED.

It is so ordered.

It is further ordered that trial in this matter will be held as previously scheduled.

*********

Application of Mamea,


Application of FOGAPAPA MAMEA for Change of Name

High Court of American Samoa
Trial Division

CA No. 95-92

June 14, 1993

__________

In the absence of statutory abrogation of the common-law right to change one's name, courts should encourage petitions to make a public record of these changes and so abuse their discretion in denying such petitions without any substantial reason.

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

Counsel: For Petitioner, Togiola T.A. Tulafono and Roger K. Hazell

Order Requiring Notice and Further Hearing:

Fogapapa Mamea's petition for an order changing his name from Fagapapa Mamea to Tua Tauamo came regularly on June 7, 1993, for hearing. The common law recognizes the right to change one's name, and in the absence of statutory abrogation of that right, courts should [24ASR2d67] encourage petitions to make a public record of these changes. Courts abuse their discretion in denying such petitions without any substantial reason. In re Useldinger, 96 P.2d 958 (Cal. 1939).

Petitioner was the sole witness in this case and did not state any reason clearly justifying denial of his petition. However, the court has reservations about immediately granting the petition without further evidence. Petitioner, a Western Samoa citizen, is age 58, is married, and has nine children, four of whom were born in American Samoa and are still minors. His birth certificate, marriage certificate, and his minor children's birth certificates indicate that Mamea is his wife's and minor children's surname. His principal reason for wanting to change his name is to accommodate the name by which he apparently uses within his extended family in Alao, American Samoa and the name of the matai whom he serves. However, he did not satisfactorily address the potential complications the change may pose, after all these years, in his and his, immediate family's future dealings.

At the very least, an affirmative record should be made to show that the wife and minor children, and probably the matai as well, have ''been notified of this proceeding and are in agreement with the objective, or at least have had reasonable opportunity to present any opposition to the name change. This extra effort will also provide the basis for making any order changing his name a record of other persons whose names are affected by the change.

The court notes that petitioner's counsel has taken the advisable precautionary step of publishing notice of this proceeding in a newspaper of general circulation in the Territory. This action at least provides some notice to possible creditors and others who may be negatively affected by a name change and is a common statutory requirement in other jurisdictions. However, it is not an adequate substitute for personal notice to readily identifiable persons, such as his immediate family, who may be impacted by the name change.

The court also notes the lack of any statutory direction for change-of-name proceedings and suggests that the Legislature should enact appropriate guidelines for their conduct.

Petitioner will be required to personally serve his wife, minor children, and matai with copies of his petition and the notice of a further hearing to afford them an opportunity to respond and make their wishes in this proceeding known to the court. [24ASR2d69]

It is so ordered.

**********

Amerika Samoa Bank; Soli Corp. v.


SOLI CORPORATION, SOLI AOLAOLAGI,
and MARK MEREDITH, Appellants

v.

AMERIKA SAMOA BANK,
DEVELOPMENT BANK OF AMERICAN SAMOA,
and UNITED STATES SMALL BUSINESS ADMINISTRATION,
Appellees

High Court of American Samoa
Appellate Division

AP No. 8-93

September 30, 1993

__________

A single justice of the Appellate Division may grant or deny any request for relief, including a petition for an extraordinary writ, except to dismiss or otherwise determine an appeal or other proceeding; this decision may be reviewed by a full panel of the Appellate Division. A.C.R. 27(c).

The extraordinary writ of mandamus is only available if other forms of relief are unavailable. [24ASR2d167]

Before KRUSE, Chief Justice.

Counsel: For Appellants, Roy T. Chikamoto and Gata E. Gurr
For Appellee Amerika Samoa Bank, William H. Reardon
For Appellee Development Bank of American Samoa, Marshall Ashley
For Appellee United States Small Business Administration, Roy J.D. Hall, Jr.

On Appellants' "Verified Petition for Extraordinary Relief from Order Granting Intervention of United States Small Business Administration":

On September 28, 1993, Roy T. Chikamoto, counsel for appellants, filed a "Verified Petition for Extraordinary Relief from Order Granting Intervention of United States Small Business Administration." Counsel seeks an extraordinary writ requiring the trial court to vacate its order of July 19, 1993, which granted the United States Small Business Administration (hereinafter SBA)'s motion to intervene.

"Review of acts or failures to act by the Trial Division is had in the Appellate Division of the High Court." T.C.R.C.P. 88. In the Appellate Division, procedures for extraordinary writs are to conform with T.C.R.C.P. 87-102. A.C.R. 21. The respondents and real parties-in-interest must file any memoranda in opposition within 15 days of the service of the petition on them. T.C.R.C.P. 93. The court may grant, partially grant, or deny the petition. T.C.R.C.P. 92. If the petition is granted, a hearing is subsequently scheduled. T.C.R.C.P. 94-96.

Regarding a petition for relief, "a single justice of the appellate division may entertain and may grant or deny any request for relief .. [except to] dismiss or otherwise determine an appeal or other proceeding." A.C.R. 27 (c). Because either granting or denying the petition for an extraordinary writ would not determine the status of the appeal, a single justice may decide this petition. Pursuant to A.C.R.27(c), this decision may be reviewed by the Appellate Division at the November appellate session.

Mandamus is available only if other forms of relief are unavailable. Heckler v. Ringer, 466 U.S. 602, 616 (1984) (citing Kerr v. United States Dist. Court, 426 U.S. 394, 402-03 (1976); United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 543-44 (1937)); [24ASR2d168] American Samoa Gov't v. District Court, 10 A.S.R.2d 18, 19 (Trial Div.1989); Siofele v. Shimasaki, 9 A.S.R.2d 3, 11 (Trial Div. 1988). However, appellants' counsel has not shown that other remedies are unavailable or even that SBA was improperly allowed to intervene.

SBA's motion to intervene was granted in accordance with A.S.C.A. § 37.1102. Order Granting Motion to Intervene, CA No. 25-92 (July 19, 1993); see Order Relating to Motions [to] Cancel or Postpone Foreclosure Sales, Vacate Judgments, Dismiss Complaints, and Terminate Receivership, CA No. 25-92, slip op. at 2 (May 10, 1993). Likewise, appellants/defendants did not object to SBA's intervention in this action; though contrary to appellants' statements, the trial court did not state that defendants/appellants agreed to intervention but that counsel Gurr stated that he could not stipulate to SBA's intervention before consulting with counsel Chikamoto. Order Denying Motion for Stay Pending Appeal, CA No. 25-92, slip op. at 2 (July 22, 1993). Furthermore, appellants/defendants themselves raised the issue of SBA's nonjoinder by arguing that SBA was a statutorily indispensable party. Defendants' Memorandum in Support of Motion to Vacate Judgments [of January 29, 1993] (filed April 26, 1993), at 1-3.

Likewise, appellants have failed to show that an extraordinary writ would be the proper remedy. Even if the trial division's decision were erroneous, appellants' counsel has not shown that other forms of relief are unavailable.

Therefore, appellants' petition for extraordinary relief is denied.

It is so ordered.

**********

Amerika Samoa Bank v. Groves,


AMERIKA SAMOA BANK, Plaintiff

v.

ERIC GROVES, Doing Business as
Groves Service Station, and ARTHUR MEREDITH,
Defendants

High Court of American Samoa
Trial Division

CA No. 49-88

June 29, 1993

__________

Although duplicates are generally admissible in lieu of originals, genuinely contested authenticity requires production of the original document; however, mere assertions do not create a genuine question as to authenticity. T.C.R.Ev. 1003.

Handwriting comparison by the trier of fact is a recognized means of authenticating documents. 28 U.S.C. § 1731; T.C.R.Ev. 901(a), (b)(3).

As the rules of evidence aim at obtaining the best available evidence when the contents of a document are intimately related to governing issues, photocopied duplicates are accurate and so are substantially given the status of originals. T.C.R.Ev. 1003.

Extrinsic evidence of a document's contents may be presented upon a showing of the practical inability to obtain the document itself. T.C.R.Ev. 1004.

Under the hearsay-rule exception for records of regularly conducted activity , any writing made as a record of acts, events, conditions, opinions or diagnoses may be admitted as evidence of those matters if the writing: (a) was made at or near the time of the acts, events, conditions, opinions, or diagnoses recorded; (b) was made by, or from information transmitted by, a person with knowledge; (c) is kept in the course of a regularly conducted activity; and (d) was made as the regular practice of that activity. T.C.R.Ev. 803(6). [24ASR2d78]

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

Counsel: For Plaintiff, William H. Reardon
For Defendant Eric Groves, Asaua Fuimaono

Order Denying Motions for Reconsideration or New Trial and for Stay of Execution:

The motion by defendant Eric Groves ("defendant") for reconsideration or new trial came regularly for hearing on June 14, 1993. His motion for a stay of execution, which had been scheduled for hearing on June 16, 1993, was also heard upon counsel's stipulation.

Defendant has cited as error the admission in evidence of two documents, a general power of attorney and a promissory note, together with the attached loan-disbursement instruction and receipt ("loan disbursement"), which are key to the judgment against him. The power of attorney gave defendant's daughter, Lorina Meredith ("Lorina"), authority to obtain the loan from plaintiff Amerika Samoa Bank ("ASB"). The promissory note, with the loan-disbursement instruction and receipt, memorialized this indebtedness to ASB. Both of the admitted documents are photocopied duplicates.

I. Power of Attorney

Defendant challenged the power of attorney by claiming that a genuine question was raised as to the original's authenticity, and under that circumstance evidentiary admission of the duplicate was unfair to him. Thus, authenticity, specifically the genuineness of defendant's signature, became the issue as to this document during the trial.

Indeed, under T.C.R.Ev. Rule 1003, while duplicates are generally admissible in lieu of originals, genuinely contested authenticity requires production of the original document. Mere assertion, however, does not create a genuine question. Defendant relied on his answer to the first question, which pertained to defendant's signature on the power of attorney, in ASB ' s request for admissions: "The signature appears to be mine but I contest the contents of this document."

While not totally unambiguous in and of itself, this answer is reasonably interpreted as defendant's admission of the genuineness of his [24ASR2d79] signature on the power of attorney. Moreover, defendant's answers to the third and fourth questions in the request for admissions unambiguously admit that he signed two other documents. When the signatures on the three documents are compared, a recognized means of authentication by the court as the trier of fact under T.C.R.Ev. Rules 901(a) and (b)(3), (1) the genuineness of defendant's signature on the power of attorney is evident.

Urging the original's availability to ASH, defendant has also now argued in his motion that T.C.R.Ev. Rule 1004 limits the admissibility of photocopied duplicates to situations in which the original cannot be produced. This argument overlooks the preferential rather than exclusionary nature of the rules on the production of documents. The rules are aimed at obtaining the best available evidence when the contents of a document are intimately related to governing issues but not at hamstringing the presentation of a party's case. See the discussion on underlying policy in McCormick on Evidence § 237, at 570 (E. Cleary 2d ed. 1972).

T.C.R.Ev. Rule 1004 provides guidelines for the use of other evidence of the contents of a document upon a showing of the practical unobtainability of preferred evidence. Photocopied duplicates are accurate and implicitly minimize, and usually eliminate, error, and thus, they are substantially given the status of originals by T.C.R.Ev. Rule 1003. See the Advisory Committee's Notes on the 1972 proposed, comparable Fed. R. Ev. Rules 1001(4) and 1003 in Federal Civil Judicial Procedure and Rules, at 372 and 373 (West, rev. ed. 1991). T.C.R.Ev. Rule 1004 does not override that status.

The photocopy duplicate of the power of attorney was properly admitted in evidence.

II. Promissory Note

Defendant's principal argument on the inadmissibility in evidence of the promissory note and loan disbursement is based on lack [24ASR2d80] of adequate foundation established for admission as an exception to the hearsay rule.

The applicable exception to the hearsay rule pertains to records of regularly conducted activity, as set forth in T.C.R.Ev. Rule 803(6). Under this exception, any writing made as a record of acts, events, conditions, opinions or diagnoses may be admitted in evidence, when offered to prove those acts, events, conditions, opinions, or diagnoses, if the writing: (a) was made at or near the time of the acts, events, conditions, opinions, or diagnoses recorded; (b) was made by, or from information transmitted by, a person with knowledge; (c) is kept in the course of a regularly conducted activity; and (d) was made as the regular practice of that activity. These criteria must be shown by the testimony of the custodian of the writing or other qualified witness. The writing will be rejected if the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

The foundational witness for the promissory note and loan disbursement was ASB's senior loan-collection officer, who was certainly qualified to testify about ASB's loan-making policies and practices. His testimony persuasively confirmed the facial appearance of the promissory note and loan-disbursement instruction and receipt, both dated August 15, 1986, that these documents and the loan were made as contemporaneous events by or at the direction of ASB employees who processed the loan transaction. Further, as a banking institution, ASB regularly did and still does make loans and require the promissory note and loan-disbursement documents as an integral part of such transactions. Nothing in evidence suggests any untrustworthiness about these documents.

Since the borrower was identified in the promissory note and loan disbursement as Groves Service Station and the signatures on these documents were not legible, authenticity of the originals of these documents was also at some issue. ASB dealt with this question by presenting an original promissory note and loan-disbursement instruction and receipt for a separate loan by ASB to defendant Arthur Meredith and Lorina, his wife. Their signatures on these second loan documents are clearly the same as the signatures on the Groves Service Station loan documents. These second loan documents were equally admissible as records of regularly conducted activity and satisfactorily authenticated the promissory note and loan disbursement at issue.

The photocopy duplicates of the promissory note and loan disbursement were also properly admitted in evidence. [24ASR2d81]

III. Stay of Execution

There are no legitimate issues on appeal in this action. The injustice involved would be to further prolong ASH's opportunities to satisfy the judgment. Thus, a stay of execution is inappropriate.

IV. Orders

The motions for reconsideration or new trial and for stay of execution are denied.

It is so ordered.

*********

1. This approach is consistent with 28 U.S.C. § 1731: "The admitted or proved handwriting of any person shall be admissible for purposes of comparison, to determine genuineness of other handwriting attributed to such person."

American Samoa Power Auth.; Samoana Fellowship, Inc. v.


SAMOANA FELLOWSHIP, INC. and
RAYMOND and SESE McMOORE, Plaintiffs

v.

AMERICAN SAMOA POWER AUTHORITY, ABE MALAE,
and MICHAEL DWORSKY, Defendants

High Court of American Samoa
Trial Division

CA No. 20-93

June 15, 1993

__________

A motion to dismiss will be treated as a summary judgment motion when evidence extrinsic to the complaint is presented to and considered by the court. T.C.R.C.P. 12(b)(6), 56. [24ASR2d72]

In deciding a summary-judgment motion, a court views the pleadings and supporting papers in the light most favorable to the non-moving party; nonetheless, the parties' differing in their characterization of the facts but not the facts themselves does not create a "genuine issue of material fact." T.C.R.C.P. 56(c).

Claims for money damages are seldom moot and are subject to judicial resolution, even if other issues in a lawsuit are moot.

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

Counsel: For Plaintiffs, Togiola T.A. Tulafono
For Defendants, Robert A. Dennison III

On Motion to Dismiss :

On February 12, 1993, plaintiffs Samoana Fellowship, Inc. and Raymond and Sese McMoore filed suit for injunctive, declaratory , and monetary relief. Defendants American Samoa Power Authority, Abe Malae, and Mike Dworsky filed a motion to dismiss on March 9, 1993. Referencing the "Project Notification and Review System Stop Order Notice," dated February 25, 1993, and "Notice of Termination and Demand for Delivery of Possession," dated March 4, 1993, defendants argue that the stop order was proper and that the lease was terminated, making plaintiffs' lawsuit moot. The motion was heard on May 12, 1993.

I. Motion to Dismiss Treated as a Motion for Summary Judgment

A motion to dismiss (under T.C.R.C.P .Rule 12(b)(6)) will be treated as a summary judgment motion (under T.C.R.C.P .Rule 56) when evidence extrinsic to the complaint is presented to and considered by the court. "[I]f matters outside the pleadings are presented to the [] court on a motion under Rules 12(b)(6) or 12(c), and the court does not exclude them, the motion must be considered as one under Rule 56 and determined in accordance with summary judgment principles." Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992) (quoting 6 Moore's Federal Practice' 56.02[3], at 56-27 (1991)); see Mauga v. Lutu (Mem.), 10 A.S.R.2d 115, 117 (Trial Div. 1989) (moving papers supplemented by affidavits referring to matters outside the complaint); Smith v. United States, 362 F.2d366, 367-68 (9th Cir. 1966) (per [24ASR2d73] curiam) (copy of lease at issue was attached to motion as an exhibit and not excluded by court); Young v. Riggers,938 F.2d 565,568 (5th Cir. 1991) (because defendants submitted matters outside the pleadings, district court properly characterized motion as one for summary judgment and dismissed suit with prejudice).

Defendants have attached a copy of the stop order and the termination notice sent to the plaintiffs to their motion to dismiss. Defendants cite these documents as evidence that plaintiffs' entire lawsuit is moot. Because this assertion requires an adjudication on the merits as to the validity of the stop order and the notice of the lease's termination, this court will treat the motion to dismiss as a motion for summary judgment.

II. Summary Judgment

Summary judgment is only appropriate when "no genuine issue as to any material fact" exists. T.C.R.C.P .Rule 56(c); see Anderson v. Liberty Lobby, Inc., 477 U .S. 242, 247-50 (1986); Celotex Gorp. v. Gatrett, 477 U.S. 317, 322-24 (1986). In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non-moving party. D. Gokal & Co. v. Daily Shoppers Inc. , 13 A.S.R.2d 11, 12 (Trial Div. 1989) (citing United States v. Diebold, Inc., 369 U.S. 654 (1962); Lokan v. Lokan, 6 A.S.R.2d 44,46 (1987)). That is, the facts must be "beyond dispute, " and the non-moving party's factual assertions, supported by evidence such as affidavits, are presumed to be true. Ah Mai v. American Samoa Gov't (Mem.), 11 A.S.R.2d 133, 136 (Trial Div. 1989). However, the parties' differing in their characterization of the facts but not the facts themselves does not create a" genuine issue of material fact." Palelei v. Star Kist Samoa, Inc., 5 A.S.R.2d 162, 163 (Trial Div. 1987) (syllabus).

The parties disagree over the validity of the stop order and whether the lease was properly terminated. As to the termination of the lease, plaintiffs challenge whether the termination notice conformed to the lease's provisions. Although a notice of termination was filed with the territorial registrar more than 30 days after the prerequisite notice to plaintiffs, the latter is arguably inadequate. The notice to plaintiffs said that the lease was terminated, the defaults were incurable, and plaintiffs had ten days to leave. However, the lease gives 30 days to cure the default, or a longer period if the parties make a written agreement regarding defaults whose cure would take longer than 30 days. Because [24ASR2d74] the sufficiency of the notice is a matter of law, this argument is not, in itself, a bar to granting summary judgment.

However, "genuine issues of material fact" do exist. Although defendants believe that the stop order was properly issued, plaintiffs assert that the stop order was unlawful and issued in bad faith. On this issue, defendants fail to carry the burden of proof required for a motion for summary judgment. Also, the parties disagree as to whether the stop order's conditions must be met before the provision of utilities or only before final occupancy of the site and building.

Furthermore, plaintiffs also claim that defendants knew or should have known that halting the building's construction would result in damages and that defendants' actions constituted an abuse of authority. Also, plaintiffs attack defendants' motives, alleging that defendants acted in bad faith in refusing to provide utilities and that the latter's claimed grounds for their actions are a" sham." Since "genuine issues of material fact" exist, a motion for summary judgment is inappropriate.

III. Mootness

Even if the lease were validly terminated, plaintiffs' lawsuit would not be moot. In addition to injunctive and declaratory relief, plaintiffs seek compensatory and punitive damages. Even if one issue is moot, the other issues are still subject to judicial resolution. As such, "damage claims are seldom moot." Gibson v. DuPree, 664 F.2d 175, 177 (8th Cir. 1981) (per curiam) (citing 13 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3533, at 272-73 (1975)); see Gulf Publ. Co. v. Lee, 679 F.2d 44,46 n.2 (5th Cir. 1982) ("Claims for money damages ordinarily preclude a finding of mootness unless the parties have settled the case."); Washington v. James,782 F.2d 1134, 1137 (2d Cir. 1986) (seeking punitive damages preserved a "legally cognizable interest") (quoting Patrick v. Le Fevre, 745 F.2d 153, 156 n.2 (2d Cir. 1984)); see, e.g., Powell v. McCormack, 395 U.S. 486, 496, 498 (1969); City of Richmond v. J.A. Croson Co., 488 U.S. 469,478 n.l (1989) (citing Memphis Light, Gas &Water Div. v. Craft, 436 U.S. 1, 8-9 (1978)). In short, plaintiffs' lawsuit remains viable.

IV. Conclusion

Although styled a motion to dismiss, defendants' motion is properly regarded as a motion for summary judgment. In this context, defendants have not met their burden of proving that no "genuine issue [24ASR2d75] of material fact" exists. Plaintiffs' lawsuit is thus not moot. Therefore, the motion is denied.

It is so ordered.

*********

American Samoa Gov’t v. Wilson,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

PENIAMINA WILSON, Defendant

High Court of American Samoa
Trial Division

CR No. 8-93

April 29, 1993

__________
[24ASR2d27]

The decision to sever properly joined defendants is at the trial court's discretion and should be granted only if there is a serious risk that a joint trial would compromise a defendant's specific trial right or prevent the jury from making a reliable judgment about guilt or innocence, T,C.R.Cr.P. 8(b), 14.

A non-capital criminal defendant is not constitutionally or procedurally entitled to a list of the prosecution's prospective witnesses. U.S. Const. Amend. V; Rev. Const. Am. Samoa Art. I, § 2; T.C.R.Cr.P. 16(a)(2).

A bill of particulars is not required as long as a defendant has enough information to adequately prepare a defense, avoid surprise at trial, and protect him against a second prosecution for an inadequately described offense; as such, a defendant is required to look at all of the government's sources and not simply the information formally charging him with the crime.

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

Counsel: For Plaintiff, Donald M. Sheehan, Assistant Attorney General
For Defendant, Jill W. Crew and Charles V. Ala'ilima

Defendant Peniamina Wilson brought several pre-trial motions.

A. On Motion for Severance

Defendant seeks to sever his trial from that of the other defendants. He asserts that if this is not done, the jury will infer conduct of his co-defendants upon him, in contravention of his right to an impartial jury .Additionally, he maintains that, due to the large number of defendants and the relatively small number of peremptory challenges, he will not be able to obtain "jurors that are preferred and desired to be selected."

We note at the outset that the decision to sever properly-joined defendants (and all parties have agreed that defendants were properly joined, per T.C.R.Cr.P. 8(b) is made at the sound discretion of the trial court. See, e.g., United States v. Lane, 474 U .S. 438, 449, n.12 (1986). The United States Supreme Court has stated that a
court should grant a severance under Rule 14 [the equivalent
of T.C.R.Cr.P.14] only if there is a serious risk that a joint
trial would compromise a specific trial right of one of the
defendants, or prevent the jury from [24ASR2d28] making
a reliable judgment about guilt or innocence.... For example,
evidence of a co-defendant's wrongdoing in some circumstances
erroneously could lead a jury to conclude that a defendant was
guilty. When many defendants are tried together in a complex
case and they have markedly different degrees of culpability,
this risk of prejudice is heightened.

Zafiro v. United States, 61 U.S.L.W. 4147,4148 (U.S. Jan. 26,1993) (No. 91-6824) .While none of these factors mandates that a separate trial be granted, they are to be considered in deciding upon a severance motion.

Defendant's contention that he will be unable to obtain jurors he prefers is wholly lacking in merit. It is well settled that a defendant does not have the right to a trial by any particular jury or jurors, but only to a trial by a competent and impartial jury. This he will get.

Taking into account all of the above considerations, the court agrees to spare the defendant the possible burden of being tried together with eight other defendants. Utilizing the sound discretion which informs the decision to sever co-defendants under T.C.R.Cr.P. Rule 14, we order that defendant Peniamina Wilson shall be tried together with defendants Ronald Tui, Fautua Maiava, and Tamasamoa Tauai.

The Motion for Severance is, therefore, GRANTED, on the conditions stated above.

B. On Motion to Suppress Written Statement and Photo Line-Up

Defendant asserts that the written statement of defendant made on the morning of December 29, 1992, was invalid, as defendant was not informed of his constitutional rights before such statement was made. In addition, he contends that the photographic line-up used to identify him was unduly suggestive and violative of his due process rights and that any evidence obtained as a result of this lineup should be suppressed. In the interest of brevity, we state here only that these arguments lack merit. A fuller discussion may be found in our Order dated April 28, 1993, in CR No: 03-93.

The Motion to Suppress Written Statement and Photo Line-Up is, therefore, DENIED.[24ASR2d29]

C. On Motion for List of Prosecution Witnesses

The defendant has shown no need for a list of prosecution' witnesses and is not entitled to one under either T.C.R.Cr.P. Rule 16(a)(2) or the Constitution. See United States v. Napue, 834 F .2d 1311, 1317 (7th Cir. 1987).

The Motion for List of Prosecution Witnesses is, therefore, DENIED.

D. On Motion for Bill of Particulars

Defendant claims that the information filed by the government is lacking sufficient detail to enable him to properly prepare for trial. He asks for additional information establishing the elements of the charges brought against him, namely assault in the first degree, assault in the third degree, and fabricating physical evidence. We do not find that the information provided by the government to be so wanting as to require such a bill of particulars.

So long as the defendant has enough information to "adequately prepare his defense, to avoid surprise during the trial and to protect him against a second prosecution for an inadequately described offense, " United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir. 1972), a bill of particulars is not required. The defendant is required to look at all of the sources provided by the government, not simply the information formally charging him with the crime. See 1 C. Wright, Federal Practice and Procedure §§ 129, at 437 (1982). We are satisfied that the government has provided sufficient specificity to make the defendant aware of the charges and to allow him to prepare for his defense. "Bills of particulars are not to be used as a discovery tool by the defendant," U.S. v. LBS Bank-New York, Inc., 757 F. Supp. 496, 507 (E.D. Pa. 1990); to allow the defendant his motion would be to sanction just such a procedure.

The Motion for Bill of Particulars is, therefore, DENIED.

E. On Motion to Dismiss

The defendant's final motion seeks to dismiss the charge of Fabricating Physical Evidence for lack of evidence. At the hearing, defendant's counsel contended that the government did not identify which document was misleading or which government official was misled. The government replied that the document in question was the statement made [24ASR2d30] by the defendant on the morning of December 29, 1992, and the government officials mislead by this document were those investigating the incident, who were present at the preliminary examination of the defendant. We are satisfied that there was sufficient evidence at the time of this preliminary examination to sustain the charge against the defendant.

The Motion to Dismiss is therefore DENIED.

It is so ordered.

*********

American Samoa Gov’t v. Tauai,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

TAMASAMOA TAUAI, Defendant

High Court of American Samoa
Trial Division

CR No. 7-93

April 29, 1993

__________

The decision to sever properly joined defendants is at the trial court's discretion and should be granted only if there is a serious risk that a joint trial would compromise a defendant's specific trial right or prevent the jury from making a reliable judgment about guilt or innocence. T.C.R.Cr.P. 8(b), 14.

A defendant's statements will not be suppressed when his assertion that his Miranda-rights waiver was coerced is contradicted by his pleadings and a police investigator's testimony.

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

Counsel: For Plaintiff, Donald M. Sheehan, Assistant Attorney General
For Defendant, Afoa L. Su'esu'e Lutu

Defendant Tamasamoa Tauai brought two pre-trial motions.

A. On Motion/or Severance

Defendant joins in the motion by co-defendant Eti Fealoafa'i, to sever his trial from that of the other defendants. He asserts that if this is not done, the jury will infer conduct of his co-defendants upon him, in contravention of his right to an impartial jury. Additionally, he maintains that, due to the large number of defendants and the relatively small number of peremptory challenges, he will face a jury containing members that "he does not want there."

We note at the outset that the decision to sever properly-joined defendants (and all parties have agreed that defendants were properly [24ASR2d24] joined, per T.C.R.Cr.P. 8(b) is made at the sound discretion of the trial court. See, e.g., United States v. Lane, 474 U.S. 438, 449, n.12 (1986). The United States Supreme Court has stated that a

court should grant a severance under Rule 14 [the equivalent
of T.C.R.Cr.P. 14] only if there is a serious risk that a joint trial
would compromise a specific trial right of one of the defendants,
or prevent the jury from making a reliable judgment about guilt
or innocence.... For example, evidence of a codefendant's
wrongdoing in some circumstances erroneously could lead a
jury to conclude that a defendant was guilty. When many
defendants are tried together in a complex case and they have
markedly different degrees of culpability, this risk of prejudice
is heightened.

Zafiro v. United States, 61 U.S.L.W. 4147, 4148 (U.S. Jan. 26, 1993) (No.91-6824). While none of these factors mandates that a separate trial be granted, they are to be considered in deciding upon a severance motion.

Defendant's contention that he will be unable to utilize his peremptory challenges to screen out jurors that he does not want is wholly lacking in merit. It is well-settled that a defendant does not have the right to a trial by any particular jury or jurors, but only to a trial by a competent and impartial jury .In addition, T.C.R.Cr.P. 24(b) gives the trial court discretion, in joint trials, to grant additional peremptory challenges to the defendants, so as to relieve possible inequities of such trials.

Taking into account all of the above considerations, the court agrees to spare the defendant the possible burden of being tried together with eight other defendants. Utilizing the sound discretion which informs the decision to sever co-defendants under T.C.R.Cr.P .Rule 14, we order that defendant Tamasamoa Tauai shall be tried together with defendants Ronald Tui, Fautua Maiava, and Peniamina Wilson.

The Motion for Severance is therefore GRANTED on the conditions stated above. [24ASR2d25]

B. On Motion to Suppress Statements

The defendant states that he gave statements to investigators on three occasions: a written statement on December 29, 1992; an oral statement on January 7, 1993; and another written statement on January 12, 1993. All of these statements, the defendant asserts, were made in custodial situations, involuntarily, and without a proper waiver of "Miranda rights."

With respect to the written statement given on December 29, 1992, we find that no custodial situation existed, there being no indication that the statement made at that time was anything less than voluntary .A more complete discussion is contained in our Order dated April 28, 1993, in CR No.03-93 and, for reasons of brevity, will not be repeated here. With respect to the other two statements, however, we are faced with contradictory versions of what occurred.

The Attorney General's investigator, Sam Matagi, testified that he orally informed the defendant of his constitutional rights prior to obtaining the oral statement on January 7. Indeed, as an added precaution, he simultaneously obtained the signature of the defendant on a standard Department of Public Safety waiver of constitutional rights. The defendant acknowledges that this took place. However, he raises two objections. In his written motion to suppress, he asserts that the waiver was made "in a coercive atmosphere which vitiated any purported waiver of Miranda rights." At the hearing, he stated that, on January 7, Matagi told him to sign the standard waiver form without discussing its contents. This testimony contradicts both his pleadings and the testimony of Matagi, and for that reason will be discounted.

Likewise, we look upon the claim that the January 7 statement was given in an atmosphere so coercive as to negate the defendant's waiver with skepticism. Matagi telephoned the defendant and requested that he come down to the Attorney General's Office to be interviewed. The defendant did not refuse but came willingly. Matagi told him he was not in custody and was free to leave at any time. After the process was completed, the defendant was not placed in custody but left freely. These are not the hallmarks of an overly coercive atmosphere.

On January 12, 1993, Matagi called the defendant back to the Attorney General's Office to provide a written statement. Matagi again told him that he was not in custody and was free to leave at any time. Although he did not specifically re-read the defendant his Miranda rights, [24ASR2d26] he did state that the defendant retained those rights and could stop writing whenever he wished. At this point, two versions of the ensuing events emerge. The defendant asserted that he initially wrote a statement which read, roughly, "Today, this morning, I am not going to make a statement to you." When he presented this to Matagi, the latter looked at it and told him to write another statement. He then did so, producing the statement which defendant now seeks to suppress.

Matagi, however, recalls differently. He stated that he asked the defendant to voluntarily write a more specific accounting of the events they had previously discussed five days earlier. Matagi left the room, and when he came back, the defendant produced such a statement. We are disinclined to believe that Matagi refused to accept the defendant's written refusal to give a statement. Such an act would be at odds with that investigator's conduct and would be against the prosecution's interest. It would not, however, be against the defendant's interest. We are asked, essentially, to make a choice of who to believe. Upon the testimonies presented, we believe that there was only one written statement prepared by the defendant on that day.

The Motion to Suppress the Statements of the Defendant is therefore DENIED.

It is so ordered.

**********

American Samoa Gov’t v. Suiaunoa,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

MASEFAU SUIAUNOA, Defendant

High Court of American Samoa

Trial Division

CR No. 13-93

September 24, 1993

__________
[24ASR2d162]

Although a defendant is not to be prejudiced because of his indigent circumstances, he is not entitled to a transcript as of right simply upon demand.

Before KRUSE, Chief Justice.

Counsel: For Plaintiff, Donald M. Sheehan, Assistant Attorney General
For Defendant, Gata E. Gurr

On Motion to Prepare Free Transcript:

Defendant requests the court to order, free of charge, the preparation of the complete transcript of the first trial in this matter (which was declared a mistrial on August 26, 1993, owing to the jury's inability to arrive at a unanimous verdict), to be made available by November 30, 1993, the date set for retrial. No reasons are given for the request; however, the related proceedings involved some two weeks of testimony.

The defendant is an indigent, and while he is not to be prejudiced in his defense because of his indigent circumstances, see Roberts v. LaValle, 389 U.S. 40 (1967), this certainly does not mean that he is entitled to a transcript as of right simply upon demand. The judicial branch has only three court reporters to cover the needs of two justices and one district court judge. Besides their daily reporting of court proceedings, the reporters are also involved with the preparation of trial transcripts requested by parties in anticipation of the pending appellate session in the month of November. At the same time, they are the only reporters on island available to attend to the discovery needs of attorneys. These are the realities in American Samoa which furnish context to Roberts v. LaValle.

The equal protection concerns of Roberts v. LaValle merely ensure that an indigent defendant shall not be disadvantaged in his defense simply because he cannot afford the usual money charge for the production of a transcript. These equal protection concerns are not the same thing as an unrestricted license to burden the court's resources without question and without regard to need. Roberts v. LaValle stands for the proposition that an indigent defendant is not to be disadvantaged by his financial status; it does not mean that he is to be favored because of his status. Certainly, the equal protection concerns of Roberts v. LaValle do not translate into defense counsel's convenience. [24ASR2d163]

Both counsel and the defendant were present throughout the course of the proceedings thus far; they ought to know what transpired below and, therefore, what it is they are specifically looking for in order to prepare for trial.

These requests for transcripts from indigent defendants, as compared to non-indigent defendants, are becoming rather routine. The habitual expectation of the entire transcript of an earlier proceeding, even in the vague hope that something may come up, is thoroughly discouraged. Additionally, the need for a transcript should be seasonably discovered by counsel, and motions should be seasonably made rather than impose unnecessarily pressing deadlines on the reporters.

On showing made, the motion is DENIED.

It is so ordered.

*********

Foster ; Lutali v.


GOVERNOR A.P. LUTALI, on Behalf of
DEVELOPMENT BANK OF AMERICAN SAMOA,
Plaintiff

v.

MABEL FOSTER and
AMERICAN SAMOA DEVELOPMENT CORP.,
Jointly and Severally, Defendants

High Court of American Samoa
Trial Division

CA No. 37-93

June 30, 1993

__________

Similar to a petition for a preliminary injunction, the decision to grant or deny a motion for a stay of an injunction pending appeal depends partly on the "balance of equities" and partly on the likelihood of appeal's success. A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8.

Corporate directors claiming economic loss are not entitled to a stay of an injunction pending appeal when they lack standing because they are not parties to the lawsuit against the corporation and when their individual economic interests are not coincidental with or necessarily those of the corporation; in any event, prospective monetary loss as a result of an injunction is insufficient to suspend an injunction. A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8. [24ASR2d82]

Regarding a motion to stay pending appeal, the moving party bears the burden of showing "cause" as to why an injunction should be stayed and must show that he is likely to prevail on the appeal's merits. A.S.C.A. § 43.0803; T.C.R.C.P. 62(c); A.C.R. 8.

Before KRUSE, Chief Justice.

Counsel: For Plaintiff, Malaetasi M. Togafau, Attorney General,
and Jennifer L. Joneson, Assistant Attorney General
For Defendants, Asaua Fuimaono

On Motion to Stay:

Defendants seek a stay, pending appeal, of the court's final order entered herein enjoining the defendant Mabel Foster, Secretary of the American Samoa Development Corporation (ASDC), from failing to call certain shareholders' meetings as demanded by plaintiff, the majority shareholder of ASDC. In these matters, where the order sought to be stayed is an injunction, "the decision to grant or deny a stay pending appeal is similar to that on a preliminary injunction, depending partly on the 'balance of equities' and partly on the likelihood that the appeal will be successful." Asifoa v. Lualemana, 17 A.S.R.2d 10, 13 (App. Div. 1990). At the same time,

[a] court should not grant a stay of judgment pending
appeal automatically or casually. To do so would encourage
losing litigants to file appeals in which they had no serious
hope of prevailing, simply in order to postpone the effective
date of judgment. The court's discretion to grant a stay
should therefore be exercised only "for cause shown."

Id. at 12 (citing A.S.C.A. § 43.0803; T.C.R.C.P .62(a), (c); A.C.R. 8).

On the first consideration, balancing equities between the parties, the defense claims that their appeal will become moot if the injunction is not stayed. In this regard, counsel at the hearing explained irreparable injury to his clients in terms of economic loss to the current [24ASR2d83] directors (1) if in fact they are voted out of office before the time the appeal can be heard.

The immediately glaring problem with this ground is that the directors are not parties in these proceedings, and hence are without standing, nor are their individual economic interests coincidental with or necessarily those of ASDC. In any event, a prospective monetary loss as a result of an injunction is insufficient ground to suspend the injunction. Stop H-3Associationv. Volpe, 353 F. Supp. 14 (D.C. Haw. 1972).

As to likelihood of prevailing on appeal, the defendants here simply submit, without further evidence, that they will prevail on appeal. They essentially premise this submission upon the "conviction" that the appellate court will opt for their legal position (or construction argument) over that of the trial court. Indeed, at the hearing on the motion, counsel's submission was simply that the appellate court "might" see things otherwise.

As alluded to above, the burden in these matters is on the movant to show "cause" as to why the court's injunctive order should be stayed. A.S.C.A. § 43.0803. Part and parcel of that burden requires some sort of showing that movant is likely to prevail on the merits of the appeal. Asifoa v. Lualemana, supra; T .C.R.C.P .Rule 62(c). Defendants' subjective and self -serving declaration, upon mere "conviction," hardly meets this aspect of the required showing.

We conclude that the defendants have failed to show "cause," A.S.C.A. § 43.0803, and accordingly exercise our discretion against granting a stay. The motion is, therefore, DENIED.

It is so ordered.

*********

1. The testimony on record reveals that the various benefits and fees presently accruing to the ASDC directors and officers include: a director's fee of $200 per "regular" board meeting and $100 per "special" board meeting; attorney's fees for such legal services as may be rendered at these board meetings by the chairman of the board, who is also an attorney-at-law; an additional remuneration package for the president consisting of $1000 per month, a credit allowance of $500 per month for "promotional " purposes, a room at the hotel, and access to a corporate vehicle.

Foster; Lutali v .


GOVERNOR A.P. LUTALI, on Behalf of
DEVELOPMENT BANK OF AMERICAN SAMOA ,
Plaintiff

v.

MABEL FOSTER and
AMERICAN SAMOA DEVELOPMENT CORP.,
Jointly and Severally, Defendants

High Court of American Samoa
Trial Division

CA No. 37-93

June 3, 1993

__________

A court's mandate is to decide controversies between adverse parties and their respective viewpoints, not to decide which policies. public or otherwise, are best; such policy decisions properly belong to other branches of government.

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

Counsel: For Plaintiff, JenniferL. Joneson, Assistant Attorney General
For Defendants, Asaua Fuimaono

On Motion to Reconsider:

Defendants move the court to reconsider its decision and order entered May 3, 1993, in the above-entitled matter. Defendants , submissions are twofold: a) "that the court erred by alluding to possible breach of fiduciary duty owed by Board of Directors to the shareholders," an issue which, while not before the court, was "at least partially" the premise for the decision; and b) that the court "overlooked" defendants' argument relating to the construction of A.S.C.A. § 30.0141(a).

I. Contrary to defendants' assertions, the issue before this court at trial was not whether ASDC's board of directors violated its fiduciary duty as such, but whether it improperly tried to insulate itself from the stockholders' control by failing to call a special meeting. This court merely noted the fiduciary duty owed by a corporation's board of [24ASR2d54] directors to the stockholders and observed that a board's attempt to insulate itself from accountability to the shareholders is inconsistent with this duty. A finding that ASDC's board acted contrary to ASDC's articles of incorporation and bylaws by failing to call the mandated special shareholders' meeting is thus separate from an evaluation of the board's competence regarding the corporation's management and operation. Thus, the decision did not "rel[y] , at least partially," on other matters falling within the general rubric of "fiduciary duty," nor did this court make its decision "armed with the knowledge" that the incumbent board was denied the opportunity to defend its competence.

II. This court did not "overlook[] defendant's [sic] [construction] argument" ; rather, the argument was considered and rejected because it lacked, in our view, a legal and evidentiary basis. Defendants' assertion that A.S.C.A. § 30.0141 "is subject, at the maximum, to two differing interpretations" simply fails to acknowledge this court's interpretation--that the statutory requirement of electing members of a board of directors at the stockholders' annual meeting is distinct from removing and subsequently replacing those members.

Defendants' "ordinary meaning of language" argument is also baseless. Use of this rationale undermines defendants' position, as "shall " is clearly not a synonym for "only. " Indeed, the absence of the express limitation that elections may "only" be held at the regular, annual stockholders' meeting supports the premise that other directors' elections may be held at special, stockholders' meetings.

In short, the opinion of this court did not concern the competence of the current board of directors, nor did it conflict with the applicable statutory provisions. Furthermore, the mandate of this court is to decide controversies between adverse parties and their respective viewpoints, not to decide which policies, public or otherwise, would best promote the" smooth operation of the hotel. "Such policy decisions are separately and properly placed elsewhere in government. Thus, this court confined itself to ordering ASDC's secretary to carry out her duty to call, as required by ASDC's articles of incorporation and bylaws, the special, shareholders' meeting requested by the plaintiff.

Defendants' motion for reconsideration is DENIED.

It is so ordered.

*********

Foster; Lutali v.


GOVERNOR A.P. LUTALI, on Behalf of
DEVELOPMENT BANK OF AMERICAN SAMOA,
Plaintiff

v.

MABEL FOSTER and
AMERICAN SAMOA DEVELOPMENT CORP.,
Jointly and Severally, Defendants

High Court of American Samoa
Trial Division

CA No. 37-93

May 3, 1993

__________

A statutory provision that corporate directors be elected at the annual meeting does not preclude the shareholders from removing members of the board of directors and holding a special election to elect replacement directors. A.S.C.A. § 30.0141(a).

A corporate board of directors has a fiduciary duty to the corporation and its shareholders, and an attempt by a board to insulate itself from accountability to the shareholders is inconsistent with this duty.

The High Court possesses the statutory authority to issue an injunction if it deems money damages to be an inadequate remedy; as such, it may order a special shareholders' meeting if a board of directors, though lacking any discretion in the matter, fails to call a meeting. A.S.C.A. § 43.1302.

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

Counsel: For Plaintiff, Jennifer L. Joneson, Assistant Attorney General
For Defendants, Asaua Fuimaono

This matter came on regularly for trial on Apri130, 1993, upon plaintiff's complaint for injunctive relief. Prior to filing suit, plaintiff had thrice requested the secretary of the American Samoa Development Corporation (hereinafter ASDC) to call a special shareholders' meeting. In letters dated February 11 and 25, 1993, plaintiff sought a shareholders' meeting to vote upon whether to remove the current board [24ASR2d40] members and, if they were removed, to replace them. Also requested in the second letter was a vote to repeal the board's February 5th amendment to the bylaws.

In his letter dated March 15, 1993, plaintiff requested a special shareholders' meeting to amend the ASDC's articles of incorporation. Among other things, a vote would be taken to transfer from the board to the shareholders the power to amend the bylaws. However, the board met and voted to reject the first two requests for a special shareholders' meeting and never responded to the third request. As such, Mabel Foster, ASDC's secretary , has failed to call such a meeting.

The two issues in this case, then, are whether Mabel Foster should be enjoined from failing to call a special shareholders' meeting to (1) amend ASDC's articles of incorporation and (2) remove the current board of directors and elect a new board.

According to ASDC Articles of Incorporation § 11, the articles of incorporation may be amended by a majority vote of the stockholders. At trial, defendants conceded that Mabel Foster should call within sixty days a special shareholders' meeting for this purpose, and they stipulated to an injunction to that effect. Defendants' objection to the meeting's purposes of removing and electing new directors, though, misses the point. Even if such actions were currently prohibited, they would be entirely proper if the proposed changes in the articles of incorporation and the bylaws were adopted by the shareholders. Mabel Foster, as secretary of the ASDC, is thus obligated to call a special shareholders' meeting for the purposes enumerated in plaintiff's letter of March 15, 1993.

Likewise, plaintiff seeks to hold a special shareholders' meeting for the purposes of removing the current members of the Board of Directors and electing replacements for them. According to ASDC Bylaw § 2(b), special meetings of the stockholders may be called for any purpose, and the secretary shall call a meeting when a written request has been signed by owners of at least ten percent of the common stock entitled to vote. Both parties have stipulated that the Development Bank holds at least ten percent of ASDC's shares.

Previously, defendants had challenged plaintiff's right to vote the Development Bank's stock. Nevertheless, ASDC Bylaw § 2(j) provides that an officer designated by the Governor may vote the government-owned shares. Furthermore, in a letter dated April 15, 1993, the [24ASR2d41] those members, even if the latter results in a special election to choose new directors. That members of a board of directors are elected at an annual meeting by the stockholders does not mean that the former are entitled to hold their offices, without any interference, for their entire terms. Indeed, ASDC Bylaw § 4(b) specifically provides that the stockholders may remove a member of the board of directors.

In short, the election procedures set forth in the statutes, articles of incorporation, and bylaws are just that--procedures by which a corporation regularly selects its officials. These procedural provisions, though, do not confer additional authority on a board of directors, nor do they impose additional limits on the stockholders.

A corporate board of directors has a fiduciary duty to the corporation and its stockholders. See, e.g., Norlin Corp. v. Rooney, Pace Inc., 744 F.2d 255,264 (2d Cir. 1984) (New York law); In re Slack, 787 F.2d 503,506 (loth Cir. 1986) (Utah law); Delano v. Kitch, 663 F.2d 990, 997 (loth Cir. 1981) (Kansas law), cert. denied 456 U .S. 946 (1982); Ohio Drill & Tool Co. v. Johnson, 625 F.2d 738,742 (6th Cir. 1980) (Ohio law). An attempt by a board to insulate itself from accountability to the shareholders is inconsistent with this duty. "[N]o board can ...usurp the power of control of the corporation vested by law in the shareholders." Czech Catholic Union v. Satla Realty Corp., 117 N.E.2d 610, 616 (Ohio 1954).

The High Court possesses the statutory authority to issue an injunction if it deems money damages to be an inadequate remedy. A.S.C.A. § 43.1302. This includes an order to hold a special shareholders' meeting after a board of directors, though lacking any discretion in the matter, fails to call a meeting. See Auer v. Dressel, 118 N.E.2d 590, 592 (N. Y. 1954) (mandamus to compel special stockholders' meeting); Sartlett v. Gates, 118 F. 66, 71-73 (C.C.D. Colo. 1902) (stockholders supporting the incumbent board of directors [24ASR2d42] engaged in a sham suit against the latter and obtained an ex parte injunction enjoining the annual stockholders' meeting; at trial this injunction was modified to order a stockholders' meeting and to appoint a special master to supervise the meeting); see generally Annotation, "Remedies to restrain or compel holding of stockholders' meeting," 48 A.L.R.2d 615 (1956 & Supp. 1986).

Because money damages would constitute an inadequate remedy in this case, this court grants the plaintiff an injunction against the defendants. Mabel Foster, ASDC's secretary, is hereby enjoined from failing to carry out her duty to call a special shareholders' meeting as requested by plaintiff. She is to call a special shareholders' meeting to amend ASDC's articles of incorporation and to remove and elect members of ASDC's board of directors, and she is to give the shareholders the requisite sixty-day a11d ten-day notice, respectively.

It is so ordered.

*********

Fonoti, Tuioti v.


TUIOTI K. LOKENI, Plaintiff

v.

FONOTI TAFA`IFA, for himself and on behalf of
the FONOTI FAMILY, and THE CONGREGATIONAL
CHRISTIAN CHURCH OF AMERICAN SAMOA and
IERUSALEMAFOU CONGREGATIONAL CHRISTIAN
CHURCH OF AMERICAN SAMOA IN TAFUNA, Defendants.

LT No. 12-93

August 2, 1993

__________

When the issue of the alienation of a parcel of communal land was improperly referred to the Secretary of Samoan Affairs instead of being the subject of a Land Commission hearing, the action was dismissed as being prematurely before the court.

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

Counsel: For Plaintiff, Pro Se
For Defendant The Congregational Christian Church of
American Samoa and Ierusalemafou Congregational Christian
Church of American Samoa in Tafuna, Afoa L. Su`esu`e Lutu
[24ASR2d101]

Order Dismissing Action and Remanding to Territorial Registrar:

A motion to dismiss this action by defendant The Congregational Christian Church of American Samoa and Ierusalamafou Congregational Christian Church of American Samoa in Tafuna ("the church") came regularly for hearing on July 19, 1993. Plaintiff Tuioti K. Lokeni ("Tuioti") appeared pro se. Defendant Fonoti Tafa`ifa ("Fonoti") did not appear.

This is the church's second motion to dismiss on the grounds of Tuioti's failure to prosecute this action. In his notice, dated March 3, 1993, the clerk of courts notified Tuioti that this action would be dismissed if he, as an objector to the land transaction at issue, failed to move forward within 20 days after receiving the notice. The notice was served on March 5, 1993. On May 7, 1993, the first motion was heard and, in view of Tuioti's appearance and expressed intention to participate in this action, was denied. At the same time, Tuioti was afforded 20 additional days to retain counsel and/or file an appropriate pleading.

Tuioti's failure to meet this deadline prompted the church's second motion to dismiss. Although a further extension of time to Tuioti is warranted due to two deaths in his family during May 1993 and his actual but so far unsuccessful efforts to retain counsel, the church correctly pointed out at the second hearing that this controversy is not ripe for judicial determination.

The underlying transaction at issue is the alienation, pursuant to A.S.C.A. §§ 37.0201 et seq., of approximately one acre of a portion of the Fonoti family's communal land, known as "Alatutui," in Tafuna, American Samoa. In a deed of conveyance dated October 29, 1992, Fonoti, as the senior matai ("sa`o") of the family, granted the land to the church. On the same day, the territorial registrar issued a notice of a hearing before the land commission on December 28, 1992, to formulate the commission's recommendation to the Governor on this proposed alienation of communal land, as required under A.S.C.A. § 37.0203.

On December 21, 1992, Tuioti filed his objection to the conveyance with the territorial registrar. Instead of proceeding with the scheduled hearing before the Land Commission, the Acting Territorial [24ASR2d102] Registrar(1) referred the matter on January 7, 1993, to the secretary of Samoan affairs for dispute resolution proceedings under A.S.C.A. § 43.0302. In due course, on February 11, 1993, the acting secretary issued a certificate of irreconcilable dispute, and on February 23, 1993, the acting registrar submitted the matter for judicial determination.

This procedural misdirection effectively converted the issue from one of alienation/document registration to one of title registration, thus circumventing the land commission's recommendation process and depriving the Governor of his authority over approval of the conveyance. Under these circumstances, the issue is prematurely before the court. Thus, this action must be dismissed and remanded to the territorial registrar for proper referral to the land commission and the Governor.

It is so ordered.

**********

1. Under A.S.C.A. § 37.0202, the territorial registrar is statutorily both a member and the secretary of the land commission.

Felise v. Workmen's Comp. Comm’r,


IPOLITO FELISE, Petitioner

v.

WORKMEN'S COMPENSATION COMMISSIONER,
Respondent

AMERICAN SAMOA GOVERNMENT and
CONTINENTAL INSURANCE CO.,
Real Party in Interest

High Court of American Samoa
Trial Division

CA No. 27-93

July 22, 1993

__________

Though mislabeled with an appellate-division rather than a civil-division number and not specifically requesting statutorily-provided injunctive relief, a petition for judicial review of a Workmen's Compensation Commission order was sufficient to toll the statute of limitations and so avoid dismissal.

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

Counsel: For Petitioner, Charles V. Ala'ilima
For Real Party in Interest, Roy J.D. Hall, Jr.

On Motion to Dismiss:

On January 15, 1993, the Workmen's Compensation Commission (WCC) filed its order denying petitioner's claim for reinstatement of "total disability benefits," which the employer had suspended pursuant to A.S.C.A. § 32.0661. On February 26, 1993, petitioner filed his petition for judicial review and sought an immediate hearing for a "briefing schedule." Since the petition sought an "AP" number, the clerk assigned an appellate docket number and calendared the requested hearing, for a briefing schedule, before the appellate division. On March 3, 1993, the matter came before a single judge of the appellate division, who ordered that the matter be transferred to the trial division and re-docketed accordingly. The Clerk thereafter assigned a "CA" docket number. On March 17, 1993, petitioner filed with the trial division a document styled "Petition For Review."

Having previously intervened, the real party-in-interest subsequently moved, through its insurer, to dismiss on the following grounds: 1) that the petition was untimely as it was not filed before the proper forum, the trial division, within the 30-day limitation period provided by A.S.C.A. § 32.0651; and 2) that the petition did not conform with the requirements of A.S.C.A. § 32.0652, which provides for review proceedings "through injunction proceedings, mandatory or otherwise, brought by any party in interest against the commissioner, and instituted in the High Court of American Samoa."

We hold that the filing of February 26, 1993, which was timely, was operative to toll the statute of limitations. That the petition was mislabeled with an "AP" number, as opposed to a "CA" number, is an insufficient reason to dismiss; "the appropriate remedy is not to dismiss the case, but simply to give it a new number." Diocese of Samoa Pago Pago v. KMST, Inc., 15 A.S.R.2d 20, 24 n.2 (1990); see also In re Beaver Family Trust, 17 A.S.R.2d 9 (1990) (Mem.) (motion to dismiss denied where petition sought relief from a non-existent probate division of the High Court).

Movant's second ground for relief essentially advances form over substance; dismissal is sought for defective pleadings. While petitioner did not exactly cast his petition in terms of "injunctive" relief, dismissal is hardly appropriate given our liberal rules of pleading. These rules require that "pleadings shall be so construed so as to do substantial justice." T.C.R.C.P. Rule 8(f); Development Bank of American Samoa v. Ilalio, 5 A.S.R.2d 110, 115 (1987). Under A.S.C.A. § 32.0652, judicial review is the only available manner of appeal to the courts. Haleck v. Scanlan, 4 A.S.R. 998 (1975); Waite v. Workmen's Compensation Commission, AP No. 106-75 (1975). Thus, petitioner's generally framed petition for judicially review may be liberally construed as seeking the "injunctive" remedy statutorily provided. As the court noted in Development Bank of American Samoa v. Ilalio:

Litigation is not an art in writing nice pleadings. . . .
The pleading rules are designed to eliminate delay, and
reduce the pleading requirement to a minimum. . . .
The real importance of the Rules dealing with pleadings
is that they make pleadings, in and of themselves,
relatively unimportant. Cases are to be decided on the
merits.

5 A.S.R.2d at 115-16 (quoting 2A Moore's Federal Practice ¶ 8.02, at 8-9). For the reasons given, we deny the motion.

It is so ordered.

*********

Fealofa'i; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT , Plaintiff

v.

ETI FEALOFA'I, Defendant

High Court of American Samoa
Trial Division

CR No. 3-93

April 28, 1993

__________

For double-jeopardy purposes, a crime is a separate offense and not a lesser-included offense if each statutory provision requires proving a fact which the other does not. U .S. Const. Amend. V; Rev. Const. Am. Samoa Art. I, § 6.

A statement made by a person who was not in a custodial situation is not subject to suppression on MirGnda grounds. U.S. Const. Amend. V.

Even an impermissibly suggestive identification procedure does not render identification testimony inadmissible if, in the totality of circumstances, the identification was nonetheless reliable.

In determining the admissibility of identification testimony, the corrupting effect of the suggestive identification is weighed against (1) the witness' opportunity to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and confrontation.

The decision to sever properly joined defendants is at the trial court's discretion and should be granted only if there is a serious risk that a joint trial would compromise a defendant's specific trial right or prevent the jury from making a reliable judgment about guilt or innocence. T.C.R.Cr.P. 8(b), 14.

A defendant does not have the right to a trial by any particular jury or jurors, but only to a trial by a competent and impartial jury. U.S. Const. Amend. VI.

Before KRUSE, Chief Justice, MAILO, Associate Judge, and BETHAM, Associate Judge.[24ASR2d11]

Counsel: For Plaintiff, Donald M. Sheehan, Assistant Attorney General
For Defendant, Togiola T.A. Tulafono

Defendant Eti Fealofa'i brought a number of pre-trial motions.

A. On Motion to Dismiss

Defendant moves to dismiss Count II of the Information, on the grounds that Count II, Assault in the First Degree, is a lesser-included offense of Count I, Murder in the Second Degree. As we stated in American Samoa Government v. Moafanua, 4 A.S.R.2d 33, 35 (1987) (quoting Brown v. Ohio, 432 U .S. 161, 166 (1977)), offenses are not inclusive so long as "each provision requires proof of a fact that the other does not."

However, a close reading of the relevant statutes, A.S.C.A §§ 46.3503 & 46.3520, reveals no element of the latter which is not present in the former. A.S.C.A. § 46.3520, Assault in the First Degree, includes the inchoate offense of homicide and, as such, is necessarily a lesser-included offense of Murder in the Second Degree.

Defendant's Motion to Dismiss Count II of the Information is therefore GRANTED .

B. On Motion to Suppress Written Statement

Defendant also moves to suppress the written statement provided to a Special Investigator of the Department of Public Safety. He contends that the statement was made while he was in a custodial situation, as "the target of police investigation," and that the failure to provide him with his "Miranda rights" at that time prevents the admission of the statement.

We are not persuaded, however, that the defendant, a police officer himself, was in a custodial situation at the time the statement was made. Nor do we find any indication that the statement was less than fully voluntary. The Special Investigator testified that the defendant was not the "target" of the investigation when Fealofa'i provided his written statement, only hours after the alleged incident occurred. To the contrary, the Special Investigator merely wanted to find out "what had happened," in general terms, and did not question the defendant with an [24ASR2d12] eye towards confirming any pre-existing theory as to what had occurred. The defendant was not arrested after giving his statement.

While it is true that the statements were given at the Tafuna Police Substation, this was the defendant's place of employment, a familiar and non-threatening environment. The defendant was on duty at the time the statement was made. The Special Investigator was not wearing any sort of uniform which might intimidate the defendant, nor was it certain that he even outranked the defendant. There was no indication that defendant was not free to leave (save, perhaps, that he was still on duty) or that he was compelled to provide the written statement. In short, there was nothing in the evidence to suggest that the defendant was in a custodial situation at any time, or that a coercive atmosphere existed, when he provided his written statement.

The Motion to Suppress the Written Statement of the Defendant is, therefore, DENIED.

C. On Motion to Suppress Photographic Line-Up

Defendant's penultimate motion, to suppress any and all information obtained as a result of the photographic line-up conducted by the Attorney General's Office, alleges that the method of identification of the defendant was unduly prejudicial. According to the Attorney General's investigator, Sam Matagi, the alleged victims were shown an array of twenty-one photographs. Of these photographs, snipped from driver's licenses, seven were of the defendants in the present case, four were of other safety officers present at either Kanana Fou or the O.M.V. police substation on the night in question, while the balance was a mix of safety officers not present that night and ordinary civilians. According to Matagi, on the reverse of each of the photographs was a number . When the alleged victims singled out one of the photographs, Matagi would note down the number, then correlate that number with the appropriate name. In some instances, the alleged victims knew the name of the officer already. Matagi testified that under no circumstances did he suggest to the alleged victims the names of the defendants or single out one particular photograph for special attention.

The defendant alleges that this photographic line-up procedure was unduly suggestive and prejudicial. We disagree. In determining admissibility of identification testimony, "reliability is the linchpin." Government of American Samoa v. Afamasaga, 17 A.S.R.2d 145, 147 (1990) (quoting Manson v. Braithwaite, 432 U.S. 98, 114 (1977)). In [24ASR2d13] Afamasaga, we rejected the defendant's allegation that a one-on-one confrontation was unduly suggestive, after noting that "even an impermissibly suggestive identification procedure does not render an identification inadmissible if, in the totality of circumstances, the identification was nonetheless reliable." Id. at 146. Factors which are to be considered in judging reliability include

the opportunity of the witness to view the criminal at the time
of the crime, the witness' degree of attention, the accuracy of
his prior description of the criminal, the level of certainty
demonstrated at the confrontation, and the time between the
crime and confrontation. Against these factors is to be weighed
the corrupting effect of the suggestive identification itself.

Id. at 147. The identification procedure used in the instant case is less susceptible to the charge of suggestiveness than the one challenged in Afamasaga. There is no reason to question either the reliability of the photo line-up or the sworn testimony of the Attorney General's investigator to the effect that he did not suggest the names of any of the defendants.

The Motion to Suppress the Photographic Line-Up is, therefore, DENIED.

D. On Motion for Severance

Defendant, in his final motion, seeks a separate trial. He asserts that if this is not done, the jury will infer conduct of his co-defendants upon him, in contravention of his right to an impartial jury . Additionally, he maintains that, due to the large number of defendants and the relatively small number of peremptory challenges, he will face a jury containing members that "he does not want there. "

We note at the outset that the decision to sever properly joined defendants (and all parties have agreed that defendants were properly joined, per T.C.R.Cr.P. 8(b)) is made at the sound discretion of the trial court. See, e.g., United States v. Lane, 474 U .S. 438,449, n.12 (1986). The United States Supreme Court has stated that a

court should grant a severance under Rule 14 [the equivalent
of T.C.R.Cr.P. 14] only if there is a serious risk that a joint
trial would compromise a specific trial [24ASR2d14] right of
one of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence..... For example, evidence
of a codefendant's wrongdoing in some circumstances
erroneously could lead a jury to conclude that a defendant
was guilty. When many defendants are tried together in a
complex case and they have markedly different degrees of
culpability, this risk of prejudice is heightened.

Zafiro v. United States, 61 U.S.L.W. 4147, 4148 (U.S. Jan. 26, 1993) (No. 91-6824 ). While none of these factors mandates that a separate trial be granted, they are to be considered in deciding upon a severance motion.

Defendant's contention that he will be unable to utilize his peremptory challenges to screen-out jurors that he does not want is wholly lacking in merit. It is well settled that a defendant does not have the right to a trial by any particular jury or jurors, but only to a trial by a competent and impartial jury. American Samoa Government v. Agasiva, 4 A.S.R.2d 110, 112 (1987). In addition, T.C.R.Cr.P. 24(b) gives the trial court discretion, in joint trials, to grant additional peremptory challenges to the defendants, so as to relieve possible inequities of such trials.

Taking into account all of the above considerations, the court agrees to spare the defendant the possible burden of being tried together with eight other defendants. Instead, he will be tried with only a single co-defendant, Thomas Schuster. The similarity of the charges aimed at these two defendants makes theirs a logical pairing.

The Motion for Severance is, therefore, GRANTED, on the conditions stated above.

It is so ordered.

It is further ordered that trial in this matter shall be held as previously scheduled.

*********

Etimani; Euta v.


SIENI EUTA, Plaintiff

v.

RINI ETIMANI, CONTINENTAL TRANSPORT SERVICES,
and INSURANCE COMPANY OF THE PACIFIC, Defendants

High Court of American Samoa
Trial Division

CA No.134-91

September 3, 1993

__________

American Samoa's comparative-negligence statute does not alter the common-law rule of joint and several liability in a personal-injury case and does not require apportionment of negligent conduct by a defendant and a non-party so as to reduce a defendant's liability . A.S.C.A. § 43.5101.

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

Counsel: For Plaintiff, Robert A. Dennison III For Defendants Rini Etimani and Continental Transport Services, Afoa L. Su'esu'e Lutu For Defendant Insurance Company of the Pacific, Roy J.D. Hall, Jr.

This action for damages for personal injuries arising out of a motor vehicle accident was tried on June 29, 1993.

FINDINGS OF FACT

This three-vehicle accident occurred about noon on June 29, 1990, on the public highway in front of the Methodist church in Lauli'i, American Samoa.

Plaintiff Sieni Euta ("Sieni ") was a passenger, riding in the right front seat of one of the vehicles, a Suzuki jeep. The driver of this vehicle was Ipipaea Taliva'a ("Ipipaea"). A Ford commercial, family or aiga bus, owned by defendant Continental Travel Services ("CTS"), was also involved. Defendant Rini Etimani ("Rini") operated this vehicle [24ASR2d140] while employed by CTS. Defendant Insurance Company of the Pacific ("ICP") provided the liability insurance coverage for this vehicle. The third vehicle, a taxi, was a Toyota sedan.

Sieni, her husband, and one minor child live in Lauli'i with Ipipaea's family. At the time of the accident, Ipipaea was taking Sieni to the American Samoa Government's medical center at Faga'alu to take care of an itching hand. The rear seat of the jeep was occupied by Peti Tuia and two minors, Jerry Leung Wai, Jr. and Wayne Leung Wai.

They left home, which was inland of the public highway. When they reached the intersection with the highway, the CTS bus was stopped to the right of the jeep, unloading and loading passengers along the westbound side of the highway. The jeep turned right onto the westbound lane of the highway and passed the bus. The bus then followed the jeep.

Heading westward from this intersection, the road in this area makes an extended right-hand curve, somewhat sharp and blind at one point. Then it curves left into a short straight section before it reaches the Methodist church. At that point, a relatively steep uphill incline begins. At the time, the road was dry, and the weather was clear.

As the two vehicles approached the Methodist church, located on their right-hand side and north of the highway, the bus was in the eastbound lane attempting to pass the adjacent jeep in the westbound lane. The taxi was in the eastbound lane in the immediate vicinity of the church.

When Rini became aware of the situation, he tried to return the bus to the westbound lane. He also instinctively braked the bus. Some testimony indicated that the taxi driver was about to turn the taxi left towards the church, but he probably intuitively slowed down and otherwise reacted to try to avoid the impending impact. However, the bus, jeep and taxi collided almost instantly. The bus and truck essentially hit head-on. Whether the bus also struck the jeep, as Sieni and Ipipaea claimed but Rini disclaimed, the jeep swerved out of control to the left and slammed into the taxi. In colloquial terms, the taxi and the jeep were "totalled."

Significant differences exist in the testimony on events during the interval from the jeep's entry onto the main road until the point of impact of the three vehicles, approximately one-quarter mile in distance.[24ASR2d141]

Sieni was aware that the bus was behind the jeep. She testified that Rini sought to bring the bus past the jeep three times, the last ending in the accident. Ipipaea did not slow the jeep to give way to the bus at any time, and Sieni did not tell Ipipaea to slow down the jeep. Ipipaea testified that she noted the bus about one car-length behind the jeep in her rear-view and side-view mirrors, but she was only once aware that the Rini was seeking to overtake the jeep--the last attempt beginning near the Roman Catholic church, about 600 feet east of the Methodist church. She and Sieni were conversing, which she thought might possibly have diverted her attention from other passing attempts by Rini.

Rini testified that at first the jeep was moving slowly ahead of the bus. He cautiously tried to overtake the jeep three times, but each time Ipipaea first increased and then decreased the jeep's speed. During the last attempt to pass, he saw the taxi ahead of the bus, but when the jeep slowed, he thought he had room to return to the westbound lane. However, Ipipaea again accelerated the jeep, and Rini could not return to the westbound lane before the bus struck the taxi.

Rini was convicted by his plea of guilty to careless driving, a misdemeanor, in connection with the accident. However, recognizing that convenient disposition rather than guilt frequently motivates guilty pleas to traffic citations, we do not assign major significance to this conviction. This decision certainly does not turn on that fact.

Rather, we are persuaded that under either version of the sequence of events, Rini's conduct was negligent and proximately caused Sieni's injuries. Under Ipipaea's account of these events, Rini used poor judgment when he attempted to pass the jeep less than one-eighth of a mile before the relatively steep uphill incline begins and where the three vehicles collided. The visible presence of the taxi, either at or shortly after the time he started overtaking the jeep, further confirms his subnormal decision.

If, on the other hand, Rini's recitation of these events is accurate, and Sieni's testimony endorsed at least the multiple passing attempts in this version, Rini'sjudgment was even more inferior. Under this scenario, Ipipaea engaged in a "cat and mouse" game with the bus, and Rini's continuing attempts at overtaking were, at best, imprudent. Starting the third passing effort was a serious error on his part. His failure to back off from passing when the taxi appeared or Ipipaea accelerated the jeep was inexcusable. [24ASR2d142]

Whichever way events truly unfolded, and we are inclined to believe that Rini ' s account is closer to fact, his operation of the bus at the moment of and immediately before the accident was not the conduct of a person of ordinary prudence in the same situation and possessing the same information. Under either set of circumstances, a reasonably prudent person would have foreseen or anticipated that someone might be injured as a result of driving a bus in Rini's manner. Rini was negligent, without which Sieni would not have been injured.

At the time of the accident, Rini was clearly performing the duties for which he was employed by CTS and was acting within the scope of his employment.

While riding in the jeep, Sieni was conversing to some extent with Ipipaea, but she acknowledged awareness of Rini's several, unsuccessful attempts to overtake the jeep. A reasonably prudent person would have told Ipipaea to slow down or take some other precaution. Sieni's failure to speak up contributed at least slightly to her injuries, for which we attribute a proportionate 5% reduction in her recoverable damages.

Sieni's right hand was severely injured. An extensive and dirty, third-degree avulsion, or tearing away of tissue, occurred on the dorsum, or back, of the hand. This degree of avulsion is the most serious, exposing in this instance metacarpi, or the bones of the hand to which the bones of the fingers are attached.

At about 5:00 p.m. on June 29, 1990, in the operating room at the government medical facility, the wound was cleansed, and dead or devitalized tissue was debrided or removed by Dr. Vaiula Tuato'o, chief of surgery .Sieni remained an inpatient and was regularly given medications to reduce pain and the risk of infection, until her discharge on July 1, 1990. She was advised but declined to undergo skin-grafting procedures as soon as possible and to have whirlpool treatments and regular dressing changes to resist infection.

Sieni missed visits, and infection developed. On July 6, 1990, she was readmitted due to the infection and to further consider skin grafting, which she ultimately refused. She was last seen by Dr. Tuato'o on September 28, 1990. At that time, contracture restricting hand flexion and extension was pronounced, but only a small area was still raw. In the doctor's opinion, her right arm was 50% disabled from the impairments in her hand and wrist joints, excluding disfigurement from[24ASR2d143] the deformed hand and permanent scar. Based on her inability to hold objects, he considered her right hand to be useless. She did not make her doctor's appointment for a final examination three months later.

In the courtroom, Dr. Tuato'o observed that Sieni had regained some wrist movement and ability to hold things. He opined that her present hand disability was in the 70% to 80% range and that her arm disability was about 40%. However, if the skin grafting had been done immediately, as he had recommended, the present disabilities would probably be 20% to 30% better than they are today.

Skin grafting is still possible today and would improve the appearance of Sieni's hand significantly. Orthopedic surgery is also still an option, but the probability of success would first require special examination and assessment. These operations can be done locally at no cost, except for inpatient charges. However, Dr. Tuato'o recommended that these procedures, if now undertaken, be done off-island. In this event, surgical expenses would be approximately $50,000, excluding costs associated with a proper recovery and rehabilitation program after each of the surgeries were completed. We also sense, resorting to a slang expression, that the doctor's "nose was bent out of shape" somewhat by Sieni's rebuff of his surgical expertise.

Unquestionably, Sieni experienced acute immediate pain from her injury .This fact was vividly substantiated by her and Ipipaea' s testimony. In some mitigation, Dr. Tuato'o explained that while a third- degree avulsion is the most severe, it tends to be less painful than first-degree and second-degree avulsions, which expose nerves and bleed profusely. Certainly, physical pain has persisted, and Sieni has endured considerable suffering over her substantial disability and disfigurement. General damages are assessed at $40,000.

The evidence affirmatively authenticated only four days of hospital inpatient care. Given Sieni's staunch rejection of skin grafting and lack of firm total-cost estimates, we are not disposed to award damages for future and, at best, conjectural surgical procedures. Resident inpatient care at the government medical facility is $7.50 per day. Thus, special damages for medical expenses are $30.

Sieni was employed by StarKist Samoa, Inc. when the accident occurred. Her hourly wage was $2.92. She customarily worked 7.5 hours per day, five days per week. As a result of the accident, she did not work from June 29, 1990, until October 17, 1990. It was not until [24ASR2d144] A

Dr. Tuato'o's examination on September 28, 1990, that she was advised that she could return to work with light duties for the next six months. Based on her usual work-week and taking into account one week of company down-time in July 1990, she missed 547.5 hours of work. At $2.92 per hour, her special damages for lost wages are $1,598.70.

CONCLUSIONS OF LAW

1. Rini and CTS, his employer, are jointly and severally liable for Sieni's damages for personal injuries. See Saufo'i v. American Samoa Gov't, 14 A.S.R.2d 15, 19,22 (Trial Div. 1990); Kim v. Star- Kist Samoa, Inc., 7 A.S.R.2d 12, 15 (Trial Div. 1988), aff'd in part and rev'd in part on other grounds, 8 A.S.R.2d 146 (App. Div. 1988). The comparative-negligence statute, A.S.C.A. § 43.5101, does not alter the common-law rule of joint and several liability in this type of case. See generally 57B Am. Jur. 2d, Negligence § 1243, at 147-48 (1989 & Supp. 1993). This statute cannot be reasonably construed to require apportionment of negligent conduct by a defendant and a non-party so as to reduce a defendant's liability. See generally57B Am. Jur. 2d, Negligence § 1239, at 143-44; see, e.g., Peterson v. Pittman, 391 N.W.2d 235, 238 (Iowa 1986); Blocker v. Wynn, 425 So. 2d 166, 168 (Fla. App. 1983).

2. ICP, as CTS' insurer, is directly liable for $10,000 of Sieni's damages for personal injuries. A.S.C.A. §§ 22.2003(3)(A), 22.2018.

3. Sieni's general damages for pain and suffering, including disfigurement, are $40,000, and special damages for medical expenses and lost wages are $1,628.70. Thus, her total damages are $41,628.70.

4. In accordance with A.S.C.A. § 43.5101, Sieni's damages are reduced by 5% .Thus, she is entitled to receive and is awarded $39,547.27 in damages.

Judgment shall enter accordingly. It is so ordered.

(As corrected per order of October 3,1993)

*********

Estate of Jennings,


Estate of MARGARET Z. JENNINGS, Deceased

High Court of American Samoa
Trial Division

PR No. 39-88

April 7, 1993

__________

Although the common law recognized holographic wills, when legislation provides for the kind of wills which may be executed and the manner of execution, a will failing to meet those statutory requirements is not valid.

The testator's signature on any will, except one involving personalty which has a total value of not more than $300, must be witnessed. A.S.C.A. § 40.0102.

In the absence of statutory authorization for privity exceptions in probate proceedings, any claims with respect to the land, lease, and improvements must be determined in an independent action.

Before RICHMOND, Associate Justice, MATA'UTIA, Associate Judge, and MAILO, Associate Judge. [24ASR2d4]

Counsel: For Administrator Wallace Jennings, Jr., Togiola T.A. Tulafono
For Ilaisa J. Thompson, Roy J.D. Hall, Jr.
For David E. Jennings' Children, Charles V. Ala'ilima

Order Approving First and Final Account of Administrator and for Final Distribution:

The motion by Wallace Jennings, Jr., administrator of the estate of Margaret Z. Jennings, for approval of the first and final account and for final distribution, came regularly on February 12, 1993, for hearing. The court, having heard testimony and considered the evidence, finds:

1. Due notice of the motion has been regularly given as prescribed by law.

2. All allegations of the account are true, except to add personalty on Swains Island to paragraph 9a below.

3. Margaret Z. Jennings died intestate on August 2, 1966, while domiciled in American Samoa.

a. An unwitnessed will has been presented to the court. The entire will, including the date of March 22, 1962, and the testator's signature, is in the handwriting of one person, who appears to have been the decedent. This holographic will reflected the intended distribution of Swains Island, along with the improvements and personalty thereon, as expressed in the will of decedent's husband, Alexander Eli Jennings, to their sons, Wallace H. Jennings and David E. Jennings. This intention was not fully carried out, as decedent exercised her right of dower and thereby acquired an undivided 1/3 interest in Swains Island, and the improvements and personalty thereon, during the probate of her husband's estate. This probate was concluded on July 26, 1962.

b. The right to a testamentary disposition of property is derived from positive law. Although the common law recognized holographic wills, when legislation provides for the kind of wills which may be executed and the manner of execution, a will failing to meet those statutory requirements is not valid. In re Brown's Estate, 172 P. 247 (Wash. 1918); Davis v. Davis, 45 S.W.2d 240, 241 (Tex. Civ. App. 1931); Ball v. Miller, 214 S.W.2d 446,450 (Tenn. Ct. App. 1948). A.S.C.A. § 40.0102 clearly requires that the testator's signature on any [24ASR2d5] will, except one involving personalty which has a total value of not more than $300, must be witnessed. Thus, decedent's holographic will cannot be recognized, except as to the personalty on Swains Island if that property has a combined value totaling no more than $300. Taking judicial notice that Swains Island is occupied and agriculturally cultivated, we infer and find that the estate's share of the personalty on Swains Island exceeds the $300 maximum limit.

4. On June 16, 1989, Wallace Jennings, Jr. was appointed administrator of decedent's estate and qualified as such on July 10, 1989. On July 24, 1989, letters of administration were issued to the administrator, who since then has been the administrator of decedent's estate.

5. Notice to creditors has been given as required by law, and the time for filing or presenting claims has expired. No claims have been filed or presented against the estate.

6. No request has been made for the court to allow and determine any fees of the administrator for discharge of his duties or any fees of his attorney for services rendered to the estate.

7. There will be no further expenses of closing the estate.

8. The estate is now in a condition to be closed.

9. The assets of the estate, which have been inventoried in the account, are not communal property and are in the hands of the administrator for distribution. The assets are as follows:

a. an undivided one-third interest, by right of dower, in Swains Island, American Samoa, and all improvements and personalty thereon;

b. an undivided one-third interest, by right of dower, in the lease of land in Village of Gataivai/Utulei, American Samoa, which was recorded on April 23, 1940, with the Territorial Registrar of American Samoa (see "Native Leases," Volume II, pp. 101-02); and

c. an undivided one-third interest, by right of dower, in the improvements for residential purposes on said leased land.

10. Said leased land and improvements are c1ainied to be communal land owned by the Atiumaletavai family, which is not in [24ASR2d6] privity with this estate. In the absence of statutory authorization for privity exceptions in probate proceedings, their claims with respect to the land, lease and improvements must be determined, as may become necessary , in an independent action. See Schlyen v. Schlyen, 273 p .2d 897, 903 (Cal. 1954); Richer v. Superior Ct. in and for the County of Los Angles, 63 Cal. App. 3d 748, 756, 134 Cal. Rptr. 52, 56 (1976) (limitation on probate court jurisdiction changed by statute).

11. Decedent had five children: Wallace H. Jennings, Lilly G . Billings, and David E. Jennings, who survived her but are now deceased; Ilaisa J. Thompson, who survived her and is still living; and Selepa J. Reed, who predeceased her. The latter left six children: Liki Reed, Ilaisa Reed, May R. Mageo, and Selepa Reed, who survived decedent and are still living; and Fritz Reed, Jr. and Rommel A. Reed, who survived decedent but are now deceased. Distribution should be ordered as specified below.

IT IS ORDERED that:

1. The administration of the estate is brought to a close.

2. All acts and transactions set forth in the account are confirmed and approved.

3. The statutory fees of the administrator and fees of his attorney, payable from the assets of the estate, are waived.

4. Notice to creditors has been given as required by law.

5. Decedent died intestate, leaving as her only heirs at law the persons, all adults, whose names and relationships to her are set forth below. They are to receive, as tenants in common, the property in the hands of the administrator. This property is to be distributed in the proportionate, undivided share set opposite each name.

  Name Relationship Share
a Wallace H. Jennings' estate Son 1/5th
b. Ilaisa J. Thompson Daughter 1/5th
c. Lilly G. Billings' estate Daughter 1/5th
d. Liki Reed Grandson 1/30th
e. Ilaisa Reed Granddaughter 1/30th
f. May R. Mageo Granddaughter 1/30th
g. Selepa Reed Granddaughter 1/30th
h. Fritz Reed, Jr.'s estate Grandson 1/30th
i. Rommel A. Reed's estate Grandson 1/30th
j. David E. Jennings' estate Son 1/5th

[24ASR2d7]

6. Any other property of the estate not now known that may belong to the estate or in which the decedent or the estate may have an interest shall be distributed in the same manner as provided in paragraph 5 of this order or, in the event any of the named heirs should then be deceased, to the estate of such deceased heir.

Judgment shall enter accordingly.

*********

Comm’r of the American Samoa Gov’t Workmen's Comp. Comm’n ; Harris v.


FA'ALUA HARRIS, Petitioner

v.

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

VCS SAMOA PACKING COMPANY, Real Party in Interest

High Court of American Samoa
Trial Division

CA No. 5-93

September 20, 1993

__________

The Workmen's Compensation Commissioner shall order a compensation-order hearing upon application of any interested party. A.S.C.A. § 32.0636(b).

Although a Workmen's Compensation order is "effective" when filed in the Commissioner's office, it does not become "final" until after 30 days; during this period of time, the Commissioner may reconsider his order. A.S.C.A. § 32.0651.

American Samoa's Workmen's Compensation Act is similar to and appears to have been based on the federal Longshoremen and Harbor Workers' Compensation Act. 33 U.S.C. §§ 901 et seq.; A.S.C.A. §§ 32.0501 et seq.

Before KRUSE, Chief Justice, and TAUANU'U , Chief Associate Judge. [24ASR2d159]

Counsel: For Petitioner, John L. Ward II
For Respondents, Elvis R.P. Patea, Assistant Attorney General
For Real Party in Interest, Roy J.D. Hall, Jr.

On Motion for Amended Judgment and/or New Trial:

On August 9, 1993, this court denied Fa'alua Harris' petition for review from the December 16, 1992, order of the Workmen's Compensation Commission (hereinafter WCC). On August 19, 1993, petitioner filed her "Motion for Amended Judgment and/or New Trial. " For the following reasons, the court's original decision stands.

First, petitioner argues that the Commissioner's December 16 order was wrongly issued because VCS's November 24, 1992, response was filed too late. However, VCS claims that it faxed a handwritten response to the WCC on November 11 and that the November 24 response was merely supplemental.

Petitioner, in effect, argues that VCS's timely response may not be considered (in VCS's favor) because the Commissioner's December 16 order (setting aside the earlier December 9 order) only recited the untimely response. This argument, if accepted, would elevate form over substance. Although the December 16 order does not specifically refer to VCS's November 11 response, this response is part of the record below. Furthermore, this handwritten response appears to have been timely filed as the record further contains a "Transmittal Memorandum" addressed to the "WC Office" for "Attn: La," requesting that the response be "deliver[ed] to the WC Office." At the same time, we note that a responsive pleading was also filed by VCS on March 6, 1992, "den[ying petitioner's] claims for Workmen's Compensation benefits." On the other hand, the December 9 order was issued ex parte on the Commissioner's assumption that VCS did not contest petitioner's request for benefits. That assumption was clearly erroneous on the record below.

According to statute, the Commissioner shall order a compensation-order hearing upon application of any interested party. A.S.C.A. § 32.0636(b). Once the Commissioner realized that VCS had objected to petitioner's compensation claim, he could, as he did, properly set aside the December 9 order and set the matter for a "formal " hearing. We conclude that the Commissioner's actions were thus in conformity to [24ASR2d160] the statute and that VCS should be afforded the inter partes hearing it seeks.

Second, we disagree with petitioner's contention that A.S.C.A. § 32.0654 prohibits the Commissioner from reconsidering his decision and setting aside the December 9 order. Although a compensation order is "effective" when filed in the Commissioner's office, it does not become "final " until after 30 days. A.S.C.A. § 32.0651. During this period of time, the Commissioner may reconsider his order. See Haleck v. Scanlan, AP No.3-76, slip op. at 4-5 (Feb. 16, 1977). (1) [24ASR2d161]

Third, contrary to petitioner's assertions, VCS's November 11 response appears, as we noted above, to have been faxed not only to petitioner's counsel but also to the WCC. Neither does VCS's submitting a "supplemental" response prove that it considered its November 11 response to be an insufficient objection to the compensation claim.

Petitioner's "Motion for Amended Judgment and/or New Trial" is denied.

It is so ordered.

**********





1. American Samoa's Workmen's Compensation Act is similar to and appears to have been based on the federal Longshoremen and Harbor Workers' Compensation Act. Haleck v. Scanlan, 4 A.S.R 998, 1002 (App. Div. 1975) (On Motion for Rehearing) (citing Hartford Fire Ins. Co. v. Workmen's Compensation Comm'n, CA No.74-76). Thus, case law dealing with this federal statute is helpful in construing American Samoa's workmen's compensation law. See also Etimani v. Samoa Packing Co., 19 A.S.R.2d 1 (Trial Div. 1991).

Under the federal Longshoremen and Harbor Workers' Compensation Act (LHWCA) and its extensions, a motion for reconsideration may be filed with the administrative law judge (AU) who issued the order. Unless "proceedings for the suspension or setting aside of such order" are properly instituted, the order becomes final 30 days after the date on which the order was filed in the deputy commissioner's office. Patton v. Director, Office of Workers' Compensation Programs, U.S. Dep't of Labor, 763 F.2d 553, 556 (3d Cir. 1985) (quoting 33 U.S.C. § 921(a)). Such "proceedings" include a motion for reconsideration, which if timely made suspends the running of the time for filing a notice of appeal. Jones v. Illinois Cent. Gulf R.R., 846 F.2d 1099, 1100 (7th Cir. 1988) (citing 20 C.F.R. § 802.205A(a)). Thus, if a motion for reconsideration is filed, any appeal to the Benefits Review Board (BRB) is premature until final action is taken by the ALJ. Jones, 846 F .2d at 1100 (quoting 20 C.F .R. § 802.205A(e)). A motion for reconsideration was thus deemed to be a proper procedural device, even without an express provision in the agency's enabling statute. Id. at 1102. This is summarized as follows:

When a party elects to seek reconsideration of a compensation
order by the ALJ who issued it, there is always a possibility that
the order complained of will be modified or changed in a way
that will either render review by the BRB unnecessary or, on
review, present the Board with a decision and/or supporting
rationale different than that reflected in the original order. It is
therefore reasonable to refrain from characterizing the original
order of the ALJ as his/her final action . . . until the motion for
reconsideration has been disposed of by the ALJ.

Id. at 1102 (internal citations omitted) (citing American Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 541 (1970); Outland v. Civil Aeronautics Bd., 284 F.2d 224, 227 (D.C. Cir. 1960)).

Comm’r of the American Samoa Gov’t Workmen's Comp. Comm’n; Harris v.


FA'ALUA HARRIS, Petitioner

v.

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

VCS SAMOA PACKING COMPANY, Real Party in Interest

High Court of American Samoa
Trial Division

CA No. 5-93

August 9, 1993

__________

Statutory provision providing for judicial review of Workmen's Compensation Commission orders excludes other avenues of judicial review but does not preclude reconsideration proceedings at the administrative level. A.S.C.A. §§ 32.0652-32.0653.

A court utilizes a "clearly erroneous" standard of review in reviewing Workmen's Compensation Commission orders.

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

Counsel: For Petitioner, John L. Ward II
For Respondents, Elvis R.P .Patea, Assistant Attorney General
For Real Party in Interest, Roy J.D. Hall, Jr.

On Petition for Review:

Petitioner seeks relief from an order of the Workmen's Compensation Commissioner ("Commissioner") issued December 16, 1992. This order in effect set aside an earlier order of the Commissioner, dated December 9, 1992, which purported to award petitioner temporary total disability payments with 10% penalty, [24ASR2d125] retroactive to March 1, 1990. The earlier order was in fact proposed and submitted by petitioner and issued upon ex parte application. The second order explained that the earlier order was issued on the Commissioner's mistaken impression that the employer, VCS Samoa Packing Company ("VCS"), did not contest petitioner's claim for provisional benefits, and that in fact VCS had filed an objection and requested a hearing.

Petitioner contends that the Commissioner could not "set aside" the earlier order arguing that only the court may do so in the context of judicial review proceedings. Among other things, petitioner cites to A.S.C.A. § 32.0653(c), which provides that "[p]roceedings for. .. setting aside. ..a compensation order. ..may not be instituted otherwise than as provided in this section and 32.0652."

Both enactments, §§ 32.0652 and 32.0653, however, talk about review proceedings at the judicial level; that is, their purport is the exclusion of other avenues of judicial review--for example, review under the Administrative Procedures Act, A.S.C.A. § 4.0102 et seq. See Haleck v. Scanlan, 4 A.S.R. 998 (1975). Contrary to petitioner's contentions, these enactments do not purport to preclude reconsideration proceedings at the administrative level--that is, before the Commissioner . Accordingly, we see no basis for the contention that the Commissioner may not reconsider his prior order before it becomes final and unappealable, (1) nor any statutory provision which prohibits a petition to reconsider, whether on the Commissioner's or on a party's motion.

The record before us reveals that after the order of December 9, 1993, had been signed, VCS faxed a letter dated December 14, 1993, to petitioner's counsel, with a copy to the Commissioner. The letter asserted mistake on the part of the Commissioner, claiming that VCS had already filed its objection to petitioner's request for provisional benefits, and that reconsideration of the order was accordingly sought. The Commissioner apparently accepted VCS's claim of mistaken determination of fact, since the order here under review was issued two days after. This second order recited that: [24ASR2d126]

Due to an oversight, the commissioner was not made aware
that a response was filed by the respondent, in which
respondent opposed claimant's application and requested a
hearing. Thus the proposed order was mistakenly signed on
December 9, 1992.

Order Setting Side Proposed Order Received October 23, 1992 and Signed December 9, 1992; Notice of Formal Hearing, at 2.

In these matters, the standard of review utilized in reviewing the Commission's orders (whether "in accordance with law") is the same as that used by an appellate court in reviewing a trial court's decisions--the review court must accept the findings of the trier of fact unless "clearly erroneous." Hartford Fire Ins. Co. v. Workmen's Compensation Comm'n, CA No.74-76, slip op. at 2, 4-5 (July 18, 1977), aff'd AP No.19-77 (April 26, 1978). On the record before us we see no clear error; the Commissioner's decision is substantially supported. VCS's objection, dated November 11, 1992, is found handwritten, by counsel, on a copy of petitioner's "Notice of and Claim for Temporary Total Disability Benefits and Penalties." The original of this document was earlier filed with the Commissioner on October 23, 1992 and apparently transmitted to counsel for VCS on October 28, 1993.

For reasons given, the petition is denied and the matter remanded to the Commissioner for the "formal" hearing anticipated below. (2)

It is so ordered.

*********

1. Such order only becomes final at the expiration of the thirtieth day after it has been filed, "unless proceedings for the suspension or setting aside of such order are instituted." A.S.C.A. § 32.0651. Indeed, the institution of reconsideration proceedings at the administrative level also has the effect of tolling the statute of limitations, A.S.C.A. § 32.0651. Haleck v. Scanlan, AP No.3-76, slip op. at 4-5 (Feb. 16, 1977).

2. The procedural history of this matter bespeaks the need for promulgating rules, as envisioned by the Workmen's Compensation Act, e.g., A.S.C.A. §§ 32.067(g) and 32.0628, governing the procedure for processing workmen's compensation claims. Part of the procedural confusion evident here is due to the apparently ad hoc manner of developing a process. We note that after the filing of petitioner's claim for workmen's compensation benefits, the record reflects the scheduling and rescheduling of inter partes hearing opportunities, variously referred to as either "informal " or "formal." The matter was then continued "indefinitely" upon joint stipulation of the parties, although in the interim, a paper flow of letter exchanges as well as ex parte applications and counter-applications to the Commissioner seemed to be the order of business.

Beaver v. Cravens,


LEFAGA S. BEAVER, Plaintiff

v.

WILLIAM H. CRAVENS, W. SCOTT BARRETT,
SOUTH PACIFIC TRADERS, INC., and DOES I-XX,
Defendants

High Court of American Samoa
Trial Division

CA No. 72-90

August 6, 1993

__________

The examining party may set a party's deposition at any place which he desires, though a court may issue a protective order specifying the time and place of a deposition upon a showing of good cause. T.C.R.C.P. 30.

What constitutes "reasonable notice" to other parties in setting the time and place for a deposition is quite flexible, depending on the circumstances. T.C.R.C.P. 30(b)(1).

Before KRUSE, Chief Justice.

Counsel: For Plaintiff, Charles V. Ala'ilima
For Defendant W. Scott Barrett, N. George Daines

Defendant W. Scott Barrett scheduled a deposition of defendant William Cravens for August 9, 1993, in Logan, Utah. Plaintiff Beaver admits receiving notice of this deposition on August 3. In response to the scheduled deposition, plaintiff filed a motion for a stay of the deposition and for expedited hearing and notice on August 4, 1993. For the following reasons, plaintiff's motion is denied.

First, "the deposition-discovery rules are to be accorded a broad and liberal treatment" in order to accomplish the purposes of discovery . Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 616 (5th Cir. 1977) (quoting Hickman v. Taylor, 329 U.S. 495,507 (1947)), cert. denied 435 U.S. 996; see generally 8 C. Wright & A. Miller, Federal Practice & Procedure § 2101, at 366 (1970 & Supp. 1993). [24ASR2d116]

Second, the examining party may set the deposition of a party at any place which he desires, subject to the power of the court to grant a protective order if deemed necessary. Pinkham v. Paul, 91 F.R.D. 613,614 (D. Maine 1981) (quoting 8 C. Wright & A. Miller, Federal Practice & Procedure § 2112, at 403). Upon a showing of good cause, though, a court may issue a protective order specifying the time and place of a deposition. Such an order may be issued to protect the party from "undue burden or expense." In re Standard Metals Corp., 817 F.2d 625, 628 (10th Cir. 1987) (citing Fed. R. Civ. P. 26(c)), on rehearing sub nom. Sheftelman v. Standard Metals Corp., 839 F .2d 1383, cert. dismissed 488 U .S. 881 (1988).

Third, what constitutes "reasonable notice" under T.C.R.C.P. 30(b)(1) is quite flexible, depending on the circumstances. See 8 C. Wright & A. Miller, Federal Practice & Procedure § 2111, at 400. Even a one-day notice may be "reasonable." See, e.g., Natural Organics, Inc. v. Proteins Plus, Inc. , 724 F. Supp. 50, 52 n.3 (E.D.N.Y. 1989) (citing Radio Corp. of America v. Rauland, 21 F.R.D. 113, 124 (N.D. Ill. 1957)); State v. Superior Court of Pima County, 416 P.2d 435, 435-36 (Ariz. App. 1966) ("Twenty-four hours['] notice is not necessarily unreasonable.").

In short, scheduling a deposition when a witness is in the area is a reasonable way to save time and money. Thus, Barrett's taking Cravens' deposition in Utah is quite appropriate. The six-day notice is reasonable in that Barrett's counsel sent plaintiff a notice of the deposition as soon as he learned that Cravens would be in the area. Also, plaintiff's rights would not prejudiced in light of the availability of telephone and fax services during the deposition and plaintiff's option of conducting his own deposition of Cravens in the future.

The motion is DENIED.

It is so ordered.

*********

American Samoa Gov’t; Schuster v.


THOMAS SCHUSTER, Appellant

v.

AMERICAN SAMOA GOVERNMENT, Appellee

High Court of American Samoa
Appellate Division

AP No. 13-93

September 2, 1993

__________

A motion for leave to proceed on appeal in forma pauperis must be filed in the first instance in the Trial Division and be accompanied by an affidavit setting forth appellant's financial ability, his belief in redress, and the issues on appeal. H.C.R. 24(a).

Before RICHMOND, Associate Justice.

Counsel: For Appellant, Steven H. Watson
For Appellee, Donald M. Sheehan, Assistant Attorney General

Order Remanding Appellant's Motion to Permit Counsel's Withdrawal, Declare Appellant Indigent, and Appoint Counsel on Appeal for Determination in the Trial Division Pursuant to A.C.R. Rule 24(a):

Appellant's motions to permit his counsel's withdrawal from further representation in this criminal action, to declare appellant indigent, and to provide appellant with court-appointed counsel for this appeal came regularly for hearing on September 1, 1993. Appellant appeared in person and by counsel. Appellee appeared by counsel.

After considering counsel's comments and the documents filed in connection with the motions, the court by bench order granted appellant's motions and directed preparation of the transcripts of the proceedings in the Trial Division.

However, appellant's motions are, in essence, a motion for leave to proceed on appeal in forma pauperis, which is governed by H.C.R Rule 24(a) and requires consideration of both financial inability and the issues on appeal. H.C.R. Rule 24(a) directs that a forma pauperis motion, for purposes of this action, shall in the first instance be filed in the Trial Division. Although a notice of appeal was simultaneously filed with appellant's motions, H.C.R. Rule 24(a), when read as a whole, clearly contemplates that the Trial Division, with first-hand knowledge, should first address the propriety of forma pauperis proceedings on appeal, logically before the appeal is initiated, but it does not absolutely preclude consideration of this issue by the Trial Division after a notice of appeal has been filed.

Accordingly, upon reconsideration, this court's bench order is set aside, and appellant's motions are remanded to the Trial Division for initial consideration and determination as a motion for leave to proceed on appeal in forma pauperis.

Counsel's attention is directed to the requirement in H.C.R. Rule 24(a) for an accompanying affidavit, "in the detail prescribed by Form 4 of the Appendix of Forms to the Federal Rules of Appellate Procedure," setting forth appellant's financial inability, his belief in redress, and the issues on appeal.

It is so ordered.

**********

American Samoa Gov’t v. Schuster,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

THOMAS SCHUSTER, Defendant

High Court of American Samoa
Trial Division

CR No. 5-93

August 3, 1993

__________

No right exists for a citizen of another country to be tried in American Samoa by a jury of his compatriots. A.S.C.A. § 46.1504(1).

Before KRUSE, Chief Justice, T AUANU'U, Chief Associate Judge, and BETHAM, Associate Judge. [24ASR2d103]

Counsel: For Plaintiff, Malaetasi M. Togafau, Attorney General
For Defendant, Steven H. Watson

On Motion for New Trial:

Defendant has brought a motion for new trial on several grounds.

I. Fair and Impartial Jury

Defendant reasserts his pre-trial argument that he was entitled to a jury containing foreign citizens (namely, Western Samoans) in proportion to their demographic presence in American Samoa. He restates his opinion that the absence of such foreign citizens prevented him from receiving a trial by a fair and impartial jury of his peers, as guaranteed by the Sixth Amendment of the United States Constitution. Defendant, rather unsurprisingly, can cite no precedent, statutory or Constitutional authority for such an unusual (and somewhat strained) argument. (1) As we held before, so shall we hold now. There simply is no right for a citizen of another country to be tried in this territory in front of a jury of his compatriots.

II. Severance

Defendant claims fatally prejudicial error in the failure to completely sever his trial from those of his co-defendants. He repeats the same arguments made earlier in pre-trial motions. We repeat our opinion on that motion and find no prejudicial error.

III. Photographic Evidence

The trial court exercised its discretion in ruling on the admissibility of the photographs of the deceased--rejecting some, admitting others. We found the admitted photographs to be not overly prejudicial at trial. Defendant brings forward nothing which would cause us to reform that opinion. [24ASR2d104]

IV. Evidence of DUI Judgment

The DUI judgment obtained in a separate action against one of the prosecution's witnesses was properly excluded under T.C.R.Ev. Rule 609. Defendant asserts no abuse of discretion in the decision to exclude this evidence. Absent an allegation of abuse of discretion, the decision remains firm.

V. Coerciveness of Jury Deliberations

The essence of Defendant's argument is that the jury was coerced into handing down a verdict because they were afraid that they would have to ruin their weekend by spending it in the courthouse, deliberating. We have greater faith in the ability of the jury to fully appreciate the severity and gravity of their charge and to carry it out with diligence. The jury is entitled to this presumption, and nothing defendant states is sufficient to overcome this presumption.

VI. Lack of Factual Basis for Finding of Guilt

This final argument rests on speculation of the jury's thoughts. The jury has, however, handed down its verdict. How it reached that decision, what it believed or did not believe, is not for the court to question, absent an allegation of corruption or the like. Defendant makes no such suggestion.

The motion for new trial is, therefore, DENIED.

It is so ordered.

*********

1. A.S.C.A. § 46.1504(1) disqualifies non-United States nationals from jury service.

American Samoa Gov’t; Morgan v.


FREDERICK W. MORGAN, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT, A.P. LUTALI,
E. FALEOMAVAEGA, AND FRED MAMEA, Defendants

High Court of American Samoa
Trial Division

CA No. 82-93

September 27, 1993

__________

The Trial Court Rules of Civil Procedure only require a short, plain statement that the pleader is entitled to relief, and pleadings are to be construed liberally so as to do substantial justice. T.C.R.C.P. 8(a)(l), 8(e)(1), 8(f). [24ASR2d165]

The pleadings of a pro se plaintiff not learned in the law should be construed to state a cause of action unless the litigant can prove no facts which would entitle him to relief.

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

Counsel: Plaintiff, Pro Se
For Defendants, Cherie Shelton Norman, Assistant Attorney General

On Motion to Dismiss:

This matter first came on for hearing on September 17, 1993, upon motion to dismiss filed by the defendants, American Samoa Government, A.P. Lutali, and Fred Mamea. At the hearing, plaintiff cited extensively to a number of different sources, and it appearing to the court that plaintiff was reading from a prepared text, the court invited him to file his written argument. The matter was then continued for one week.

Defendants argue that "[p]laintiffhas failed to adequately plead facts sufficient to show precisely which legal rights and duties are allegedly involved and how those legal issues establish an actual controversy." Defendants' Memorandum of Law in Support of Motion to Dismiss, at 2.

This argument harks back to the era of code pleading, when a party was invariably required to supply, inter alia, his version of the "facts constituting a cause of action." However, all that the Trial Court's Rules of Civil Procedure require is "a short and plain statement that the pleader is entitled to relief." T.C.R.C.P. 8(a)(1). Additionally, the rules have done away with "technical forms of pleading," and pleadings are to be construed liberally so "as to do substantial justice." T.C.R.C.P. 8(e)(1), 8(f). In the case of a pro se plaintiff not learned in the law, his pleadings "should be construed to state a cause of action . . . unless the Court can say with assurance that it appears beyond doubt that the litigant can prove no set of facts in support of his claim which would entitle him to relief." Ilalio v. Development Bank of American Samoa, 5 A.S.R.2d 110, 116 (1987) (internal citations omitted).

Although inartistically stated, plaintiff's complaint alleges, inter alia, a discriminatory hiring practice by the American Samoa [24ASR2d166] Government, which plaintiff claims violated his constitutional rights. Whether plaintiff can prove that is another matter, but we are unable to say beyond a doubt that plaintiff can prove no set of facts in support of his claim.

As noted, the merits of plaintiff's claim is not to be tested on whether his pleadings sufficiently detail "facts constituting a cause of action." Under the rules, those facts are to be sought through discovery and deposition processes. Similarly, the issues may be delimited through discovery and other pretrial techniques, including the summary disposition of any meritless claims through the partial summary-judgment device provided under T.C.R.C.P. 56(b). For reasons given, defendants' motion to dismiss is, therefore, denied.

It is so ordered.

**********

American Samoa Gov’t v. Meleisea,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

SWAIN MELEISEA, Defendant

High Court of American Samoa
Trial Division

CR No. 11-93

April 30, 1993

__________

The decision to sever properly joined defendants is at the trial court's discretion and should be granted only if there is a serious risk that a joint trial would compromise a defendant's specific trial right or prevent the jury from making a reliable judgment about guilt or innocence. T.C.R.Cr.P. 8(b), 14.

In exercising their discretion as to granting separate trials, most courts refuse to grant a severance despite the anticipated exculpatory testimony of a co-defendant. T.C.R.Cr.P. 14.

A bill of particulars is not required as long as a defendant has enough information to adequately prepare a defense, avoid surprise at trial, and protect him against a second prosecution for an inadequately described offense; as such, a defendant is required to look at all of the government's sources and not simply the information formally charging him with the crime.

A statement made by a person who was not in a custodial situation is not subject to suppression on Miranda grounds. U .5. Const. Amend. V.

The entire record, and not simply the information or indictment, is scrutinized in a double- jeopardy challenge. U.S. Const. Amend. V; Rev. Const. Am. Samoa Art. I, § 6.

Even if an arrest was illegal, a bill of information setting forth criminal charges is not necessarily void. U.S. Const. Amend. IV.

The district court is authorized to issue process, and an arrest warrant is a form of process. A.S.C.A. § 3.0304, T.C.R.Cr.P. 4(c)(1).

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

Counsel: For Plaintiff, Donald M. Sheehan, Assistant Attorney General
For Defendant, Robert A. Dennison III [24ASR2d33]

Defendant Swain Meleisea brought several pre-trial motions.

A. On Motion for Severance

Defendant seeks a separate trial. He asserts that if this is not done, he will be denied his constitutional right to cross-examine the other defendants, whose written statements will be introduced into evidence. He also claims that at least one other defendant is willing to testify in his favor if severance is granted. If it is not, the witness/defendant will presumably exercise his Fifth Amendment right against self- incrimination, thus denying Meleisea the benefit of this testimony.

We note at the outset that the decision to sever properly joined defendants (and all parties have agreed that defendants were properly joined, per T.C.R.Cr.P. 8(b)) is made at the sound discretion of the trial court. See, e.g., United States v. Lane, 474 U .S. 438, 449, n.12 (1986). The United States Supreme Court has stated that a

court should grant a severance under Rule 14 [the equivalent
of T.C.R.Cr.P. 14] only if there is a serious risk that a joint
trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment
about guilt or innocence.

Zafiro v. United States, 61 U.S.L.W. 4147, 4148 (U.S. Jan. 26, 1993) (No. 91-6824).

We note that "[t]he 'great mass' of cases refuse to grant a severance despite the anticipated exculpatory testimony of a co-defendant." United States v. Gay, 567 F.2d 916,919 (9th Cir. 1978). And we are not persuaded by the defendant's attorney's bare statement that such a witness exists and will testify. Greater specificity should be provided in order for us to consider a severance on these grounds.

The defendant's Bruton concerns are a little more troubling. Fortunately, our decision to separate defendants Meleisea, Suiaunoa and Tagaloa from the other defendants eases our apprehensions at the possibility of conforming to the guidelines established by Bruton and its progeny. With only two other co-defendants, solutions such as redaction become much more tenable.

Taking into account all of the above considerations, the court agrees to spare the defendant the possible burden of being tried together [24ASR2d34] with eight other defendants. Instead, as stated previously, he will be tried only with Tupuola Tagaloa and Masefau Suiaunoa. This strikes us as a reasonable balance between the rights of the defendants and the efficient execution of justice.

The Motion for Severance is, therefore, GRANTED, on the conditions stated above.

B. On Motion for Bill of Particulars

Defendant claims that the information filed by the government is lacking sufficient detail to enable him to properly prepare for trial. He asks for additional information establishing the elements of the charges brought against him, namely criminally negligent homicide and tampering with physical evidence. We do not find that the information provided by the government to be so wanting as to require such a bill of particulars.

So long as the defendant has enough information to "adequately prepare for his defense, to avoid surprise at trial and to protect against him against a second prosecution for an inadequately described offense, " United States v. Addonizio, 451 F.2d 49, 63 (3d Cir. 1972), a bill of particulars is not required. The defendant is required to look at all of the sources provided by the government, not simply the information formally charging him with the crime. See 1 C. Wright, Federal Practice and Procedure § 129, at 437 (1982). We are satisfied that the government has provided sufficient specificity to make the defendant aware of the charges and to allow him to prepare for his defense. "Bills of particulars are not to be used as a discovery tool by the defendant," U.S. v. LBS Bank-New York, Inc. , 757 F. Supp. 496,507 (E.D. Pa. 1990); to allow the defendant his motion would be to sanction just such a procedure.

The Motion for Bill of Particulars is, therefore, DENIED.

C. On Motion to Suppress

Defendant also moves to suppress the written statement provided to a Special Investigator of the Department of Public Safety. He contends that the statement was made while he was in a custodial situation, as "the target of police investigation," and that the failure to provide him with his "Miranda rights" at that time prevents the admission of the statement. He also asserts that this statement was given only upon assurance that it would not be used against him. [24ASR2d35]

We are not persuaded, however, that the defendant, a police officer himself, was in a custodial situation at the time the statement was made. Nor do we find any indication that the statement was less than fully voluntary .The Special Investigator testified that the defendant was not the "target" of the investigation when Fealofa'i provided his written statement, only hours after the alleged incident occurred. To the contrary , the Special Investigator merely wanted to find out "what had happened," in general terms, and did not question the defendant with an eye towards confirming any pre-existing theory as to what had occurred. The defendant was not arrested after giving his statement.

While it is true that the statements were given at the Tafuna Police Substation, this was the defendant's place of employment, a familiar and non-threatening environment. The defendant was on duty at the time the statement was made. The Special Investigator was not wearing any sort of uniform which might intimidate the defendant, nor was it certain that he even outranked the defendant. There was no indication that defendant was not free to leave (save, perhaps, that he was still on duty) or that he was compelled to provide the written statement. In short, there was no evidence that the defendant was in a custodial situation at any time or that a coercive atmosphere existed, when he provided his written statement.

As for the defendant's assertion that this statement was elicited only after assurances that it would not be used against him, we are not convinced that such a promise was given. The Special Investigator testified at the hearing that such a promise was not, in fact, given. The bare, self-interested assertion of the defendant leaves us unimpressed.

The Motion to Suppress the Written Statement of the Defendant is, therefore, DENIED.

D. On Motion to Quash or Dismiss Information

The defendant's final motion seeks to quash or dismiss the information for two distinct reasons. First, he maintains that the information fails to state with sufficient specificity the "essential facts constituting the offense charged" per T.C.R.Cr.P. Rule 7(c)(1). He additionally fears that such lack of specificity could lead to subsequent prosecution for the same alleged offense. We note simply that the entire record, and not simply the information or indictment, is scrutinized in a double-jeopardy challenge; by the same token, the defendant is required to look to all the information supplied by the government, regardless of

[24ASR2d36] the form in which it is provided, in preparing for his defense. We believe that the record does contain sufficient detail to make the defendant aware of the nature of the charges being brought and to allow him to adequately prepare for his defense.

The defendant, however, raises another issue. He contends that the warrant for his arrest was issued in contravention of A.S.C.A. § 46.0804, as it was signed by the district court judge and not, as the statute provides, by the Chief Justice, the Associate Justice, or an assistant judge. While he admits that T.C.R.Cr.P. Rule 4(c)(1) authorizes the district court judge to issue arrest warrants, he correctly states that these administrative rules of procedure do not "trump " statutory declarations. He therefore asserts that, his arrest being invalid, the information should be quashed. We disagree.

The Supreme Court has established that even an arrest warrant which is violative of the Fourth Amendment does not always negate the validity of the information. "[I]t does not follow that because the arrest was illegal, the information was or became void." Albrecht v. United States, 273 U.S.1, 5 (1926) .While we give no opinion as to the validity of a warrant bearing the signature of the district court judge, we note that the infringement of an accused's Fourth Amendment rights seems a more egregious error than that a warrant, issued upon probable cause, was signed on the first, rather than the second, floor of this courthouse.

The Motion to Quash or Dismiss Information is therefore DENIED.

It is so ordered.

*********

American Samoa Gov’t v. Maiava,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

FAUTUA MAIAVA, Defendant

High Court of American Samoa
Trial Division

CR No. 4-93

April 28, 1993

__________

A statement made by a person who was not in a custodial situation is not subject to suppression on Miranda grounds. U.S. Const. Amend. V.

Even an impermissibly suggestive identification procedure does not render identification testimony inadmissible if, in the totality of circumstances, the identification was nonetheless reliable.

In determining the admissibility of identification testimony, the corrupting effect of the suggestive identification is weighed against (1) the witness' opportunity to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and confrontation.

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

Counsel: For Plaintiff, Donald M. Sheehan, Assistant Attorney General For Defendant, Levaula Kamu

Defendant Fautua Maiava brought two pre-trial motions.

A. On Motion to Suppress Written Statement

Defendant moves to suppress the written statement provided to a Special Investigator of the Department of Public Safety. He contends that the statement was made while he was in a custodial situation, as "the target of police investigation," and that the failure to provide him with his constitutional rights at that time prevents the admission of the statement. [24ASR2d21]

We are not persuaded, however, that the defendant, a police officer himself, was in a custodial situation at the time the statement was made. Nor do we find any indication that the statement was less than fully voluntary .The Special Investigator testified that the defendant was not the "target" of the investigation when Fealofa'i provided his written statement, only hours after the alleged incident occurred. To the contrary, the Special Investigator merely wanted to find out "what had happened," in general terms, and did not question the defendant with an eye towards confirming any pre-existing theory as to what had occurred. The defendant was not arrested after giving his statement.

While it is true that the statements were given at the Tafuna Police Substation, this was the defendant's place of employment, a familiar and non-threatening environment. The defendant was on duty at the time the statement was made. The Special Investigator was not wearing any sort of uniform which might intimidate the defendant, nor was it certain that he even outranked the defendant. There was no indication that defendant was not free to leave (save, perhaps, that he was still on duty) or that he was compelled to provide the written statement. In short, there was no evidence that the defendant was in a custodial situation at any time or that a coercive atmosphere existed, when he provided his written statement.

The Motion to Suppress the Written Statement of the Defendant is, therefore, DENIED.

B. On Motion to Suppress Photographic Line-Up

Defendant's other motion, to suppress any and all information obtained as a result of the photographic line-up conducted by the Attorney General's office, alleges that the method of identification of the defendant was unduly prejudicial. According to the Attorney General's investigator, Sam Matagi, the alleged victims were shown an array of twenty-one photographs. Of these photographs, snipped from driver's licenses, seven were of the defendants in the present case, four were of other safety officers present at either Kanana Fou or the O.M.V. police substation on the night in question, while the balance was a mix of safety officers not present that night and ordinary civilians. According to Matagi, on the reverse of each of the photographs was a number. When the alleged victims singled out one of the photographs, Matagi would note down the number, then correlate that number with the appropriate name. In some instances, the alleged victims knew the name of the officer already. Matagi testified that under no circumstances did he [24ASR2d22] suggest to the alleged victims the names of the defendants or single out one particular photograph for special attention.

The defendant alleges that this photographic line-up procedure was unduly suggestive and prejudicial. We disagree. In determining admissibility of identification testimony, "reliability is the linchpin. " Government of American Samoa v. Afamasaga, 17 A.S.R.2d 145, 147 (1990) (quoting Manson v. Braithwaite, 432 U.S. 98, 114 (1977)). In Afamasaga,? we rejected the defendant's allegation that a one-on-one confrontation was unduly suggestive, after noting that "even an impermissibly suggestive identification procedure does not render an identification inadmissible if, in the totality of circumstances, the identification was nonetheless reliable." Id. at 146. Factors which are to be considered in judging reliability include

the opportunity of the witness to view the criminal at the time
of the crime, the witness' degree of attention, the accuracy of
his prior description of the criminal, the level of certainty
demonstrated at the confrontation, and the time between the
crime and confrontation. Against these factors is to be weighed
the corrupting effect of the suggestive identification itself.

Id. at 147. The identification procedure used in the instant case is less susceptible to the charge of suggestiveness than the one challenged in Afamasaga. There is no reason to question either the reliability of the photo line-up or the sworn testimony of the Attorney General's investigator to the effect that he did not suggest the names of any of the defendants.

The Motion to Suppress the Photographic Line-Up is, therefore, DENIED.

In addition, the court, upon its discretion and in accordance with T.C.R.Cr.P Rule 14, orders that the trial of the defendant be partially severed from those of the other defendants. The defendant Fautua Maiava shall be tried together with defendants Tamasamoa Tauai, Ronald Tui, and Peniamina Wilson.

It is so ordered.

*********

American Samoa Gov’t; Lang v.


MAANAIMA LANG, Individually and as Administrator
of the Estate of SILIAGA LANG, and as Guardian
for NELLY LANG, a Minor, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT and
HAWAIIAN AIRLINES, INC., Defendants

High Court of American Samoa
Trial Division

CA No. 13-91

June 9,1993

__________

In determining whether "no genuine issue as to any material fact" exists, a court views the pleadings and papers supporting the summary-judgment motion in the light most favorable to the non-moving party. T.C.R.C.P. 56(c).

Despite the high standard of care demanded of airlines, liability must be based upon negligence, and the mere fact that an injury occurred is insufficient to raise a presumption of the carrier's negligence.

The doctrine of res ipsa loquitur applies to an accident only under the following conditions: (1) it ordinarily does not occur without someone's negligence, (2) it was caused by an agency or instrumentality within defendant's exclusive control, and (3) it was not due to a voluntary action by the plaintiff. [24ASR2d60]

Before RICHMOND, Associate Justice, TAUANU'U, Chief Associate Judge, and MAT A 'UTIA, Associate Judge.

Counsel: For Plaintiffs, Togiola T.A. Tulafono
For Defendant American Samoa Government,
Richard D. Lerner, Assistant Attorney General
For Defendant Hawaiian Airlines, Robert A. Dennison III

Opinion and Order Granting Summary Judgment:

I. Standard of Review

Summary judgment is only appropriate when "no genuine issue as to any material fact" exists. T.C.R.C.P. Rule 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non-moving party. D. Gokal & Co. v. Daily Shoppers Inc., 13 A.S.R.2d 11, 12 (Trial Div. 1989) (citing United States v. Diebold, Inc., 369 U .S. 654 (1962); Lokan v. Lokan, 6 A.S.R.2d 44, 46 (1987)).

II. Discussion

Individually and in his capacities as administrator of Siliaga Lang's estate and as guardian for Nelly Lang, Maanaima Lang (hereinafter plaintiff) has filed a civil suit against the American Samoa Government and HawaiiaIl Airlines, Inc. to recover money damages. Hawaiian Airlines (hereinafter defendant) has moved for summary judgment under T.C.R.C.P. Rule 56 as to the claims against it.

In the face of a motion for summary judgment supported by affidavits or other evidence, a plaintiff may not rest on his pleadings or the statements of an attorney lacking personal knowledge. However, plaintiff attempts to do just that; in fact, he never filed any evidentiary response to defendant's motion for summary judgment.

The available evidence supports defendant's motion. Although plaintiff's attorney alleges that defendant failed to provide an adequate oxygen supply to Mrs. Lang, he presents no supporting evidence. In fact, Mr. Lang stated that oxygen remained in the bottle. Lang Deposition, pp. 37-38, 53. Registered Nurse Louise Tokumura also [24ASR2d61] believed that the oxygen was still flowing. Tokumura Deposition, pp. 16-17.

In asserting plaintiff's claims, his attorney wants this court to hold defendant to a novel standard of care--the duty to "deliver" a passenger in ''as good condition" as when he boarded. No such duty exists. Just because an airline passenger suffers illness or death does not mean that the airline is automatically liable. Despite the high standard of care demanded of airlines, "[a] common carrier by air is not an insurer of the safety of its passengers. Liability is based upon negligence." Haley v. United Airlines, Inc., 728 F. Supp. 374,376 (D. Md. 1989) (quoting Arrow Aviation, Inc. v. Moore, 266 F.2d 488, 491 (8th Cir. 1959)) (granting summary judgment for defendant airline), aff'd without opinion 927 F.2d 595 (1991), The mere fact that an injury occurred is insufficient to raise a presumption of the carrier's negligence. Id. (citing Wilson v. Capital Airlines, 240 F.2d 492, 494 (4th Cir. 1957)); cf. Air France v. Saks, 470 U.S. 392,404-06 (1985) (reversing court of appeals, which had reversed district court; the latter had granted summary judgment for defendant airline on the grounds that the mer" occurrence of an injury did not constitute an "accident" under the Warsaw Convention, Art. 17); Fischer v. Northwest Airlines, Inc. , 623 F. Supp. 1064, 1065 (N.D. Ill. 1985) (heart attack and subsequent death resulted from "an internal disability and was not the result of an unusual or unexpected occurrence connected with the flight, " so was not proximately caused by an "accident" under the Warsaw Convention, Art. 17).

Additionally, res ipsa loquitur does not apply to this case. The doctrine applies when the accident's nature is such that past experience has shown that it probably resulted from someone's negligence and that the defendant is probably responsible. Brown v. Poway Unified School Dist., 284 Cal. Rptr. 854, 858 (Ct. App. 1991) (citing Newing v. Cheatham, 540 P.2d 33,124 Cal. Rptr. 193 (1975); DiMare v. Cresci, 373 P.2d 860, 23 Cal. Rptr. 772 (1962)). The doctrine of res ipsa loquitur applies to an accident only under the following conditions: (1) it ordinarily does not occur without someone's negligence, (2) it was caused by an agency or instrumentality within defendant's exclusive control, and (3) it was not due to a voluntary action by the plaintiff. Id. (citing Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944)).

Mrs. Lang's death does not meet the criteria for applying the res ipsa loquitur doctrine. One, seriously ill persons often die in the absence of negligent conduct. Mrs. Lang was seriously ill even before she [24ASR2d62] boarded the plane; indeed, she was leaving American Samoa to be examined at the Tripler Army Medical Center in Honolulu, Hawaii. Two, the cause of Mrs. Lang's death was outside defendant's control, as it was merely transporting passengers aboard a regularly scheduled flight. Although defendant provided the oxygen bottles used on the flight, both Mr. Lang and the nurse from L.B.J. Hospital changed the oxygen bottles and were solely in control of the flow of oxygen. Lang Deposition, pp. 30-32. Three, plaintiff accompanied his wife and, among other things, controlled the oxygen flow. As such, it is not clear that his voluntary actions were not a cause of his wife's death.

III. Conclusion

Plaintiff Maanaima Lang has not presented any affidavits or other evidence to contradict defendant airline's proof that its conduct was not responsible for Mrs. Lang's death. Furthermore, plaintiff cannot rely on a self -created duty to " deliver in the same condition." For the aforementioned reasons, defendant's motion for summary judgment is granted, and this action is dismissed with prejudice as to Hawaiian Airlines, Inc.

It is so ordered.

**********

Ale v. Peter E. Reid Stevedoring, Inc.,


SANELE ALE, Plaintiff

v.

PETER E. REID STEVEDORING, INC., SIATU'U FA'ASIU
and NATIONAL PACIFIC INSURANCE CO., LTD.,
Defendants

High Court of American Samoa
Trial Division

CA No. 95-91

May 7, 1993

__________

In a tort suit, plaintiff must furnish evidence which affords a reasonable basis for the conclusion that defendant's conduct was, more likely than not, the cause-in-fact of the injury; mere possibilities are not enough.

A court will not attempt to reach a conclusion as to an injury's cause when circumstances from which causation can be determined are not within common knowledge and when experts have not provided a basis for such a conclusion. [24ASR2d43]

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

Counsel: For Plaintiff, Robert A. Dennison III
For Defendant, Aitofele T. Sunia

While working on the main government dock as a security officer for the Department of Port Administration, plaintiff Sanele Ale was struck by a pickup truck on December 19, 1989. The truck belonged to defendant Peter E. Reid Stevedoring, Inc., and it was driven at the time by the defendant Siatu'u Fa'asiu, an employee of the stevedoring company.

On the evidence, we find that plaintiff was struck while Fa'asiu was backing up the truck; that the truck was loaded high with empty pallets; that Fa'asiu had not seen the plaintiff when he backed up the vehicle; and that shortly after the collision Fa'asiu, who is now deceased, had told plaintiff's supervisor, Toia Toia Jr. , that he was tired because he had worked around the clock. We also find that the collision occurred while Fa'asiu was working in the regular course of his employment with Peter E. Reid Stevedoring, Inc.

We conclude on the facts that the driver Fa'asiu was negligent in the operation of his vehicle. Among other things, he had the statutory duty not to back his vehicle "unless such movement could be made with safety." A.S.C.A. § 22.0324. He obviously failed to observe that duty. Furthermore, Peter E. Reid Stevedoring, Inc. is vicariously liable, under the doctrine of respondeat superior, for any damages arising as a result of the negligence of its employee Fa'asiu.

It was early evident that plaintiff had, as a result of the accident, sustained three fractured ribs on his left side and suffered lung contusion. There is no dispute here. However, the defendants do dispute that aspect of plaintiff's claim which relates to his complaints about debilitating weakness and sensory loss on his left side. While plaintiff claims that this condition of his was also a result of the accident, the defendants counter with the charge of malingering.

On this latter aspect of plaintiff's damages claim, the medical evidence, which largely consists of written reports by various physicians, is far from conclusive. Following the collision, plaintiff was seen at the [24ASR2d44] LBJ Tropical Medical Center's emergency clinic, where he complained about being struck by a motor vehicle. Although x-rays were apparently taken, radiology initially reported "no fractures," and plaintiff was sent home with analgesics. The following day, plaintiff returned to the hospital and complained about pains in the chest area and in his legs, although the attending physician observed his sitting cross-legged. He also reported that he was knocked out as a result of the collision and that he was coughing up blood in his sputum. Further examination revealed that plaintiff had three fractured ribs on his left side, and he was then referred to the hospital' s surgical clinic, where he was seen by Dr. Te'ariki No'ovao on December 22, 1989. Dr. No'ovao's findings were "(a) [p]ost traumatic left base chest consolidation, with effusion, (b) fractured ribs, (3) left chest wall and lung contusion, (c) left shoulder arthralgia -with pain down left upper limb." Plaintiff was given antibiotics, cough medicine and analgesics, with directions on breathing exercises and to return for follow-up management.

In subsequent follow-up visits, plaintiff began to complain of weakness in his left arm and failing vision. In a letter to plaintiff's attorney, dated February 14, 1990, Dr. No'ovao noted that plaintiff's fractured ribs and contusion carried no permanent impairment but that while plaintiff's prognosis was "fair to good," the complaint of weakness in his left arm required further evaluation. In this regard, Dr. No'ovao noted "[l]eft upper limb paresis motor deficits at 2-3/5; the exact nature or pathology here is not determinable at this point in time." As to plaintiff's failing vision ailment, the hospital's ophthalmologist examined plaintiff on April 24, 1990, and noted "presbyopia" in his medical records.

On June 4, 1990, Dr. No'ovao wrote another letter to plaintiff's attorney reiterating his rating of plaintiff's left-hand grip to be "2-3/5 (5/5 being normal)." He also noted that the patient had expressed a desire for early retirement, which he was inclined to recommend on "medical grounds," based in part "on [left upper-limb] motor impairment" and in part on impaired left-eye vision attributed to age. Dr. No'ovao again noted that the exact pathology of plaintiff's weakness was not determined and suggested specialized off-island diagnostic studies--"CT scan and complete neurological evaluation"--to determine the causative factors leading to plaintiff's weakness.

Plaintiff's hospital records show that he was also seen on July 17, 1990, by Dr. Victor Williams, a visiting surgeon formerly with the hospital. The court was not supplied with Dr. Williams' actual report, [24ASR2d45] but his findings were reviewed and summarized by Dr. Robert Marvit of Honolulu, Hawaii, who also examined plaintiff and whose written report, dated November 6, 1991, was received into evidence. Reading from Dr. Marvit's review, Dr. Williams apparently "couldn't diagnose left sided- weakness without speculation about a mild stroke but there is no evidence of this. He felt that he would recover completely. He didn't feel that there were any permanent injuries as a result of this accident."

On August 10, 1990, plaintiff consulted Dr. Ronald Vinyard, another surgeon in the hospital's surgical clinic. In a letter to plaintiff's counsel dated October I, 1990, Dr. Vinyard noted symptoms of left upper-Iimb motor and sensory deficiencies but at the same time concluded that no physical explanation existed for plaintiff's symptoms. Dr. Vinyard's impressions were a "conversion reaction (functional overlay)" with "poor prognosis for improvement." He recommended off- island assessment in the way of an "electromyographic study as well psychiatric evaluation."

Certain off-island examinations were eventually undertaken some twenty-two months following the automobile accident. These were funded by the insurer for workmen's compensation for the government (plaintiff's employer), pursuant to a provisional decision and order entered by the Workmen's Compensation Board on May 15, 1991. See Ale v. American Samoa Government, Blue Shield and Oceania Insurance Company, WCC No. 04-91 (1991) (Decision and Order Re Temporary Total Disability Benefits and Off-Island Medical Evaluation). This order resulted from an "informal hearing" convened on April 3, 1991. The order recited, among other things, the cessation of temporary total disability benefits as of October 26, 1990, and a stipulation by the parties to the effect that plaintiff's injuries had "stabilized on or about October 26, 1990. 11 The order further stated that plaintiff was seeking the reinstatement of his temporary total disability benefits but that "the relation of [plaintiff's] impairment and/or disabilities to the injuries sustained from the motor vehicle accident on the dock is not clear." (1) The board denied the reinstatement of benefits but ordered off-island evaluation at the insurer's expense; this evaluation was to include "an [24ASR2d46] electromyographic study, psychiatric evaluation and a neurological evaluation." Consequently, plaintiff was seen by three different physicians in Honolulu, Hawaii. (2)

In Honolulu, plaintiff was seen by Dr. Michael Okihiro neurologically. Dr. Okihiro found that plaintiff's reflexes were normal, that muscle testing showed "marked giving-way" in his left arm and left leg, and that sensory testing revealed complete sensory loss on his left side. With electromyographic (EMG) testing, Dr. Okihiro concluded that there were no "neurological correlates to [plaintiff's] signs and symptoms which may very well be on a functional basis."

On October 23, 1991, plaintiff was examined by Dr. Clyde Ishii who, in his report dated October 28, 1991, stated the following:

My examination revealed findings that were inconsistent with
the patient's complaints. The patient claimed to have significant
weakness and almost a paralysis of the left upper extremity.
However, he showed no muscle atrophy in the left upper
extremity. In addition, muscle testing was very inconsistent. At
times, a tested muscle group was very strong whereas on repeat
examination it was very weak. Grip strength measurements were
also very inconsistent. For instance, his grip strength on the left
was measured at four pounds, one pound and twenty pounds.

Dr. Ishii concluded, "[I]t is possible that Mr. Ale is suffering from a conversion type of reaction following his trauma. Also, we need to be concerned about possible factitious illness. " He recommended plaintiff's evaluation by Dr. Robert Marvit, who had treated a number of patients with similar complaints.

On October 30, 1991, Dr. Marvit examined plaintiff to evaluate the latter's complaints and to investigate whether there was a relationship between his "functional symptomatology" and the accident, among other things. Dr. Marvit dismissed as "practically nonexistent" the possibility [24ASR2d47]

of a head injury's being the cause of plaintiff's problems. Rather, neuropsychiatric examination "clearly" indicated to him "nonanatomical problems. " Except for the possibility of pain to plaintiff's rib-cage area, Dr. Marvit saw plaintiff's symptoms as the product of his own perception of a disorder, as opposed to their being biomechanical in origin.

Although he noted that plaintiff's complaints manifested a "hysterical or conversion type pattern," Dr. Marvit was not able to say whether plaintiff's "symptom production" was voluntary or involuntary. He felt he needed objective data beyond plaintiff's subjective declarations, which he characterized as a combination of "honest, random, irrelevant and factitious." Additionally, he observed in plaintiff "dissimulation," which he described as "a distortion and misrepresentation of symptoms," and further noted that the "manifestations of [plaintiff's] complaints [were] utilized through an exaggerated expression." He felt that plaintiff's subjective responses were of "limited reliability." Consequently, Dr. Marvit only ventured a "differential diagnosis." He opined "factitious illness with Physical Symptoms, Dissimulation with Hysterical Conversion, and 'Post Traumatic Syndrome.'" He further explained "Post Traumatic Syndrome" as "basically a wastebasket term of functional symptoms that result from a sudden onset, life-threatening traumatic experience in an individual who becomes enmeshed in secondary gain problems where the disability far exceeds the biomechanical basis of any complaints."

Finally, plaintiff was most recently examined by the Dr . Aloimoa Anesi in connection with a referral from the government's retirement office. The latter was reviewing an application by plaintiff for early retirement. In a letter to the retirement office, dated January 10, 1991, Dr. Anesi recommended early retirement after concluding that plaintiff was not capable of any further "meaningful" work. He rated the power in plaintiff's left arm at 2/6 and that in his left leg at 3/6. From his assessment of plaintiff's medical history, Dr. Anesi additionally offered a physiological explanation for plaintiff's left-side complaints--he suggested "cerebral ischaemia" resulting from a cerebral concussion sustained in the accident, caused plaintiff's left "hemiparesis."

From the foregoing medical history , the possibilities are that plaintiff's symptoms are either the result of a physical injury or psychological trauma (conversion reaction), that plaintiff is malingering, or that some combination of the above factors are involved. On the side [24ASR2d48] of physical causation, we note that Dr. Anesi is singular in his opinion. (3) While it appears that both Drs. No'ovao and Williams were not rulinR out the possibility of cerebral-related damage, it is clear that neither was willing to commit to such a diagnosis without further evidence. At the same time, Dr. Anesi's opinion assumes cerebral concussion from the accident as a matter of fact. However, concluding that a cerebral concussion resulted from the accident is not free of doubt.

Similarly, the smidgen of evidence available concerning the accident itself (4) is thoroughly conflicting. As noted, plaintiff reported that he was knocked unconscious by the impact. However, this claim is controverted by Ne'emia Tanielu, who testified that he was also working on the wharf on the day of the accident. Tanielu testified that after hearing a voice call out that somebody was hurt, he immediately ran to the scene, where he saw a very-conscious plaintiff sitting upright behind the pickup truck and reacting belligerently towards placating overtures from Fa'asiu.

Additionally, we note that the entries in plaintiff's hospital records of December 19, 1989, the day of the accident, conspicuously omit any notation about loss of consciousness (there is an entry of "Neuro: physiological"). See T.C.R.Ev. 803(7). It was only for the following day, when plaintiff went back to the hospital , that the medical records reflect a report about loss of consciousness. Based on the foregoing, we find the weight of medical opinion, indeterminate and ambiguous as it is, to preponderate in favor of a non-organic explanation to plaintiff's symptoms.

We turn to the question of causation. In this, we find the proofs to be insufficient to establish a causal link between the accident and plaintiff's complaints about weakness and sensory loss on his left side. [24ASR2d49] From the very outset, the different doctors consulted locally by plaintiff recognized the need for specialized, off-island, diagnostic evaluation. The off-island evaluation, however, failed to pin-down plaintiff's ailments, and the results thereof have not really enlightened us on the issue of cause-in-fact. In our review of the multiple medical reports which have been presented, the strongest reading of the medical evidence that may be given in favor of plaintiff is that his complaints about left- side deficiency could or might be related to the accident. However, this is insufficient. It is trite law that the burden of proof is on plaintiff, and the standard of proof to which he is held involves "probabilities. " That is, plaintiff must furnish evidence which affords a reasonable basis for the conclusion that defendant's conduct was, more likely than not, the cause-in-fact of the injury; mere possibilities are not enough. See Prosser & Keeton on Torts, §§ 41, at 269 (5th ed. 1984); see also Annotation, Expert Evidence As To Cause--Sufficiency, 135 A.L.R. 516, 517 ( 1941 & Supp. 1986) .Not only have the experts have failed to sort out the underlying cause or causes to plaintiff's ailments, but they have, in terms of actually identifying plaintiff's problems, merely alluded to alternative possibilities (factitious illness versus hysterical conversion, voluntary versus involuntary symptom production) or possible combinations of these possibilities.

Additionally, we are mindful

that where the issue [of causation] is one which lies wholly
beyond the range of the experience or observation of the
laymen and of which they can have no appreciable knowledge,
courts and juries must of necessity depend upon and accept
the undisputed testimony of reputable specialists, else there
would be no substantial foundation upon which to rest a conclusion.

Kramer Service, Inc. v. Wilkins, 186 So. 627,628 (Miss. 1939). Thus, in circumstances where a conclusion as to causation is not within common knowledge, the court will not attempt to reach such a conclusion when the experts have failed to provide a basis for such a conclusion. What caused or produced plaintiff's symptoms is unclear from the medical evidence for the simple reason that the experts did not believe that they had sufficient data before them to permit conclusions beyond the realm of possibilities. It goes without saying that it would be pure conjecture on our part to attempt a conclusion as to whether or not the accident had anything to do with plaintiff's left-side difficulties, given the [24ASR2d50] extent of the medical evidence. Under the circumstances, the law requires us to direct a verdict in favor of defendants with regard to the latter aspect of plaintiff's damages claim.

On the undisputed aspect of plaintiff's claim, we assess his damages, inclusive of medical expenses, in the sum of $25,000 and enter judgment against the defendants accordingly.

It is so ordered.

*********

1. But cf A.S.C.A. § 32.0642 ("In any proceeding for the enforcement of a claim for compensation under [the Workmen's Compensation Act], it is presumed, in the absence of substantial evidence to the contrary , that [] the claim comes within the provisions of the [Act] ").

2. The court was not provided with any background information on these physicians and their respective fields. However, they had each supplied a written report of their findings and conclusions to the government's workmen's compensation carrier.

3. This opinion is not without support. For instance, Dr. Williams alluded to the possibility of a mild stroke as a possible explanation but felt he was unable to say so without further evidence. Also, Dr. No'ovao seemed to be concerned with head trauma possibilities because he suggested an off-island CAT scan. (For reasons unknown, a CAT scan was not performed.)

4. Nobody seems to have seen anything, and of the two people involved, plaintiff maintains that he was immediately knocked out, while the driver, Fa'asiu, has since died.

Alamoana Recipe, Inc. v. American Samoa Gov’t,


ALAMOANA RECIPE INC., a Corporation;
and ALAMOANA S. MULITAUAOPELE, Petitioners

v.

AMERICAN SAMOA GOVERNMENT;
UNITED STATES INTERNAL REVENUE SERVICE;
WILLIAM M. MELENDEZ, Internal Revenue Officer,
United States Department of the Treasury;
and UNITED STATES DEPARTMENT OF THE INTERIOR,
Respondents

High Court of American Samoa
Trial Division

CA No. 92-93

September 16, 1993

__________

Employers and employees within American Samoa must pay U .S. Social Security taxes, as the Federal Insurance Contributions Act applies to any employment performed within the United States or to any employment performed outside the United States by her citizens or residents for an American employer. 26 U.S.C. §§ 3101-3128.

American Samoa's income tax law does not conflict with or purport to supplant federal tax laws, but it merely creates an additional, territorial tax modeled on the federal tax law. A.S.C.A. § 11.0403.

The High Court may interpret territorial statutes differently than federal courts' interpretations of similar, but not identical, federal statutes, but this does not imply that territorial law supersedes federal law.

Territorial laws which are inconsistent with applicable U .S. laws violate the territorial constitution, which in turn was promulgated under the authority of the U.S. Secretary of the Interior. Rev. Const. Am. Samoa Art. II, § I (a), Art. V, § 11.

Suits to restrain assessment or collection of any federal tax in any court are prohibited by the federal Anti-Injunction Act. 26 U.S.C. § 7421(a).

Before KRUSE, Chief Justice. [24ASR2d157]

Counsel: Petitioner Alamoana S. Mulitauaopele, Pro Se

For Respondent American Samoa Government,
Cheryl A. Quadlander, Assistant Attorney General

Opinion and Order Denying Petition for Temporary Restraining Order:

Alamoana S. Mulitauaopele filed a petition for a temporary restraining order on September 14, 1993. Assuming, without deciding, jurisdiction, this court holds that petitioner's request for a temporary restraining order must be denied.

Under the Federal Insurance Contributions Act (hereinafter FICA), the United States government has imposed on employees and employers what is commonly known as the social security tax. 26 U.S.C. §§ 3101-3128. FICA applies to any employment performed within the United States or employment performed outside the United States by her citizens or residents for an American employer. 26 U.S.C. § 3121(b). Employers and employees within American Samoa must pay these FICA taxes. See 26 U.S.C. § 3121(e). This applicability is buttressed by Congress' enacting payment and exemption provisions specifically applicable to American Samoa. E.g., 26 U .S.C. §§ 3121(b)(7)(B), 3125(c), 6205(a)(3), 6413(a)(3). Therefore, FICA applies to American Samoa, and petitioner cannot avoid paying his assessments by asserting the contrary.

Furthermore, American Samoa's tax law does not conflict with federal tax law concerning FICA. Contrary to petitioner's argument, A.S.C.A. § 11.0403 does not purport to supplant federal tax laws, but it merely creates an additional, territorial tax modeled on the federal tax. Likewise, the High Court's interpreting territorial statutes differently than federal courts' interpretations of similar, but not identical, federal statutes certainly does not imply that territorial law supersedes federal law. In any event, territorial laws which are inconsistent with applicable U.S. laws violate the territorial constitution, which in turn was promulgated under the authority of the U .S. Secretary of the Interior. Rev. Const. Am. Samoa Art. II, § l(a), Art. V, § 11.

Finally, suits to restrain assessment or collection of any tax in any court are prohibited by what is known as the Anti-Injunction Act. 26 U.S.C. § 7421(a) (1993). As such, "[t]he object of § 7421(a) is to withdraw jurisdiction from the state and federal courts to entertain suits seeking injunctions prohibiting the collection of federal taxes. "Enochs [24ASR2d158] v. Williams Packing & Navigation Co., 370 U.S. 1, 5 (1962). This policy would be thwarted if the High Court were to issue an injunction; thus, this court declines to do so.

Therefore, the petition for a temporary restraining order to enjoin the collection of FICA taxes is denied.

It is so ordered.

*********

24ASR2d84


TIMU LEVALE by and on Behalf of the TIMU FAMILY,
Plaintiffs

v.

RAY McMOORE, SESE McMOORE, and
IOANE FE'AFE' AGAENE, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 20-93

July 6, 1993

__________

A land-title registration was void when the required newspaper publication of a proposed registration and the certification of this notice was lacking. A.S.C.A. § 37.0103(a), (c).

A party seeking a preliminary injunction bears the burden of showing that great or irreparable injury will occur before a full and final trial can be held on whether a permanent injunction should issue. A.S.C.A. § 43.1301(j)(2).

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

Counsel: For Plaintiffs, Asaua Fuimaono
For Defendants Ray McMoore and Sese McMoore, Togiola T.A. Tulafono
For Defendant loane Fe'afe'aga Ene, Albert Mailo

Orders Denying Preliminary Injunction and Staying Action:

Plaintiffs' application for a preliminary injunction came regularly on June 10, 1993 for hearing. The court, having heard testimony and considered the evidence, makes the following findings, conclusions and orders. [24ASR2d85]

FINDINGS OF FACT

Plaintiff Timu Tavale ("Timu ") brought this action to quiet title to approximately 3.5 acres of land in the Village of Ili'ili, American Samoa, as the Timu family's communal land, known as "Fala Toga. " He is seeking a preliminary injunction prohibiting: (1) defendant loane Fe'afe'aga Ene ("Fe'afe'aga") from any further alienation of any portion of this land; and (2) defendants Ray McMoore and Sese McMoore (collectively "the McMoores") from making any further improvements on the land.

Fe'afe'aga claims initial ownership and title registration, on March 22, 1990, of approximately 8.37 acres of land as his individually owned land, known as "Tualepipi, " which encompasses the area claimed by Timu. Fe'afe'aga and the McMoores claim Sese McMoore's ownership, by Fe'afe'aga's conveyance to her on May 30, 1991, of approximately 2.206 acres of this land, within the same area claimed by Timu. The McMoores have virtually completed construction of a large, two-story house on this parcel. Apparently, Fe'afe'aga conveyed additional subdivided parcels of the 8.37 acres to other persons, who are not presently parties to this action. These additional parcels mayor may not be wholly or partially within the area claimed by Timu.

Fe'afe'aga began the process for title registration of the land in October 1989. On March 19, 1990, two persons filed an objection to the registration with the territorial registrar. On March 20, 1990, the Acting Territorial Registrar referred the controversy to the Secretary of Samoan Affairs for dispute resolution proceedings. However, after the objections were withdrawn on March 19, 1990, the registrar issued the certificate of registration on March 22, 1990, to Fe'afe'aga as his individually owned land.

The affidavit of posting of the notice for proposed registration of land was executed on March 12, 1990, seven days before the stated end, on March 19, 1990, of the notice period. The affidavit showed that the notice was posted on the bulletin board at the administration building, which is also the courthouse, in the Village of Fagatogo, and on one telephone pole in the Village of Ili'ili. The notice for proposed registration of land was not published in a local newspaper. Notarized statements by the pulenu'u, newspaper, and clerk of courts, each certifying that the required notice had been given, were not provided to the territorial registrar. [24ASR2d86]

Timu has lived in Hawaii for the past 30 years. He plans to return permanently to American Samoa when he retires later this year . His sisters living in American Samoa have kept him informed about Timu family matters here. However, he declares that he was not actually aware of Fe'efe'aga's title registration and the McMoore's house until he recently discovered that the land claimed by him had been largely cleared of crops and the McMoore's house was on it. He also states that Timu family members lived on this land, at least until he relocated to Hawaii, and before and since have extensively cultivated the land until it was recently cleared. He asserts that the fence along part of the boundary of the registered land incorrectly defines the border between Sagapolu and Fe'afe'aga family lands. He insists that the lands in this immediate area belong communally either to his family, the Sagapolu family, or the Fuga family, and that none are owned by Fe'afe'aga or his family. Fe'afe'aga and the McMoores dispute Timu's claim to senior mataiship and assert that the matai title Letuli controls Timu family lands.

No certificate of irreconcilable dispute has been filed in this action.

CONCLUSIONS OF LAW

Notice of proposed land title registration must be published in a local newspaper at least once each 30 days during the notice period. A.S.C.A. § 37.0103(a), as amended by Public Law No.20-61, approved on August 26, 1988, and Public Law No. 21-1, approved on March 16, 1989. The same two public laws also added the requisite, as new A.S.C.A. § 37.0103(c), that the registrant shall provide to the territorial registrar notarized certificates by the pulenu'u, newspaper, and clerk of courts stating that the required notices have been given. Having been enacted by a two-thirds vote of the entire membership of both houses of the Legislature of American Samoa and signed by the Governor at two successive Legislatures, the necessity of newspaper publication and notice certifications as part of the title registration process effectively became law on May 22, 1989, 60 days after the close of the First Regular Session of the Twenty-First Legislature. See Rev. Const. Am. Samoa Art. I, § 3, Art. II, §§ 9, 19. Since none of these essential conditions to title registration were met, Fe'afe'aga's title registration in 1990 is void. See Ifopo v. Siatu'u, 12 A.S.R.2d 24, 28 (App. Div. 1989); Faleafine v. Suapilimai, 7 A.S.R.2d 108, 113 (Land & Titles Div. 1988); see also Sosene v. Laualemaga, 21 A.S.R.2d 91 (App. Div. 1992). [24ASR2d87]

The title registration record is also facially deficient in that the affidavit of posting affirmatively showed only a single posting in the Village of Ili'ili and, thus, a failure to post at two public places in the village. Sosene, supra. Further, the affidavit of posting was subscribed before the end of the 60-day notice period and, thus, was prepared without the subscriber's personal knowledge. Vaimaona v. Tuitasi, 18 A.S.R.2d 88 (App. Div. 1991).

The issue of land ownership is not resolved by setting aside Fe'afe'aga's defective title registration. The 8.37 acres or portions of it may be communally owned by the Fe'afe'aga family, Timu family, Sagapolu family, Fuga family, Letuli family, or other families, or individually owned by Fe'afe'aga, Sese McMoore, or other persons. This ownership will be the ultimate issue at trial.

Meanwhile, a preliminary injunction will not be issued. On balance, the far greater harm before trial falls on Fe'afe'aga and the McMoores. The evidence presented so far has indicated that they have relied on Fe'afe'aga's title registration in good faith. The McMoores' new house on the land at issue is large and costly. The harm to the Timu family's use of the land is not irreparable. Thus, Timu has not met the burden of showing great or irreparable injury to him or his family before a full and final trial can be fairly held on whether a permanent injunction should issue. This showing is essential to issuance of a preliminary injunction under A.S.C.A. § 43.1301U)(2). Since this element is not present, it is unnecessary to analyze the other imperative basis for a preliminary injunction, the applicant's substantial likelihood of prevailing at trial.

However, a stay of further proceedings in this action, except for appropriate interim orders under A.S.C.A. § 43.0304, is necessary or appropriate for two reasons. First, the filing in this action of a certificate of irreconcilable dispute, issued by the Secretary of Samoan Affairs or his deputy, is a jurisdictional prerequisite. A.S.C.A. § 43.0302; see Moeisogi v. Faleafine, 5 A.S.R.2d 131, 132-33 (Land & Titles Div. 1987).

Second, land title-registration proceedings, conducted in full compliance with A.S.C.A. §§ 37.0101-37 .0104, would afford all persons alleging competing ownership interests in the land the opportunity to establish their interests and facilitate ultimate resolution of the ownership issue. See 0/0 v. Tu/isua, 6 A.S.R.2d 86, 89 (Land & Titles Div. 1987) . [24ASR2d88]

ORDERS

The application for a preliminary injunction is denied.

Further proceedings in this action are stayed, except for essential interim orders, pending: (1) filing of a properly issued certificate of irreconcilable dispute and (2) completion of properly conducted land title registration proceedings.

It is so ordered.

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