25ASR2d

25ASR2d

Mulitauaopele v. Mulitauaopele,


I.S. MULITAUAOPELE, Appellant

v.

FOFOGAOTUMUA K. MULITAUAOPELE, Appellee

High Court of American Samoa
Appellate Division

AP No. 28-90

November 15, 1993

__________

[1] It is appropriate for the courts of American Samoa to give effect to Samoan customs and traditions. Courts should not abolish, by judicial fiat, Samoan traditions which have endured for generations in Samoan institutions and are recognized by formal legal institutions.

[2] Samoan custom is defined by an evolutionary process, not by the judicial process.

[3] In matters of fact, the Appellate Division reviews only for clear error, pursuant to A.S.C.A. § 43.0801(b).

[4] Antagonistic questions do not necessarily indicate improper judicial bias.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, MUNSON ,* Acting Associate Justice, VAIVAO, Associate Judge, and MAILO, Associate Judge.

Counsel: For Appellant, I,S. Mulitauaopele pro se
For Appellee, Gata E, Gurr

KRUSE, Chief Justice

After the demise of Mulitauaopele Tamotu, Leaana L. Fuata filed his claim to succession to the matai title Mulitauaopele, attached to the village of Lauli'i. Leaana's claim attracted the objection of appellee Fofogaotumua K. Mulitauaopele, who in turn filed his claim to succession. Appellant I.S. Mulitauaopele also objected, but not as counter-claimant to the title; rather, he sought the dismissal of the succession claims of Leaana and Fofogaotumua, contending that there [25ASR2d44] was actually only one Mulitauaopele family of Lauli'i and that he and his predecessors-in-title are the only rightful holders of the matai title Mulitauaopele. Appellant contends that the Mulitauaopele side headed by the late Mulitauaopele Tamotu (referred to below as the "Leaana" line) was essentially a temporary arrangement, which was "tolerated " by his predecessors, but that he and his relatives have the customary and legal right to have it discontinued.

The trial court declined to interfere with the status quo, being satisfied on the evidence of the existence of two separate and distinct Mulitauaopele families in the village of Lauli'i. The court found that neither was related to the other by blood nor descended from the original titleholder, and that both families had separately evolved after the original descendants of the title had died out over one hundred years ago. While appellant's family traces its connection to the title by collateral descent, the appellees' side is related to the title either through marriage, adoption, or traditional appointment (igagato or motu'upalapala) .The court also thought it significant that each family had its own communal lands and has had its own registered titleholders, who not only have separate guest houses but have separately enjoyed traditional recognition at the village, county, and national level--further indicia of separate and distinct identity.

Appellant has essentially restated his argument,5 made below on his motion for new trial. Appellant's fact on appeal, as it was below, has been to pose a number of rhetorical questions quite unrelated to the findings and conclusions of the trial court. For example, appellant asks whether the court can create a new kind of matai, whether a non-heir can succeed to a family's title over that family's objection, and whether there can be split titles in American Samoa. Having answered "No" to these, appellant next argues that the trial court did or sanctioned these things and that, therefore, the court had erred ''as a matter of law."

[1] The trial court, however, neither created a new title, split a title, nor allowed the appointment of a non-heir to another family's title. Rather , it gave effect to something which substantial evidence had demonstrated had been in existence for over a century , after coming into being through the very same evolutionary process that gave rise to the "Tutuila" customs and traditions which appellant alluded to on the staI1d and in argument. As the trial court unambiguously stated:

We are not. ..creating anything at all; we are merely declining to
destroy something that has existed [25ASR2d45] for at least a
hundred years and that has been thoroughly integrated into the
traditional institutions of the village, the Eastern District, and
throughout Samoa.

MT No.05-89, slip op. at 10 (Trial Div. August 8, 1990). Quite clearly, the trial court did not find it appropriate to abolish, by way of judicial fiat, a Samoan development which has endured for many generations and which has not only been "thoroughly integrated into the traditional institutions" but has also been recognized by the formal or legal institutions of the land. For instance, appellee's family title has been accepted for registration with the Territorial Registrar's office, and we additionally noted testimony on the record to the effect that the late Mulitauaopele Tamotu represented the Sua County in the territorial Senate.

[2] Consequently, the trial court did not attempt to appoint a stranger to hold appellant's family title; rather it concluded on the evidence that Fofogaotumua was qualified to succeed the title left vacant by the death of Mulitauaopele Tamotu. Similarly, the trial court did not purport to "split" the title of appellant's family. It merely addressed the realities which exist today, and which developed not by the judicial process but by the evolutionary process that ultimately defines Samoan custom.

[3] Appellant's "bottom line" argument about the court's creation of a new matai title, splitting a title, and/or appointing an adopted branch to co-hold his family's title is thus entirely without foundation. In matters of fact, the appellate division reviews for clear error. A.S.C.A. § 43.0801(b). We find the record replete with testimony about the existence of two separate and distinct Mulitauaopele families with separate sa'o. The trial court had substantial grounds upon which to base its findings, and they are, therefore, not to be disturbed.

[4] Appellant alternatively argues that one of the Samoan Associate Judges was biased. There is no evidentiary support to the claim, which is premised solely on certain questions posed by the judge to the appellee Fofogaotumua. We see no basis for the claim of judicial bias against the appellant upon the strength of the questions posed. In any event, the questions complained of were asked at a stage in the proceedings after appellant's motion to dismiss had been denied in open court.

For reasons given, we affirm.

It is so ordered.

**********

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

Toeaina v. Malae,


TOEAINA MUASAU, for himself and on behalf of the TOEAINA
FAMILY, Appellee

v.

TITO MALAE, Appellant

High Court of American Samoa
Appellate Division

AP No. 17-92

November 10, 1993

__________

[1] Factual findings of the Land and Titles Division will not be disturbed unless the appellate court finds them to be clearly erroneous. A.S.C.A. § 43.0S01(b). A factual finding is clearly erroneous when, despite evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

Before CANBY,* Acting Associate Justice, MUNSON,** Acting Associate Justice, VAIVAO, Associate Judge, AFUOLA, Associate Judge [25ASR2d32]

Counsel: For Appellant, Gata E. Gurr
For Appellee, Togiola T. A. Tulafono

MUNSON, Acting Associate Justice:

This matter comes before the Appellate Division on appeal from the August 7, 1992, opinion and order of the Land and Titles Division concerning title to land known as "Vaoto. " The history of the dispute and the facts are set out in detail in the decision below, and will not be repeated here.

The sole issue raised by appellant is whether the findings of fact of the Land and Titles Division were clearly erroneous.

[1] American Samoa Code Annotated § 43.0801(b) directs that we not disturb the findings of fact of the Land and Titles Division unless we find them to be clearly erroneous. A finding of fact is clearly erroneous when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite at Id firm conviction that a mistake has been committed." United States v. United States Gypsum, 333 U.S. 364, 395 (1948); Willis v. Willis, 2 A.S.R.2d 102 (App. Div. 1986), Suapilimai v. Musu and Faleafine, 9A.S.R.2d 16, 18 (App. Div. 1988).

In its decision below, the land and Titles Division presented its findings of fact in a thorough and methodical exposition of the testimony and evidence presented at trial. It is clear from a reading of the Decision and Opinion that the court found witnesses for both sides sincere, but concluded that years of misinterpretation and miscommunication had obscured and confused, as between the members of the competing families, their respective claims of ownership to the land known as "Vaoto."

Appellant presents on appeal portions of the transcript which support the position he took below. Essentially, however, appell(Ult simply asks us to substitute our judgment for that of the Land and Titles Division. The trial court was uniquely situated to observe the demeanor of the witnesses, to judge their credibility, to examine the evidence, and to deduce the facts upon which it ultimately based its decision. Given the record before us from the Land at Id Titles Division, and our lack of a definite and firm conviction that a mistake has been made, we cannot say that the findings of fact below were clearly erroneous. [25ASR2d33]

Accordingly, we must AFFIRM .

**********

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

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

Taotoai; Reine v.


WILBUR J. REINE, JR., Appellant

v.

FALANI TAOTOAI, MAIMAU TAOTOAI, SINATALA
TAOTOAI, ESETA SAVEA, RUTA SAVEA, and LIMA
PAPATU, Appellee

High Court of American Samoa
Appellate Division

AP No. 7-93

February 9, 1994

__________

[1] A divorce decree which is final between the parties does not. and cannot, foreclose the possibility of ownership interests by others who were not parties to the decree, and a trial court is properly empowered to adjudicate those interests.

[2] The trier of fact may properly approach self-serving testimony with caution, but there is no requirement that it be disbelieved. The day has long past when interest parties were disqualified as witnesses.

{case}31 It is for the trial court to resolve conflicts in the evidence. and to judge the credibility of the witnesses. The Appellate Division will not overturn the trial court's resolution of conflicting evidence, when substantial evidence supports its ruling.

Before CANBY* Acting Associate Justice, MUNSON,** Acting Associate Justice, WARD,*** Acting Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Appellees, Togiola T.A, Tulafono
For Appellants, Gata E, Gurr

CANBY, Acting Associate Justice: [25ASR2d137{/case}

This appeal is from a decision of the Trial Division determining the ownership of a house separated from communal land under the separation-of-structures laws of American Samoa, A.S.C.A. §§ 37.1501-37.1506. The separation agreement was executed in 1967 by Fa' agata Mano, then senior matai of the Fa' agata family, and Sinatala T . Reine, as the building owner. The loan that financed most of the acquisition of the house was taken out in the name of Sinatala and her husband, Wilbur J. Reine, Sr. In August 1978, Reine, Sr. and Sinatala were divorced, and the divorce decree awarded the house to Sinatala for life, with remainder in Wilbur J. Reine, Jr. , the appellant here. Sinatala died in 1987.

Appellant contended in the Trial Division that he was the sole owner of the house. The TriaJ Division determined, however, that the original intent at the time of the separation agreement had not been to vest the entire title in Sinatala or her husband. On the contrary, Sinata1a's parents, Fesuiai and Lana Taotoai, had intended the house to be for the benefit of their family, and had contributed substantially to its construction costs, as had their adoptive son, Falani Taotoai. Their adoptive daughter, Maimau Toatoai, had been the means of obtaining the original separation agreement; she provided the blood relationship to the Fa'agata family because she was the natural daughter of Fa'agata Mano and his wife. Fesuiai and Lana Taotoai, the Trial Division found, had considered the land to be owned by their three children. In light of that intention, and the understanding and contributions of all three children, the Trial Division concluded that the house was owned by the estate of sinatala, Falani, and Maimau equally, as rental income from the house and paid off a part of the loan, depended on descent from Sinatala, and could not be determined until Sinatala' s estate was settled.

Reine, Jr. first argues that the decision of the Trial Division was invalid because the court had no power to amend the provisions of the divorce decree, which awarded the remainder interest in the house to Reine, Jr. Appellant contends that the divorce decree was final and could not be altered except upon proper motion.

[1] The divorce decree was certainly final between the parties, Rcine, Sr . and Sinatala, but it did not, and could not, foreclose the possibility of ownership interests by others who were not parties to the decree. See Reid v. Puailoa, 1 A.S.R.2d 85, 89, ( App. Div. 1983); Puailoa v. Lagafuaina, 11 A.S.R.2d 54, 76, 78 (Land & Titles Div. 1989). The Trial Division therefore did not lack the power to adjudicate those [25ASR2d138] additional interests, and to find that Sinatala's interest in the house amounted only to one-third.

[2] Reine, Jr. next attacks the sufficiency of the evidence, arguing that the only evidence to support the claims of appellees was their self-serving testimony. The trier of fact may properly approach self-serving testimony with caution, but there is no requirement that it be disbelieved; the day is long past when interest parties were disqualified as witnesses. See I MCCORMICK, EVIDENCE, § 65. Here there was unrebutted testimony that Falani contributed $3,000 to the construction of the house, and that he and his wife contributed $60 fortnightly for an indeterminate period of time. There was also testimony that Fesuiai had furnished $10,000 for construction, and that Fesuiai's and Lana's Social Security checks for an extended period of years were contributed primarily toward the repayment of the construction loan. The plausit1ility of these multiple contributions was supported by the trial court's finding that, whether or not sinatala' s estimate of $50,000 construction costs ( as testified to by Falani) was accurate, the size of the house made clear that construction costs had been substantial.

There was also unrebutted testimony that, for various periods of years, the house was occupied by Falani and his family (the first occupants), Reine, Sr. , Sinatala and Reine, Jr. , and Maumai. The house was divided into two self-contained living units, which permitted multiple OCCUpa11Cy. Indeed, Falani, who lived in the house from 1968 to 1971 and then again from 1974 at least to the time of trial, testified that it was not until 1987, during a heated dispute, that he was made aware of Reine, Jr. 's exclusive ownership claim.

[3] In light of the ample testimony about the family understanding concerning shared ownership, the multiple contributions by family members, and shared occupancy of the house over many years, there was ample evidence to support the trial court's finding of common ownership among the three children of Fesuiai and Lana Taotoai. It is true that there was no documentation supporting common ownership, and that the separation documents and loan documents could have been viewed as supporting sole ownership in Sinatala and Reine, Sr. But it was for the trial court to resolve conflicts in the evidence, and to judge the credibility of the witnesses. We will not overturn the trial court's resolution of conflicting evidence, when substantial evidence supports its ruling. Faatea v. Taua, 12 A.S.R.2d 88,90 (App. Div. 1989).

The judgment of the Trial Division is AFFIRMED.

**********

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

**Honorable Alex R. Munson, Chief Judge, United States Court of Appeal for the Ninth Circuit, serving by designation by the Secretary of the Interior .

***Honorable John L. Ward, II, Judge, District Court of American Samoa. serving by designation of the Secretary of the Interior.

Talauega v. Mulipola,


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

v.

SAMOA & JEANETTE MULIPOLA, and AIAVA UA, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 23-92

December 2, 1993

__________

[1] Evidence received prior to trial on a motion for temporary injunction becomes part of the record upon trial on the merits, pursuant to T.C.R.C.P. 65, incorporated by T.C.R.L.T. 5.

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

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

Following an evidentiary hearing on July 6, 1992, this court entered an order on July 10, 1992, granting a preliminary injunction enjoining the defendants from any further construction on a certain site. Since that hearing and entry of order, the parties attended, pursuant to A.S.C.A. § 43.0302, the requisite reconciliatory meetings before the Office of Samoan Affairs. The Secretary of Samoan Affairs subsequently certified an irreconcilable dispute, and this matter was then set for trial after due notice to the parties. Trial was originally set for October 15, 1993; the defendants failed to appear, although their counsel did appear and represented to the court that his clients had left the island. The matter was then continued, over the objection of plaintiffs, to November 29, 1993, with the admonition to counsel that there would be no further continuances. On November 29, 1993, plaintiffs appeared with counsel, and defendants again did not. Plaintiffs then moved to submit the matter on the record. After inquiring from the defense if they had any further evidence to offer, and there being none, the court took the matter under submission.

[1] Pursuant to T.C.R.C.P. 65, incorporated by T.C.R.L.T. 5, the evidence earlier received becomes part of the record upon trial on the merits. On the record before us, we adopt and incorporate our earlier [25ASR2d75] findings contained in our order entered July 10, 1992. We conclude on the evidence that the site in question lies within the Fiaseu family's communal land known as "Sopomaleula"; that the site was in the lawful use and occupation by plaintiffs' side of the family; that defendants' attempted, forced ouster of plaintiffs' side of the family was unlawful; and that plaintiffs, as Fiaseu family members, arc entitled to be restored to the site.

Therefore, it is ordered, adjudged, and decreed that defendants, Samoa Mulipola, Jeanette Mulipola, and Aiava Ua, and all those in active concert with them, are hereby permanently enjoined from further construction on the aforementioned site, on which Vai Fiaseu's house was located until it was burnt, and from further interference with plaintiffs' customary rights, as Fiaseu family members, to the enjoyment thereof.

**********

Lua v. Uti,


AILAFO LUA, Plaintiff

v.

UTI SALU, POPOLE IOANE and TAFALA POPOLE, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 33-92

December 1, 1993

__________

[1] Unlike its forerunner enacted in 1900. Regulation 5-1913, when in force, prohibited transfers of Samoan owned land to non-Samoans, but did not restrict transfers between Samoans. This is essentially the state of the law today, with the added requirement that the Governor must consent to conveyances of communal land.

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

Counsel: For Plaintiff, Gata Edwin Gurr
For Defendants, Aviata F. Fa'alevao

This dispute involves a piece of land in the village of Leloaloa and calls into question the legitimacy of a 1915 deed of conveyance of which plaintiff, who is now 82 years of age, is a beneficiary .The subject deed, dated May 17, 1915, is between Uti of Leloaloa, as grantor, and Simotu, plaintiff's mother, "in trust for her two children Ailafo and Atoni," as grantee. The deed further states that upon the youngest of the said children attaining the age of eighteen years, "the said children shall become the joint owners of said land in fee." The deed was accepted for [25ASR2d72] registration on May 18, 1918, by the Registrar of Titles and was recorded in Journal Folio 443.

The dispute arose when the present Uti titleholder, the defendant Uti Salu, blocked plaintiff's attempts to retrace the land. Uti further allowed the defendants Popole Ioane and Tafala Popole to move onto on the land. A suit praying for quiet title and injunctive relief was thereafter filed.

The defendants' principal contention is that the deed is invalid because it attempts to alienate communal family lands in contravention of applicable law. They submit that certain regulations, promulgated by the United States Naval Administration a few days after the flag-raising in 1900, prohibited the alienation of communal lands. In this regard, counsel in his opening statement drew our attention to Fe'a v. Sisipeni, 4 A.S.R. 320, 323 (1963), wherein the court stated:

[T]his supposed gift of land by Letuli to Peniata was void, even
if it did in fact occur. The Native Land Regulation of 1900
enacted on April 30, 1900 by Commander B.F. Tilley, U.S.N.,
Commandant, provided that "From and after the coming into
force of this Regulation the alienation of native lands within the
jurisdiction of the United States Naval Station, Tutuila, is
prohibited." The whole of Tutuila was included in the Naval
Station. This regulation was enacted by the Commandant just
13 days after the U.S. Flag was raised at Fagatogo. It was in
force in 1902 when Sisipeni claimed Letuli made the gift to
Peniata.

The court then went on to hold that any gift by Letuli to Peniata "was absolutely void." Id. On the basis of this holding, counsel submitted that the deed in question was similarly null and void.

[1] The Native Lands Regulation of 1900, Regulation No.4-1900, was amended by Regulation No.5-1913, which was enacted November 12, 1913, by C.D. Steams, Commander, U.S.N., Governor. This regulation subsequently appeared as Section 40 of the Codification of the Regulations and Orders for the Government of American Samoa ( 1917) . Section 40 provided in pertinent part:

1. The word "native" in this Regulation shall mean and include
aboriginal natives of the Islands of Samoa, and the word
"non-native" shall mean and include any [25ASR2d73] other
person. The term "native land" shall mean and include lands
owned by a native.
2. From and after the coming into force of this Regulation the
alienation of native lands within the limits of American Samoa,
to a non-native, is prohibited.

(Emphasis added). Unlike its 1900 forerunner, Regulation 5-1913 merely prohibited native-land transfers to non-Samoans; it did not prohibit conveyancing transactions among Samoans. (1) Since there was no evidence whatsoever to show that plaintiff and her sibling were non-natives, we conclude that the subject deed, executed and delivered in 1918, is valid and that the land conveyed by the subject deed is the property of plaintiff and her sibling Atoni. (2)

Therefore, it is ordered, adjudged, and decreed as follows:

1. Plaintiff Ailafo Lua and her sibling Atoni are the individual owners and are entitled to the possession of certain real property situated in the village of Leloaloa, County of Maoputasi, American Samoa, more particularly described in that deed of conveyance between Uti and Simotu dated May 17, 1915, and recorded on May 18, 1915, with the Territorial Registrar's Office in Journal Folio 443;

2. The claims of defendants Uti Salu, Popole Ioane, Tafala Popole and all who claim title under them in and to said real property are without any right whatever in or to said real property or any part thereof;

3. Defendants Uti Salu, Popole Ioane, Tafala Popole and all persons claiming under them are hereby permanently enjoined from asserting any estate, right, title, lien, or interest in or to said real property or any part thereof.

*********

1. This is essentially the state of the law today--with the added requirement that gubernatorial consent be first obtained before communal land can be validly conveyed. See A.S.C.A. § 37.0204(a).

2. In his post-trial brief, filed late, defense counsel has attempted to inject new theories which were neither raised on the pleadings nor in opening statement. These include a claim of adverse possession and an argument that the consideration recited in the deed was inadequate. . Notwithstanding procedural flexibility accorded by A.S.C.A. § 3.0242(b). these new theories are untimely raised as plaintiff has had neither notice nor opportunity to meet these additional claims. In any event, neither theory is sustained on the evidence.

Lolo; In re Matai Title


SUALEVAI LAULELEI SEA, Claimant

v.

TAFEA FAAUMA SEUI, T.S. TUIMOLOAU, SI'ITUA SAVINI, 
LETALU M. MOLIGA, PESE MASELINO, PULEISILI F. 
TUIOLESEGA, & SEGILA PUIAI VAEAO, 
Objectors/Counter-Claimants

[In the Matter of the Matai Title "LOLO"]

In the High Court of American Samoa 
Land and Titles Division

MT No. 09-93

March 23, 1994

__________

[1] In circumstances in which family history is by and large harmonious, the "Sotoa rule" is the less arbitrary method of assessing hereditary entitlement.

[2] Presentation of the kava cup by family members, which included all but two of the claimants who sought registration of the title, is significantly indicative of family support favoring presentee.

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

Counsel: For Tafea F. Seui, Robert A. Porter 
For Si' itua Savini, Gata E.W .Gurr 
For Letalu M. Moliga, Afoafouvale L.S. Lutu 
For Segila P. Vaeao, Albert Mailo

Opinion and Order:

Four of the candidates in this matter had withdrawn their respective matai-succession claims at different times during these proceedings. When the matter was finally submitted to the court for its deliberation, the following parties remained: Tafea F. Seui, Si'itua Savini, Letalu M. Moliga, and Segila P. Vaeao.

In these matters, we are guided by the four criteria set out in A.S.C.A. § 1.0409(c):[25ASR2d176]

1. Hereditary Right

All the candidates traced their respective lineages to a common ancestor , the first titleholder, Lolo Ututautu'u aka Tautu'u, aka Nu'uto'a. Their respective family histories were also in agreement on the number of issue of the original titleholder; to wit, three. These children, in turn, gave rise to the three customary' clans of the Lolo family.

[1] In these, albeit infrequent, circumstances in which family history is by and large harmonious, it seems that the "Sotoa rule" (1) is the less arbitrary method of assessing hereditary entitlement. In our review of the gala (genealogies) submitted, we find that candidate Savini is two generations ahead of the other candidates. We conclude that Savini prevails on the issue of hereditary right.

2. Wish of the Clans

As alluded to above, the preponderance of the evidence showed that the Lolo family has three clans. The evidence also revealed that the family title has been vacant for more than thirty years, after Lolo Lauvao resigned the title to assume the Lutali title of Aunu'u. Following Lauvao's resignation, the family held numerous meetings, both within and without Sili, to select a matai successor. After several meetings, without any of the then-candidates yielding any ground whatsoever, the family directed the candidates to meet for the purpose of selecting a titleholder from among themselves. A subsequent series of meetings by the candidates likewise failed to produce a consensus. The issue was then apparently left in abeyance until Sualevai L. Sea decided to bring the matter to a head by offering the title for registration on December 4, 1992. This offer attracted a number of objections and counterclaims, which not only included objections from some of the original candidates, but also from a new set of candidates altogether. The only candidate remaining from the days of those earlier meetings of the family who is before the court today is Letalu.

Subsequent to the registration offer, the resulting candidates attempted to meet on a number of occasions to narrow the field. Those efforts did not produce a unanimous decision; however, a number of candidates[25ASR2d177] subsequently withdrew their succession claims in favor at Letalu after participating at one particular meeting, which resulted in the presentation of the Lolo title's kava cup to Letalu. Two of the parties, Savini and Vaeao, were not present at that meeting, and thus they continue to seek judicial determination of the matter. Likewise, Tafea seeks judicial resolution, even though he participated in the kava-presentation ceremony and accepted the appropriate customary presentations made by Letalu.

[2] While each party can claim some family support, we find that candidate Letalu had the most credible claim to support from the majority, if not from all, of the clans of the family. Letalu was a candidate before the family in its deliberations. When the family had earlier instructed Letalu and his fellow contenders to meet and decide on a holder, we Can infer from that family decision that Letalu was at least acceptable to the family to hold the Lolo title. As testified to by High Talking Chief Sualevai, before he moved to withdraw his claim, none of the candidates before the court, except himself and Letalu, were even considered by the family in any of its many deliberations. Furthermore, we find that the presentation of the kava cup to Letalu by family members, which included all but two of the claimants who sought registration of the title, is significantly indicative of family support favoring Letalu. The presentation of the kava cup roughly equated compliance with the family's decision to leave it to the various contenders to select a titleholder from among themselves.

We conclude that candidate Letalu prevails on the issue of clan support.

3. Eorcefulness. Character and Personalitv. and Knowledge of Samoan Customs

Candidates Tafea and Letalu present the stronger credentials. They are both college graduates, with Tafea having additionally completed postgraduate studies, which culminated in his obtaining his doctoral degree in education. Both have held responsible white-collar positions within the Department of Education. We rank Letalu, however, ahead of Tafea in forcefulness, character and personality. While Tafea has dedicated his life to the education of the children of American Samoa, Letalu's varied career experience has exposed him to policy and managerial roles outside the field of education. After eight years with the Department of Education, Letalu was elected to four terms as a representative in the House of Representatives. As a legislator, he chaired the important. Ways and Means and Budget Committees of the House of Representatives. He then resigned from the Fono in 1984 to [25ASR2d178] join the executive branch as the Governor's budget director. He has since left government and is now in private business as a construction contractor.

Tafea, Letalu, and Savini are matai, with Tafea purporting to hold, unlawfully, a second matai title. Although they have all been matai for several years now, Letalu stands out in his service to his village as a matai. Furthermore, the Associate Judges found Letalu to be noticeably aIlead of all of the candidates on matters of Samoan customs.

We conclude that Letalu prevails on the question forcefulness, character and personality, and knowledge of Samoan customs.

4. Value to Family, Village, and Country

In our evaluation of the parties, we rate candidate Letalu ahead of the other candidates on this criterion. His education, career history, and participation and experience in the affairs of the village of Tau as a leading matai of some 14 years' standing speak strongly for his capacity for leadership and thus potential value to family, village, and country . Although Tafea has also been a matai for an equal amount of time, it was evident on the testimony that his attempt to hold two titles necessarily compromised his effectiveness to serve two different families at same time. He conceded that he was not always responsive to his obligations as a matai of Sili village. Significantly, the Lolo family has been leaderless for too many years, with the result that the family has become very much fragmented. It goes without saying that strong, effective leadership is critical. Letalu impresses us as best fitting that role.

CONCLUSIONS

Based on the foregoing, we hold that Letalu M. Moliga is qualified to hold the title Lolo. Although Savini prevails on hereditary considerations, Letalu prevails on the second, third, and fourth criteria. The Territorial Registrar shall accordingly register the Lolo title from the village of Sili in candidate Letalu M. Moliga, in accordance with the requirements of A.S.C.A. § 1.0409(b).

It is so ordered.

*********

1. The court in In re Matai Title Sotoa, 2 A.S.R.2d 15 (Lands & Titles Div. 1984) , calculated blood relationship to the original titleholder, as opposed to the nearest titleholder in a candidates genealogy.

Leoso; American Samoa Gov`t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

ANTONIO MAOTA FOMAI LEOSO, Defendant

High Court of American Samoa
Trial Division

CR No. 26-93

December 29, 1993

__________

[1] In deciding whether to issue a search warrant based on a confidential informant's information, a magistrate makes a practical, common-sense decision as to whether all the circumstances set forth in the supporting affidavit provide a substantial basis that probable cause exists.

[2] A finding of probable cause is to be given great deference on review, because of the strong constitutional preference that searches be authorized by warrants.

[3] In determining whether probable cause exists, for purposes of issuing a search warrant, a totality of circumstances test is used. A confidential informant's veracity and his basis of knowledge are weighed as two elements in the totality of circumstances analysis, but not as two independent tests which must be separately satisfied. A deficiency in one of these two elements may be compensated for by a strong showing as to the other, or by some other indicia of reliability.

[4] An otherwise insufficient statement by an informant can support the issuance of a search warrant if the police have corroborating evidence. Corroborating evidence is unnecessary if the informant's credibility and basis for knowledge are sufficient.

[5] In determining whether information is too stale to establish probable cause supporting the issuance of a search warrant, the court considers the nature of the criminal activity, the length of the activity, and the nature of the property to be seized.

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

Counsel: For Plaintiff, Fainu'ulelei L.F. Ala'ilima-Utu, Assistant Attorney General
For Defendant, William H. Reardon

Order Denying Motion to Suppress Evidence:

On October 1, 1993, defendant filed his motion to suppress evidence obtained during the execution of a search warrant issued by the district [25ASR2d104] court judge on July 20, 1993. A hearing on this motion was held on November 15, 1993.

[1-2] In deciding whether to issue a search warrant based on a confidential informant's information, a magistrate makes "a practical, common-sense decision" whether all the circumstances set forth in the supporting affidavit provide a "substantial basis" that probable cause exists. Illinois v. Gates, 462 U.S. 213, 238-39, 76 L. Ed. 2d 527, 548 (1983); Massachusetts v. Upton, 466 U.S. 727, 732-33, 80 L. Ed. 2d 721, 727 (1984); American Samoa Gov't. v. Lam Yuen, 13 A.S.R.2d 49, 51 (Trial Div. 1989). A finding of probable cause is to be given "great deference" on review, because of the "strong preference" that, under the Fourth Amendment to the U.S. Constitution, police conduct searches pursuant to a warrant. Gates, 462 U.S. at 236, 76 L. Ed. 2d at 547; Upton, 466 U.S. at 733, 80 L. Ed. 2d at 727. The wording of the Fourth Amendment is repeated verbatim in the first sentence of Article I, section 5 of the Revised Constitution of American Samoa.

[3] In determining probable cause, a "totality of circumstances" approach is used. A confidential informant's "veracity" or "reliability" and his "basis of knowledge" are weighed as two elements in the "totality of circumstances" analysis but not as two independent tests which must be separately satisfied. As such, "a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Gates, 462 U.S. at 233, 76 L. Ed. 2d at 545. Thus, information given by a highly reliable informant can support probable cause, even if he fails to thoroughly set forth the basis for his knowledge. Likewise, information given by an informant with questionable motives can be sufficient if he gives a detailed description based on a claimed first-hand observation. Id.

[4] Furthermore, an otherwise insufficient statement by an informant can support the issuance of a search warrant if the police have corroborating evidence. Id. at 241-42, 76 L. Ed. 2d at 550; Lam Yuen, 13 A.S.R.2d at 50. Contrary to the defense position in this case and in Lam Yuen, though, corroborating evidence is not necessary if the informant's credibility and basis of knowledge are sufficient. See Lam Yuen, 13 A.S.R.2d at 50-51 (citing Upton, 466 U.S. at 730-31, 80 L. Ed. 2d at 725-26).

[5] Applying the "totality of circumstances" analysis, the search warrant executed against defendant and his family was supported by sufficient evidence. In his affidavit, the police officer stated that he knew the confidential informant, who was knowledgeable about marijuana and had [25ASR2d105] provided, on two occasions in the past, accurate information leading to arrests for felony narcotic offenses and seizure of narcotic paraphanalia. The informant said his knowledge was based on observations during several personal visits to defendant's residence over a period of some three years, beginning in 1990. In October 1991, the informant visited defendant's residence and saw 30 to 40 marijuana plants growing within the boundaries of a 15-foot high, wooden fence attached to back of the house and covered with a black fishing net. He also purchased four bags of suspected marijuana for $100. The police tested samples from this purchase, which proved positive for THC (the active ingredient in marijuana). During the last visit, in June 1993, the informant stated that he saw defendant and his family selling marijuana and observed about 40 marijuana plants growing in the same fenced-off area. The informant also described the sales procedure in detail. As for the timeliness of the facts supporting the search warrant, determining "whether information is too stale to establish probable cause depends on the nature of the criminal activity, the length of the activity, and the nature of the property to be seized." United States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986). Here, the criminal activity was ongoing, and the marijuana was being cultivated rather than merely possessed or distributed. This information, as a whole, constituted probable cause for issuance of the search warrant.

A defendant challenging the validity of a search warrant must overcome the deference which is to be given to a magistrate's finding of probable cause. The defendant has failed to show that the district court judge's finding of probable cause lacked a sufficient basis in the evidence. Therefore, defendant's motion to suppress evidence is denied.

It is so ordered.

**********

Le`i v. Olo,


MATT LE'I, Appellant

v.

OLO LETULI, Appellee

High Court of American Samoa
Appellate Division

AP No. 20-92

November 15, 1993

__________

[1] A trial court's grant of permanent injunctive relief is reviewed for an abuse of discretion or application of erroneous legal principles.

[2] The extent of an implied casement must be inferred from all circumstances of the case, including those uses that can reasonably be expected or as might reasonably be required in the normal development of land. This includes not only the right of ingress and egress, but also the right to make use of the casement for installation of utilities.

[3] The rule that the grantee of an easement by implication may not materially increase the burden on the servient estate must balance against the principle that the extent of all implied easement includes those uses which are reasonably expected or required for normal land development.

[4] In modern times, the installation of utility lines is a practical necessity incident to the residential use of property.

Before CANBY,* Acting Associate Justice, MUNSON,** Acting Associate Justice, VAIVAO, Associate Judge, and AFUOLA, Associate Judge. [25ASR2d34]

Counsel: For Appellant, Gata E. Gurr
No appearance entered for Appellee

MUNSON, Acting Associate Justice:

This is an appeal of a judgment of the Land and Titles Division in which that court held, among other things, that any power line poles erected to supply electrical power to Defendant/Appellant's property may constitute a continuing trespass to Plaintiff/ Appellee's land if those poles are located in a certain right of way. The trial court also ordered that Appellant "remove or cause to be removed any power line poles" that occupy the right of way. Appellant argues that the trial court's conclusions with respect to the power line poles were erroneous. We agree and modify that portion of the court's Order.

FACTS

The trial court in its Opinion and Order set forth the facts of this case in great detail. Because Appellant only questions a portion of the trial court's order, we will only recite those facts relevant to this appeal.

Appellee owned a parcel of land encompassing approximately 44 acres in a roughly triangular shape. The land was bounded on tl1e north by a paved road, running east and west. The. ocean comprised the northeast-southwest boundary, and a dirt road running south from the paved road to the ocean served as the third boundary. Appellee's residence is located at the northeast corner of his parcel in an area known as "Freddie's Beach."

In 1977, Appellee conveyed a three-acre parcel on the western edge of his property to Ethel T. W. Fujii. In 1978, Appellee conveyed two acres of land to Oliver Moors by a deed containing "grants of the land, together with all rights, easements, and appurtenances belonging or in any way incident or appertaining to the land." Order of Sept. 4, 1992, at 2. Mr. Moors' two-acre parcel was just to the north of the Fujii parcel and separated from that parcel by a 12-foot right of way. Both the Fujii and the Moors parcels were accessible via the 12-foot right of way, as well as the dirt road that formed the western boundary of Appellee's original plot.

Mr. Moors subsequently subdivided his two-acre parcel into five lots. One of those lots is at the southeastern corner of Mr. Moors parcel and is accessible only via the 12-foot right of way between the Moors and [25ASR2d35] Fujii parcels. On August 5, 1983, Mr. Moors sold that lot to Appellant, who intended to build a residence on the property. The deed from Mr. Moors to Appellant provided that the grant included "all rights, privileges, and easements held or enjoyed in connection with, or appurtenant to the land." Order of Sept. 24, 1992, at 3.

On February 8, 1989, Appellant and Appellee signed a document entitled "Deed of Easement for the American Samoa Power Authority (" ASP A ") an easement as was "necessary for the safe maintenance and operation of electrical power and water lines on, over, under, and across the land of the Grantor described below: [handwritten] 'Self-owned land bought fr. Oliver Moors.'" The deed correctly designated ASPA as "Lessee." These designations are confusing, because the land described in the deed belonged to Appellant, and not Appellee. Nevertheless, ASPA installed power line poles along the boundary line between Appellant's land and the right of way, presumably pursuant to the February 8, 1989 deed.

In February 1991, Appellate hired an independent contractor to clear his parcel with a bulldozer to prepare the land for construction of his residence. In addition to clearing Appellant's land, the bulldozer operator also cleared a large portion of Appellee's land from Appellant's southern boundary line to the ocean, greatly improving the ocean view from Appellant's property.

On March 14, 1991, Appellee sued Appellant claiming damages for trespass due to the power poles and the bulldozing activities, and seeking an injunction to require Appellant to remove the power poles. After a two-day trial, during which the trial court visually inspected the land in question, the court issued an "Opinion and Order" on September 4, 1992. In that Order, the court found Appellant was liable for trespass as a result of the bulldozing activities in February 1991 , and awarded Appellee compensatory damages of $1.00 and punitive or exemplary damages of $ 1,500. Appellant does not contest this finding or the amount of damages awarded.

The Court also held that an implied easement across the 12-foot right of way was created in favor of Appellant by the 1978 conveyance of the land to him from M. Moors. the court found, however, that although Appellant was entitled to the use of the 12-foot right of way for ingress and egress to his property, that right of way "is not well suited for handling both motor vehicles and power lines poles. ..." Order of Sept. 4, 1992, at 12. The court stated that despite its visual inspection, it was unable to determine whether or not the poles were actually on [25ASR2d36] Appellant's land or on the right of way. Id at 8. The court, however, found that Appellant "can readily determine whether or not any of the power line poles are located with the 12-foot right of way," and went on to order Appellant to "remove or cause to be removed any power line poles erected within the 12-foot right or way." Id at 15, 16. Appellant takes issue with this finding and the injunctive relief imposed.

DISCUSSION

[1] The trial court's grant of permanent injunctive relief is reviewed for an abuse of discretion or application of erroneous legal principles. Amwest Mortgage. v. Grady, 925 F.2d 1162, 1163 (9th Cir. 1991 ). Appellant argues that the trial court applied erroneous legal principles to reach its conclusion that the easement cannot be used for utility poles. We agree.

A review of the record and the relevant case authority supports the trial court's finding that Appellant owns an implied easement by necessity over the 12-foot right of way. (1) We hold, however, that the trial court improperly limited the use of that easement by Appellant to only ingress and egress.

[2] The extent of an implied easement must be inferred from all of the circumstances of the case, including those uses that can be reasonably expected. Kytasty v. Godwin, 162 Cal.Rptr. 556,562 (Cal. Dist. Ct. App. 1980). It is assumed that the parties contemplated such uses of the easement as might reasonably be required by normal development of the land. Fristoe v. Drapeau, 215, P.2d 729, 732 (Cal. 1950). "An easement by necessity can include not only the right to erect poles along that road on which may be strung wires for the transmission of electricity to and from that habitation"). [25ASR2d37]

[3] Balanced against these principles is the rule that the grantee of an easement by implication may not materially increase the burden on the servient estate. Schwob v. Green, 215 N.W.2d 240, 244 (Iowa 1974).

[4] The trial court found that it was foreseeable that Mr. Moors would subdivide his lots leaving at least one lot "landlocked." We find that it was also foreseeable that a purchaser of one of those landlocked lots, such as appellant, would want to build a residence or any other structure on that lot. In these modem times, the installation of utility lines, if not an absolute necessity, is a practical necessity incident to the use or property as a residence.

Moreover, because the trial court was unable to determine which power line poles, if any, are in the right of way, it cannot be said that the current placement of the poles "materially increases the burden" on Appellee's estate. Thus, we are persuaded that the trial court's decision to limit the easement to only ingress and egress to Appellant's property is not justified on this record. (2)

CONCLUSION

For the foregoing reasons, the judgment of the Land and Titles Division is MODIFIED to delete the restriction of the use of the 12-foot right of way for ingress and egress and to allow appellant to use the easement as is reasonable necessary to provide utilities to his land. The trial court's injunction ordering appellant to remove any power line poles from the 12-foot right of way is VACATED.

*********

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

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

1. The trial court stated that:

the unobjected use of the 12-foot right of way by Moors for
some 13 years and by [Appellant] for some 8 years. along
with the foreseeability of landlocked subdivision lots is indicative
of not only mutual intent to allow use of the 12-foot right of
way for the benefit of both the Fujii parcel and the Moors
two-acre parcel. but also of the practical and, therefore,
reasonable necessity for use of this passage to [Appellant's] lot.

2. In so holding, we find it unnecessary to construe the "Deed of Easement for the American Samoa Power Authority" executed by the parties on February 8, 1989.

Leapaga; Randall v.


EMMA ISUMU RANDALL and TAULIA ISUMU, Plaintiffs

v.

LEAPAGA KESI, Defendant

High Court of American Samoa
Land and Titles Division

MT No. 3-91

December 10, 1993

__________

[1] A matai who has been away from American Samoa for than one year is an absent matai and is subject to removal from office pursuant to A.S.C.A. § 1.0412(a). Infrequent, irregular, and brief returns do not toll a matai's absent status.

[2] The court's discretion to remove a matai may be influenced, but not fettered, by the health of matai and his spouse, and by his support from family members willing to actively serve him.

[3] The interests of a family cannot be well served by a matai who does not live in the family village. [25ASR2d91]

[4] It is self-evident that a matai's place is with his family, and that the meaningful exercise of his duties demands his continuing presence in the territory.

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

Counsel: For Plaintiffs, Afoa L. Su'esu'e Lutu
For Defendant, Gata E. Gurr

This action seeks the removal of the matai title "Leapaga" from defendant Leapaga Kesi. The trial was held on October 27 and 29 and on November 1 and 3, 1993. The parties were present personally and by counsel throughout the proceedings.

The action was brought under A.S.C.A. § 1.0412(a). Upon the filing of a petition by any member of the family of any matai absent from American Samoa for more than one year, this statute authorizes the High Court to remove the absent matai's title. The court's authority is fully discretionary, and in exercising that discretion, the court may consider the reasons for the matai's absence and the wishes of the family members actively serving the matai.

Defendant is the sa'o or senior matai of the Leapaga family of Nu'uuli, American Samoa. His investiture to that highest of aiga or extended family positions was celebrated in 1958. He was, however, a heavy equipment operator, and when his job on the Pago Pago International Airport project was completed in the early 1960s, he moved with members of his immediate family to live and work in Hawaii. After his retirement, he continued to live outside of American Samoa, for the most part with his children scattered about the U .S. mainland, principally in California.

Defendant claimed to have frequently returned to American Samoa, usually every three to four months, and never less than once a year . However, his U.S. passport issued in 1977 shows only 10 entries in almost 13 years (1)--two in 1978, three in 1982, one in 1983, one in 1984, two in 1988, and one in 1990. His passport issued in 1990 shows seven more entries--one in 1990, two in 1991, two in 1992, and two in 1993. [25ASR2d92]

Clearly, his return trips were less frequent and more sporadic than claimed.

Defendant's explicit reasons for remaining outside American Samoa relate to medical treatment and recuperation. As is to be expected at age 79, defendant has received medical care in recent years, including surgery in 1987 and treatment for hypertension in 1990 and 1993. His wife is confined to a wheelchair and has been in poor health for many years now.

During his absence from American Samoa, defendant has largely performed his sa'o responsibilities through a surrogate. At times, he has even enlisted an untitled family member for this purpose for substantial periods. Apparently, this arrangement has functioned satisfactorily for Leilpaga obligations in village affairs. Defendant also appeared at some family fa'alavelave or events and, if informed of them, sent some instructions for others. While the identity and, hence, the support of the Leapaga clans were disputed, many, if not most, family members would continue to render tautua or traditional service to defendant and want him to retain his title. The principal exceptions are plaintiffs and members of their immediate family.

Nonetheless, the Leapaga communal family lacks genuine leadership and is in disarray. Plaintiffs' father and defendant are brothers, who have been unable and probably unwilling to get along with one another for many years. Plaintiffs' father is older than defendant and has harbored a long-standing grudge against defendant as a result of the latter's selection as the family's sa'o. Plaintiffs' father has exercised self-proclaimed pule or control over the family's communal lands. He has been involved in at least 10 intra-family and third-party land disputes in this court during the last 11 years.

In 1982, plaintiffs' father initiated the first attempt to remove defendant's matai title. Isumu v. Leapaga, MT No.6-82 (Land & Titles Div. 1982). The court denied the petition in that case in the interests of promoting family peace and harmony, noting that defendant had returned to American Samoa and apparently had the support of the majority of the family. However, defendant did not stay and opted to continue his role as an absent sa'o. Family peace and harmony were not promoted, but only continued to deteriorate as time passed.

[1] Based on these findings, we reach the following conclusions. First, defendant is an absent matai, who has been away from American Samoa [25ASR2d93] for more than one year and is subject to removal of his title under A.S.C.A. § 1.0412(a). His infrequent, irregular and brief returns did not interrupt or toll his absent status. See Aoelua Family v. Aoelua, 17 A.S.R.2d 88 (Land & Titles Div. 1990), aff'd 21 A.S.R.2d 1 (App Div. 1992).

[2] Second, the court's discretion to remove defendant's matai title may be influenced but not fettered by the state of defendant's and his wife's health and by defendant's support from family members willing to actively serve him. A.S.C.A. § 1.0412(a); see A.S.C.A. § 1.0404(b); see also Aoelua, supra, 21 A.S.R.2d at 2-3.

[3-4] Third, we are persuaded that defendant's long-term absence is so deleterious to the Leapaga family's well-being as to require removal of his title. As was pointed out in Galu v. Mariota, 1 A.S.R. 461, 463 (1932), "[T]he interests of the family can [not] be well served by a matai who does not live in the Village where the family of which he is the matai has its situs." And very recently in Aoelua, supra, 17 A.S.R.2d at 90:

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

The Leapaga title is removed from defendant. Judgment shall enter accordingly.

It is so ordered.

**********

1. This passport was issued on November 1, 1977, and expired on October 31. 1987. Defendant successfully continued to use this passport for travel purposes until his current passport was issued on June 20, 1990.

Leaeno; In re Matai Title


FAGAFAGA DANIEL LANGKILDE, Claimant,

v.

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

[In the Matter of the Matai Title "LEANO"]

In the High Court of American Samoa
Land & Titles Division

MT No. 2-89

August 6, 1993

__________

[1] Until there is further legislated direction, the word "family" is equated with the claimant's or counterclaimant's clan for purposes of testing the validity of the petitions.

[2] This factual determination of "Best Hereditary Right" is traditionally guided by the percentage of the candidates' blood relationship to a former holder of the matai title.

[3] Clan support for a matai title can not be evaluated by counting heads and is traditionally measured by consensus.

[4] 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 the criterion of "Forcefulness, Character, and Personality; Knowledge of Samoan Customs." [25ASR2d5]

[5] The consideration of "Value to Family, Village, and Country" seeks to evaluate a candidates' prospective value to his family, village, and American Samoa as holder of the title, in light of the first three criteria, and the candidate's leadership potential and plans.

[6] 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.

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

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 [25ASR2d6] 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 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 counterclaimants 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.

[1] 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 [25ASR2d7] 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.

1. Best Hereditary Right.

[2] 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 [25ASR2d8] 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.

[3] 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 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.

[4] 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 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. [25ASR2d10]

4. Value to Family, Village, and Country.

[5] 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, 1961 ed, § 6.0107).

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.

**********

Lavata`i; Pen v.


IOELU F.C. PEN, Plaintiff,

v.

FAIMA LAVATA'I, MEL LAVATA'I
and DOES I-V, Defendants,

High Court of American Samoa
Land and Titles Division

LT No. 61-92

March 21, 1994

__________

[1] A matai's authority or pule over family lands is not unfettered when it comes to dealing with the rights of family members; rather, it must be used for the benefit of family members and justly and fairly. It must not be used unreasonably and unjustly.

[2] The unquestioned right of a family member to use communal land is a property right under the due process clause of either the U.S. or Samoan constitutions. A non-family member, by definition, has no such right.

[3] A family member is ordinarily entitled to possess land assigned to him for his lifetime.

[4] Having the general ability to administer the family lands but at the same time he has no authority to alienate land in his own right, a matai's authority is like tl1at of a trustee in that he is to act for the benefit of the family. When a matai undermines the rights of a family member (a beneficiary of family property) to favor a non-family member, he acts inconsistent witl1, and is in breach of, tl1at duty to exercise his pule for the benefit of the family members.

[5] A family member may, in certain circumstances, seek judicial review of matai action, and the court will enjoin arbitrary , capricious, or illegal actions or tl1ose in which there has been an abuse of discretion on the part of the of the matai.

[6] A matai can only revoke an assignment of land, and thereby deprive a family member of its possession, for good cause.

[7] A matai can, for a family purpose, order a person's removal from land if he meets certain requirements. [25ASR2d165]

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

Counsel: For Plaintiff, Togiola T.A. Tulafono
For Defendants, Afoafouvale L.S. Lutu

Opinion and Order:

Plaintiff Ioelu F.C. Pen seeks a permanent injunction against the defendant Faima Lavata'i and his son Malakai, aka Mel, Lavata'i, to enjoin them from interfering with his use and enjoyment of a certain parcel of land leased to him by the late Lavata'i Natia, then senior matai of the Lavata'i family of Nu'uuli. The lease agreement, dated July 6, 1989, stipulates a term of 55 years and relates to an area approximating .389 of an acre of Lavata'i communal land known as "Lepine." The agreement also provides for an initial monthly rental of $150 during the first year of the lease and $200 per month for the remainder of the lease. (1) The lease agreement was presented to and approved by Acting Governor Galea'I Poumele on October 3, 1989, pursuant to A.S.C.A. § 37.0221. (2)

Plaintiff is a not a member of the Lavata'i family; the defendants are. Plaintiff claims that he filed suit after several encounters with defendants, attempts to interfere with his business activities on the leased site. On the other hand, Faima Lavata'i, a brother of the late senior matai, claims that the area leased to plaintiff constitutes a part of Lepine which has been assigned to him for his use and livelihood in accordance with custom. Defendants also charge that plaintiff's use of the land for furniture making has been both noxious and noisome and often undertaken without regard to time of day. Malakai Lavata'i complained on the stand about strong fumes emanating from plaintiff's workshop and his noisy machinery's being particularly bothersome in the early hours of the morning and even on Sundays.

After hearing the evidence, the court visited the location of the disputed site. Although plaintiff claimed that Faima was not on Lepine when he first went onto the land in 1983, we are satisfied that the leased area had [25ASR2d166] already been assigned to Faima, for the following reasons: Faima testified that he first entered this part of Lepine prior to the Second World War and established extensive cultivations with which he served the matai and family. He further testified that he then built a number of houses there. Faima's claim to extended use and occupation was corroborated by Valasi Gaisoa, his niece and daughter of the late Lavata'i Natia. From our visual inspection of the disputed site, we noted that the area is surrounded by the homes of Faima and his immediate family, together with a garage which, according to the testimony, was located on Lepine at Faima's instance. Visual inspection also supported Faima's testimony about his having once bulldozed and enlarged the general area, from the direction of the main highway towards the base of mountain inland. He additionally submitted corroborating government job orders, evidencing his hire of heavy equipment in 1980 for use on a site referred to as II Lepine, II together with building permits which related to his subsequent building of a number of" European II -type housing throughout the 1980s on Lepine. At the same time, plaintiff conceded that in the process of his setting up his business yard on Lepine, he had to clear certain subsistence crops that were growing on the site. These were crops that Faima had claimed were his. Finally, the court could not help but notice on its site-visit that Faima's settled occupation was very distinct from the similarly settled occupation to the west of Tuinei Lavata'i, another of Faima's brothers, and Lavata'i Natia.

Plaintiff, on the other hand, was recently brought onto the site by Tuinei Lavata'i. He acquired the extended leasehold from the senior matai sometime shortly thereafter. Why the senior matai executed such a lease in favor of a non-family member, in derogation of a family member's claim, was not made clear on the evidence. Like the senior matai, Tuinei Siaki has also since passed away. All that we could gather from the evidence was that plaintiff, as he had testified, had sought out the lease from the senior matai in order to "secure his future." Faima, on the other hand, testified that the matter of plaintiff's presence on the land and his dealings with Tuinei Siaki was earlier brought up at a family meeting presided by the senior matai. At this meeting, he expressed his objection with plaintiff's presence and he pleaded with the matai to relocate plaintiff to Tuinei's side of the property, since it was the latter who had invited plaintiff onto the land.

Subsequent to that family meeting, a lease was executed and presented for gubernatorial approval, all without Faima's knowledge or consent. He, as well as other family members, only learned of the existence of a lease when these proceedings arose. [25ASR2d167]

The evidence further revealed that certain third parties, who were not before the court, took mortgage interests on the lease as collateral for certain loans made to plaintiff. Amerika Samoa Bank apparently gave plaintiff a secured loan on October 5, 1989, in the amount of $30,000.00, as evidenced by plaintiff's mortgage instrument filed with the Territorial Registrar on October 10, 1989, and recorded in Native Leases, Volume 4 at pages 167-68. The United States Small Business Administration subsequently loaned plaintiff the sum of $174,400.00, as evidenced by plaintiff's mortgage instrument dated October 19, 1992, and received by the Territorial Registrar's Office on October 23, 1992.

DISCUSSION

Plaintiff's principal argument is that he has a valid and enforceable lease. He contends that the lease was within the matai's exclusive competence, and he cites Vaimaona v. Tuitasi, 13 A.S.R.2d 76 (Land & Titles Div. 1989) (motion for new trial denied), aff'g 12 A.S.R.2d 68 (Land & Titles Div. 1989), aff'd 18 A.S.R.2d 88 (App. Div. 1991), for the proposition that "the Samoan custom that major family decisions [by the sa '0 (senior matai)J should be made with consultation with the whole family is not among those incorporated into statutory restrictions on the otherwise plenary powers of a 'sa'o' over family lands." Plaintiff's Post Trial Brief, at 2 (emphasis in original). He further argues that "the offer to register the [leaseholdJ instrument does not require 'Notice' of any sort by the statutes of American Samoa. " Id. (emphasis in original). As we understand plaintiff's contention, it is that the Samoan custom requiring a matai to consult with his family before making any major decisions concerning family lands was not a substantive requirement of the law which regulates the leasing of communal lands. Furthermore, it is argued, the lease in question was given favorable recommendation by the Land Commission and then duly approved by the Governor in accordance with applicable statutes; these applicable statutes did not require prior notice of this process to family members.

Defendants, on the other hand, contend that the subject lease is invalid because it was, among other things, entered into without their knowledge and approval. Citing Fairholt v. Aulava, I A.S.R.2d 73, 74 (Land & Titles Div. 1983), defendants claim that their right to family lands, as Lavata'i family members, is a property right protected by both the United States and American Samoa Constitutions.

[1-3] The issue in this case is not simply the question of whether or not a matai can enter into a lease of communal land without family [25ASR2d168] consultation. Instead, the issue before us is whether the senior matai can effectively lease family lands to a third party and thereby effectively disseise a family member from use of family land assigned to him. After all, a matai's authority or pule over family lands is not unfettered when it comes to dealing with the rights of family members; rather, "it is a pule which must be used for the benefit of family members and justly and fairly. It must not be used unreasonably and unjustly." Tali v. Tupeona, 4 A.S.R. 199, 206 (Land & Titles Div. 1961). The court has recognized "the unquestioned right of a family member to use communal land [as being] a property right under the due process clause of either the U .S. or Samoan constitutions." Fairholt, 1 A.S.R.2d at 74 (discussing U.S. Const. Amend. V; Rev'd Const. Am. Samoa Art. I, § 2); see Lutu v. Taesaliali'i, 11 A.S.R.2d 80, 87 (Land & Titles Div. 1989) (citing Tuanaitau v. Pagofie, 4 A.S.R. 375, 381 (1963); Fairholt, 1 A.S.R.2d at 74); Gi v. Temu, 11 A.S.R.2d 137, 143 (Land & Titles Div. 1989) (citing Lutu). On the other hand, a non-family member "by definition has no such right. " Gi, 11 A.S.R.2d at 143 (quoting Lutu, 11 A.S.R.2d at 87). Furthermore, a family member is ordinarily entitled to possess land assigned to him for his lifetime. Gi, 11 A.S.R.2d at 142 (citing Taesali v. Samuela, 3 A.S.R. 359,361 (Trial Div. 1958).

[4-5] Having "the general ability to administer the family lands but at the same time he has no authority to alienate land in his own right, " a matai's authority is like that of a trustee in that he is to act for the benefit of the family. Lutu, 11 A.S.R.2d at 88. "It thus follows that when a matai undermines the rights of a family member (a beneficiary of family property) to favor a non-family member, he is surely acting inconsistent with, and is in breach of, that duty to exercise his pule for the benefit of the family members." Lutu, 11 A.S.R.2d at 88. Hence, a family member may, in certain circumstances, seek judicial review of matai action, and the court will enjoin "arbitrary, capricious, or illegal actions or those in which there has been an abuse of discretion on the part of the of the matai. " Fairholt, 1 A.S.R.2d at 79; see Lutu, 11 A.S.R.2d at 88; Gi, 11 A.S.R.2d at 142; cf. Vaimaona, 12 A.S.R.2d at 70-71 (although land title could not be invalidated when matai sold land without consulting family, thus violating Samoan custom, affected family members could file suit to (1) obtain an accounting from the matai, (2) obtain compensation for their assigned lands, and (3) possibly remove the matai's title).

[6-7] Thus, a matai cannot revoke an assignment of land, made in accordance with Samoan customs, for a family member's use atld thereby deprive that family member of its possession, "except for good cause." [25ASR2d169] Taesali, 3 A.S.R. at 361; Gi, 11 A.S.R.2d at 142 (citing Taesali). (3) "Good cause" for removal includes a failure to render tautua (traditional service to the matai and family) and an overriding family purpose. ,)'ee, e.g., Leapaga v. Masalosalo, 4 A.S.R. 868, 872 (App. Div. 1962) (tautua not rendered); Tiumalu v. Lio, 3 A.S.R. 176, 179-80 (Trial Div. 1955) (possible use of lalld for a family graveyard) .However, with regard to a family purpose, a matai can order a person's removal only after:

a. A family meeting at which all parties are permitted to be heard.
b. A decision by the matai, reasonable under the circumstances,
that the removal is for an important family purpose.
c. Provision of specific alternate land for erection of a dwelling unit
if desired, or other arrangement reasonable under the circumstances
....
d. Allowance of such time as is reasonably necessary to construct
the new house or complete the other reasonable arrangements.

Coffin v. Mageo, 4 A.S.R. 14, 18 (Land & Titles Div. 1970).; see Gi, 11 A.S.R.2d at 141-42 ("[A] matai should ordinarily consult with the family, including especially those family members directly affected, before taking land assigned to a family member in order to use the land for some other family purpose."). Thus, if a person has expressly or implicitly been assigned the "communally-owned house and appurtenant areas," a matai may not remove him without meeting the aforementioned requirements. Coffin, 4 A.S.R. at 18.

In short, plaintiff's suggestion that the matai's power over family lands is "plenary," and thus without limits, is erroneous. Plaintiff's citing of Vaimaona to support his argument is also misplaced. Vaimaona involved a family's challenge to a matai's alienation of communal land without his consulting the family, as well as a claimed lack of notice. However, that case makes no mention of the disputed communal land's being assigned to an individual. In contrast, the case now before this court involves more than the matters of a family's being consulted or given notice. Defendants were assigned their land alld so have a property interest which is protected under the due-process clauses of the United States and [25ASR2d170] American Samoa Constitutions. Const. Am. Samoa Art. I, § 2. See U.S. Const. Amend. V; Rev'd

As such, the defendants are entitled to possess the family's land which has been assigned to them. The evidence does not show that the matai had good cause, such as defendants' failure to perform their traditional service, to revoke their land assignment. Likewise, the evidence has not demonstrated an overriding family purpose; plaintiff's lease certainly does not qualify .In light of inflation and the increasing scarcity of unassigned land in the territory , the $200-a-month rental payments, set for a 55-year term, at best provides only a marginal benefit to the family.

However, the lease was agreed to by the family's matai, approved by the Governor, and registered by the Territorial Registrar. Immediately canceling the lease would cause plaintiff, and thus his mortgagees, significant financial hardship. The third-party lending institutions were not before this court to raise their own respective arguments against canceling the lease. Therefore, this court will exercise its equitable powers in not terminating the lease during the term of plaintiff's aforementioned mortgages. In order to ensure, however, that no future encumbrances be placed on this property, a copy of this judgment shall be placed with the copy of the lease in the Territorial Registrar's records. Also, because the lease concerned a portion of land which has been assigned to the defendants, all future rental payments, as well as any rental arrearages, are to be paid directly to the defendants. With these conditions in mind, plaintiff's request for injunctive relief is granted; that is, defendants shall refrain from any further self-help measures against plaintiff's business activities on the leased land. Judgment shall enter accordingly.

It is so ordered.

*********

1. Plaintiff admits that since the death of the senior matai, he has not being paying the stipulated rent.

2. A.S.C.A. § 37.0221(a) permits the leasing of native land "with the approval of the Governor."

3. This right is not absolute, though--the matai can reallocate communal land as long as he provides the displaced family members with equivalent land. Talili v. Satele. 4 A.S.R.2d 23, 27 (Land v. Titles Div. 1987).

Lauofo; Tuitasi v.


MIRIAMA N. TUITASI and TOILOLO FERETI, Plaintiffs

v.

LAUOFO T. KITIONA and AMITUANI N. IOSEFA, Defendants

High Court of American Samoa
Land and Titles Division

LT No. 3-92

November 29, 1993

__________

[1] An affidavit executed on the day notice was posted in a proposed land title registration is proof only that it was posted on that day. not that it remained posted for 60 days. An affidavit executed at the end of the 60 day period is evidence tl1at the notice remained posted for the requisite time.

[2] While title registration is not a prerequisite to the validity of a document alienating an interest in land, it is a logical first step.

[3] Title registration must be noticed for 60 days by posting at the courthouse and at two public places in the village in which (or nearest to which) the land is located. and by publication of the notice in a local newspaper at least once every 30 days during the 60 day period, pursuant to A.S.C.A. § 37.0103(a). The applicant must provide the Territorial Registrar with affidavits by the Clerk of Courts, the village Mayor or Pulenu'u, and from the newspaper, each stating that the required notice was given within his/her sphere. A.S.C.A. § 37.0103(c).

[4] Substantial compliance with the notice requirements of the land title registration statutes may be sufficient when non-material errors occur, such as failure to publish notice in the [25ASR2d58] newspaper a second time during the notice period, particularly if the principal objector knew of the proposed registration and made a timely adverse claim.

[5] The fact that this court has held, on one occasion, that substantial compliance with statutory requirements was sufficient, should not yield an expectation that public officials will ordinarily receive judicial recognition of their faulty acts.

[6] In the public interest, the Territorial Registrar should establish procedures that will ensure that the Clerk of Courts. the village Pulenu'u. and newspaper actually post or publish the requisite notices of proposed land registration, and provide the required affidavits. In the absence of more explicit statutory direction that currently exists, the affidavit of the newspaper should he signed by the owner publisher, editor, or some other employee or agent stating his/her authority.

[7] Land title registration and document registration laws are materially different. No statute requires either posting or publication of any notice when a document alienating an interest in communal land is proposed for registration under A.S.C.A. § 37.0210. The land Commission could adopt rules requiring notice for document registration under the Administrative procedures Act, A.S.C.A. § 4.1001 et seq., pursuant to its rule-making authority enumerated in A.S.C.A. § 37.0203(d). Without a statute or formal rule requiring notice of document registration, the lack of notice is meaningless as a bar to proposed document registration.

[8] Since no statute or administrative rule compels the referral of objections to document registration to the Secretary of Samoan Affairs, the Territorial Registrar should not automatically make such referrals when such objections arise. Such cases are properly forwarded to the Secretary only if referrals are required by statute, hy administrative rule, by orders of the Land Commission on a case-by-case basis, or pursuant to specific authority delegated to the Registrar by the Land Commission. The land Commission should establish policies and criteria for making such referrals.

[9] The process of referring disputes of land lease document registration to the Secretary of Samoan Affairs must not frustrate the aims of A.S.C.A. §§ 37.0203, 37.0204, 37.0221, and 37.0222, which require the land Commission to formulate recommendations for the Governor, and for the Governor to make the final decision regarding approval or disapproval of the proposed lease.

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

Counsel: For Plaintiffs, Albert Mailo
For Defendants, Tautai A.F, Fa'alevao

This action began as a land document registration case and evolved to also become a land title registration case. In both respects, land ownership was the underlying issue. Opportunity is also provided for interpretation and comment on the application of certain land tenure laws, as modified in 1989. [25ASR2d59]

Trial took place on September 23, 24, and 27, 1993. Plaintiff Toilolo Fereti ("Toilolo") was present with counsel throughout the trial. Defendants Lauofo T. Kitiona ("Lauofo") and Amituanai N. Iosefa ("Amituanai") were also present with counsel.

FINDINGS OF FACT

On or immediately before August 1, 1991, Lauofo, as lessor, and Amituanai, as lessee, signed a lease of a 0.22-acre plot within communal land named "U`utafeuua," situated in the Village of Malaeloa, American Samoa. The survey of this plot was approved on July 24, 1991. The term of the lease was 55 years, commencing August 1, 1991, and ending July 31, 2046. Lauofo is the senior matai or sa`o of the Lauofo family and signed the lease for himself and on behalf of the family. The plot was leased for residential purposes, and the parties intended to have the leasehold serve as collateral for a bank construction loan.

[1] The lease was filed with the Territorial Registrar on August 1, 1991. The Land Commission's notice of the lease was posted on four utility poles in Malaeloa and on the front of the courthouse for a period of 61 days, beginning August 5, 1991, and ending October 4, 1991. Because the affidavit of posting was sworn to and subscribed by a member of the Territorial Registrar's staff on August 5, 1991, the beginning day of the period, it proves nothing more than that the notice was posted on that day.

The notice provided for the filing of objections to the lease with the Territorial Registrar in his capacity as secretary of the Land Commission during the notice period, before the Commission forwarded a recommendation to the Governor respecting his approval or disapproval of the lease. Miriama N. Tuitasi filed an objection on August 28, 1991. Toilolo filed one on October 2, 1991.

As the Territorial Registrar has been accustomed to doing for a long time, according to Chief Assistant Territorial Registrar Starr Schuster, the lease was referred to the Secretary of Samoan Affairs on October 29, 1991, for dispute resolution proceedings under A.S.C.A. § 43.0302. On January 21, 1992, the Deputy Secretary of Samoan Affairs issued a certificate of irreconcilable dispute. On February 3, 1992, the Territorial Registrar forwarded the matter to this Court, and this action was commenced by the notice issued by the Clerk of Courts on August 5, 1992. [25ASR2d60]

A second survey of 0.349 acres, encompassing the same plot, was approved on July 1, 1993. The accompanying surveyor and pulenu`u certificate was issued on June 30, 1993, and the proposed title registration was offered to the Territorial Registrar on July 9, 1993. On July 12, 1993, the Territorial Registrar posted the notice of this proposed registration on three telephone poles in Malaeloa and at the courthouse for a 60-day period, beginning July 12, 1993 and ending September 10, 1993.

The first affidavit of posting for this notice was also executed by a member of the Territorial Registrar's staff at the beginning rather than at the end of the notice period. A second affidavit, signed by the same staff member on November 2, 1993, confirmed the posting for the 60-day period. The notice was published in the Samoa Journal & Advertiser, a local newspaper, on July 20, 1993, and September 28, 1993. The affidavit of this publication was signed on October 22, 1993.

On September 7, 1993, Toilolo also objected to this registration, and on September 17, 1993, it was referred for dispute resolution to the Secretary of Samoan Affairs. Although this process has not been separately completed for this registration, the parties stipulated that the certificate of irreconcilable dispute already on file in connection with the lease registration, and encompassing the same underlying land ownership issue, would serve to enable the Court to decide both registration matters.

Physically, "U`utafeuua" lies along the north side of the semi-circular, public road that extends northward from the main public road in Lepuapua towards the eastern part of the Village of Leone, through Malaeloa, and then back southward to the main public road near the population center in the western part of Leone.

Across a stream, east of "U`utafeuua" lies communal land, known as "Pulemaava," of the Toilolo family, as determined by Malepeai v. Faatupu, LT No. 10-81 (Land & Titles Div. 1983), aff`d Faatupu v. Malepeai, AP No. 7-84 (App. Div. 1984). East to west, "U`utafeuua" is occupied by Lauofo family members, the Malaeloa Congregational Christian Church, Amitaunai (the plot at issue), and Lauofo. Continuing eastward is land named "Talitiga," which is separated from "U`utafeuua" by a road leading to the mountain and which, east to west, is occupied by Toilolo, Taulapapa, and Amitaunai's guest house. Next westward is communal land of the Tuilefano family. Across the north or mountain side of "U`utafeuua" and "Talitiga" stretches communal land of the [25ASR2d61] Amituanai and Nanai families, called "Asipapa" and occupied by members of these families.

Toilolo and his witnesses claimed that Lauofo is a talking chief or tulafale under the Toilolo title of Malaeloa, even though the present Lauofo refuses to render traditional service or tautua to him, and that all lands occupied by Lauofo and his family are under Toilolo's control or pule. This claim is based substantially on Toilolo family history, which holds that the Lauofo title and Lauofo's right to use certain lands, including "U`utafeuua," was created by the present Toilolo's grandfather, when he held the Toilolo title, as a reward for the original Lauofo's friendship and tautua.

On the other hand, Lauofo and Amituanai claimed that the Lauofo title has a background in Tafuna and before that in the Manua Islands. It became a recognized title in Malaeloa through the marriage of a male member of the Lauofo family with a female member of the Amituanai family and marital residency in that village. Amituanai family tradition holds that the extended Amituanai family of Maleloa includes the Amituanai, Nanai and Lauofo families and that the Lauofo title is under and renders tautua to the Amituanai title. In addition, each of these three families owns separate communal lands, but the members of the other two families have mutual rights to use these lands with the permission of the sa`o exercising immediate pule over the land.

Unquestionably, Lauofo titleholders have exerted pule over "U`utafeuua" in significant ways for many years, until now without any objection from the Toilolo in office. Transactions of record include separation agreements that were entered by a Lauofo and, in one instance, a Nanai and recorded with the Territorial Registrar in 1963, 1965, 1967, and 1968, pursuant to A.S.C.A. §§ 37.1501 et seq. or their predecessor statutes. Lease agreements were entered and recorded with the Registrar in 1990 and 1991, pursuant to A.S.C.A. §§ 37.0201 et seq.

In 1993, under A.S.C.A. §§ 37.0101 et seq., title to the plot of "U`utafeuua" where the Malaeloa Congregational Christian Church is located was registered as Lauofo communal land. At the time of this trial, pursuant to A.S.C.A. §§ 37.0201 et seq., Lauofo's deed of conveyance of this plot to the Church was ready to be considered at a Land Commission hearing, following completion of the public notice period. During this period, Toilolo did not object. [25ASR2d62]

Toilolo attributed his silence in the face of these transactions to the positive relationship between the former holders of the Lauofo and Toilolo titles. Toilolo took office in 1971 and Lauofo in 1977. Thus, this explanation does not hold up for the 1990 and 1991 leases. We believe that Toilolo's antagonism towards Lauofo and Amituanai, which was reciprocated, and not any legitimate Toilolo claim to the title of "U`utafeuua" brought about this lawsuit.

In sum, the evidence of family histories and traditions and of pule, occupancy, and use convincingly established that the plot within the land "U`utafeuua" at issue is the communal land of the Lauofo family.

CONCLUSIONS OF LAW

1. Having found that "U`utafeuua" is owned by the Lauofo family as communal land, Lauofo may register the title to the plot at issue and a lease of that plot. However, we still need to review the validity of the land title and document registration procedures followed with respect to both registrations.

[2] 2. In this case, land title registration was initiated after rather than before seeking document registration of the proposed lease. While title registration is not a prerequisite to the validity of a document alienating an owned interest in land, it is a logical first step. We will consider the title registration process first.

[3] The problem here was the adequacy of the notice given after the plot was duly surveyed and the title to it was offered for registration. The offered title registration must be noticed for 60 days by posting at the courthouse in the Village of Fagatogo and at two public places in the village in which or nearest to which the land is located, and by publication of the notice in a local newspaper at least once every 30 days during the 60-day period. A.S.C.A. § 37.0103(a). The applicant must provide the territorial registrar with "notarized statements," which we interpret to mean affidavits, by the Clerk of Courts and village mayor or pulenu`u and from the newspaper, each stating that within his or her sphere the required notice was given. A.S.C.A. § 37.0103(c).

[4] Strict compliance with these requirements was not achieved. The posting and publishing were done, but the second publishing occurred after the 60-day period. In addition, affidavits by the Clerk of Courts and Pulenu`u are lacking, being replaced by the affidavits by a member of the Territorial Registrar's staff. The staff member's original affidavit [25ASR2d63] certifying to posting at the courthouse and in the village was, as already noted, deficiently executed on the day of posting rather than after the 60-day notice period.(1)

However, substantial compliance was realized. The notice of proposed title registration was given by the three methods required. It was posted for the prescribed time period and published once during this period. The affidavit of posting was executed by a public official accustomed by long-standing practice to carrying out this role. The affidavit of publication was signed by the publisher of the newspaper.

Most importantly, the principal objector, Toilolo, knew of the proposed title registration and timely made an adverse claim. Moreover, the dispute was properly referred to the Secretary of Samoan Affairs for dispute resolution procedures under A.S.C.A. § 43.0302. Finally, Toilolo stipulated to using the failed dispute resolution proceedings and the Secretary of Samoan Affairs' certificate of irreconcilable dispute in connection with the proposed lease registration process as satisfying this requirement for purposes of the title registration dispute. He also did not interpose any objections to any other procedural irregularities or the factual foundations for these steps.

Therefore, we conclude that the title registration process has been adequately completed and that Lauofo is entitled to have the Territorial Registrar register the title to the plot of the land "U`utafeuua" at issue as the communal land of the Lauofo family.

[5-6] This is not to say, however, that the public authorities handling these procedures can expect to ordinarily receive judicial recognition of their faulty acts. The Territorial Registrar is well-advised to adopt revised, separate affidavits of posting and publications for each of the three, required means of notice, to replace the outmoded affidavit form still in use. In the public interest, the Registrar should also establish procedures that will ensure that the Clerk of Courts, pulenu`u, and newspaper actually post or publish the necessary notices and provide the [25ASR2d64] required affidavits,(2) executed after the fact. The registrar should continue to oversee proper initiation and completion of the notice requirements.

3. Next, we turn to the land document registration process. Here, the concern is with the procedures regarding notice and the referral to the Secretary of Samoan Affairs.

[7] The document registration and title registration laws are materially different. Strictly, no statute requires either posting or publication of any notice when a document alienating an interest in communal land is proposed for registration under A.S.C.A. § 37.0210. Wisely, the Territorial Registrar has followed the same 60-day posting procedure as required for title registration. Perhaps this practice originated from or before the time when all laws related to private real property rights were codified in one chapter. See Code of American Samoa §§ 901 et seq. (1949).(3) Posting for 60 days was done in this case, but again the affidavit of posting was executed on the day posting began and not after the period was completed.

Apparently, the Registrar has also implemented the 1989 newspaper publication law for document registrations as well, even though this procedure is not statutorily required. However, publication was not accomplished in this case. Both posting and publication could be required by administrative rules adopted under the Administrative Procedures Act, A.S.C.A. § 4.1001 et seq. The Land Commission has rule making authority pursuant to A.S.C.A. § 37.0203(d). However, according to the Chief Assistant Territorial Registrar, the Land Commission has never exercised this authority, and no such rules exist. [25ASR2d65]

In any event, without statutory mandate, any lack of notice or notice deficiency is meaningless for purposes of registering the proposed lease. Moreover, Toilolo did object to the proposed lease, and his objection did not go unheeded but was directed by the Registrar, without the Land Commission's involvement, to the Secretary of Samoan Affairs for dispute resolution proceedings.

[8] The propriety of this reference to the Secretary requires discussion and clarification. It appears from the evidence that, again for many years, the Territorial Registrar has also been automatically making this referral when an objection to a proposed document registration is filed within the 60-day, posted notice period. Since no statute compels such routine referral in document registration matters, the Registrar should not do so habitually. Objections are properly forwarded to the Secretary only if referrals are required by administrative rules promulgated or orders issued on a case-by-case basis by the Land Commission, or pursuant to specific authority delegated by the Commission to the Registrar. See A.S.C.A. § 4.0131.

The Land Commission should establish the policies on such matters as to whether referrals to the Secretary of Samoan Affairs are made only when a disputed title underlies the document sought to be registered or in other circumstances as well, or whether the intent is to facilitate prerequisites to litigation under A.S.C.A. § 43.0302 or to simply promote settlement. Ultimately, however, the process must not frustrate A.S.C.A. §§ 37.0203, 37.0204, 37.0221, and 37.0222, which require the Commission to formulate recommendations to the Governor and the Governor's final approval or disapproval of the proposed transaction.

ORDER

1. The plot within the land "U`utafeuua" at issue is the communal land of the Lauofo family, and Lauofo may lease this plot.

2. The Territorial Registrar is directed to register the title to this plot as the communal property of the Lauofo family.

3. The proposed lease of this plot by Lauofo, as lessor, to Amituanai, as lessee, is remanded to the Land Commission for a hearing to develop a recommendation to the Governor, consistent with the Lauofo family's communal ownership of this plot, and to forward that recommendation to the Governor for his approval or disapproval of the proposed lease. [25ASR2d66]

Judgment is entered accordingly.

It is so ordered.

**********

1. Affidavits of posting were also executed on the first day of posting in connection with both of the other two leases admitted into evidence in this action. The records of the various separation agreements admitted do not include affidavits of posting.

2. A.S.C.A. § 37.0103(c) does not identify the newspaper representative who should execute the affidavit of publication. Presumably, in absence of more explicit direction, the newspaper owner, publisher, editor, or some other employee or agent stating his or her authority should sign the affidavit.

3. The land alienation and title registration laws were separately codified at least as early as the effective date of the Revised Code of American Samoa, Chapters 9 and 10 (1961 ed.). These laws were readopted in this separate manner by the Legislature of American Samoa by enactments during the 16th and 17th Legislatures and the Governor's approvals, in conformance with Article I, Section 3, and Article II, Section 9, of the Revised Constitution of American Samoa. P.L. 16-88 (1980) and P.L. 17-31 (1982).

”Iu”; In re Matai Title


PIO VITOLIO, Claimant

v.

NIVE VAIVAO REED and TAGOSIALI'I P. FAUMUINA, 
Counter-Claimants

NIVE VAIVAO REED and PIO VITOLIO, Plaintiffs

v.

TAGISIA FAUMUINA and DOES I-V, Defendants

[In the Matter of the Matai Title "IU"]

In the High Court of American Samoa 
Land and Titles Division

MT No. 11-91 
MT No. 02-93

February 3, 1994

__________

[1] While some families or matai may still practice the old. autocratic custom. which allows a matai to appoint his own successor. this custom must be viewed under the law as only a relic from a bygone era.

[2] Custom in conflict with law must give way. A.S.C.A. § 1.0202.

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

Counsel: For Counter-Claimant and Plaintiff Nive Vaivao Reed, Togiola T.A. Tulafono 
For Counter-Claimant and Defendant Tagisia Faumuina, Afoa L. Su'esu'e Lutu

Opinion and Order:

The Territorial Registrar's referral of this case for judicial resolution was received by the court on November 27, 1991, following issuance of a certificate of irreconcilable dispute by the Deputy Secretary of Samoan Affairs on November 20, 1991. On March 3, 1993, counter-claimant [25ASR2d128] and plaintiff Nive Vaivao Reed ("Nive") and claimant and plaintiff Pio Vitolio ("Pio") commenced a second action to enjoin counter-claimant and defendant Tagisia Faumuina ("Tagisia"), and others acting in concert with him, from using the matai title "Iu" of the Village of Leloaloa without proper registration as the titleholder.

On March 29, 1993, at the hearing on the application for the preliminary injunction, the two actions were consolidated. Furthermore, since all candidates had failed to file a completed questionnaire, mandated by T.C.R.L.T. Rule 3 in order to proceed with the title registration action, the court ordered the three candidates to comply with this requirement no later than 30 days after the hearing. Nive and Tagisia also stipulated that Tagisia would be preliminarily enjoined from using the "Iu" title without further court order or proper title registration. The written preliminary injunction was issued on April 5, 1993.

Nive and Tagisia filed timely questionnaires. Pio did not file one and dropped out of contention for this matai title. Trial was held on November 23, 24 and 29, 1993. Both Nive and Tagisia were present with their counsel throughout the trial proceedings.

The parties presented fundamentally different traditional methods for the selection of succesors to the "Iu" title. On the one hand, High Chief Faumuina Ioane, the present sa`o or senior matai of the Faumuina family of Leloaloa, characterized the "Iu" title as a lesser matai of the Faumuina family, who is chosen solely by the Faumuina titleholder's pule or authority. Tagisia was his choice. On the other hand, Nive identified the "Iu" title as the sa`o at the head of the distinct "Iu" family of Leloaloa, who must be picked by the extended "Iu" family members. Several reported cases during the early history of this court acknowledged the custom of a matai titleholder selecting a successor titleholder. E.g., Matautia v. Tautunu, 1 A.S.R. 226, 228 (Trial Div. 1910); Tupua v. Aumavae, 1 A.S.R. 231, 233-34 (Trial Div. 1910); see also Sagapolu v. Tanielu, 1 A.S.R. 331, 336 (Trial Div. 1922) (Samoan custom "has prescribed almost invariably up to the time the flag was raised in American Samoa that the previous 'matai' designated the next succeeding 'matai'.")

While most of these cases deal with a matai's pule to appoint his own successor, at least two cases recognized this right over a different matai title. Afoa v. Lutu, 1 A.S.R. 121 (Trial Div. 1905) (Afoa may appoint Lutu titleholder if Lutu family cannot agree); Faagata v. Afoa, 1 A.S.R. 524 (Trial Div. 1935) (Afoa gives himself the Lutu title).

[1] Eventually, whether the result of the spirit of American democratization or other causes, and probably the evolutionary product of several influences, this method of designating matai was largely replaced by procedures during which family members make this highly significant decision. See Sagapolu v. Tanielu, 1 A.S.R. at 338-39. This newer selection method has been legislatively recognized since at least 1949. Code of American Samoa § 933 (1949). It is currently found in A.S.C.A. § 1.0409. Thus, while some families or matai may still practice the old, autocratic custom, it must be viewed under the law as only a relic from a bygone era.

Tagisia's argument that failure to recognize the old custom infringes upon the provisions of the Cession of Tutuila, Cession of Manu`a Islands, and Revised Constitution of American Samoa, which are designed to protect fa`a-Samoa or the Samoan way of life, is not persuasive. A.S.C.A. § 1.0202 clearly provides that custom in conflict with law must give way. More importantly, the Fono or Legislature of American Samoa has essentially told the court that A.S.C.A. § 1.0409 represents its best effort to equate law with current custom in this field and that as a matter of policy, the court must apply the four criteria set forth in this measure when registration of a matai title in dispute is brought before it for resolution. See In re Matai Title "Sotoa", 6 A.S.R.2d 91, 95 (App. Div. 1987) ("the statutes concerning matai titles and other customary matters represent the best effort of the Fono . . . to incorpoate custom into written law"); see also In re Matai Title "Muagututi`a", 14 A.S.R.2d 67, 68 (Land & Titles Div. 1990) ("The law governing matai titles specifies four criteria on which the Court must make findings in every action for the registration of a matai title."); In re Matai Title "Tauala", 14 A.S.R.2d 83, 87 (Land & Titles Div. 1990); In re Matai Title "Togiola", 3 A.S.R.2d 127, 127-28 (App. Div. 1986); In re Matai Title "Le`iato", 3 A.S.R.2d 133, 133-34 (App. Div. 1986).

FINDINGS OF FACT

1. Best Hereditary Right.

Evidence tracing the blood relationships with former "Iu" titleholders, separately submitted by each candidate, did not establish any common ancestor and were not unequivocal. Nonetheless, despite this evidentiary lack of linkage and clear-cut certainty, we find that both Tagisia and Nive have "Iu" heritage.

Although Nive's research, prompted by this controversy, did not reveal any "Iu" named Iu Saveasiu Leo as such, we are satisfied that he was an "Iu" titleholder and was Tagisia's great-grandfather. Using the long-standing traditional standard, this relationship provides Tagisia with 12.5% "Iu" blood.

Nive is the granddaughter of Vaivao Tapai, who she claimed was an "Iu" titleholder prior to Iu Pualii Leo. These individuals were Iu Paleasala's grandsons. On October 26, 1906, during the first matai title registration period in American Samoa, they registered titles from Lelaolao--Vaivao Tapai the "Vaivao" title and Pualii Leo the "Iu" title. Pualii Leo was very active in church work in Western Samoa both before and after registering the "Iu" title. According to the evidence, Vaivao Tapai held the "Iu" title before this registration and performed the title's functions for Pualii Leo, who returned to Western Samoa after the registration.

If Vaivao Tapai was an unofficial "Iu" at all times, Nive is a great-great-granddaughter of an "Iu" and has only 6.25% "Iu" blood. However, we are persuaded that he held the "Iu" title for a time and that Nive has 25% "Iu" blood. Thus, she has a one-generation advantage over Tagisia for purposes of this criterion.

2. Wish of the Clans.

The candidates also failed to have any common agreement as to the clans of the "Iu" family. Tagisia identified two to four clans during his testimony, but not explicitly whose progeny founded them. Nive named two clans, based on the lineages started by Iu Paletasala's two children. However, she also agreed that as many as 10 "Iu" titleholders, beginning with the childless Iu Le`i Maua, preceded Iu Paletasala. The customarily recognized clans of the family were simply not shown by the evidence.

Moreover, once again the court is faced by the lack of any statutory definition of a "clan." However, we need not either identify the family's clans or undertake any meaning of the word in this case. The testimony clearly established that neither the members of the whole family nor of any of its clans met and discussed their choice for the new "Iu." The only meeting for this purpose quickly ended with Tagisia's direct appointment by Faumuina Ioane. Thus, neither candidate can claim to have the support of the majority or plurality of the family's clans, and this criterion results in a draw. [25ASR2d131]

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

Nive displayed a more outgoing personality, while Tagisia presented a quiet, pleasant demeanor. Each evidenced forcefulness in his or her own manner and maturity in approaching matters. No detractions in character was manifested in either of them.

Nive has become quite knowledgeable about "Iu" family history, at least in modern times. Tagisia was clearly less sure of these matters. Nonetheless, Tagisia demonstrated his knowledge of Samoan custom quite well, as indicated, for example, by the role entrusted to him in leading the fa`a-Samoa aspects of the late Iu Ielome's funeral proceedings.

The decision on this criterion is a close call. However, on balance, we are satisfied that Tagisia has better characteristics to bring to the "Iu" title and give him the edge in this regard.

4. Value to Family, Village and Country.

Both candidates graduated from high school, and Nive is a trained nursing professional. She has managed small businesses and participated actively in church affairs abroad and at home. She has maintained close family and village ties.

Following high school, Tagisia launched a 26-year career in shipping and has been the general manager of a major, local shipping firm for the last 17 years. He has been a member of the House of Representatives of the Legislature of American Samoa and has served on several important government committees, boards, and commissions. He too has been active in church matters and has kept up with family and village concerns.

While both candidates are qualified to take up the "Iu" title, we are persuaded that Tagisia's lengthy managerial role in business and dignified leadership style will considerably assist in molding peace and harmony within the family and give him a decided advantage on this criterion.

CONCLUSIONS OF LAW

1. Nive has the better hereditary right to the "Iu" title. [25ASR2d132]

2. In the absence of any selection process by the family, neither candidate can claim to have majority or plurality clan support for the title.

3. All factors considered, Tagisia would bring better personal characteristics and practical experience with Samoan customs to the title. He prevails slightly on this standard.

4. Again, taking into account all aspects, Tagisia is given a substantially superior ranking in potential value to family, village and country.

5. More weight must be given to each standard over those following it. The relative advantage in each category must be evaluated as well. In re Matai Title "Tauala", 15 A.S.R.2d 65, 69 (Land & Titles Div. 1990). In our analysis, Tagisia's stronger rankings in personal characteristics and leadership value outweigh Nive's stronger hereditary right. Thus, the matai title "Iu" is awarded to Tagisia.

The territorial registrar shall register the "Iu" title in the name of Tagisiali`i P. Faumuina.

Judgment shall enter accordingly. It is so ordered.

**********

In re Three Minor Children (Juv. Nos. 68-91, 69-91, 70-91),


In Re THREE MINOR CHILDREN

High Court of American Samoa
Trial Division

JR No. 68-91
JR No. 69-91
JR No. 70-91

January 29, 1993

__________

[1] Relinquishment of parental rights must be predicated on the bests interests of all concerned. A.S.C.A. § 45.0402(e).

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

Counsel: For Petitioners, Roger K. Hazell

Opinion and Order:

This matter came on regularly for hearing on January 15, 1993, upon the natural parents' petitions to relinquish their parental rights to their three minor children to enable the children's availability for adoption by their paternal grandmother.

The three children are, respectively, ages four, five and six years. They live with their father, age 37 years, and mother, age 30 years, who love their children and provide significantly for their children's emotional and physical care. Their grandmother, age 68 years, lives nearby. At this time, this family group's income is derived principally, if not entirely, from the grandmother's retirement pay and Social Security benefits, and another, unmarried son's earnings. Clearly, she contributes financially and in immeasurable ways to her grandchildren's upbringing.

The parents' desire to relinquish their parental rights appears to be voluntarily motivated in recognition of the grandmother's kindness towards their children and their impecunious situation. The father apparently suffers from an emotional disorder and does not maintain steady employment. The mother is unemployed.

The grandmother appears to still be in good health. However, she foresees the day in due course when her grandchildren will return to their loving parents' total care. She also knows that the family members presently living together are close-knit in the Samoan way of life. She [25ASR2d2] admits that the real purpose for the adoption is enhancement of Social Security benefits.

Relinquishment of parental rights must be predicated on the best interests of all concerned. A.S.C.A. § 45.0402(e). The circumstances here are factored on the grandmother's and parents' immediate best interests. Higher Social Security benefits are not, as such, detrimental the children's interests. However, disruption of the natural relationships existing in this situation is not in the children's more important, long-term best interests.

The petitions should be and are denied.

**********

In re Matai Title “Patea”,


LOGOTAEAO I.H.K. ROBERTS, Claimant

v.

ELVIS R. PILA PATEA, Counter-Claimant

[In the Matter of the Matai Title "PATEA"]

In the High Court of American Samoa
Land and Titles Division

MT No. 3-93

February 25, 1994

__________

[1] The physical presence requirement is excepted by A.S.C.A. § 1.0404(b) only by registering with the Territorial Registrar absences for attendance at an educational institution, service in the United States armed forces, medical treatment and recuperation, temporary traveling, or missionary work as a minister.

[2] A person who is not born "on American soil" is eligible for a matai title only if (1) he is born of parents who were inhabitants of American Samoa but temporarily residing outside American Samoa at the child's birth, and (2) as applicable to this case, he has resided in American Samoa for a continuous period of at least ten years prior to filing his claim to a title. A.S.C.A. § 1.0403(b).

[3] Patea family does not come within the statutory small-family exception. Affidavit stating that clan had fewer than 25 eligible members insufficient in light of contradictory testimony by affiant at trial that family had between 100 and 200 members.

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

Counsel: For Claimant, Togiola T.A. Tulafono
For Counter-Claimant, Malaetasi M. Togafau

Opinion and Order:

On July 21, 1992, Logotaeao I.H.K. Roberts ("Logotaeao") filed with the Territorial Registrar her claim of succession to the matai title Patea of the Village of Pago Pago, The 60-day notice period for filing counterclaims or objections began on July 23, 1992. On September 18, 1992, Elvis R. Pila Patea ("Elvis") filed his counterclaim petition. On February 12, 1993, following the required hearings, the Secretary of Samoan Affairs issued a certificate of irreconcilable dispute. On [25ASR2d140] February 23, 1993, the Territorial Registrar submitted the matter to the court for judicial resolution. Trial was regularly held on February 7, 1994.

[1] At the conclusion of the evidence, Logotaeao moved for dismissal of Elvis's counterclaim on the grounds that he was ineligible to file a claim, as he was not a resident of American Samoa for one year immediately preceding the filing of his counterclaim. This residency requirement is found in A.S.C.A. § 1.0404(a). Physical presence is excepted by A.S.C.A. § 1.0404(b) only by registering with the Territorial Registrar absences for attendence at an educational institution, service in the United States armed forces, medical treatment and recuperation, temporary traveling, or missionary work as a minister. See In re Matai Title "Fagima", 4 A.S.R. 83 (Land & Titles Div. 1973); In re Matai Title "Afoafouvale", 4 A.S.R. 145 (Land & Titles Div. 1975). We first address the motion.

In 1985, Elvis graduated from law school in California and returned to American Samoa. Upon learning that admission to practice law before the highest court of record of a state or territory of the United States or a comparable foreign jurisdiction was a prerequisite to admission to practice law in American Samoa, he went to Hawaii, passed the bar examination and was admitted to practice there, and became employed as a deputy public defender in the Hawaii State Public Defender's Office. He returned to American Samoa in August of 1992.

Elvis was in Hawaii to promote his legal career and always intended to return to American Samoa as his permanent home. In a domicilliary sense, he never lost his residence here. See Texas v. Florida, 306 U.S. 398, 413-14, 424 (1939) ("Residence in fact, coupled with the purpose to make the place of residence one's home, are the essential elements of domicile." Id. at 424); see also A.S.C.A. § 6.0212. However, his purpose did not come within any of the five types of excused absences. Moreover, even if his purpose was somehow acceptable, he failed to register his absence. Thus, Logotaeao's motion to dismiss Elvis' counterclaim is well-taken and must be granted.

[2] Elvis' counterclaim is deficient in two other particulars as well. First, he does not possess all of the qualifications to succeed to a matai title, as required by A.S.C.A. § 1.0403. A person who is not born "on American soil" is eligible for a matai title only if (1) he is born of parents who were inhabitants of American Samoa but temporarily residing outside American Samoa at the child's birth, and (2) as [25ASR2d141] applicable to this case, he has resided in American Samoa for a continuous period of at least ten years prior to filing his claim to a title. A.S.C.A. § 1.0403(b). Elvis was born in Fiji, where his parents were then residing and his father was employed in the civil service of the Government of Fiji. His father was an American Samoan. His mother was a Western Samoan. Before his parents moved to Fiji, they resided in Western Samoa. While the evidence did not precisely define the period of their residency in Fiji, the period was clearly extended and included Elvis' first five years of life.

Elvis met the requirement of ten years of continuous residence in American Samoa. However, his parents were neither inhabitants nor temporarily residing outside of American Samoa when he was born. Thus, his eligibility as a foreign-born person has not been established, and his counterclaim is also properly dismissed for this reason. See In re Matai Title "I`aulualo", MT No. 2-92, slip op. at 4-6 (Land & Titles Div. Jan. 26, 1994).(1)

[3] Second, Elvis' counterclaim petition was signed by only 17 supporting blood members of the Patea family, who are at least 18 years of age and current residents of American Samoa, rather than the minimum of 25 such members, as mandated by A.S.C.A. § 1.0405(b). The petition was accompanied by Elvis' affidavit that the Patea clan had fewer than 25 eligible members, which would provide the basis, under the same statute, to proceed with processing the petition. During the trial, however, Elvis testified that the extended Patea family has between 100 and 200 members. In addition, Logotaeao's petition contains 26 supporting signatures. Clearly, the Patea family does not come within the statutory, small-family exception. Hence, Elvis's petition is also defective, and his counterclaim is further subject to dismissal for this reason. See In re Matai Title "I`aulualo", slip op. at 3-4.

Logotaeao's claim can fare no better. While her petition contained 26 supporting signatures, she admitted that two of them were in fact signed by the signatories' mother. Thus, her petition likewise lacks the requisite number of valid signatures, and her claim must also be dismissed.

Accordingly, both Logotaeao's claim and Elvis' counterclaim to the matai title Patea of the Village of Pago Pago are dismissed, and the matter of the selection of a successor titleholder is remanded to the Patea family for resolution.

It is so ordered.

**********

1. We take note of and agree with the concurring opinion in "I`aulualo" that recommends reassessment by the Legislature of American Samoa of the purpose served by including a requirement that the parents of a foreign-born claimant to a matai title be inhabitants of American Samoa and outside the Territory for a transitory reasons when the claimant was born. The underlying policy appears to be assurance of a lasting, stable and knowledgeable relationship with American Samoa and Samoan customs and traditions. Today, at least, it is difficult to fathom any basis for equating the status of parents at the time of a claimant's birth, in itself, as indicative of qualifications for holding a matai title.

In re Matai Title “Lolo”,


SUALEVAI LAULELEI SEA, Claimant

v.

TAFEA FAAUMA SEUI, T.S. TUIMOLOAU, SI'ITUA SAVINI,
LETALU M. MOLIGA, PESE MASELINO, PULEISILI F.
TUIOLESEGA, & SEGILA PUIAI VAEAO,
Objectors/Counter-Claimants

[In the Matter of the Matai Title "LOLO"]

In the High Court of American Samoa
Land and Titles Division

MT No. 09-93

March 23, 1994

__________

[1] In circumstances in which family history is by and large harmonious, the "Sotoa rule" is the less arbitrary method of assessing hereditary entitlement.

[2] Presentation of the kava cup by family members, which included all but two of the claimants who sought registration of the title, is significantly indicative of family support favoring presentee.

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

Counsel: For Tafea F. Seui, Robert A. Porter
For Si' itua Savini, Gata E.W .Gurr
For Letalu M. Moliga, Afoafouvale L.S. Lutu
For Segila P. Vaeao, Albert Mailo

Opinion and Order:

Four of the candidates in this matter had withdrawn their respective matai-succession claims at different times during these proceedings. When the matter was finally submitted to the court for its deliberation, the following parties remained: Tafea F. Seui, Si'itua Savini, Letalu M. Moliga, and Segila P. Vaeao.

In these matters, we are guided by the four criteria set out in A.S.C.A. § 1.0409(c):[25ASR2d176]

1. Hereditary Right

All the candidates traced their respective lineages to a common ancestor , the first titleholder, Lolo Ututautu'u aka Tautu'u, aka Nu'uto'a. Their respective family histories were also in agreement on the number of issue of the original titleholder; to wit, three. These children, in turn, gave rise to the three customary' clans of the Lolo family.

[1] In these, albeit infrequent, circumstances in which family history is by and large harmonious, it seems that the "Sotoa rule" (1) is the less arbitrary method of assessing hereditary entitlement. In our review of the gala (genealogies) submitted, we find that candidate Savini is two generations ahead of the other candidates. We conclude that Savini prevails on the issue of hereditary right.

2. Wish of the Clans

As alluded to above, the preponderance of the evidence showed that the Lolo family has three clans. The evidence also revealed that the family title has been vacant for more than thirty years, after Lolo Lauvao resigned the title to assume the Lutali title of Aunu'u. Following Lauvao's resignation, the family held numerous meetings, both within and without Sili, to select a matai successor. After several meetings, without any of the then-candidates yielding any ground whatsoever, the family directed the candidates to meet for the purpose of selecting a titleholder from among themselves. A subsequent series of meetings by the candidates likewise failed to produce a consensus. The issue was then apparently left in abeyance until Sualevai L. Sea decided to bring the matter to a head by offering the title for registration on December 4, 1992. This offer attracted a number of objections and counterclaims, which not only included objections from some of the original candidates, but also from a new set of candidates altogether. The only candidate remaining from the days of those earlier meetings of the family who is before the court today is Letalu.

Subsequent to the registration offer, the resulting candidates attempted to meet on a number of occasions to narrow the field. Those efforts did not produce a unanimous decision; however, a number of candidates [25ASR2d177] subsequently withdrew their succession claims in favor at Letalu after participating at one particular meeting, which resulted in the presentation of the Lolo title's kava cup to Letalu. Two of the parties, Savini and Vaeao, were not present at that meeting, and thus they continue to seek judicial determination of the matter. Likewise, Tafea seeks judicial resolution, even though he participated in the kava-presentation ceremony and accepted the appropriate customary presentations made by Letalu.

[2] While each party can claim some family support, we find that candidate Letalu had the most credible claim to support from the majority, if not from all, of the clans of the family. Letalu was a candidate before the family in its deliberations. When the family had earlier instructed Letalu and his fellow contenders to meet and decide on a holder, we Can infer from that family decision that Letalu was at least acceptable to the family to hold the Lolo title. As testified to by High Talking Chief Sualevai, before he moved to withdraw his claim, none of the candidates before the court, except himself and Letalu, were even considered by the family in any of its many deliberations. Furthermore, we find that the presentation of the kava cup to Letalu by family members, which included all but two of the claimants who sought registration of the title, is significantly indicative of family support favoring Letalu. The presentation of the kava cup roughly equated compliance with the family's decision to leave it to the various contenders to select a titleholder from among themselves.

We conclude that candidate Letalu prevails on the issue of clan support.

3. Eorcefulness. Character and Personalitv. and Knowledge of Samoan Customs

Candidates Tafea and Letalu present the stronger credentials. They are both college graduates, with Tafea having additionally completed postgraduate studies, which culminated in his obtaining his doctoral degree in education. Both have held responsible white-collar positions within the Department of Education. We rank Letalu, however, ahead of Tafea in forcefulness, character and personality. While Tafea has dedicated his life to the education of the children of American Samoa, Letalu's varied career experience has exposed him to policy and managerial roles outside the field of education. After eight years with the Department of Education, Letalu was elected to four terms as a representative in the House of Representatives. As a legislator, he chaired the important. Ways and Means and Budget Committees of the House of Representatives. He then resigned from the Fono in 1984 to [25ASR2d178] join the executive branch as the Governor's budget director. He has since left government and is now in private business as a construction contractor.

Tafea, Letalu, and Savini are matai, with Tafea purporting to hold, unlawfully, a second matai title. Although they have all been matai for several years now, Letalu stands out in his service to his village as a matai. Furthermore, the Associate Judges found Letalu to be noticeably aIlead of all of the candidates on matters of Samoan customs.

We conclude that Letalu prevails on the question forcefulness, character and personality, and knowledge of Samoan customs.

4. Value to Family, Village, and Country

In our evaluation of the parties, we rate candidate Letalu ahead of the other candidates on this criterion. His education, career history, and participation and experience in the affairs of the village of Tau as a leading matai of some 14 years' standing speak strongly for his capacity for leadership and thus potential value to family, village, and country . Although Tafea has also been a matai for an equal amount of time, it was evident on the testimony that his attempt to hold two titles necessarily compromised his effectiveness to serve two different families at same time. He conceded that he was not always responsive to his obligations as a matai of Sili village. Significantly, the Lolo family has been leaderless for too many years, with the result that the family has become very much fragmented. It goes without saying that strong, effective leadership is critical. Letalu impresses us as best fitting that role.

CONCLUSIONS

Based on the foregoing, we hold that Letalu M. Moliga is qualified to hold the title Lolo. Although Savini prevails on hereditary considerations, Letalu prevails on the second, third, and fourth criteria. The Territorial Registrar shall accordingly register the Lolo title from the village of Sili in candidate Letalu M. Moliga, in accordance with the requirements of A.S.C.A. § 1.0409(b).

It is so ordered.

*********

1. The court in In re Matai Title Sotoa, 2 A.S.R.2d 15 (Lands & Titles Div. 1984) , calculated blood relationship to the original titleholder, as opposed to the nearest titleholder in a candidates genealogy.

In re Matai Title “Leaeno”,


FAGAFAGA DANIEL LANGKILDE, Claimant,

v.

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

[In the Matter of the Matai Title "LEANO"]

In the High Court of American Samoa
Land & Titles Division

MT No. 2-89

August 6, 1993

__________

[1] Until there is further legislated direction, the word "family" is equated with the claimant's or counterclaimant's clan for purposes of testing the validity of the petitions.

[2] This factual determination of "Best Hereditary Right" is traditionally guided by the percentage of the candidates' blood relationship to a former holder of the matai title.

[3] Clan support for a matai title can not be evaluated by counting heads and is traditionally measured by consensus.

[4] 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 the criterion of "Forcefulness, Character, and Personality; Knowledge of Samoan Customs." [25ASR2d5]

[5] The consideration of "Value to Family, Village, and Country" seeks to evaluate a candidates' prospective value to his family, village, and American Samoa as holder of the title, in light of the first three criteria, and the candidate's leadership potential and plans.

[6] 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.

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

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 [25ASR2d6] 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 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 counterclaimants 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.

[1] 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 [25ASR2d7] 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.

1. Best Hereditary Right.

[2] 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 [25ASR2d8] 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.

[3] 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 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.

[4] 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 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. [25ASR2d10]

4. Value to Family, Village, and Country.

[5] 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, 1961 ed, § 6.0107).

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.

**********

 

In re Matai Title “Iu”


PIO VITOLIO, Claimant

v.

NIVE VAIVAO REED and TAGOSIALI'I P. FAUMUINA,
Counter-Claimants

NIVE VAIVAO REED and PIO VITOLIO, Plaintiffs

v.

TAGISIA FAUMUINA and DOES I-V, Defendants

[In the Matter of the Matai Title "IU"]

In the High Court of American Samoa
Land and Titles Division

MT No. 11-91
MT No. 02-93

February 3, 1994

__________

[1] While some families or matai may still practice the old. autocratic custom. which allows a matai to appoint his own successor. this custom must be viewed under the law as only a relic from a bygone era.

[2] Custom in conflict with law must give way. A.S.C.A. § 1.0202.

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

Counsel: For Counter-Claimant and Plaintiff Nive Vaivao Reed, Togiola T.A. Tulafono
For Counter-Claimant and Defendant Tagisia Faumuina, Afoa L. Su'esu'e Lutu

Opinion and Order:

The Territorial Registrar's referral of this case for judicial resolution was received by the court on November 27, 1991, following issuance of a certificate of irreconcilable dispute by the Deputy Secretary of Samoan Affairs on November 20, 1991. On March 3, 1993, counter-claimant [25ASR2d128] and plaintiff Nive Vaivao Reed ("Nive") and claimant and plaintiff Pio Vitolio ("Pio") commenced a second action to enjoin counter-claimant and defendant Tagisia Faumuina ("Tagisia"), and others acting in concert with him, from using the matai title "Iu" of the Village of Leloaloa without proper registration as the titleholder.

On March 29, 1993, at the hearing on the application for the preliminary injunction, the two actions were consolidated. Furthermore, since all candidates had failed to file a completed questionnaire, mandated by T.C.R.L.T. Rule 3 in order to proceed with the title registration action, the court ordered the three candidates to comply with this requirement no later than 30 days after the hearing. Nive and Tagisia also stipulated that Tagisia would be preliminarily enjoined from using the "Iu" title without further court order or proper title registration. The written preliminary injunction was issued on April 5, 1993.

Nive and Tagisia filed timely questionnaires. Pio did not file one and dropped out of contention for this matai title. Trial was held on November 23, 24 and 29, 1993. Both Nive and Tagisia were present with their counsel throughout the trial proceedings.

The parties presented fundamentally different traditional methods for the selection of succesors to the "Iu" title. On the one hand, High Chief Faumuina Ioane, the present sa`o or senior matai of the Faumuina family of Leloaloa, characterized the "Iu" title as a lesser matai of the Faumuina family, who is chosen solely by the Faumuina titleholder's pule or authority. Tagisia was his choice. On the other hand, Nive identified the "Iu" title as the sa`o at the head of the distinct "Iu" family of Leloaloa, who must be picked by the extended "Iu" family members. Several reported cases during the early history of this court acknowledged the custom of a matai titleholder selecting a successor titleholder. E.g., Matautia v. Tautunu, 1 A.S.R. 226, 228 (Trial Div. 1910); Tupua v. Aumavae, 1 A.S.R. 231, 233-34 (Trial Div. 1910); see also Sagapolu v. Tanielu, 1 A.S.R. 331, 336 (Trial Div. 1922) (Samoan custom "has prescribed almost invariably up to the time the flag was raised in American Samoa that the previous 'matai' designated the next succeeding 'matai'.")

While most of these cases deal with a matai's pule to appoint his own successor, at least two cases recognized this right over a different matai title. Afoa v. Lutu, 1 A.S.R. 121 (Trial Div. 1905) (Afoa may appoint Lutu titleholder if Lutu family cannot agree); Faagata v. Afoa, 1 A.S.R. 524 (Trial Div. 1935) (Afoa gives himself the Lutu title).

[1] Eventually, whether the result of the spirit of American democratization or other causes, and probably the evolutionary product of several influences, this method of designating matai was largely replaced by procedures during which family members make this highly significant decision. See Sagapolu v. Tanielu, 1 A.S.R. at 338-39. This newer selection method has been legislatively recognized since at least 1949. Code of American Samoa § 933 (1949). It is currently found in A.S.C.A. § 1.0409. Thus, while some families or matai may still practice the old, autocratic custom, it must be viewed under the law as only a relic from a bygone era.

Tagisia's argument that failure to recognize the old custom infringes upon the provisions of the Cession of Tutuila, Cession of Manu`a Islands, and Revised Constitution of American Samoa, which are designed to protect fa`a-Samoa or the Samoan way of life, is not persuasive. A.S.C.A. § 1.0202 clearly provides that custom in conflict with law must give way. More importantly, the Fono or Legislature of American Samoa has essentially told the court that A.S.C.A. § 1.0409 represents its best effort to equate law with current custom in this field and that as a matter of policy, the court must apply the four criteria set forth in this measure when registration of a matai title in dispute is brought before it for resolution. See In re Matai Title "Sotoa", 6 A.S.R.2d 91, 95 (App. Div. 1987) ("the statutes concerning matai titles and other customary matters represent the best effort of the Fono . . . to incorpoate custom into written law"); see also In re Matai Title "Muagututi`a", 14 A.S.R.2d 67, 68 (Land & Titles Div. 1990) ("The law governing matai titles specifies four criteria on which the Court must make findings in every action for the registration of a matai title."); In re Matai Title "Tauala", 14 A.S.R.2d 83, 87 (Land & Titles Div. 1990); In re Matai Title "Togiola", 3 A.S.R.2d 127, 127-28 (App. Div. 1986); In re Matai Title "Le`iato", 3 A.S.R.2d 133, 133-34 (App. Div. 1986).

FINDINGS OF FACT

1. Best Hereditary Right.

Evidence tracing the blood relationships with former "Iu" titleholders, separately submitted by each candidate, did not establish any common ancestor and were not unequivocal. Nonetheless, despite this evidentiary lack of linkage and clear-cut certainty, we find that both Tagisia and Nive have "Iu" heritage.

Although Nive's research, prompted by this controversy, did not reveal any "Iu" named Iu Saveasiu Leo as such, we are satisfied that he was an "Iu" titleholder and was Tagisia's great-grandfather. Using the long-standing traditional standard, this relationship provides Tagisia with 12.5% "Iu" blood.

Nive is the granddaughter of Vaivao Tapai, who she claimed was an "Iu" titleholder prior to Iu Pualii Leo. These individuals were Iu Paleasala's grandsons. On October 26, 1906, during the first matai title registration period in American Samoa, they registered titles from Lelaolao--Vaivao Tapai the "Vaivao" title and Pualii Leo the "Iu" title. Pualii Leo was very active in church work in Western Samoa both before and after registering the "Iu" title. According to the evidence, Vaivao Tapai held the "Iu" title before this registration and performed the title's functions for Pualii Leo, who returned to Western Samoa after the registration.

If Vaivao Tapai was an unofficial "Iu" at all times, Nive is a great-great-granddaughter of an "Iu" and has only 6.25% "Iu" blood. However, we are persuaded that he held the "Iu" title for a time and that Nive has 25% "Iu" blood. Thus, she has a one-generation advantage over Tagisia for purposes of this criterion.

2. Wish of the Clans.

The candidates also failed to have any common agreement as to the clans of the "Iu" family. Tagisia identified two to four clans during his testimony, but not explicitly whose progeny founded them. Nive named two clans, based on the lineages started by Iu Paletasala's two children. However, she also agreed that as many as 10 "Iu" titleholders, beginning with the childless Iu Le`i Maua, preceded Iu Paletasala. The customarily recognized clans of the family were simply not shown by the evidence.

Moreover, once again the court is faced by the lack of any statutory definition of a "clan." However, we need not either identify the family's clans or undertake any meaning of the word in this case. The testimony clearly established that neither the members of the whole family nor of any of its clans met and discussed their choice for the new "Iu." The only meeting for this purpose quickly ended with Tagisia's direct appointment by Faumuina Ioane. Thus, neither candidate can claim to have the support of the majority or plurality of the family's clans, and this criterion results in a draw. [25ASR2d131]

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

Nive displayed a more outgoing personality, while Tagisia presented a quiet, pleasant demeanor. Each evidenced forcefulness in his or her own manner and maturity in approaching matters. No detractions in character was manifested in either of them.

Nive has become quite knowledgeable about "Iu" family history, at least in modern times. Tagisia was clearly less sure of these matters. Nonetheless, Tagisia demonstrated his knowledge of Samoan custom quite well, as indicated, for example, by the role entrusted to him in leading the fa`a-Samoa aspects of the late Iu Ielome's funeral proceedings.

The decision on this criterion is a close call. However, on balance, we are satisfied that Tagisia has better characteristics to bring to the "Iu" title and give him the edge in this regard.

4. Value to Family, Village and Country.

Both candidates graduated from high school, and Nive is a trained nursing professional. She has managed small businesses and participated actively in church affairs abroad and at home. She has maintained close family and village ties.

Following high school, Tagisia launched a 26-year career in shipping and has been the general manager of a major, local shipping firm for the last 17 years. He has been a member of the House of Representatives of the Legislature of American Samoa and has served on several important government committees, boards, and commissions. He too has been active in church matters and has kept up with family and village concerns.

While both candidates are qualified to take up the "Iu" title, we are persuaded that Tagisia's lengthy managerial role in business and dignified leadership style will considerably assist in molding peace and harmony within the family and give him a decided advantage on this criterion.

CONCLUSIONS OF LAW

1. Nive has the better hereditary right to the "Iu" title. [25ASR2d132]

2. In the absence of any selection process by the family, neither candidate can claim to have majority or plurality clan support for the title.

3. All factors considered, Tagisia would bring better personal characteristics and practical experience with Samoan customs to the title. He prevails slightly on this standard.

4. Again, taking into account all aspects, Tagisia is given a substantially superior ranking in potential value to family, village and country.

5. More weight must be given to each standard over those following it. The relative advantage in each category must be evaluated as well. In re Matai Title "Tauala", 15 A.S.R.2d 65, 69 (Land & Titles Div. 1990). In our analysis, Tagisia's stronger rankings in personal characteristics and leadership value outweigh Nive's stronger hereditary right. Thus, the matai title "Iu" is awarded to Tagisia.

The territorial registrar shall register the "Iu" title in the name of Tagisiali`i P. Faumuina.

Judgment shall enter accordingly. It is so ordered.

**********

In re Matai Title “I'aulualo”


[1] Matai-title claimants and counter-claimants/objectors are not held to different standards regarding the supporting petitions.

[2] Eligibility to be a candidate for a matai title is not an incident of one's nationality and therefore A.S.C.A. § 1.0403 does not abridge a constitutionally-guaranteed privilege.

[3] Where a conflict exists between the A.S.C. and any customary privilege, the statute governs.

[4] The requirement that a statute must have a rational basis is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. [25ASR2d156]

[5] The extent to which equal protection applies in the territory is unclear because the territorial constitution does not contain an equal-protection clause.

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

Counsel: For Folau I'aulualo, Aviata F. Fa'alevao 
For Mataiumu Siofaga, Gata E. Gurr

Order on Motions for New Trial:

In its decision entered January 26, 1994, the court dismissed the succession claim of Folau I'aulualo, hereafter "Folau," on the grounds that his objection and counterclaim lacked the requisite twenty-five supporting family signatories as required by A.S.C.A. § 1.0407. The court also dismissed the objection and counterclaim of Mataiumu Siofaga, hereafter "Mataiumu," on the grounds that he was ineligible for matai succession under A.S.C.A. § 1.0403. Each party moved for a new trial and/or reconsideration pursuant to A.S.C.A. § 43.0802(a).

I. Foloau's Motion/or New Trial

As we understand the motion, it is premised on the argument that the statutory requirement relating to twentv-five qualified family petitioners in support of a matai succession claim, applies only to "claimants," as opposed to "objector/counter-claimants." Folau submits that the filing requirements for a "claimant," as set out in A.S.C.A. § 1.0405, are somehow different to the filing requirements for an "objector/counter-claimant," as set out in A.S.C.A. § 1.0407; that while a "claimant" is to be held to the requisite support of twenty-five qualified family petitioners, an "objector/counter-claimant" may be held to a lesser standard if the latter simply files an affidavit, under § 1.0407(d), "to the effect that his family does not have sufficient number of qualified members to support his claim."

[1] Contrary to Folau's argument, matai-title claimants and counter-claimants/objectors are not held to different standards regarding the supporting petitions. A claimant to a matai title must submit a petition with "25 blood members of the title claimed." A.S.C.A. § 1.0405(b). An identical requirement applies to counter-claima11ts or objectors. A.S.C.A. § 1.0407(b) ("25 persons related by blood to the title"). If a family lacks "a sufficient number of members qualified" to [25ASR2d157] sign the petition, a claimant or counter-claimant/objector may state this in a signed affidavit. A.S.C.A. §§ 1.0405(b), 1.0407(d).

Folau's citing of Asuega v. Manuma, 4 A.S.R. 616 (Trial Div. 1965), is not helpful to his argument. In that case, the trial court would not construe an "[a]mbiguous statute" so as to frustrate the legislation's "obvious intent" that a court select a matai if a family is unable to do so. Id. at 616, 622-23 (construing C.A.S. § 6.0104, which required the signatures of three- fourths of the family members over twenty years old) . However, the Legislature has since resolved that statutory problem by changing the required number of a petition's signatures to twenty-five and by adding the affidavit exception for small families. Unlike the situation in Asuega, Folau has neither shown that the family is incapable of selecting a matai nor that enforcing the petition-signature requirement would preclude the court from selecting a matai if the family is unable to agree.

In his response to Mataiumu's motion to dismiss, Folau also cited In re Matai Title "Fagaima", 4 A.S.R. 83 (Land & Titles Div. 1973). In that case, the winning claimant filed a petition with fewer than twenty-five signatures and an affidavit that his family lacked a sufficient number of qualified members; however, all of the other claimants submitted petitions with at least twenty-five signatures. Because the family clearly had enough qualified members, the affidavit to the contrary was facially false. As the Fagaima court's ruling lacks any basis in the statute, this court need not follow its erroneous holding. (1)

In any event, the affidavit filed by Folau was also factually incorrect. Folau explained his lack of petitioners not because of an insufficiency of family members but because he had left things too late and that he did not therefore have sufficient time to secure the required signatures.

In sum, Folau failed to submit a petition with the requisite twenty-five signatures, and his affidavit is improper because the family has enough members qualified to sign matai-candidates' petitions. His motion for reconsideration or new trial is thus denied.

II. Mataiumu's Motion for New Trial [25ASR2d158]

Mataiumu argues that because he is ineligible for a matai title under A.S.C.A. § 1.0403, he has suffered "a violation of a privilege of nationality or citizenship." He then states that the statute treats him different than other American Samoan nationals and so violates Art. 1, § 16 of the territorial constitution.

[2-3] However, the eligibility to be a candidate for a matai title is not an incident of one's nationality. This is demonstrated by the fact that an individual who is not a national of the United States may nevertheless be eligible for a matai title under A.S.C.A. § 1.0403. This is so even if he was not born on American soil and his parents were not U.S. nationals, as long as his parents were inhabitants of American Samoa and were only temporarily residing elsewhere. See A.S.C.A. § 1.0403(b). Indeed, the statute includes a provision requiring a foreign-born individual to renounce his allegiance to his birth country. A.S.C.A. § 1.0403(b)(1). Thus, the statute does not abridge a constitutionally-guaranteed privilege. At the same time, if, as claimed by Mataiumu, a conflict exists with any customary privilege, the statute would govern. See Taeleifi v. Willis., AP Nos. 30-90 & 31-90 (June 23, 1992), 21 A.S.R.2d 118,119-20 (App. Div. 1992) (citing A.S.C.A. § 1.0202).

[4-5] Actually, it appears that Mataiumu is alleging an equal-protection violation. However, the statute is rationally related to the Legislature's concern "with a candidate's having a certain level of connection with the territory " and may not be declared unconstitutional just because the High Court may think that a better way of accomplishing the policy exists. The requirement that a statute must have a rational basis "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." Heller v. Doe, 509 U.S. ___, 125 L. Ed. 2d 257, 270 (1993) (citing FCC v. Beach Communications Inc., 508 U.S. ___, 124 L. Ed. 2d 211 (1993)). In any event, the extent to which equal protection applies in the territory is unclear because the territorial constitution does not contain an equal-protection clause. American Samoa Government v. Whitney, CR No. 26-91 (Nov. 1, 1991), 20 A.S.R.2d 29, 34 (Trial Div. 1991).

We conclude that A.S.C.A. § 1.0403(b) does not violate any of counter-claimant Mataiumu's constitutional rights or privileges. Therefore, Mataiumu's motion for reconsideration or new trial is also denied.

It is so ordered.

*********

1. See Reid v. Talalele, 4 A.S.R. 458 (Trial Div. 1963) (Objectors. as well as claimant, are candidates for matai succession.) Asuega v. Malluma. 4 A.S.R. 616 (Trial Div. 1965) (Statutory requirements for matai succession claim applies to every candidate for title-- objectors as well as applicant.)

In re Matai Title “I'aulualo”


[1] Requirement of A.S.C.A. § 1.0407 that a counterclaim or objection to succession to a matai title must be supported by a petition signed by no less than 25 persons related hy blood to the title in question is not a mere "formality." Rather, the Fono has determined that at least twenty-five or more qualified family members constitutes a serious enough contention within a family to warrant access to the judicial process.

[2] Pursuant to A.S.C.A. § 1.0403(b) the requirement that parents are" temporarily residing outside of American Samoa" connotes a short time, or at least a definite intention to return to American Samoa.

[3] The fact that person was born and raised in Western Samoa strongly suggests. without anything further, that his parents were not "temporarily residing outside of American" at the time of his birth.

[4] Fact that one is a U.S. national from American Samoa is not necessarily equivalent to being an "inhabitant" of American Samoa since the place where one lives may he different than the place of one's legal nationality.

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

Counsel: For Claimant, Asaua Fuimaono 
For Objector Folau I'aulualo, Aviata F. Fa'alevao 
For Objector Mataiumu Siofaga, Gata E. Gurr 
For Objector Naiuli L. Ma'ileoi, Afoa L.S. Lutu

Order on Motion to Dismiss:

Tipisone Manu Aoelua filed with the Territorial Register his claim to succession to the matai title I'aulualo of the village of Afono. His claim [25ASR2d117] was objected to by Folau I'aulualo, Mataiumu Siofaga and Naiuli L. Ma'ileoi, who each filed his respective counterclaim to succession. Following the requisite hearings before the Office of Samoan Affairs, the Secretary of Samoan Affairs certified an irreconcilable dispute to the court in accordance with the provisions of A.S.C.A. § 43.0302. This matter accordingly came on regularly for trial on December 29, 1993.

Prior to trial, candidates Tipisone Manu Aoelua and Naiuli L. Ma'ileoi withdrew their respective claims to succession. That left the two remaining candidates, Mataiumu Siofaga (hereinafter "Mataiumu") and Folau I'aulualo (hereinafter "Folau"). Mataiumu moved at the outset to dismiss Folau's succession claim on the grounds that the latter's objection and counterclaim did not comply with the requirements of A.S.C.A. § 1.0407.1 (1) At the conclusion of Mataiumu's case, Folau moved for the dismissal of his rival' s claim to succession on the grounds that Mataiumu was not "born on American soil" and therefore did not meet all of the eligibility requirements for matai-title succession as set out in A.S.C.A. § 1.0403. (2) The motions are here addressed. [25ASR2d118]

I. Motion to Dismiss Folau's Succession Claim

Contrary to the requirements of A.S.C.A. § 1,0407(b), Folau's counterclaim or objection only contained ten supporting signatures, as opposed to the mandated twenty-five. Also, contrary to the affidavit which he executed before the Territorial Registrar, FoJau conceded that the l'aulualo family had more than twenty-five members who are qualified petitioners. He explained, however, that the affidavit which he had executed was something which was prepared and presented to him for signature by the Territorial Registrar's office without his being clear on the document's significance. He explained the inadequate number of supporting signatures on his objection and counterclaim as the result of his not having sufficient time to gather the required signatures. He testified that he was off-island when Tipisone Manu Aoelua had offered the title for registration and that by the time he had returned and decided to object, the sixty-day statutory period for the filing of objections, as required by A.S.C.A. § 1.0407, had almost expired, The ten signatures were all that he could manage.

[1] The statute clearly requires at least twenty-five qualified, supporting family signatories to an objection or counterclaim to matai-title succession. (3) The exception to this legislative requirement is the small family that has less than twenty-five qualified members, The I'aulualo family of Afono does not come within the exception. Folau's counterclaim to the matai title I'aulualo is not sufficiently supported under A.S.C.A. § 1.407(b) and should, therefore, be dismissed. The motion is granted.

II. Motion to Dismiss Mataiumu's Succession Claim

While Mataiumu admits that he was born in Faleasi'u, Western Samoa, he argues that he is otherwise qualified for matai succession. He claims that he may be considered as having been born on American soil under[25ASR2d119] the provisions of A.S.C.A. § 1.0403(b)(2), since he has lived in the territory for a period in excess of ten years preceding the filing of his claim. Additionally, Mataiumu points out that he is now a naturalized United States national, as a result of the recent federal "one-parent" law, 8 U.S.C. § 1408(4).

[2] We find that Mataiumu has indeed lived in American Samoa for a continuous period in excess of ten years preceding the filing of his claim. However, in addition to this residency requirement, the statute also requires that Mataiumu's parents have been "inhabitants" of American Samoa who were either traveling or residing temporarily outside of American Samoa at the time of their son's birth.

The evidence did not establish this latter requirement. If anything, it tended to show that Mataiumu's parents were not, at the time of his birth, "inhabitants" of American Samoa but of Western Samoa. Mataiumu's testimony reveals that while his father was an American Samoan, his mother's village was Faleasi'u, Western Samoa. This was also the place of his birth, which occurred in 1930. He first visited American Samoa when he was 27 years of age and moved permanently to the territory in 1966, when he would have been 36 years of age. In 1979, he went to live in Afono.

[3] The fact that Mataiumu was born and raised in Western Samoa strongly suggests, without anything further, that his parents were not just Jiving there on a transitory, short-term basis at the time of his birth. At the same time, no evidence was presented from which it may be reasonably concluded that his parent's stay in Western Samoa was otherwise than indefinite and long-term. Contrary to Mataiumu's argument, "temporarily residing outside of American Samoa" connotes a short time, or at least having a definite intention to return. Here, unlike Mataiumu's "missionary" hypothetical, his parents appear to have intended to stay in Western Samoa indefinitely. (4)

[4] The crux of Mataiumu 's argument is that being a U.S. national from American Samoa is equivalent to being an "inhabitant" of American Samoa. However, this does not necessarily follow, since the place where one lives may be different than the place of one's legal nationality. Also, for a court to construe "inhabitant" as different than "national" is not [25ASR2d120] "absurd and discriminatory." The territorial legislature appears to have been more concerned with a candidate's having a certain level of connection with the territory than with his legal nationality. (5) Likewise, no conflict with federal law exists. Contrary to Mataiumu's position, 8 U.S.C. § 1408(4) does not operate so that he "is considered to have been born on American soil" (or state that any U .S. national may succeed to a matai title), but rather defines a person who is a U.S. national but not a U.S. citizen.

On the foregoing, we conclude that Mataiumu is not eligible to matai succession under A.S.C.A. § 1.0403. Therefore, the motion is granted, and the claim of Mataiumu Siofaga is also dismissed.

Accordingly, the matter of the selection of a titleholder to the matai title I'aulualo of the village of Afono is remanded to the I'aulualo family.

It is so ordered.

VAIVAO J., with whom BETHAM J. joins, concurring:

I concur with the court's decision and its interpretation of A.S.C.A. § 1.0403. However, if an avowed purpose of the law is the preservation of Samoan customs and traditions, then I have serious reservations with a statute that effectively disenfranchises a blood heir of American Samoan ancestry to a matai title simply because he was not born on American soil. If, as the court has said, the legislative purpose behind A.S.C.A. § 1.0403 is to ensure that a matai have some "level of connection" to the territory , then that legislative purpose would, in my view, be equally achieved by merely imposing a lengthy residency requirement, such as is provided by A.S.C.A. § 1.0403b(2). I fail to see how the additional element of temporal off-island status of one's parents at the time of one's birth enhances or promotes the fa 'a Samoa in any significant way. If anything, the seemingly needless disqualification of a blood heir from his family's matai title would seem to run counter to thefa'a Samoa. I respectfully submit that it may be timely for the Fono to reevaluate A.S.C.A. § 1.0403.

*********

1. A.S.C.A. § 1.0407 provides in pertinent part: 
....
(b) A counterclaim or objection [to succession to a matai title] 
must be supported hy a petition signed hy no less than 25 
persons related by blood to the title in question. The petitioners 
must be at least 18 years of age and residents of American 
Samoa at the time the petition is filed. 
....
(d) In the event the family does not have the number of members 
qualified as required to support the counterclaim or objection,
the counter-claimant or objector shall so state in a signed affidavit.

2. A.S.C.A. §1.0403 provides in pertinent part: 
A person not possessing all of the following qualifications is ineligible to succeed to a matai title: 
....
(b) He must have been born on American soil; provided that 
a person born of parents who were inhabitants of American 
Samoa. but temporarily residing outside of American Samoa 
or engaged in foreign travel. at the date of birth of such child, 
may, for the purposes of this subsection, be considered as 
having been born on American soil if: 
(1) While actually residing in American Samoa. and at anytime 
within one year after he attains the age of 18 years, he files 
with the territorial registrar a renunciation, under oath of 
allegiance to the country of his birth; or 
(2) he has resided in American Samoa for a continuous period 
of not less than 10 years prior to the time of filing his application 
to be registered as the holder of a matai title.

3. Among other things. the Legislature is attempting to ensure that the family is not totally displaced from the matai-selection process by a mere handful of family members seeking access to the courts in the first instance. Thus, the Fono has, in effect, said that at least twenty-five or more qualified family members constitutes a serious em)ugh contention within a family to warrant access to the judicial process. Counsel's argument that this legislative requirement is only a "formality" that should not affect the validity of his client's objection is not convincing.

4. His post-trial brief in. response to the motion to dismiss states that "Sioraga [Mataiumu's father] spent much of his life in Western Samoa. but returned home to Vatia where he died in 1961 and is buried on family land in said village."

5. Cf A.S.C.A. § 1.0404(a) (requiring one calendar-year's residency "immediately preceding the date of the claim or objection"); A.S.C.A. § 1.0412(a) (absence of one year from the territory may constitute grounds for removal of the matai upon petition of any member of the family).

Johnson v. Coulter,


RICHARD JOHNSON, Plaintiff

v.

ROBERT B. COULTER dba SOUTH PACIFIC ENGINE & 
REPAIR, and SOUTH PACIFIC ENGINE & REPAIR, INC., a 
Corporation, and SAMOA NAPA, INC., a Corporation, 
Defendants

High Court of American Samoa 
Trial Division

CA No. 22-91

December 7, 1993

__________

[1] A request to produce under T.C.R.C.P .Rule 34 may only he directed to parties to the action. Parties may include non-party corporations which are subsidiaries of parties.

[2] A witness who is not an officer of a party is a non-party witness. and her testimony may he compelled only by a subpoena issued and served in accordance with T.C.R.C.P. Rule 45(d).[25ASR2d85]

[3] The party upon whom a request to produce is served, pursuant to T.C.R.C.P. Rule 34(b), must serve a written response within 30 days after service of the request unless the court permits a shorter length of time.

[4] Discovery is a liberal process under T.C.R.C.P. Rule 26(b)(1), and may include any relevant, non-privileged material.

[5] Under a motion for attorney's fees and costs filed pursuant to T.C.R.C.P. Rule 37(a), the court may require either party , or the attorney advising the conduct that necessitated the motion, to bear all or part of such costs.

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

Counsel: For Plaintiff, Robert Dennison III 
For Defendants, Roy J.D. Hall, Jr.

Order on Motion Compelling Discovery and for Sanctions:

Plaintiff Johnson requested the production of certain documents to be made at the deposition of defendant Coulter and one Katherine Lindgren. Coulter and Lindgren refused to produce documents relating to events after June 1990. Johnson now seeks an order under T.C.R.C.P. 37 compelling production and the award of sanctions. Coulter, in his memorandum in opposition to plaintiff's motion, makes three points: (1) that Coulter and Lindgren were improperly noticed, (2) that insufficient notice was afforded Coulter and Lindgren, and (3) that the materials sought are not relevant or are subject to restrictions. Coulter also objects to the request for sanctions as being outside the court's discretion.

DISCUSSION

I. Improper Notice

[1] Coulter correctly states that a request to produce under T.C.R.C.P. 34 may only be directed to parties to the action. However, the rule also talks about the production of documents or things in the "possession, custody or control" of a party. Thus, documents in the possession of a party's subsidiary were found to be within the party's control and were required to be produced under T.C.R.C.P. 34's federal counterpart, F.R.C.P. 34. Georg Hantscho v. Miehl-Goss-Dexter, 33 F.R.D. 332 (1963 S.D. N.Y.). In Standard Insurance v. Pittsburg Electrical Insulation, 29 F.R.D. 185, 188 (1961 D.C. Pa) the court ruled that a motion for production .of documents was not defective even though it requested documents from a corporation not a party to the action. The [25ASR2d86]court held that because the corporate defendant owned 100 % of the non-party's stock, both corporations occupied the same premises, and the defendant's corporate manager was also in charge of the records, the corporations were "substantially one."

In this case, Coulter is a party, and the suit itself names Coulter personally and "doing business as'' South Pacific Equipment and Repair, South Pacific Equipment and Repair, Inc., and Samoa Napa, Inc. Additionally, in defendant's answers to plaintiff's interrogatories, question 25, Coulter lists only himself as the shareholder of Spear or Samoa Napa (Defendant's Answers to Interrogatories at 7). The deposition as regards Coulter was, therefore, proper.

[2] Lindgren, on the other hand, is not a party to the action. (1) She was identified by Coulter in his answers to plaintiff's interrogatories as an expert witness whom he intends to call at trial (Defendant's Answers to Interrogatories at 7). Johnson could have sought, .pursuant to T.C.R.C.P .26(b)(4)(A), a court order to obtain further information from Lindgren in her capacity as an expert witness, but he has not. If Lindgren's expertise relates only to matters not in preparation for trial, that is; in the course of her employment, she is to be treated as a regular witness in any case. Therefore, Lindgren could have been deposed as an employee of the defendants. If Lindgren is an officer of Coulter's, and we do not now have enough information to state that she is, the notice given would have been sufficient. However, assuming that Lindgren is not an officer of Coulter's, her attendance is properly sought through T.C.R.C.P. 45, as a non-party witness. "A mere witness ...attendance may be compelled only by subpoena issued and served in accordance with Rule 45(d)" Sekely v. Salkind, 10 F.R.D. 503 (S.D.N.Y. 1950). Therefore, the deposition as regards Lindgren was improper.

II. Insufficient Notice

[3] Coulter claims that insufficient notice was afforded Coulter and Lindgren (although brief refers only to "defendants" we assume Coulter meant himself and Lindgren, although he is also arguing that Lindgren[25ASR2d87] is a non-party). The notice of "deposition duces tecum" was forwarded to defendant's lawyer 3 days in advance of Lindgren's deposition and 4 days in advance of Coulter's deposition. As per Coulter, who was deposed according to rule 30(b)(5), the proper procedure is that of rule 34. Rule 34(b) states that "the party upon whom the request is served shall serve a written response within 30 days after the service of the request. ..." The court may allow a shorter length of time. Here Coulter choose not to produce the asked for documents and there is no showing that he was unable to produce the documentation because of insufficient time. Additionally, in plaintiffs' requests for production of documents and things, served June 5, 1991, plaintiff requested all documents that related to the lawsuit. While this was a broad request, plaintiff did begin seeking relevant documentation over 2 years ago.

As Lindgren was improperly noticed, we need not address whether or not the 3 days notice she was afforded was sufficient.

III. Issue of Relevancy

[4] Relevancy is a liberal process. T.C.R.C.P. 26(b)(1) states that, in general:

Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved
in the pending action, whether it relates to the claim or 
defense of the any other party.... It is not ground for 
objection that the information sought will be inadmissible
at the trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.

Coulter claims, for several reasons, that the information sought is irrelevant or subject to restrictions. First, Coulter claims that Spear and Samoa Napa are not partnerships, but separate business entitles. However, this question is central to the lawsuit and discovery here is an attempt to answer this question. Materials so related are obviously relevant. Coulter next submits that sought materials are confidential business information whose withholding would not prejudice Johnson. Again, it is this business information that is relevant to determining the central questions of the suit. The materials sought here are relevant and "not privileged" and therefore, not exempt from disclosure, although certain items (such as tax returns) do contain confidential information. If reasonable protective measures are needed, relief can be sought under [25ASR2d88] T.C.R.C.P. 26(c)(7)--indeed, Johnson "agrees to reasonable terms regarding selective non-disclosure. " Additionally, Coulter states that it is "irrelevant" whether or not partnership funds were used to capitalize the corporations named herein. However, this information may relevant to issues of the dissolution of any partnership, and the possible constructive trust. Relevance is liberally construed to encompass matters that could lead to matters that bear on the case. Therefore, the items sought are relevant.

IV. Sanctions

[5] As stated by defendant, sanctions (save costs, as discussed below) would be inappropriate at this time. However, plaintiff has not requested sanctions under 37(b) (available only after a court order has not been obeyed). Plaintiff has only requested attorney's fees and costs, sanctions that are available under rule 37(a).

Under rule 37(a) the court may require the party or deponent whose conduct necessitated the motion, or the party or attorney advising such conduct, or both, to pay reasonable expenses incurred in obtaining the order, including attorney's fees. Expenses may also be awarded to the non-movant if the motion is denied, or allocated if the motion is granted in part. The court may find that opposition to the motion, or other circumstances, make an award of expenses unfair .

In this case both sides have made a good faith showing for their respective arguments, and an award of expenses is, in our view, not warranted.

CONCLUSION

Coulter was properly noticed. He was afforded insufficient time, although there is no showing that because of this he was unable to produce the requested items. As the items asked for are relevant to suit at hand, Coulter is directed to produce them, provided that Johnson abides by his agreement to reasonable terms regarding selective non-disclosure.

Lindgren was not properly noticed. Relief sought against her is denied.

Sanctions appear inappropriate at this time and thus plaintiff's request costs and attorney's fees is denied. [25ASR2d89]

It is so ordered.

**********

1. The notice of deposition to Lindgren merely certifies that "plaintiff's counsel" was served through his court box; there is no indication that Lindgren herself, a non-party, was at all served in accordance with the rules. TCRCP 30(a) provides that "the attendance of witnesses may be compelled by subpoena as provided in 45 TCRCP," and where production is sought from the person to be deposed, TCRCP 30(b)(1) provides for the use of a subpoena duces tecum. A subpoena, however, has to be served personally. TCRCP 45(c).

Hisatake; Jessop v.


HELEN JESSOP, dba THE DAISY CO., Plaintiff

v.

RAMONA HISATAKE, Doing Business as SAMURAI VIDEO 
RENTAL, Defendant

High Court of American Samoa 
Trial Division

CA No. 77-93

October 5, 1993

__________

[1] Summary judgment is appropriate when no genuine issue of material fact exists.

[2] The maximum interest rate for business purposes is 18 percent, pursuant to A.S.C.A. 28.1503, but interest rates greater than six percent must be in writing to be enforceable, pursuant to A.S.C.A. §§ 28.1501.

[3] The high Court has jurisdiction over monetary claims exceeding $5,000, pursuant to A.S.C.A. §§ 3.0208(a)(1), but in calculating the amount in controversy, attorney's fees expressly provided for by contract, and interest accrued prior to the commencement of the action may be included. Non-contractual attorneys fees and other incidental costs may not be included in the calculation.

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

Counsel: For Plaintiff, Michael H. Crew 
For Defendant, Ramona Hisatake, Pro Se

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

Counsel: For Plaintiff, Michael H. Crew
For Defendant, Ramona Hisatake, Pro Se [25ASR2d13]

Order Granting Motion for Summary Judgment:

Plaintiff's motion for a summary judgment awarding money damages for breach of the parties' settlement agreement came regularly for hearing on September 23, 1993. Plaintiff appeared by counsel. Defendant appeared in person.

[1] Summary judgment is appropriate when "no genuine issue as to any material fact" exists. T.C.R.C.P. 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). Defendant perceives plaintiff's action as being unfair under presently unfavorable business conditions, but she does not contest her indebtedness. Thus, summary judgment is warranted. Perhaps, given defendant's expressed intent to pay her debts, the parties can still work out a new arrangement with more affordable periodic payments in the beginning, possibly increasing in time. Two other issues requiring discussion emerge.

[2] First, the interest rate provided in the settlement agreement must be lawful under American Samoa's usury statutes. The maximum rate of interest that may be charged individuals and entities on loans for business purposes is 18 percent. A.S.C.A. § 28.1503;Shantilal Bros., Ltd. v. K.M.S.T. Wholesales, Inc., 9 A.S.R.2d 62, 65 (Trial Div. 1988). Also, interest rates over six percent must be in writing to be enforceable. A.S.C.A. § 28.1501; Meridian Breckwoldt Samoa, Ltd. v. Max Haleck, Inc., 7 A.S.R.2d 95, 101 (Trial Div. 1988). The settlement agreement was predicated on plaintiff's advancing funds to defendant during earlier transactions between the parties for the purpose of enabling defendant to acquire or carry on her new business. Since a loan underlies the settlement agreement, defendant must pay her principal indebtedness plus the contractual 18 percent interest on overdue payments, as provided in the agreement.

[3] Second, the High Court's jurisdiction is a fundamental issue in this matter. The Trial Division has jurisdiction over monetary claims when the amount in controversy exceeds $5,000. A.S.C.A. § 3.0208(a)(1). The principal amount of the settlement agreement is less than this amount. However, in calculating the amount in controversy, attorney's fees may be included if expressly provided for in a contract. PTS of Gainesville, Inc. v. Olivetti Corp. of America, 334 So. 324, 325 (Fla. App. 1976); see Perma Glass Corp. v. Sasak Corp., 718 F. Supp. 742, 743-44 (E.D. Mo. 1989). Unless constitutionally or statutorily excluded, interest which accrued as of the commencment of an action may also be included. [25ASR2d14] Johnson v. Washburn, 19 N.W. 563, 566 (Neb. 1945) (citing Stake v. Western Assurance Co., 287 N.W. 222 (Neb. 1939); Jorgenson v. Farmers' & Merchants' Bank, 170 N.W. 894 (N.D. 1919)). However, costs (including attorney's fees awarded as non-contractual costs which are incidental to the substantive recovery) may not be included in the calculation. Bakkebo v. Muncipal Court of the Pomona Judicial Dist. of the County of Los Angeles, 177 Cal Rptr. 239, 242-43 (Cal. App. 1981); Director General of R.R. v. Wilford, 88 So. 256, 258 (Fla. 1921). Plaintiff's claim, including principal and $41.42 in accrued interest at 18 percent as of the filing date, as well as contractually-promised attorney's fees, reasonably estimated at a minimum of $550 and not intentionally inflated to reach the jurisdictional amount, totals more than $5,000. Hence, the Trial Division has jurisdiction over this matter.

Plaintiff is granted summary judgment against defendant in the principal amount of $4,421.83, to which is added $300 as attorney's fees for the cost of negotiating and drafting the settlement agreement, plus 18 percent pre-judgment interest, reasonable attorney's fees and costs of collection to be determined upon submission of an affidavit therefor by plaintiff's counsel, and 18 percent post-judgment interest.

It is so ordered.

**********

DeStael v. Strasburg ,


ELIZABETH ANN DeSTAEL, Plaintiff

v.

KEITH HEADLEY STRASBURG, Defendant

High Court of American Samoa 
Trial Division

CA No. 121-93

December 17, 1993

__________

[1] The High Court of American Samoa is empowered to enforce a judgment of any United States court or other court entitled to full faith and credit in American Samoa under the Uniform Enforcement of Foreign Judgments Act. A.S.C.A. §§ 43.1701-09.

[2] In enforcing a foreign judgment, the High Court may not relitigate the merits of the original action or consider a defense that could have been raised in the original action.

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

Counsel: For Plaintiff, Marshall Ashley 
For Defendant, Ellen A. Ryan

Order on Motions for Permanent Injunction and Enforcement of Foreign Judgment:

On August 25, 1993, a Judgment and Decree of Dissolution of Marriage was filed in the Circuit Court for Multnomah County, Oregon. Subsequently, defendant entered American Samoa aboard the yacht "Pangaea," a marital asset. On November 19, 1993, the High Court issued a preliminary injunction barring defendant from "entering onto, interfering with, or damaging the yacht." On December 16, 1993, a hearing was held concerning plaintiff's motion for enforcement of a foreign judgment and her motion for a permanent injunction. [25ASR2d97]

[1-2] The High Court is empowered to enforce a judgment of any United States court or other court entitled to full faith and credit in American Samoa under the "Uniform Enforcement of Foreign Judgments Act." A.S.C.A. §§ 43.1701-43.1709; see 28 U.S.C. § 1738. In this regard, the general rule is that a court may not relitigate the merits of the original action or consider a defense that could have been raised in the original action. Bahr v. Bahr, 180 N.W.2d465,467 (S.D. 1970) (citing Picking v. Local Loan Co. , 44 A.2d 462, 468 (Md. App. 1945)); see Klee v. Cola, 401 So. 2d 871,872 (Fla. App. 1981) (citing Whiteside v. Dinkins, 97 So. 517 (Fla. 1923)).

In granting the divorce decree, the Oregon court made a factual finding that DeStael was a resident under the residency/domicile requirement of or. Rev. Stat. § 107.075. This court is thus precluded from questioning the Oregon court's findings of fact and its corresponding interpretation of Oregon law. Therefore, plaintiff's motions are granted.

It is so ordered.

********** 

Crispin v. American Samoa Gov’t,


PETER CRISPIN and HENRY JAMIESON, Appellants

v.

AMERICAN SAMOA GOVERNMENT, Appellee

High Court of American Samoa 
Appellate Division

AP No. 10-92

November 11,1993

__________

[1] Negligence of a landowner or occupant is not a substantial factor proximately causing harm, if harm would have occurred anyway, despite the negligence of the landowner or occupant.

[2] The question of whether a litigant's conduct was a substantial factor is for the trial court to determine unless testimony is so undisputed and uncontradictory that reasonable men could not differ.

Before KRUSE, Chief Justice, CAN BY, Acting Associate Justice, MUNSON, Acting Associate Justice, VAIVAO, Associate Judge, MAILO, Associate Judge.

Counsel: For Appellants, Roy J.D. Hall, Jr. 
For Appellee, Cheryl Quadlander, Assistant Attorney General

KRUSE, Chief Justice [25ASR2d50]

In this case strong winds blew over a government shed, sending its roof onto a motorboat co-owned by appellants and parked near appellant Crispins' place of business located in the Industrial Park at Tafuna. As a result, the motorboat was damaged, and appellants sued the government, alleging negligent construction of the shed as being the proximate cause of that damage.

[1] The trial court, while noting that the shed was of inferior quality, found that its construction met minimum applicable building-code requirements and therefore concluded that the government was not negligent. At the same time, the trial court also found that even a reasonably constructed shed, of the type in question, "probably would not have repelled hurricane winds in excess of 80 to 90 miles per hour" and that "[r]ecorded Hurricane Ofa winds reached 88.5 miles per hour in velocity at or about the time the shed's roof was blown onto plaintiffs' motorboat." Slip op. at 12. In these circumstances, the court decided that the shed's construction was not a "substantial factor" in bringing about appellants' damage, citing to RESTATEMENT (SECOND) OF TORTS § 432(1) for the proposition that "[n]egligence of the landowner or land occupier is not a substantial factor proximately causing harm if harm would have occurred despite the negligence of the landowner or land occupier." Rather, the lower court concluded, "Hurricane Ofa was the legal proximate cause of plaintiffs' property damage." Slip op. at 13.

[2] Appellants contend that the trial court's conclusion of no negligence was erroneous, in that it was premised on the outmoded 1964 Uniform Building Code, since replaced by the post-Ofa adoption of the 1988 Uniform Building Code. Appellant submits that the heightened requirements of the later version of the Uniform Building Code set or established the applicable standard of reasonableness and that those requirements were known to appropriate government officials at all relevant times. Additionally, appellants contend that the trial court's finding that damage would have occurred even without negligence 011 the government's part was the product of "conjecture." To this end, appellants argue that the court must necessarily have assumed that the day's strongest wind gusts caused the shed's roof to be blown off, when there was no testimony to that effect. Appellants further argue that the trial court was unduly influenced by irrelevant testimony as to damage occurring in the vicinity later on in the day.

The question whether the defendant's conduct was a "substantial factor" in producing harm to plaintiff is one for the fact-finder to determine, unless the testimony is so undisputed and uncontradictory that reasonable[25ASR2d51] men could not differ. RESTATEMENT (SECOND) OF TORTS, § 434, see Comment c. From our review of the record below, we arc satisfied that the evidence sufficiently permits one reasonably to draw the conclusion that damage would have occurred regardless of any negligence by the government. The testimony regarding damage occurring later in the day was hardly irrelevant, as the court was attempting to determine whether proximate cause was or would have been the hurricane. Additionally, the court also looked at damage occurring at approximately the same time as the event in question. Furthermore, the testimony alluded to considerable other damage in the Tafuna Industrial Park area, and nothing on the record suggests that these other structures were also minimally constructed.

The trial court's conclusion as to causation is amply supported, and as long as reasonable people could differ on the facts as presented below, the decision of the fact-finder should not be disturbed. We affirm.

It is so ordered.

**********

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

**Honorable Alex R. Munson, Chief Judge, United States Court of Appeal for the Ninth Circuit, serving by designation by the Secretary of the Interior.

Berry; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

JOHN BERRY aka JOHN ROE, Defendant.

The District Court of American Samoa

TR No. 131687

March 16, 1994

__________

[1] A motorist stopped by a traffic officer may be detained briefly by that Officer. upon a reasonable belief that the driver was under the influence, until a qualified officer may be summoned by radio to administer field sobriety tests.

[2] A person who was pursued for a traffic offense by a police officer, apprehended, identified, and taken into custody by another officer, taken to the Police Station, and subsequently administered field sobriety tests and then arrested for D.U.I. could not have been legally arrested at the Police Station.

[3] Under A.S.C.A. § 22.0803 an officer at the scene of an accident must conduct a personal investigation, and upon reasonable and grounds to believe a misdemeanor traffic offense, (or infraction), has occurred, issue a traffic citation.

[4] A.S.C.A. § 22.0803 autllorizes an investigating officer to view the accident scene and follow any driver involved therein who is receiving medical treatment and, if reasonable grounds exist, to issue that driver a traffic citation.

[5] Only a valid arrest for D.U.I. invokes the implied consent to chemical testing under A.S.C.A. § 22.0601 et. seq.

[6] A.S.C.A. § 22.0803 does not apply to felonies. [25ASR2d150]

[7] Under A.S.C.A. § 22.0708 the injury to any person resulting from the operation of a motor vehicle by a person under the influence of intoxicating liquor creates a felony offense.

[8] Officers may upon reasonable grounds, arrest persons found near the scene of a felony within a short time after its commission.

Before District Court Judge WARD

This matter came on regularly before the Court on March 11, 1994, on Plaintiff's Motion to Suppress Evidence.

The Court heard testimony from Sgt. Mikaele and Officer Fuifatu. The Defendant also gave limited testimony on the extent of his injuries.

The essential facts are as follows: Sgt. Mikaele came upon Defendant's vehicle in a ditch near Vaitogi. Defendant was injured, (a cut above his eye), and Sgt. Mikaele radioed the O.M.V. substation and the E.M.S. that Defendant would be transported to the O.M.V. substation for treatment. After being treated by the E.M.S. at the O.M.V. and after Sgt. Mikaele had left, field sobriety tests were conducted by Officer Fuifatu. Upon Defendant's failure to pass these tests, Defendant was subjected to a breathalizer test after being arrested for driving under the influence.

At some later time in the evening, Defendant and his family members were allowed to push his vehicle out of the ditch. This is, at ]east, what the Court understood to be Officer Fuifatu's testimony. Also, at some point after the arrest, Officer Fuifatu inspected the accident scene, most likely at the time the vehicle was removed from the ditch.

The issue before the Court is whether the arrest for D.U.I. was valid.

[1-2] By way of discussion the Court notes that Officer Fuifatu has information from Sgt. Mikaele that Defendant's vehicle was involved in an accident and that Defendant was injured by that accident. As this Court has previously ruled, a motorist stopped by a traffic officer may be detained briefly by that Officer, upon a reasonable belief that the driver was under the influence, until a qualified officer may be summoned by radio to administer field sobriety tests. This Court has also previously ruled that a person who was pursued for a traffic offense by a police officer, apprehended, identified, and taken into custody by another officer, taken to the Police Station, and subsequently 150 administered field sobriety tests and then arrested for D.U.I. could not have been legally arrested at the Police Station.

The instant case appears to fall precisely midway between the Court's prior rulings. This Defendant was in the custody of the police and at the police sub-station when the field sobriety tests were administered. Yet, Sgt. Mikaele was not qualified to administer field sobriety tests and upon first procuring medical attention for the Defendant, turned him over to Officer Fuifatu for further investigation. Counsel have argued that the previous rulings of this Court support their respective positions on the validity of this arrest. Indeed, both are equally correct in that regard.

[3] This case is different, however, since it involves a motor vehicle accident. The Legislature has specifically set forth its requirements for a valid arrest of a driver involved in an accident under A.S.C.A. § 22.0803. The requirements are that an officer at the scene of an accident must conduct a personal investigation, and upon reasonable and grounds to believe a misdemeanor traffic offense, (or infraction), has occurred, issue a traffic citation.

[4] This Court has interpreted this statute as authorizing an investigating officer to view the accident scene and follow any driver involved therein who is receiving medical treatment and, if reasonable grounds exist, to issue that driver a traffic citation.

[5] In the present case only the sequence of the arrest is at odds with the statute. Officer Fuifatu viewed the accident scene after, not before issuing the traffic citation. In a case not involving personal injury caused by a traffic accident, this sequence would likely prove fatal to the validity of the arrest. And, only a valid arrest for D.U.I. invokes the implied consent to chemical testing under A.S.C.A. § 22.0601 et. seq.

[6-8] Yet A.S.C.A. § 22.0803 does not apply to felonies. Under 22.0708 A.S.C.A. the injury to any person resulting from the operation of a motor vehicle by a person under the influence of intoxicating liquor creates a felony offense. Officers may upon reasonable grounds, arrest persons found near the scene of a felony within a short time after its commission, A.S.C.A. § 46.0805(3).

Under all of the circumstances, Defendant's arrest for driving under the influence was valid. The breathalizer results are therefore admissible as evidence lawfully obtained. [25ASR2d152]

As a logical consequence of this decision, the Court is compelled, however, to dismiss, without prejudice, UTC#131687. The validity of the arrest being predicated upon a felony having been committed, A.S.C.A. § 22.0803 does not authorize a uniform traffic citation to serve as a valid summons, complaint, and affidavit for initiating or sustaining a criminal action. See A.S.C.A. §§ 22.0801, 22.0803, and 22.0810(d).

Nothing prevents the government from refiling a summons, complaint and affidavit in this matter, but uniform traffic citation #131687, issued in violation of A.S.C.A. § 22.0803, can not sustain the present action.

It is so ordered.

*********

American Samoa Gov’t ; Ape v.


APE POUTOA, SISIGAFU'A and ELISE APE, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT, and SEFO PASENE, 
Defendants

High Court of American Samoa 
Trial Division

CA No. 99-92

December 29, 1993

__________

[1] Leave to amend, pursuant to T.C.R.C.P. Rule l5(a) shall be freely given when justice so requires, with a bias toward testing claims on their merits and not on procedural defects. Leave to amend should be granted in the absence of reasons such as undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party , or futility of the amendment.

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

Counsel: For Plaintiffs, Afoafouvale L. S. Lutu 
For Defendant American Samoa Government, 
Elvis F P. Patea, Assistant Attorney General

Order on Motion to Amend Pleadings, Add Parties, and Cross-Claim:

Defendant American Samoa Government seeks to amend its answer under T.C.R.C.P. 15(a) and to file a cross-claim and third-party complaint under T.C.R.C.P. 13(g)-(h) and 14(a), respectively.

The procedural posture of this case is as follows: On July 16, 1992, pursuant to A.S.C.A. § 43.1205, plaintiffs filed their administrative claim with the Attorney General for damages allegedly arising from an automobile accident involving a government vehicle. On October 9 1992, the Attorney General denied the claim on the basis that "the driver of the vehicle involved was not acting within the scope of his employment." (1) On October 14, 1992, plaintiffs filed an action pursuant to the provisions of the Government Tort Liability Act, A.S.C.A. § [25ASR2d107] 43.1211. On November 3, 1992, the government filed its answer admitting, inter alia, employment of the driver, co-defendant Pasene Sefo, but again denying liability on the grounds that the driver was not acting within the scope of his employment at the time of the alleged injury .Trial in this matter was subsequently set for October 25, 1993.

Less than a week before trial, the government requested an expedited hearing on its motion to amend its answer to deny the existence of an employer/employee relationship between the government and the co-defendant Pasene Sefo. The grounds for the motion were simply that information to that effect had just come to counsel's attention. We denied the government's motion to amend and sustained plaintiffs' objection of prejudice.

The matter then came up regularly for trial on October 25, 1993; however, plaintiffs at that time moved for a continuance on the grounds that one of their witnesses was stranded off-island because of airline delays. As the continuance request was not opposed by the government, it was granted, and trial was rescheduled for February 3, 1994. At the same time, the court indicated to the counsel that it was amenable to revisiting the government's previously-denied motion to amend its answer, since prejudice to plaintiffs was no longer as compelling in the light of the continuance of trial.

On December 1, 1993, the government filed its second motion to amend its answer. This time, it further sought leave to file a cross-claim against the co-defendant Pasene Sefo and to add third-parly defendants. In his supporting affidavit, counsel alluded to his subsequent receipt of "conflicting information" which suggests that the co-defendant may have been government-hired but that his hiring by the third-parties sought to be joined was illegal. In the event that the co-defendant is found to be an employee of the government, counsel further avers to issues of contribution and indemnification by the co-defendant's immigration sponsor (which, in turn, gives rise to the issue of whether a judgment against the government as a result of an alien worker's negligence is a "public debt, " for which the sponsor is liable, within the contemplation of A.S.C.A. § 41.0408(e) of the immigration code).

Plaintiffs again object to the government's attempt to retract its admission of employment and its new-found desire to bring in third parties to the lawsuit. They contend that the government has been tardy in sorting out its position and argue undue prejudice and delay if the government's motion is granted. Plaintiffs further point out that the government has [25ASR2d108] failed throughout to explain why it did not earlier raise its new-found concerns.

DISCUSSION

[1] T.C.R.C.P. 15{a) declares that leave to amend "shall be freely given when justice so requires." The Supreme Court, in discussing Rule 15{a)'s federal counterpart, has cautioned that

this mandate is to be heeded If the underlying facts or 
circumstances relied upon by a plaintiff may be a proper 
subject of relief, he ought to be afforded an opportunity to 
test his claim on the merits. In the absence of any apparent or 
declared reason--such as undue delay, bad .faith or dilatory 
motive on the part of the movant, repeated failure to cure 
deficiencies by amendments previously allowed; undue 
prejudice to the opposing party by virtue of allowance of the 
amendment, futility of amendment, etc.--the leave sought 
should, as the rules require, be "freely given." Of course, the 
grant or denial of an opportunity to amend is within the 
discretion of the District Court. ...

Foman v. Davis, 371 U.S. 178,182, 9 L. Ed. 2d 222, 226 (1962) (citing 3 MOORE'S FEDERAL PRACTICE ¶¶ 15.08, 15.10 (2d ed. 1948)). While the bias then is in favor of testing each party's case on the strength of its merits, the liberal amendment policy of Rule 15{a) is not without limits.

For the following reasons we deny the motion. As noted above, the government had, until a few weeks ago, conceded the issue of employment which it now seeks to litigate. Plaintiffs' discovery and trial preparation, on the other hand, has proceeded on the basis that the co-defendant's employment status was not at issue. Thus, plaintiffs would not have needed to explore the possibility of alternative theories of liability. At the same time, the government has given nothing in the way of a justifiable explanation, although it is evident from its supporting affidavits that the proposed amendment is based on readily available information from the personnel records at the Department of Human Resources, as well as from depositions of the former director of Education and the former principal of the government's Vocational Technical School, whom the government now belatedly seek to join as third-party defendants. Additionally, as pointed out by plaintiffs, the [25ASR2d109] government has taken more than a month to renew its motion to amend subsequent to the court's statement in October about revisiting the issue of prejudice. The concern again expressed by plaintiffs' counsel is that the trial date of February 3, 1994, is once again upon him.

We conclude that the motion to amend ought to be denied. First, the delay in the bringing of this motion is both undue and inexcusable. It is also quite apparent, in view of the "conflicting" information received by counsel after the hearing on the initial motion to amend, that the government is still, at this late stage of the proceedings, sorting out its position on the issue of employment. (2) Second, and more significantly, the government's proposed change in tactics and theory would, in our view, result in undue difficulty to plaintiffs' prosecution of their lawsuit. Finally, the government's new-found concerns about contribution and indemnification may be subsequently addressed in a separate proceeding. Under the circumstances, it would not, in our view, be consistent with the interests of justice to allow the requested amendments at this stage of the proceedings. The motion is therefore denied.

It is so ordered.

**********

1. A.S.C.A. § 42.1211 provides a remedy against the government for damages owing to death and personal and property injury caused by the negligence of any government employee "while acting within the scope of his office or employment."

2. In the earlier motion. the position taken by the government was that the co-defendant was not a government employee; however. the government's position now seems to be somewhere between its initial admission and its recent attempt to flatly deny employment. Consequently, the government now seeks to litigate issues collateral to plaintiffs' suit relating to indemnification and contribution.

American Samoa Gov’t; Ape v.


American Samoa Gov’t; Ape v. 25 A.S.R.2d 106 (1993).

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


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

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, Defendants,

High Court of American Samoa 
Trial Division

CA No. 92-93

December 20, 1993

__________

[1] Federal FICA applies to any employment performed within the U.S. or outside the U.S. if performed by U.S. citizens or residents, pursuant to 26 U.S.C. § 3121(b), and applies specifically to American Samoa, pursuant to 26 U.S.C. § 3121(e). [25ASR2d98]

[2] Federal laws need not be passed by the American Samoa legislature, since Congress has the constitutional power to make rules and regulations for the territories, pursuant to U .S, Const. art. VI, and the federal Constitution and laws are the supreme law of the land, pursuant to U .S. Const. art. IV, § 3.

[3] American Samoa's constitution was promulgated under the authority of Congress and the President of the United States, as delegated to the Secretary of the Interior. Revised Const. of American Samoa, Preamble and art. V, § II (1967).

[4] Under the Deeds of Cession between the chiefs of Eastern Samoa and the United States, all vestiges of sovereignty passed from former to the latter.

[5] The High Court lacks jurisdiction to block enforcement of federal tax laws.

[6] The High Court lacks jurisdiction to grant relief for unauthorized tax collection by the IRS, since such actions must be brought in a district court of the United States, pursuant to 26 U .S.C. § 7433(a).

[7] American Samoans may litigate unauthorized tax collections in the federal district could where the defendant resides, where a substantial part of the claim arose, or where 3 substantial part of the relevant property is situated.

[8] Appeals of the High Court's decisions are accomplished by suing the Secretary of the Interior in his official residence in Washington, D.C.

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

Counsel: Plaintiff Alamoana S. Mulitauaopele, Pro Se 
For Defendant American Samoa Government, 
Chery A. Quadlander, Assistant Attorney General 
For Defendants William A. Melendez, Internal Revenue Service 
and Department of the Interior, Thomas J. Sawyer, Trial 
Attorney, U.S. Department of Justice

Order on Motions to Dismiss:

PROCEDURAL HISTORY

On October 26, 1993, defendant American Samoa Government filed its motion to dismiss. Defendants Melendez, Internal Revenue Service, and Department of the Interior filed their motion to dismiss on November l9, 1993. A hearing on ASG's motion, scheduled on November 22, 1993, was continued to permit both motions to be heard on December 17, 1993. [25ASR2d99]

FICA'S APPLICATION TO AMERICA SAMOA

[1] As noted in the "Opinion and Order Denying Petition for Temporary Restraining Order," FICA applies to any employment performed within the U.S. or outside the U.S. if performed by U.S. citizens or residents. 6 U.S.C. § 3121(b). For purposes of the FICA chapter, Congress explicitly defined "state" and "United States" to include American Samoa. 26 U.S.C. § 3121(e). As such, employers and employees in American Samoa must pay the mandated Social Security taxes.

[2] Furthermore, plaintiff Mulitauaopele's argument that the federal laws must be passed by the American Samoa legislature in order to be effective in the territory is clearly wrong. The Supremacy Clause declares that "[t]his Constitution, and the laws of the United States which all be made in Pursuance thereof. ..shall be the supreme Law of the Land." U.S. Const. art. VI. Furthermore, "Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property of the United States." U.S. Const. Art. IV, § 3.

[4] Likewise, American Samoa's constitution itself proclaims that it as promulgated under the authority of Congress and the President of the United States, as delegated to the Secretary of the Interior. Revised Const. of American Samoa Preamble and Art. V, § 11 (1967); see 48 U.S.C. § 1662(a) ("Amendments of, or modifications to, the constitution of American Samoa, as approved by the Secretary of the Interior. .. may be made only by Act of Congress."). Under the Deeds of Cession between the chiefs of Eastern Samoa and the United States, all vestiges of sovereignty passed from the former to the latter. See 48 U .S.C. §§ 661, 1662; Cession of Tutuila and Aunu'u, April 17, 1900, A.S.C.A., Historical Docs. & Consts.; Cession of Manu'a Islands, July 14, 1904, U.S.C.A., Historical Docs. & Consts.; Bell v. Commissioner, 278 F.2d 100, 102 (4th Cir. 1960) ("rulers of Samoa ceded absolutely all rights of sovereignty over these islands to the United States"); Vessel Pacific Princess v. Trial Division of the High Court of American Samoa, 2 A.S.R.2d 21, 23 (App. Div. 1984) ("American Samoa is still legally governed by executive fiat and administered by the Secretary of the Interior"). Thus, Social Security taxes may be collected without the Fono's approval.

JURISDICTION AND VENUE 
[25ASR2d100]

[5] Plaintiff Mulitauaopele has once more requested a temporary restraining order and an injunction barring enforcement of the FICA assessment. He also seeks damages for alleged injury resulting from his business' closure. However, the High Court is powerless to grant the desired relief, even if proper .

First, as this court observed in denying a temporary restraining order, the prohibitions of the Anti-Injunction Act are comprehensive. This statute states that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." 26 U.S.C. § 7421(a) (emphasis added); see Enochs v. Williams Packing & Navigation, 370 U.S. 1, 5, 8 L. Ed. 2d 292,295 (1962). Thus, the High Court lacks jurisdiction to block enforcement of federal tax laws.

[6] Second, the High Court lacks jurisdiction over plaintiff's request for money damages. Although Congress has authorized suits to collect damages for "unauthorized collection actions" by the Internal Revenue Service, these suits must be brought in a "district court of the United States." 26 U .S.C. § 7433(a). However, the High Court is not a U.S. "district court," nor has it been given the authority to act as a district court for purposes of this statute. This conclusion is supported by the fact that Congress explicitly named American Samoa in a number of places in the tax code (including the definitions of "state" and "United States") but did not do so when it mentioned "district courts." This situation is similar to that of the High Court's admiralty jurisdiction, in which the High Court is not a "district court" for purposes of the federal Limitation of Liability Act but has been given the authority to act as one for purposes of the federal preferred mortgage lien statute. Compare In re Complaint of Interocean Ships, Inc., 2 A.S.R.2d 76, 79 (App. Div. 1985) (no jurisdiction under Limitation of Liability Act, 46 U .S.C. § 185) with United Airlines Employees' Credit Union v. M/V Sans End, 15 A.S.R.2d 95, 100 (Trial Div. 1990) (46 U.S.C. § 31301(2)(E) defines the High Court as a "district court" for the purposes of enforcing preferred mortgage liens under 46 U.S.C., Chapter 313). In any event, plaintiff has not shown that he has exhausted his administrative remedies, and the request for damages exceeds the $100,000 statutory limitation. See 26 U.S.C. § 7433(b), (d)(1).

[7-8] If plaintiff was denied any opportunity for review by a federal court created under Article III, serious constitutional problems could arise. See Guam v. Olsen, 431 U.S. 195, 204, 52 L. Ed. 2d 250, 258 (1977) (denying appellate review of territorial-court decisions by Article III courts "might present constitutional questions"); King v. Morton, 520 [25ASR2d101] F.2d 1140, 1144 (D.C. Cir. 1975) ("availability of remedies in the Samoan courts [to persons challenging actions of United States Government officials] ...cannot act as a complete bar to district court proceedings "). A rational basis, though, may exist to justify Congress' failure to provide for direct review by an Article III court. Corporation of the Presiding Bishop of the Church of Jesus Christ of the Latter-Day Saints v. Hodel, 830 F.2d 374, 386 (D.C. Cir. 1987). So while the High Court lacks jurisdiction in this case, plaintiff is not precluded from litigating in a federal district court.

Regarding civil suits against an officer or agency of the United States, the federal venue statute reads as follows:

A civil action in which a defendant is an officer or employee of 
the United States or any agency thereof acting in his official 
capacity or under color of legal authority, or an agency of the 
United States, or the United States, may, except as otherwise 
provided by law, be brought in any judicial district in which (1) 
a defendant in the action resides, (2) a substantial part of the 
events or omissions giving rise to the claim occurred or a substantial 
part of property that is the subject of the action is situated, or (3) 
the plaintiff resides if no real property is involved in the action.

28 U.S.C. § 1391(e); see generally Annotation, Construction and Application of 28 USC § 1391 (e) Providing for Venue and Process in Civil Actions Against Federal Officers, Employees, or Agencies, 9 A.L.R. Fed. 719 (1971 & supp. 1990); 1 MOORE'S FEDERAL PRACTICE ¶ 0.142[7] (1985). Under this provision, proper venue could at least be established under subsection (1) .While such a forum may not be convenient, it is no more so than appeals of the High Court's decisions in federal court, which is accomplished by suing the Secretary of the Interior in his official residence in Washington, D.C. See King, 520 F.2d at 1144 ("Secretary [of the Interior] is within the geographical jurisdiction of the United States District Court for the District of Columbia"); Presiding Bishop, 637 F. Supp. at 1416 ("litigants in [25ASR2d102] American Samoa may obtain review in this Court via the mechanism of suing the Secretary of the Interior"). (1)

CONCLUSION

First, Congress has mandated that Social Security taxes be assessed in American Samoa. The absence of approval by the Fono is irrelevant. Second, the High Court lacks jurisdiction to enjoin the collection of FICA or to hear a suit for damages resulting from unauthorized collection actions. Therefore, defendants' motions to dismiss are granted.

It is so ordered.

**********

1. Nevertheless. the absence of a court which can handle all federal matters arising in American Samoa has not only led to great inconvenience to plaintiffs and defendants but has also resulted in confusion as to the High Court's jurisdiction over questions of federal law. The piecemeal approach of giving the High Court authority to act as a federal district court for the purposes of specific laws has also been shown to be unsatisfactory. See Pacific Princess, 2 A.S.R.2d at 24 (Gardner, C.J., concurring) ("lack of access by the residents of this territory to a court with federal jurisdiction is troublesome"); Interocean Ships, 2 A.S.R.2d at 81-82 (Murphy, Acting C.J., concurring) (lack of access to a federal court is probably the "result of Congressional oversight"). 
The current jurisdictional and forum problems again bespeak the need for revisiting the question of access to the federal courts. However, in the absence of territorial initiative, Congressional attention will continue to remain uncertain, while American Samoan litigants are left having to look to the federal courts located some 7 ,500 miles away) in Washington D.C., in order to avail themselves of their federal remedial rights.

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


ALAMOANA RECIPE INC., a Corporation, and ALAMOANA S. 
MULITAUAOPELE, Appellants

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, Appellees

High Court of American Samoa 
Appellate Division

AP No.18-93

November 15, 1993

__________

[1] Although A.C.R. Rule 8(a) contemplates that an application for a stay of execution pending appeal must ordinarily be made in the first instance to the trial court, a hearing at the appellate level was granted in this case in view of the immediate availability of a full appellate panel.

[2] The Federal Anti-Injunction Act prevents the High Court, at any level, from restraining the assessment of collection of any federal tax. 26 U.S.C. §§ 876, 7421 (a).

[3] The Federal Anti-Injunction Act is applicable to temporary , as well as permanent pleas for injunctive relief.

[4] Trial court decisions regarding temporary restraining orders are appealable only when evident risk of harm cannot be corrected by the preliminary injunction review, or when the decisions are effectively final dispositions of the case.

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

Counsel: For Appellants, Alamoana S. Mulitauaopele, Pro Se [25ASR2d47]
For Appellees, Cheryl A. Quadlander, Assistant Attorney General, 
and Thomas J. Sawyer, Trial Attorney, Tax Division, U.S. Department of Justice

RICHMOND, Judge:

[1] On November 9, 1993, appellants filed a motion for a stay of execution pending appeal of the Trial Division's denial of a temporary restraining order. Appellants requested an expedited hearing. A.C.R. Rule 8(a) contemplates that an application for a stay must ordinarily be made in the first instance to the trial court. However, in view of the immediate availability of a full panel of judges for Appellate Division proceedings, an expedited hearing was granted and held on November 10, 1993, to entertain the motion.

This action concerns the assessment and collection of taxes imposed on employers and employees, in support of the federal Social Security program, under the Federal Insurance Contributions Act ("FICA"). It was filed by appellants on September 14, 1993, to obtain injunctive and monetary relief. In essence, appellants sought immediate release of existing levies on assets and permanent prevention of further such levies and closure of their business by appellees, in connection with assessment and collection of FICA taxes. They also claimed both compensatory and punitive damages with respect to these enforcement actions.

The Trial Division denied appellants' application for a temporary restraining order on September 16, 1993, and their motion for reconsideration of this denial on October 29, 1993. On November 9, 1993, appellants appealed these decisions and applied for a stay of execution, in effect an injunction during the pendency of appeal under A.C.R. Rule 8(a), to release existing levies and enjoin further levies.

[2] Two factors are dispositive of appellants' motion and this appeal. First, the federal Anti-Injunction Act prohibits this court from restraining the assessment or collection of any federal tax. 26 U.S.C.A. § 7421(a). This limitation is applicable to the High Court of American Samoa. 26 U.S.C.A. § 876.

[3] In no event, due to the Anti-Injunction Act, can either the Trial Division or the Appellate Division grant the temporary injunctive relief sought by appellants. The Anti-Injunction Act was enacted to allow, with very narrow exceptions inapplicable to this case, "...the United States to assess and collect taxes alleged to be due without judicial intervention..." J.L. Enochs v. Williams Packing and Navigation Co., Inc., 8 L. Ed.2d 292, 296 (1962), reh den8 L. Ed.2d 833 (1962). The Act is applicable to temporary, as well as permanent, pleas for injunctive relief. Sipkoff v. Whinston, 354 F. Supp. 683 (1973). We cannot deal with any risk of harm pending a final decision in this case.

[4] Second, the Trial Division holdings at issue are not appealable. These decisions only relate to a temporary restraining order, which by nature is based on an incomplete hearing process, is short-lived, and is subject to review at the hearing on the concurrent preliminary injunction request. A.S.C.A. §§ 43.1304 and 43.1305(a). Decisions on temporary restraining orders are only appealable when the evident risk of harm cannot be corrected by the preliminary injunction review, or when the decisions are effectively final dispositions of the case. See Wright, et al., Federal Civil Practice and Procedure, § 3914.3 at 522 (2d Ed. 1992).

Clearly, the Trial Division's decisions are not a final disposition. Such a decision will not occur, at the earliest, unless and until the Trial Division grants appellee American Samoa Government's pending motion to dismiss for lack of jurisdiction. The other appellees have not yet joined in that motion, but they may do so before the hearing on it, scheduled for 9:00 a.m., on November 22, 1993.

We can understand appellants' perspective regarding the harshness of appellee United States Internal Revenue Service's FICA tax assessment and collection procedures in American Samoa. Apparently, this activity is managed by the Internal Revenue Service office at Hato Rey, Puerto Rico. Sheer distance, mail service delays, and lack of locally-maintained federal tax records and locally-stationed tax personnel, as examples, certainly can contribute to frustrating and unsatisfactory personal contacts and poor communications. Forums within the federal judiciary for such matters are inconveniently located.

However, under the restraint of the Anti-Injunction Act and given the nonappealability of the decisions at issue, appellants motion must be denied. Furthermore, this appeal must be dismissed, and the case must be remanded to the Trial Division to continue with the proceedings properly pending in that court.

It is so ordered.

**********

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

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

In re a Minor Child (Juv. No. 53-92),


In Re a MINOR CHILD

High Court of American Samoa
Trial Division

JR No. 53-92

December 8, 1993

__________

[1] This court has been loathe to take the drastic action of severing a child's legal relationship to his or her natural parents, unless it is satisfied that the child will realize some net benefit through the change in legal status and a severance of legal ties to the natural parents and corresponding obligations of support.

[2] A change in legal status in not necessary to facilitate customary fa'a Samoa adoption.

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

Counsel: For Petitioners, Roger K. Hazell

Order Denying Petition for Voluntary Relinquishment:

The natural parents have filed a petition for voluntary relinquishment in seeking to terminate their parental rights to their nine year old daughter, whose adoption is being sought by her maternal grandparents. As in most petitions anticipating grandparent adoption, the principal ground advanced for termination is that the child has been in the primary care of the grandparents since birth.

[1-2] In these matters, the court has been loathe to sever a child's legal relationship to his or her parents unless it is satisfied that the child's best interests are enhanced by the drastic action of changing his or her legal status. Thus, the Court has taken care to ensure that there be some "net benefit" to the minor before severing his legal ties to his natural parents and their corresponding obligations of support. In re Two Minor Children, 11 A.S.R.2d 108, 109 (1989); see also In re A Minor Child, 13 A.S.R.2d 33 (1989); In re A Minor Child, 12 A.S.R.2d 15 (1989). [25ASR2d90]

While the law does not discourage adoption in accordance with Samoan custom, a change in legal status is not necessary to facilitate customary fa 'a Samoa.

Here, the evidence simply does not tell us that the parents are less equipped than the grandparents, who have undoubtedly proven fit and capable caregivers, to provide for the child. Especially in terms of her "future" interests, the child is better off remaining legally dependent on her younger and able-bodied parents.

We are unable to say that the child's interests would be better served by changing her legal status and thereby terminating her right to look to her parents for future support. The petition is, therefore, dismissed.

It is so ordered.

*********

In re a Minor Child (Juv. No. 46-93) ,


In Re a MINOR CHILD

In the High Court of American Samoa
Trial Division

JR No. 46-93

December 1, 1993

__________

[1] The best interests of all persons concerned, particularly those of the minor child, must be served by the outcome of proceeding for the relinquishment of a parent-child relationship.

[2] Grandparents can be the primary caregivers of their grandchildren, as is often done in Samoan tradition, if all concerned agree, without legally severing the parent-child relationship. Such severance could leave the child without legal recourse for support during a long period of dependency if the grandparents become unable to care for her.

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

Counsel: For Petitioners, Tautai A.F. Fa'alevao

Order Denying Motion for Rehearing or Reconsideration:

Petitioners' motion for rehearing or reconsideration came regularly for hearing on October 27, 1993. Petitioners appeared by counsel.

[1] The best interests of all persons concerned, and especially those of the minor child, must be served by the outcome of a proceeding for the relinquishment a parent-child relationship. A.S.C.A. § 45.0402(e); In re a Minor, 14 A.S.R.2d 54,55 (Trial Div. 1990); In re a Minor Child, 14 A.S.R. 82, 83 (Trial Div. 1990).

[2] In this case, the grandparents' attention and devotion to their eight-month old granddaughter is apparent. This relationship can continue to be nurtured. Indeed, if all concerned continue to agree, the grandparents are certainly free to remain the child's primary care-givers, as is often done traditionally. However, this is different than a legal termination of the natural parental relationship, which could leave the child without legal recourse for support during her still long period of dependency. The grandparents are in their sixties, while the natural parents are in their twenties. All five persons live in the same household. Under these circumstances, it is not in the long-term best interests of the child, regardless of present financial circumstances, to [25ASR2d71] have her relationship with her natural parents legally severed at such a tender age.

The motion is denied.

It is so ordered.

*********

In re a Minor Child (Juv. No. 133-90),


In Re a MINOR CI11LD

High Court of American Samoa
Trial Division

JR 133-90

November 24, 1993

__________

[1] Termination proceedings may only be had when the child has been neglected by his parents or is homeless.

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

Counsel: For Petitioners, Roger K. Hazell

Opinion and Order on Petition to Terminate Parental Rights:

The natural mother of the male child before the court is the sister of the proposed adoptive mother. They had agreed prior to the birth of the child that the natural mother would, upon birth, surrender the child to the proposed adoptive mother and her husband to raise as their own. The child, who is now seven years of age, has been raised and cared for by the proposed adoptive parents since birth. The adoption of the child is highly recommended by the Child Protective Services, Social Services Division of the Department of Human Resources.

This matter was first initiated by the natural parents, who filed their petition to relinquish their parental rights to the child on November 6, 1990, pursuant to A.S.C.A. § 45.0115(a)(5). However, since the riling of their petition, the natural parents moved to the mainland, and their petition remains pending as of this date.

One year later, the proposed adoptive parents filed their own petition, under the same docket number, to terminate the parental rights of the natural parents, pursuant to A.S.C.A. § 45.0115(a)(3). With the filing of the subsequent petition, the natural parents filed a form acknowledging service of the proposed adoptive parents' petition, giving their consent to the termination of their parental rights in the child and waiving any right to further notice of the proceedings. It is this latter petition by the proposed adoptive parents which is now before the court. [25ASR2d53]

[1] The petition of the proposed adoptive parents is not supported by the evidence presented. Termination proceedings under § 45.0115(a)(3) "may only [be had] when the child has been neglected by his parents or is homeless." In Re Three Minor Children, 3 A.S.R.2d 4, 7 (1986) (emphasis in original); A.S.C.A. §§ 45.103(19), 45.0401(1). Here the evidence simply does not demonstrate that the child before the court is "dependent and neglected" under any of the definitions provided in A.S.C.A. § 45.0103(19). The petition for termination should, therefore, be denied. (1)

It is so ordered.

*********

1. In contrast to relinquishment proceedings, under A.S.C.A. § 45.0115(a)(5). which are voluntary in nature and wherein the natural parents are the petitioners, termination proceedings, A.S.C.A. § 45.0115(a)(3), are adversarial in nature with the natural parents being the respondents. In Re Two Minor Children, 8 A.S.R.2d 25 (1988).
What the evidence points to here is a situation of voluntary relinquishment and quite obviously the apparent purpose behind the filing of the subsequent petition by the proposed adoptive parents was to avoid the necessity of requiring the attendance of the absent natural parents--the natural parents' attendance at relinquishment proceedings is effectively required by A.S.C.A. § 45.0402. See In Re Three Minor Children. supra; OCR 23.

In re a Minor Child (Juv. No. 46-93),


In Re a MINOR CHILD

High Court of American Samoa
Trial Division

JR No. 46-93

September 21, 1993

__________

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

Counsel: For Petitioners, Tautai A.F. Faalevao

In this proceeding, the natural parents' petitioned to relinquish their parental rights and obligations to their five-months old daughter and allow for the child's adoption by her maternal grandparents. An evidentiary hearing was conducted on September 10, 1993.

The interested parties, child, parents and grandparents, live in the same household. The parents were married shortly after their daughter's birth. Both are in their twenties, are educated, and recently acquired employment. Their prospects for the future are bright.

The grandfather is 63 years old and retired. The grandmother is 65 years of age and also retired. They enjoy a substantial retirement income from pensions, Social Security benefits, and contributions from sons overseas. [25ASR2d12]

The interested parties are also promoting a loving, caring relationship between granddaughter and grandparents. Eventually, however, complete and intimate familial contacts between the child and her parents will be essential. Legal disruption of the child's parental relations is not in her present, long-term best interests.

This petition should be and is properly denied.

It is so ordered.

**********

In re a Minor Child (Juv. No. 15-93),


In re a MINOR CHILD

High Court of American Samoa
Trial Division

JR No. 15-93

May 10, 1993

__________

[1] If husband and wife are not cohabitating when a child is conceived, the conclusive presumption that the child is the legitimate child of the marriage is inapplicable. In such cases, a disputable presumption of legitimacy exists, but it is overcome where there is a complete lack of any sexual access between the couple at the time of conception.

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

Counsel: For the Minor Child and Petitioners, Asaua Fuimaono

This petition to establish the paternity of a minor child came regularly on April 30, 1993 for hearing. The minor child and above-name petitioners appeared personally and by counsel. The court, having heard testimony and considered the evidence, finds:

FINDINGS OF FACT

1. The minor child and petitioners are residents of American Samoa.

2. The minor child was born on June 24, 1975 in American Samoa.

3. The minor child's birth certificate, Certificate Number 75671, states that LL is his natural mother and PG is his natural father.

4. On or before March 29, 1993, PG received a copy of the petition for termination of his parental rights based on the minor child's birth certificate, which was also filed in this proceeding, and notice of the hearing on April 30, 1993. On October 10, 1991, he signed an affidavit in California essentially confirming the facts, based on petitioners' testimony, as set forth herein, in particular the total lack of cohabitation and any sexual access between petitioner Lauline Suaalii and himself during the period of time when the minor child was conceived.

5. Petitioner Lauline Sauaalii and LL are the same person. At the time of the minor child's conception and birth, she was married to PG. However, she and PG had not cohabited since 1968. Moreover, he took up permanent residence in California no later than during 1972 and next returned to American Samoa for a brief visit in 1976. She obtained a divorce from PG on the grounds of desertion on September 5, 1975.

6. Petitioners began to cohabit in 1974, more than nine months prior to the minor child's birth. Petitioner LS did not have sexual relations with any other male during the period of time when the minor child was conceived. She is the minor child's natural mother. Petitioner AS is the minor child's natural father.

7. Petitioners married on November 11, 1975 in American Samoa and ever since have been husband and wife.

8. Petitioners have raised the minor child in their household from his birth to the present time.

From the foregoing facts, the court concludes:

CONCLUSIONS OF LAW

[1] 1. Since petitioner LS and PG were not cohabiting when the minor child was conceived, the conclusive presumption at common law that the minor child is the legitimate child of their marriage is inapplicable. See Hughes v. Hughes, 271 P.2d 172 (Cal. App. 1954). The disputable presumption of such legitimacy applicable in such circumstances has been clearly overcome by the lack of cohabitation and any sexual access between this married couple at the time of conception. See Cronn v. Vaccari, 10 Cal. Rptr. 4 (Cal. App. 1960).

2. In accordance with A.S.C.A. § 42.0501(a), the minor child is petitioners' legitimate, natural son.

3. Pursuant to A.S.C.A. § 42.0501(b), the Registrar of Vital Statistics shall void the minor child's original birth certificate and shall reissue his birth certificate with the correct information on it.

**********

Ye Ahn Moolsoan, Ltd.; Pago Petroleum Products, Inc. v.


PAGO PETROLEUM PRODUCTS, INC., Plaintiff

v.

YE AHN MOOLSOAN, LTD., dba POLYNESIAN TRADING
COMPANY and RALPH TUIA, Defendants

High Court of American Samoa
Trial Division

CA No. 70-93

October 19, 1993

__________

[1] Service is made upon a partnership or other unincorporated association by delivering a copy of the summons and complaint to an officer. a managing or general agent, or to any other agent authorized by appointment or law to receive service. pursuant to T.C.R.C.P. [25ASR2d] Rule 4(d)(3). As such a partnership may be served by serving a person with substantial authority and responsibility over its activities.

[2] Service on a representative of a partnership is valid only with respect to the partnership. and does not confer jurisdiction over a partner individually. Jurisdiction over each partner must be acquired by service on a person or entity representing the partner for process purposes.

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

Counsel: For Plaintiff, Michael Crew
For Defendant Ralph Tuia, Pro Se

Order Denying Motion for Default Judgment:

Plaintiff's motion for a default judgment against defendant Ye Ahn Moolsoan, Ltd. ("YAM"), doing business as Polynesian Trading Company ("PTC"), came regularly for hearing on September 23, 1993. Plaintiff appeared by counsel. Neither named defendant was present.

Plaintiff served the summons and complaint and the notice of the hearing on this motion on defendant Ralph Tuia ("Tuia"), in his individual capacity and as the agent of YAM doing business as PTC. The issue to resolve in deciding the motion is Tuia's agency relationship with YAM.

[1] At this point, the evidence clearly shows that YAM and Tuia conducted business in American Samoa as a partnership, joint venture or some other form of unincorporated association, using PTC as the entity's business name. Service is made on a partnership or other unincorporated association "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant." T.C.R.C.P. Rule 4(d)(3). As such, a partnership may be served by serving a person with substantial authority and responsibility over its activities. United States ex rel. Shakopee Mdewakanton Sioux Community v. Pan American Management Co., 616 F. Supp. 1200, 1214 (D. Minn. 1985), appeals dismissed 789 F.2d 632 (8th Cir. 1986).

[2] However, service on such representatives is only valid regarding the partnership and does not confer jurisdiction over a partner. Jurisdiction [25ASR2d16] over each partner must be acquired by service on a person or other entity representing the partner for process purposes. Id. at 1215 (citing Olsen v. Puntervold, 338 F.2d 21, 22 (5th Cir. 1964); Ford Motor Co. v. Sylte, 248 N.W. 55, 56 (Minn. 1933); Antiel v. V.W.E. Investments, 353 N.W.2d 681, 683 (Minn. App. 1984), review denied Minn. Sup. Ct. (Jan. 9, 1985)).

The evidence available also shows that Tuia took an active role in Polynesian Trading. According to the records at the American Samoa Government's Office of Development Planning, the agency regulating the issuance of business licenses, PTC's business license was in his name. As such, the service on Tuia was sufficient regarding both himself and the partnership.

However, YAM and PTC are not identical entities. Ostensibly, YAM is a corporation existing under the laws of the Republic of Korea. Tuia's agency connection with YAM is limited to representations in the promissory note and personal guaranty, which form the basis for this litigation and were signed by Tuia on September 6, 1991. Tuia signed the note as a principal of YAM as the maker of the note. He signed the guaranty as a principal of PTC and agent of YAM. According to Tuia's answer, September 1991 is the month during which Kyu Won Kim, allegedly YAM's owner, permanently departed American Samoa, perhaps leaving his brother in charge of YAM's affairs here for awhile. Apparently, the beginning of PTC's financial difficulties preceded Kim's departure, and these events combined to lead to Tuia's execution of the note and guaranty, at plaintiff's urging. While clearly the YAM/Tuia association did buiness as PTC, the evidence fails to show that YAM as a separate entity did so.

Under these circumstances, Tuia cannot be recognized as YAM's agent for service of process. The evidence of his authority in this capacity is simply unconvincing. Plaintiff has presented no other evidence establishing that jurisdiction over YAM was accomplished by service on an authorized agent in American Samoa or Korea. Thus, YAM has not been properly served with process or notice of the hearing on this motion.

Because plaintiff has not served YAM, plaintiff's motion for a default judgment must be denied.

It is so ordered.

**********

Ape v. American Samoa Gov’t,


APE POUTOA, SISIGAFU'A and ELISE APE, Plaintiffs

v.

AMERICAN SAMOA GOVERNMENT, and SEFO PASENE,
Defendants

High Court of American Samoa
Trial Division

CA No. 99-92

December 29, 1993

__________

[1] Leave to amend, pursuant to T.C.R.C.P. Rule l5(a) shall be freely given when justice so requires, with a bias toward testing claims on their merits and not on procedural defects. Leave to amend should be granted in the absence of reasons such as undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party , or futility of the amendment.

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

Counsel: For Plaintiffs, Afoafouvale L. S. Lutu
For Defendant American Samoa Government,
Elvis F P. Patea, Assistant Attorney General

Order on Motion to Amend Pleadings, Add Parties, and Cross-Claim:

Defendant American Samoa Government seeks to amend its answer under T.C.R.C.P. 15(a) and to file a cross-claim and third-party complaint under T.C.R.C.P. 13(g)-(h) and 14(a), respectively.

The procedural posture of this case is as follows: On July 16, 1992, pursuant to A.S.C.A. § 43.1205, plaintiffs filed their administrative claim with the Attorney General for damages allegedly arising from an automobile accident involving a government vehicle. On October 9 1992, the Attorney General denied the claim on the basis that "the driver of the vehicle involved was not acting within the scope of his employment." (1) On October 14, 1992, plaintiffs filed an action pursuant to the provisions of the Government Tort Liability Act, A.S.C.A. § [25ASR2d107] 43.1211. On November 3, 1992, the government filed its answer admitting, inter alia, employment of the driver, co-defendant Pasene Sefo, but again denying liability on the grounds that the driver was not acting within the scope of his employment at the time of the alleged injury .Trial in this matter was subsequently set for October 25, 1993.

Less than a week before trial, the government requested an expedited hearing on its motion to amend its answer to deny the existence of an employer/employee relationship between the government and the co-defendant Pasene Sefo. The grounds for the motion were simply that information to that effect had just come to counsel's attention. We denied the government's motion to amend and sustained plaintiffs' objection of prejudice.

The matter then came up regularly for trial on October 25, 1993; however, plaintiffs at that time moved for a continuance on the grounds that one of their witnesses was stranded off-island because of airline delays. As the continuance request was not opposed by the government, it was granted, and trial was rescheduled for February 3, 1994. At the same time, the court indicated to the counsel that it was amenable to revisiting the government's previously-denied motion to amend its answer, since prejudice to plaintiffs was no longer as compelling in the light of the continuance of trial.

On December 1, 1993, the government filed its second motion to amend its answer. This time, it further sought leave to file a cross-claim against the co-defendant Pasene Sefo and to add third-parly defendants. In his supporting affidavit, counsel alluded to his subsequent receipt of "conflicting information" which suggests that the co-defendant may have been government-hired but that his hiring by the third-parties sought to be joined was illegal. In the event that the co-defendant is found to be an employee of the government, counsel further avers to issues of contribution and indemnification by the co-defendant's immigration sponsor (which, in turn, gives rise to the issue of whether a judgment against the government as a result of an alien worker's negligence is a "public debt, " for which the sponsor is liable, within the contemplation of A.S.C.A. § 41.0408(e) of the immigration code).

Plaintiffs again object to the government's attempt to retract its admission of employment and its new-found desire to bring in third parties to the lawsuit. They contend that the government has been tardy in sorting out its position and argue undue prejudice and delay if the government's motion is granted. Plaintiffs further point out that the government has [25ASR2d108] failed throughout to explain why it did not earlier raise its new-found concerns.

DISCUSSION

[1] T.C.R.C.P. 15{a) declares that leave to amend "shall be freely given when justice so requires." The Supreme Court, in discussing Rule 15{a)'s federal counterpart, has cautioned that

this mandate is to be heeded If the underlying facts or
circumstances relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to
test his claim on the merits. In the absence of any apparent or
declared reason--such as undue delay, bad .faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed; undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.--the leave sought
should, as the rules require, be "freely given." Of course, the
grant or denial of an opportunity to amend is within the
discretion of the District Court. ...

Foman v. Davis, 371 U.S. 178,182, 9 L. Ed. 2d 222, 226 (1962) (citing 3 MOORE'S FEDERAL PRACTICE ¶¶ 15.08, 15.10 (2d ed. 1948)). While the bias then is in favor of testing each party's case on the strength of its merits, the liberal amendment policy of Rule 15{a) is not without limits.

For the following reasons we deny the motion. As noted above, the government had, until a few weeks ago, conceded the issue of employment which it now seeks to litigate. Plaintiffs' discovery and trial preparation, on the other hand, has proceeded on the basis that the co-defendant's employment status was not at issue. Thus, plaintiffs would not have needed to explore the possibility of alternative theories of liability. At the same time, the government has given nothing in the way of a justifiable explanation, although it is evident from its supporting affidavits that the proposed amendment is based on readily available information from the personnel records at the Department of Human Resources, as well as from depositions of the former director of Education and the former principal of the government's Vocational Technical School, whom the government now belatedly seek to join as third-party defendants. Additionally, as pointed out by plaintiffs, the [25ASR2d109] government has taken more than a month to renew its motion to amend subsequent to the court's statement in October about revisiting the issue of prejudice. The concern again expressed by plaintiffs' counsel is that the trial date of February 3, 1994, is once again upon him.

We conclude that the motion to amend ought to be denied. First, the delay in the bringing of this motion is both undue and inexcusable. It is also quite apparent, in view of the "conflicting" information received by counsel after the hearing on the initial motion to amend, that the government is still, at this late stage of the proceedings, sorting out its position on the issue of employment. (2) Second, and more significantly, the government's proposed change in tactics and theory would, in our view, result in undue difficulty to plaintiffs' prosecution of their lawsuit. Finally, the government's new-found concerns about contribution and indemnification may be subsequently addressed in a separate proceeding. Under the circumstances, it would not, in our view, be consistent with the interests of justice to allow the requested amendments at this stage of the proceedings. The motion is therefore denied.

It is so ordered.

**********

1. A.S.C.A. § 42.1211 provides a remedy against the government for damages owing to death and personal and property injury caused by the negligence of any government employee "while acting within the scope of his office or employment."

2. In the earlier motion. the position taken by the government was that the co-defendant was not a government employee; however. the government's position now seems to be somewhere between its initial admission and its recent attempt to flatly deny employment. Consequently, the government now seeks to litigate issues collateral to plaintiffs' suit relating to indemnification and contribution.

Amerika Samoa Bank v. United Parcel Service,


AMERIKA SAMOA BANK, and NATIONAL PACIFIC
INSURANCE CO., Plaintiffs,

v.

UNITED PARCEL SERVICE, Defendant.

High Court of American Samoa
Trial Division

CA No. 42-93

March 18, 1994

__________

[1] Under federal common law, carriers may partially limit their liability pursuant to the "released valuation" doctrine, whereby the shipper does not declare a value and the released value is presumed.

[2] In ruling on a summary judgment motion. the court must view all pleadings and supporting papers in the light most favorable to the opposing party, treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him.

[3] The conversion doctrine is pertinent only when there has been a true conversion, i.e. , where the carrier has appropriated the property for its own use or gain. The carrier may properly limit its liability where the conversion is by third parties or even by its own employees.

[4] Failure to aid customers in locating missing packages is not the kind of behavior that voids a contract.

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

Counsel: For Plaintiffs, William H. Reardon
For Defendant, Roy J.D. Hall, Jr.

Order Granting Motion for Summary Judgment;

The motion by defendant United Parcel Service ("UPS") for summary judgment came regularly for hearing on February 28, 1994 .

The essential facts of this case are not disputed. On March 13, 1990, UPS picked up a package from plaintiff Amerika Samoa Bank ("ASB") destined for the First Hawaiian Bank in Honolulu, Hawaii. Unknown to [25ASR2d160] UPS, the package contained a cash letter containing negotiated checks worth, at least to ASB, $417,313.05. This was, approximately, the nineteenth such package sent by ASB via UPS. When the package was picked up from ASB, UPS's local agent Don Fuimaono prepared waybill #819 084--and this waybill was appropriately signed by an ASB employee. The waybill indicates that the package was a "document only" with no declared value. Because there was no value assigned to the package ASB was charged $25.00 for shipping. The waybill also states that, unless a greater value is declared by the shipper, the released value of the shipment is $100.00.

Previously, there had been two separate meetings between UPS and ASB employees to discuss UPS's available services. UPS has alleged, without contradiction, that release value limitations and available insurance were among the topics discussed. In fact, ASB had purchased insurance from plaintiff National Pacific Insurance Co. ("NPI") to protect against the loss or damage to packages sent via express courier.

While there remains some question as to what ultimately became of the package, both parties agree that it did not arrive at its intended destination. Once that determination was made there was a meeting between Hal Fielding, ASB's president, and Don Fuimaono on April 25, 1990, to discuss the disappearance of the package. While ASB was eventually able to reconstruct and account for $394,715.13 of the loss, there remained an outstanding loss of $22,597.92. NPI settled ASB's claim in the amount of $7,597.92 (the claim less a $15,00.00 policy deductible). A claim for this amount was then made to UPS, who responded by sending NPI a check in the amount of $100.00--the released value of the shipment. ASB and NPI now seek full reimbursement for the $22,597.92 loss and allege breach of contract, negligence, misrepresentation and tortious breach of contract. UPS has responded with the motion currently at issue.

There is also very little disagreement between the parties as to the law regarding this dispute. UPS, in a well-prepared brief, has carefully laid out the law that controls, and ASB and NPI have acquiesced to UPS' view of the law. We briefly recite the applicable law.

[1] At federal common law, carriers may partially limit their liability pursuant to the "released valuation" doctrine, whereby the shipper does not declare a value and the released value (here $100.00) is presumed. First Pennsylvania Bank v. Eastern Airlines, 731 F.2d 1113 (3rd Cir. 1984). While there are several instances in which a released valuation [25ASR2d161] would not apply (i.e., where there is no opportunity to choose between higher and lower liability coverage or where the shipper does not have reasonable notice of such an opportunity), neither party has asserted that there was any difficulty in this area. Neither ASB nor NPI has disagreed with UPS's assertions that the limitation of liability on the waybill was adequate and reasonably communicative. This aspect of the governing law is not in dispute.

There is, in fact, only one point of contention between the parties. While ASB and NPI agree with UPS on the facts and law thus stated, they argue that UPS is not protected under the released value doctrine if the package was appropriated by a UPS employee and UPS failed to cooperate in recovering the latter. Unfortunately for ASB and NPI, the case law is overwhelmingly to the contrary.

[2] In ruling on a summary judgment motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, United States v. Diebold, 369 U.S. 654 (1962), treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to him. Lokan v. Lokan, 6 A.S.R.2d 44,45 (1987). Therefore, for the purposes of this motion, we will assume that the package was in fact appropriated improperly by a UPS employee, and that UPS was uncooperative in recovery efforts. However, even these assumptions cannot rescue the case for ASB and NPI.

[3] Fatal to the argument by ASB and NPI is their lack of distinguishing between appropriation by UPS itself and an employee of UPS. When a package is taken by, or for, the carrier, the shipper may not be contractually bound under the released value doctrine. However, this is not the case when an employee of the carrier appropriates a package for him or herself. In Tishman and Lipp, Inc. v. Delta Airlines, 275 F. Supp. 471 (S.D.N.Y. 1967), aff'd 413 F.2d 1401 (2nd Cir. 1969), the court granted the plaintiff only the minimum liability of $50.00 when jewelry (in a sample case) was lost when checked as air freight baggage and its contents were not known to the defendant, nor was any value declared (in violation of air freight tariffs against jewelry as air freight baggage). The plaintiff alleged that if the defendant or its employees were guilty of gross negligence or conversion, the defendant could not take advantage of tariff provisions. In responding, the court, citingGlickfield v. Howard Van Lines, 213 F.2d 713 (9th Cir. 1954), said:

The litigants agree that if the property has
been converted by the carrier, it would be
against public [25ASR2d162] policy to
permit the carrier to limit its liability and thus
to profit from its own misconduct. However,
the cases are uniform in holding that the
conversion doctrine is pertinent only when
there has been a true conversion, i.e., where
the carrier has appropriated the property
for its own use or gain. The carrier may
properly limit its liability where the
conversion is by third parties or even by its
own employees. In the latter circumstance,
where the carrier may have been guilty of
negligence in the selection of its employees,
it has not been unjustly enriched, nor has it
been guilty of any misconduct.

In Rafaella Gallery v. UPS, 818 F. Supp. 53 (S.D.N.Y. 1993), a case with obvious similarities to the one now before us, UPS was to deliver two tapestries with a combined worth of $52,000.00 to plaintiff. Deviating from standard UPS procedure, the driver left the packages in the building's vestibule and signed the delivery receipt himself with a fictitious name. The plaintiff had not declared the value and UPS contended it was limited to the presumed declared value of $100.00 per package. Referencing the Carmack Amendment to the Interstate Commerce Act, the court was unpersuaded that the misdelivery negated the contract, stating that this was not a case where the carrier itself misappropriated the goods.

In Nippon Fire and Marine Ins. v. Holmes Transp., 616 F. Supp. 610,611 (D.C.N.Y. 1985), a case based on the Interstate Commerce Act, the plaintiff (as a subrogee) filed an action seeking to find a limitation of liability ineffective when one of six cases of data processing equipment failed to arrive at its destination. Noting that the shipper had not stated that the value of the case was in excess of that on the shipping order, the court stated: "There is no proof of an actual conversion of the carton by either defendant for its own use. Absent affirmative proof of such conversion, the rule of law is that plaintiff's recovery is limited to the agreed release value of the carton . . . . As this court held . . . in order to recover against a carrier, the plaintiff must present 'evidence of conversion by the defendant itself for its own use' (emphasis added)."

In Maraohn v. Burnham Van Lines, 478 F. Supp. 49, 52 (N.D. Ill. 1979), a serviceman, whose goods were destroyed in transit, sued the shipper. In granting summary judgment for the defendant, the court said the limitation of liability was binding as, among other things, this was not a case "where the carrier has purposely converted the entrusted property [25ASR2d163] for its own use or gain, in which case public policy would not permit the carrier to limit its liability and thus profit from its own misconduct". The cases so holding are numerous. See Deiro v. American Airlines, 816 F.2d 1360, 1366 (9th Cir. 1987) ("Under the federal common law, only an appropriation of property by the carrier for its own use will vitiate limits on liability.");Glickfield v. Howard Van Lines, 213 F.2d 723 (9th Cir. 1954) (affirming limitation of liability on goods lost on interstate carrier); Neal v. Republic Airlines, Inc., 605 F. Supp. 1145 (N.D. Ill. 1985).

There has been no contention by ASB and NPI that UPS in any way appropriated the package in question for its own use. Thus, even assuming the truth of the assertion by ASB and NPI that the package was stolen by a UPS employee, ASB and NPI remain bound by the released value doctrine. Whether or not UPS made a poor selection of its employees, or gave them sufficient instructions to satisfy ASB and NPI, is immaterial. ASB was charged a low rate for delivery because the package had no declared value, a choice that in hindsight was not wise. However, ASB and NPI have not forwarded a theory which would shift the liability of this decision on to UPS.

[4] Also without merit is the contention by ASB and NPI that UPS's failure to assist them in recovery releases them from the contract. While it may be poor business practice not to aid customers in locating missing packages, it is not the kind of behavior that voids a contract.

In Gibson v. Greyhound Bus Lines, Incorporated, 409 F. Supp. 321 (M.D. Fla. 1976), aff'd 539 F.2d 708 (3rd Cir. 1976), the court granted a summary judgment motion where a raccoon head, having no intrinsic value except to the plaintiff, was carried by the defendant but never reached its destination. The court found that even if the defendant was liable, it was entitled to the limitation of liability, and that the defendant assumed no special duty towards the goods. The limitation of liability was not applicable only when the carrier was not liable. Even Greyhound's refusal to trace the package was found not actionable, as this was inaction, but not a deliberate act. And in Nippon Fire, 616 F. Supp. at 612, the court, under federal law, rejected the plaintiff's claim that the defendants had an obligation to establish what happened to a missing carton.

Therefore, even assuming the truth of all the assertions by ASB and NPI, they have presented nothing entitling them to a trial on the merits. The motion for summary judgment is therefore granted. [25ASR2d164]

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

December 15, 1993

__________

[1] Mere disagreement with the appellate court's interpretation of statutes, rules, and case authorities is not a basis for rehearing.

[2] The fact that an associate judge who heard a case at trial also heard the case on appeal, a violation of A.S.C.A. § 3.1007(b), was not a basis for reconsideration of the appeal where a quorum existed without the violating judge, the violating judge's vote was not outcome determinative, the decision of the court was unanimous, and the complaining party waited until after the decision was rendered to object.

[3] If a party fails to object to the presence of an associate judge on the appellate panel until after the decision has been rendered, this failure constitutes a waiver of the objection.

Before KRUSE, Chief Justice, CANBY ,* Acting Associate Justice, MUNSON ,** Acting Associate Justice, VAIVAO, Associate Judge.

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. [25ASR2d95]

Order on Motion for Rehearing:

On November 29, 1993, appellants filed a petition for rehearing under A.C.R. 40. For the following reasons, their petition is denied.

[1] The allegations of error are essentially arguments rejected by the Appellate Division in its Opinion and Order of November 15, 1993. Appellants continue to dispute the requirement that a motion for a new trial is a jurisdictional prerequisite for an appeal, under A.S.C.A. § ^ 43.0802; A.C.R. 4 (a)(l). Merely disagreeing with the court's reading of the applicable statutes, rules, and case law, though, is not a basis for granting a rehearing.

[2] Appellants do point out that an associate judge on the appellate panel; also heard the case at the trial level, in violation of A.S.C.A. § 13.1007(b). However, this does not justify the petition for rehearing. First, a quorum for the appellate division consists of two justices and one associate judge. A.S.C.A. § 3.0220. A quorum was present even without Judge Mailo. Second, the decision of the court was unanimous, so his participation was not determinative. In any event, it is the vote of two of the justices which is controlling if any differences exist among the justices and associate judges of an appellate panel (with the exception of land and matai-title cases). A.S.C.A. § 3.0221.

[3] Finally, appellants failed to object to the presence on the appellate panel of a judge who also sat on a portion of the proceeding below. In these circumstances, it is difficult to resist the conclusion that appellants' counsel wanted to see the outcome of the appeal before deciding to raise this violation. Such a posture is improper. As such, some courts have even stated that a failure to timely raise such an objection until after the appellate decision was announced constituted a waiver. See Lee v. United Slates, 91 F.2d 326, 332 (5lh Cir. 1937) (regarding predecessor to 28 U.S.C. § 47); see also Delaney v. United Slates, 263 U.S. 586, 589 (1924) (while perhaps not a waiver of a law intended to keep courts unbiased, "yet it would seem that [appellant] should not be permitted to assume the competency of the tribunal to decide for him and its incompetency to decide against him."). Thus, appellants have failed to "demonstrate prejudice, so any error was harmless.

Appellants' petition for rehearing is denied. [25ASR2d96]

It is so ordered.

*********

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

**Honorable Alex R. Munson, Chief Judge, United States Court of Appeal for the Ninth Circuit. serving by designation by the Secretary of the Interior.

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

November 15, 1993

__________

[1] To appeal a decision of tile trial division, a motion for new trial must be filed within 10 days after a judgment or order is entered. A.S.C.A. § 43.0802 and A.C.R. Rule 4(a)(1). The denial of a motion for relief from judgment under T.C.R.C.P. Rule 60 qualifies as an order under the foregoing rules.

[2] The purpose of requiring a motion for new trial, which sets forth with particularity the rounds for reversal, is to avoid unnecessary appeals by giving tile trial court tile opportunity to correct any errors it may have made.

[3] It is unimportant whether a motion is styled a motion for new trial or a motion to reconsider as long as it is timely and clearly informs tile court of claimed errors.

[4] Filing a motion for new trial is a mandatory jurisdictional prerequisite for appeal.

Before KRUSE, Chief Justice, CANBY* Acting Associate Justice, MUNSON,** Acting Associate Justice, VAIVAO, Associate Judge, MAILO, Associate Judge.

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 [25ASR2d41]
For Appellee United States Small Business Administration,
Roy J.D. Hall, Jr.

KRUSE, Chief Justice

On November 8, 1993, this court heard the appeal of the trial court's denial of relief from judgment under T.C.R.C.P. 60(b). At that time, attorneys Chikamoto, Reardon, and Ashley presented their respective oral arguments .

[1-3] To appeal the trial division's decision in a civil case, a motion for a new trial must be filed within ten days after the judgment is announced. A.S.C.A. § 43.0802. The High Court's procedural rules likewise state that "a motion for a new trial as required by 43.0802 A.S.C.A. shall be filed with the clerk of court within 10 days after the date of entry of the judgment or order appealed from." A.C.R. 4(a)(1) (emphasis added). The denial of a motion for relief under Rule 60 qualifies, in our view, as an "order" within the meaning of this rule. The purpose of requiring a motion for new trial, which sets forth "with particularity" the grounds for reversal, is to avoid unnecessary appeals by giving the trial court an opportunity to correct any errors it may have made. Taulaga v. Patea, 17 A.S.R.2d 34, 35 (App. Div. 1990) (citing Government of American Samoa v. King, AP No.19-1970, slip op. at 3). Whether styled a motion for new trial or a motion to reconsider, th~ statute's requirement is met as long as the motion is filed within ten days and clearly informs the trial court of the claimed errors in its decision. Lualemana v. Asifoa, 17 A.S.R.2d 151, 152-53 (Land & Titles Div. 1990); see Taulaga v. Patea, 17 A.S.R.2d at 35.

[4] Furthermore, filing a motion for a new trial is a maI1datory , jurisdictional prerequisite for an appeal. Taulaga v. Patea, 17 A.S.R.2d 206, 207 (App. Div. 1990); Lualemana v. Asifoa, 17 A.S.R.2d at 152-53; In re Matai Title Mulitauaopele, 17 A.S.R.2d 75, 79 (Land & Titles Div. 1990); In re Matai Title Muagututi'a, 15 A.S.R.2d 1,2 (Land & Titles Div. 1990); Gi v. Temu (Mem.), 12 A.S.R.2d 33 (Land & Titles Div. 1989). This is explained as follows:

The requirement of a motion for new trial or reconsideration of judgment is jurisdictional. See, e.g., Fai'ivae v. Aumavae, AP 2-76 (decided December 9, 1977); Government of American Samoa v. King, AP No. 19-1970;Judicial Memorandum No.2-87, 4 A.S.R.2d 172 (1987). If no timely motion for reconsideration or new trial conforming to the "particularity" requirement of Rule 7(b)(1) is filed within the statutory [25ASR2d42] ten-day deadline, then "the Appellate Division. ..has no jurisdiction to entertain an appeal in such a case ---regardless of any arguments, equitable or otherwise, to the contrary." Judicial Memorandum, supra, 4 A.S.R.2d at 174 (citing Fai'ivae, supra). Taulaga v. Palea, 17 A.S.R.2d at 35. Since this requirement is jurisdictional, the consequences of noncompliance are quite serious:

Unlike violations of non-jurisdictional rules, for which the Court
has the power to impose sanctions other than dismissal if the
interests of justice would thereby be served, a would-be appellant's
failure to comply with the mandatory steps necessary to give the
Court jurisdiction leaves the Court powerless to grant any relief
at all.

Taulaga v. Palea, 17 A.S.R.2d at 207.

Appellants failed to file a motion for reconsideration or new trial prior to filing an appeal, in violation of A.S.C.A.43.0802 and A.C.R. 4(a)(1). Therefore, this court is without jurisdiction to consider their appeal. (1)

This appeal is hereby dismissed.

It is so ordered.

*********

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

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

1. Although this matter is dismissed on jurisdictional grounds, the appeal, in our view lacks merit.

American Samoa Gov’t; Tuufuli v.


JAYLEEN TUUFULI, a Minor, by Her Guardian Ad Litem,
MOLIA TUUFULI, Plaintiff

v.

AMERICAN SAMOA GOVERNMENT and TASIMANI
ATUATASI, Defendants

High Court of American Samoa
Trial Division

CA 93-90

November 5, 1993

__________

[1] A reasonably prudent school bus driver would not abandon the driver's station of the bus with the engine running and students aboard, thereby inviting a student to operate the bus, regardless of whether he knew that doing so was a violation of the Pupil Transportation Program's written policy.

[2] An ordinarily prudent school bus driver would not alight from a crowded bus to control student exit from the outside, even if the engine of the bus were turned off.

[3] While a few students exiting the bus through the rear emergency exit may have been an attractive diversion, it did not justify the bus driver leaving his post while students were disembarking from the authorized exit.

[4] The fact that adolescent youth and younger children are often thoughtless and impulsive only increases the degree of vigilance and caution which a school bus driver ought to exercise toward student passengers. [25ASR2d25]

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

Counsel: For Plaintiff, Afoa L. Su`esu`e Lutu
For Defendants, Elvis R.P. Patea, Assistant Attorney General

Plaintiff Jayleen Tuufuli ("Jayleen"), by her mother Molia Tuufuli as guardian ad litem, brought this action to recover damages for personal injuries from defendants American Samoa Government ("the Government") and Tasimani Atuatasi ("Tasimani"). Trial took place on July 29 and 30, 1993.

FINDINGS OF FACT

Jayleen was injured on October 12, 1988. She was then 11 years of age and was attending the Government's elementary school at Pago Pago, American Samoa. About 2:00 p.m., after school adjourned, she boarded a Government school bus, parked nearby for the first pick-up of students to take home. The bus was operated by Tasimani in the scope of his employment with the Government.

This bus is a large model, with a capacity in excess of 60 passengers when some stand in the aisle. On the occasion at issue, all seats were apparently occupied and students were standing in the aisle. Jayleen was seated near the back of the bus. Normally, Tasimani made two successive, after-school bus trips from Jayleen's school. However, on this occasion, he had to proceed directly to Samoana High School in Utulei after only one trip to pick up high school students.

With this full load of students on board, Tasimani drove the bus to his first stop at the area in front of the Congregational Christian Church and behind the Courthouse in Fagatogo. Upon stopping, he left the bus through the right front door, and the students started disembarking through this same door.

Easter Tarrent ("Easter") was one of those students. She was seated near the middle of the bus and exited before Jayleen. She did not see Tasimani leave or, at that time, anywhere outside the bus. In fact, another student said the emergency back door of the bus was open, and Tasimani went there to close it. A number of students did manage to jump out of the rear exit before Tasimani closed this door and cleared the students away from this area. [25ASR2d26]

Meanwhile, the students inside the bus and moving towards the front door were shoving those ahead of them to hasten their departure. Easter was still near the front door as Jayleen stepped out. While her left foot was on the first step down and her right foot was on the next step down, Jayleen was pushed from behind and fell to the pavement. She landed with a portion of her left leg still on the steps. Before the exiting students realized that Jayleen was hurt, at least two of them jumped over her, and one of them struck her left leg.

Easter assisted Jayleen, who was only able to move by hopping on her right leg, to the steps of the church, about 30 feet from the bus, and, after awhile, towards Jayleen's home in the hills of Fagatogo behind the church. En route, however, a motorist stopped and took Jayleen the rest of the way home. From there, she was taken to the Government's medical facility at Faga`alu.

While Jayleen, crying in pain, and Easter, trying to comfort her, were still seated on the church steps, Tasimani returned to the front of the bus. Either he did not notice the two girls, or he disregarded them. By that time, the bus was almost empty, and he soon drove off. He claimed that he was unaware of Jayleen's accident until the following day.

At the time of the accident, Tasimani was 60 or 61 years old with 29 years of employment as a vehicle operator with the Government. He had driven vehicles for the fire department and the departments of health and education during this career. He was a school bus driver for four or five years immediately before retiring in late 1988.

He had attended school bus driver's education classes for about two or three weeks, but he only specifically recalled instruction on the use of flashing lights and reporting incidents when drivers of other vehicles disregard this signal. He did not recall receiving any written instructions, only oral directions from the manager of the pupil transportation program. His recollections of the bus driver's responsibilities given in these verbal directions were, essentially, to control students' behavior in the bus, oversee from an outside vantage point orderly exit from the bus by students, and keep the rear exit closed except at his direction in emergencies.

[1-4] The manager of the pupil transportation program, who has been in this position for some 13 years now, presented two sets of written instructions issued by his office, one in the 1980s and the other in 1989. The earlier instructions indicate that no student shall sit in the driver's [25ASR2d27] seat. The later set requires the driver to remain in the driver's seat when loading and unloading pupils. This set also explicitly recognizes the potential dangers lurking at the rear emergency exit. The manager insisted that these existing policies were explained to all school bus drivers and believed that Tasimani was educated in this manner.

Setting aside the question of Tasimani's actual knowledge of either set of written rules, and the duties that they clearly placed upon school bus drivers, he knew and clearly understood his duty to care for the safety of students embarked on any bus trip under his control. In particular, he was aware of the purpose and operation of the flashing light system. The bus's engine must function to activate that system. A reasonably prudent person would not vacate the driver's station with the engine running, inviting a student to operate the bus. Moreover, the crowded condition of the bus called for exit control from a location within, not outside, the bus. An ordinarily prudent person would not alight from the bus for this purpose, even if he failed to activate the flashing lights on this occasion. While a few students exiting from the rear door may have been an attractive diversion, it did not justify leaving his duty post, whether that assigned station was in the driver's seat or outside the front door. The fact that adolescent youth and younger children are often thoughtless and impulsive only increases the degree of vigilance and caution which a school bus driver ought to exercise towards student passengers.

Tasimani breached his duty for Jayleen's safety. His failure to exercise the reasonable or ordinary standard of care required of him was a cause, in the natural and continuous sequence of events, leading to her injuries, without which the injuries would not have occurred. Jayleen was not negligent.

Dr. Vaiula Tuato`o testified to Jayleen's injuries. When he first examined her on October 12, 1988, she was in severe pain and her left hip was immobile.(1) X-rays revealed an acute fracture at the epiphysis or growth plate, resulting in slippage of the head or cone off of the left femur or thighbone. On October 17, 1988, following a medical team consultation, the cone was surgically pinned back in place with three knowles pins. This kind of operation takes one hour and 30 minutes to [25ASR2d28] one hour and 50 minutes to perform here. Jayleen's pain remained intense for three to four days afterwards.

Jayleen was hospitalized until November 4, 1988. Her stay was extended due to reinjury. While recuperating from the first operation, she was given crutches but was not ready for their use and fell on October 24, 1988. (2) The cone again slipped, requiring a second operation on October 27, 1988, to relocate and pin it into the correct position. While hospitalized and after discharge, Jayleen followed a prescribed, physical therapy program.

Jayleen's injury is relatively rare, but does happen with some frequency in the 10 to 15 year-old age group while physical development is still maturing. Unless the cone is returned to its correct location it will die, leaving the injured person severely crippled. Even with surgical repinning and eventual fusion, serious consequences are present.

Dr. Tuato`o conducted follow-up examinations in May 1989, March 1992, and July 1993. By March 1992, the fracture was completely ossified, but the cone was partially flattened. Jayleen's right thigh is firm, but her left thigh is somewhat wasted and needs strengthening workouts. The range of movements in her left hip was significantly reduced from normal but gradually improved over the course of these examinations. The doctor rated the disability of her left leg, due to the hip condition, at about 50% on the first occasion and at 26% and 27% on the second and third occasions.

Jayleen also experienced trauma to her left knee in the accident. This injury produced Osgood-Schlatter disease, an inflammation of the tibia, or larger bone in the lower part of the leg, near the knee joint. The inner tendon pulled the bone up, causing Jayleen's left leg to be one inch shorter than her right leg, and increasing, in the doctor's opinion, the total leg disability by 10% to a total partial disability of approximately 37% at the present time. The difference in leg lengths causes a slight limp. Jayleen needs a special shoe to overcome this limp, reduce backaches, and prevent the spine from bending abnormally to compensate for the shorter leg. However, these shoes must be uniquely fitted outside of American Samoa. [25ASR2d29]

Osteoarthritis of the left hip is now present, and as Jayleen ages, bone and cartilage degeneration in this area will worsen. She faces the probable prospect of two or three more operations in the future. Fusion is now complete, and whenever Jayleen is ready, the three pins can be removed, or may permanently remain, or some may be removed to help guard against another break. When she is in her 30s or 40s, the cone may need to be relocated again. During her 50s or 60s, total hip replacement will probably be required to deal with increasing arthritic pain and immobility, bearing in mind that these artificial parts presently have a limited life expectancy of 10 to 15 years.

Jayleen's left thigh is necessarily scarred. Future surgery will only add to this disfigurement. Because her hip movements are less supple, she may have trouble giving birth.

Jayleen confirmed her intense pain immediately after the accident and during the days immediately following. Her arthritic condition is now painful. She was active athletically before the accident, but her recreational participation is now very limited. Her physical abilities are restricted to non-weight bearing activities, a little housework and watching young children.

Jayleen was doing well in school prior to the accident. Afterwards, however, she began to lose interest, and her grades became below average and even failing. Student kidding about her "crooked" leg probably contributed to this development. She is not attending school now because she is "always late," but she wants to finish high school when she suffers less pain, and she currently tries to do some home study. She is sleepless some nights due to pain. She wakes up in pain and with numbness almost daily and requires pain medication. After subsiding, pain often recurs, particularly after sitting for a lengthy time or walking. Jayleen genuinely fears the future.

Taking into account the various elements contributing to the pain, discomfort, fears, anxiety and other mental and emotional distress suffered by Jayleen, including but not limited to the effects of her permanent disfigurement and partial disability, reasonable compensation for this pain and suffering is $50,000.

Jayleen was hospitalized for 23 days. The three examinations by Dr. Tuato`o are the only other past medical visits or charges specifically identified by the evidence. Jayleen is entitled to medical attention free of charge and is subject only to charges for the use of the Government's medical facilities under A.S.C.A. § 13.0601. In her situation, the inpatient charge of $7.50 per day and the outpatient charge of $2.00 per visit at the Government's [25ASR2d30] medical facility, established by administrative rule and codified in A.S.A.C. § 11.0302(a)(1) and (2), are applicable. Thus, paid medical expenses are $172.50 for inpatient charges and $6.00 for outpatient charges, a total of $178.50.

Except for surgical hip replacement, the future operations will probably be performed locally. Although inpatient and outpatient charges are likely to rise, no evidentiary foundation for the amount of any increases was presented. Using the present rates, and finding that 24 inpatient days and six outpatient visits are plausible estimates for at least two future operations performed locally, at this time a reasonable assessment of these future medical expenses is $192.00. Dr. Tuato`o testified that if present circumstances continued, the surgical hip replacement would be performed outside American Samoa at a cost of $7,000 to $10,000. Using the higher figure for this third operation as reasonable, Jayleen's prospective medical expenses are $10,192. Thus, her total medical expenses are $10,370.50.

CONCLUSIONS OF LAW

1. Tasimani was negligent in performing his duties as a school bus driver for the Government, and his negligence

proximately caused Jayleen's injuries.

2. Since Tasimani was operating the bus in the scope of his employment, the Government is liable for Jayleen's damages. Her remedy against the Government is exclusive with respect to Tasimani. A.S.C.A. § 43.1211.

3. Jayleen was not negligent. Thus, the comparative negligence principle, set forth in A.S.C.A. § 43.5101, is not applicable, and the Government is liable for the entire amount of Jayleen's damages.

4. Jayleen's general damages for pain and suffering, including disfigurement and permanent partial disability, are $50,000, and special damages for medical expenses are $10,370.50. Her total damages are $60,370.50.

5. In accordance with Judicial Memorandum No. 1-1988, 7 A.S.R.2d 144 (1988), until further order of the court, the amount of the damages shall be deposited directly into the depositary of the High Court of American Samoa and shall be placed in an interest bearing account with Jayleen as the beneficiary. Disbursements will be made only on application of Molia Tuufuli as guardian ad litem, or by her successor of record, and only on approval by one of the justices.

Judgment shall enter accordingly.

It is so ordered.

**********

American Samoa Gov’t v. Taula,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

PETERU LUAVASA TAUALA, Defendant

High Court of American Samoa
Trial Division

CR No. 25-93

March 25, 1994

__________

[1] After the jury returned a guilty verdict, a defendant may move that the court set aside the verdict and enter a judgment of acquittal. T.C.R.Cr.P. Rule 29(c).

[2] In considering a motion for acquittal, a trial court must determine whether, viewing all the evidence in the light most favorable to the Govemment and drawing all reasonable inferences and credibility choices in favor of the jury's verdict, a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt.

[3] It is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts.

[4] Under the embezzlement statute, a "person commits the crime of embezzlement if he knowingly misappropriates property of another which has been entrusted to him or which has lawfully come under his control." A.S.C.A. § 46.4104(a).

[5] A person commits the crime of stealing if he "appropriates property of another with the purpose to deprive him of it by means of deceit" A.S.C.A. § 46.4103(a).

(6] Normally, "value" is determined by the market value of the thing taken at the time and place of the crime. A.S.C.A. § 46.4102(a). However, when the thing taken is an instrument evidencing debt, that value is the amount due or collectible on it. A.S.C.A. § 46.4102(b)(1).

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

Counsel: For Plaintiff, Henry W. Kappel, Assistant Attorney General
For Defendant, Charles V. Ala'ilima

Order Denying Motions For Judgment of Acquittal:

PROCEDURAL HISTORY

On March 10, 1994, defendant was convicted by the verdicts of the jury of four counts of stealing (A.S.C.A. § 46.4103) and four counts of embezzlement (A.S.C.A. § 46.4104) and renewed his motions for a judgment of acquittal on all eight counts. He filed his "Memorandum in Support of Motions for Judgment of Acquittal" on March 14, 1994, and the Government's response was filed on March 17, 1994. On March 22, 1994, a hearing was held on defendant's motions.

STANDARD OF REVIEW

[1-3] After the jury returns a guilty verdict, a defendant may move that the court set aside the verdict and enter a judgment of acquittal. T.C.R.Cr.P. Rule 29(c). In considering a motion for acquittal, a trial court must "determine whether, viewing all the evidence in the light most favorable to the Government and drawing all reasonable inferences and credibility choices in favor of the jury's verdict, a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt." United States v. O'Keefe, 825 F.2d 314, 319 (11th Cir. 1987) (internal citation omitted) (citing United States v. Brand, 775 F.2d 1460 (11th Cir. 1985); United States v. Cole, 755 F.2d 748 (11th Cir. 1985)); see United States v. Dreitzler, 577 F.2d 539, 545 (9th Cir. 1978) (citing United States v. Figueroa-Paz, 468 F.2d 1055, 1058 (9th Cir. 1972)),cert. denied 440 U.S. 921. Indeed, the trial court is to keep in mind that "it is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts." Dreitzler, 577 F.2d at 545 (quoting United States v. Rojas, 554 F.2d 938, 943 (9th Cir. 1977)).

DISCUSSION

[4-5] Under the embezzlement statute, a "person commits the crime of embezzlement if he knowingly misappropriates property of another which has been entrusted to him or which has lawfully come under his control." A.S.C.A. § 46.4104(a). For purposes of this prosecution, a "person commits the crime of stealing if he appropriates property . . . of another with the purpose to deprive him of it, . . . by means of deceit." A.S.C.A. § 46.4103(a). Embezzlement is a class C felony, as is stealing property valued at $100 or more. A.S.C.A. §§ 46.4104(b), 46.4103(b)(1). Sufficient evidence existed for the jury to find that defendant "misappropriated" and "appropriated" the Government's TAOA vouchers.

[6] As for defendant's assertion that the vouchers did not have any value, this is incorrect. "'Property' means anything of value, whether real or personal, tangible or intangible . . . ." A.S.C.A. § 46.4101(j). Normally, "value" is determined by the market value of the thing taken at the time and place of the crime. A.S.C.A. § 46.4102(a). However, when the thing taken is an instrument evidencing debt (e.g., a check, draft, or promissory note--or a TAOA voucher), that value is the amount due or collectible on it. SeeA.S.C.A. § 46.4102(b)(1); see also United States v. Bauer, 713 F.2d 71, 73 (4th Cir. 1983) (rejecting argument that since stolen U.S. Savings Bonds had been replaced, they had no value, defined by 18 U.S.C. § 641 as "face, par, or market value, or cost price, either wholesale or retail, whichever is greater"). Defendant's arrangements to exchange the vouchers for cash and later authorizing the territorial treasury's reimbursement of the vouchers held by the stores demonstrate that the vouchers have value. See Bauer, 713 F.2d at 73 (defendant's "expectation that he could sell the [savings] bonds, and his attempt to do so . . . belie the contention that they were without value or were worth not more than $100").

CONCLUSION

Viewing the evidence in the light most favorable to the Government, this court finds that ample evidence supported the jury's factual findings. Defendant engaged in "appropriating" and "misappropriating" the TAOA vouchers, which have a cash value of $100 or more at the time and place of each crime charged, in violation of the statutes defining embezzlement and stealing. Therefore, defendant's motions for a judgment of acquittal on each of the eight counts are denied. It is so ordered.

**********

American Samoa Gov’t v. Tali,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

SIMETI TALI, Defendant

High Court of American Samoa
Trial Division

CR No. 24-93

October 27, 1993

__________

[1] While pre-trial motions in criminal matters should ordinarily be heard in a timely manner, an inflexible policy in this regard is inappropriate. Each situation must be individually considered.

[2] A bill of particulars may be amended at any time subject to such conditions as justice requires, pursuant to T.C.R.Cr.P. Rule 7(f).

[3] The bill of particulars, an ancient aid to pleading and procedure, has survived in the federal rules of procedure for criminal cases, but not for civil cases. It provides a basis upon which the defense can formulate strategy when the charges, though legally sufficient, are vaguely stated.

[4] The criteria for sufficiency of a bill of particulars is whether the defendant has been fully informed of the charges well in advance of trial, and has been afforded ample opportunity to prepare his defense. To be fully informed of the charges means that the bill [25ASR2d22] of particulars sufficiently apprises the defendant of the theory of the charge against him, and of the general character of the evidence sustaining the charge.

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

Counsel: For Plaintiff, Rosemary H. Kaholokula, Assistant Attorney General,
and John L. Wilks, Assistant Attorney General
For Defendant, Barry I. Rose

Plaintiff's expedited motion to amend the amended bill of particulars, filed on October 5, 1993, came regularly for hearing on October 26, 1993. Both parties appeared by counsel. Defendant was present.

[1-2] The court first heard and denied defendant's oral motion for reconsideration of the court's order of October 22, 1993, permitting an expedited hearing on plaintiff's motion. Defendant's counsel professed his understanding that expedited hearings on motions filed within 15 days of trial in criminal cases would be denied as a matter of this court's policy. While pre-trial motions in criminal matters should ordinarily be heard in a timely manner, an inflexible policy in this regard is inappropriate. Each situation must be individually considered. Moreover, T.C.R.Cr.P Rule 7(f) distinctly provides that "A bill of particulars may be amended at any time subject to such conditions as justice requires."

[3] An ancient aid to pleading and procedure, the concept of a bill of particulars has survived in the context of criminal cases, but not in civil litigation, in the federal rules of procedure; the federal rules form the essential basis for this court's rules of both criminal and civil procedure. See, A.S.C.A. §§ 46.0501, 43.0201. In contrast to civil actions, a bill of particulars continues to serve a useful purpose in criminal prosecutions. As an adjunct to the more limited means of discovery available in criminal cases, it provides another basis upon which defense strategy can be formulated when the charges, though legally sufficient, are vaguely stated. See, Wright, et al., Criminal Practice and Procedure, § 129, at 432 (2d Ed. 1983).

Such imprecision is present in this action, where the three charges are alleged to have occurred within a time frame beginning in 1991 and [25ASR2d23] ending in June 1993, without stating exact locations or specifying the acts of alleged "deviate sexual intercourse." Hence, on September 10, 1993, defendant sought and, on September 14, 1993, obtained a bill of particulars alleging more detailed information as to dates, times, and places, and, for Count II of the information, acts of "deviate sexual intercourse," upon which plaintiff is relying in this prosecution. On October 5, 1993, plaintiff found it necessary to provide an amended bill of particulars, changing the year in which the offenses charged in Counts I and III of the information allegedly occurred and the month in which the offense charged in Count II of the information allegedly occurred. Now plaintiff seeks to modify the amended bill of particulars to change the year during which the offense prosecuted in Count II allegedly took place, and establish in this year a two-month, rather than one-month, period.

[4] Defendant's protests of prejudice are not well-founded. Whatever reasons caused plaintiff's mistakes in providing an appropriately informative bill of particulars, defendant's knowledge of the accusations was amply supplemented by copies of the police reports and the transcript of the preliminary examination which he has received. The combined effect of those documents clearly indicates the factual assertions, and the chronological sequence of events, supporting this prosecution. The proposed amendments only further fix the limits of those assertions and serve the purpose of a bill of particulars. Even though trial by jury is scheduled to commence on November 2, 1993, defendant has been fully informed of the charges well in advance and has been afforded ample opportunity to prepare his defense. U.S. v. Shavin, 287 F2d 647, 650 (7th Cir. 1961).

Such information and opportunity are the critical criteria for a fair trial. In U.S. v. Chapman, 168 F2d 997 (7th Cir. 1948), the district court allowed the government to amend and supplement a bill of particulars in a prosecution for income tax invasion. No error was found on appeal, the court stating at 999 that "The bill of particulars as amended and supplemented sufficiently apprised appellant of the theory of the charge against him and of the general character of the evidence the Government expected to rely upon to sustain that charge." In U.S. v. Bender, 218 F2d 869 (9th Cir. 1955), the government amended the bill of particulars three times, the last of which was the day before trial. In upholding a conviction for income tax invasion, the court of appeals noted at 874 that the amendments "(d)id not amount to a surprise allegation which defendant was not given time to meet," and "It was therefore not an abuse . . . to allow these amendments to be made." Id. at 847. [25ASR2d24]

Plaintiff's motion to amend the amended bill of particulars is granted.

A pre-trial conference to discuss voir dire questioning, evidentiary issues, instructions, and any other matters raised by either party concerning the conduct of the trial is scheduled on November 1, 1993, at 9:00 a.m. To the fullest practical extent, both parties shall submit their proposed voir dire questions and instructions to the court no later than 4:00 p.m. on October 29, 1993.

It is so ordered.

**********

Jessop v. Hisatake,


HELEN JESSOP, dba THE DAISY CO., Plaintiff

v.

RAMONA HISATAKE, Doing Business as SAMURAI VIDEO
RENTAL, Defendant

High Court of American Samoa
Trial Division

CA No. 77-93

October 5, 1993

__________

[1] Summary judgment is appropriate when no genuine issue of material fact exists.

[2] The maximum interest rate for business purposes is 18 percent, pursuant to A.S.C.A. 28.1503, but interest rates greater than six percent must be in writing to be enforceable, pursuant to A.S.C.A. §§ 28.1501.

[3] The high Court has jurisdiction over monetary claims exceeding $5,000, pursuant to A.S.C.A. §§ 3.0208(a)(1), but in calculating the amount in controversy, attorney's fees expressly provided for by contract, and interest accrued prior to the commencement of the action may be included. Non-contractual attorneys fees and other incidental costs may not be included in the calculation.

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

Counsel: For Plaintiff, Michael H. Crew
For Defendant, Ramona Hisatake, Pro Se

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

Counsel: For Plaintiff, Michael H. Crew
For Defendant, Ramona Hisatake, Pro Se [25ASR2d13]

Order Granting Motion for Summary Judgment:

Plaintiff's motion for a summary judgment awarding money damages for breach of the parties' settlement agreement came regularly for hearing on September 23, 1993. Plaintiff appeared by counsel. Defendant appeared in person.

[1] Summary judgment is appropriate when "no genuine issue as to any material fact" exists. T.C.R.C.P. 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). Defendant perceives plaintiff's action as being unfair under presently unfavorable business conditions, but she does not contest her indebtedness. Thus, summary judgment is warranted. Perhaps, given defendant's expressed intent to pay her debts, the parties can still work out a new arrangement with more affordable periodic payments in the beginning, possibly increasing in time. Two other issues requiring discussion emerge.

[2] First, the interest rate provided in the settlement agreement must be lawful under American Samoa's usury statutes. The maximum rate of interest that may be charged individuals and entities on loans for business purposes is 18 percent. A.S.C.A. § 28.1503;Shantilal Bros., Ltd. v. K.M.S.T. Wholesales, Inc., 9 A.S.R.2d 62, 65 (Trial Div. 1988). Also, interest rates over six percent must be in writing to be enforceable. A.S.C.A. § 28.1501; Meridian Breckwoldt Samoa, Ltd. v. Max Haleck, Inc., 7 A.S.R.2d 95, 101 (Trial Div. 1988). The settlement agreement was predicated on plaintiff's advancing funds to defendant during earlier transactions between the parties for the purpose of enabling defendant to acquire or carry on her new business. Since a loan underlies the settlement agreement, defendant must pay her principal indebtedness plus the contractual 18 percent interest on overdue payments, as provided in the agreement.

[3] Second, the High Court's jurisdiction is a fundamental issue in this matter. The Trial Division has jurisdiction over monetary claims when the amount in controversy exceeds $5,000. A.S.C.A. § 3.0208(a)(1). The principal amount of the settlement agreement is less than this amount. However, in calculating the amount in controversy, attorney's fees may be included if expressly provided for in a contract. PTS of Gainesville, Inc. v. Olivetti Corp. of America, 334 So. 324, 325 (Fla. App. 1976); see Perma Glass Corp. v. Sasak Corp., 718 F. Supp. 742, 743-44 (E.D. Mo. 1989). Unless constitutionally or statutorily excluded, interest which accrued as of the commencment of an action may also be included. [25ASR2d14] Johnson v. Washburn, 19 N.W. 563, 566 (Neb. 1945) (citing Stake v. Western Assurance Co., 287 N.W. 222 (Neb. 1939); Jorgenson v. Farmers' & Merchants' Bank, 170 N.W. 894 (N.D. 1919)). However, costs (including attorney's fees awarded as non-contractual costs which are incidental to the substantive recovery) may not be included in the calculation. Bakkebo v. Muncipal Court of the Pomona Judicial Dist. of the County of Los Angeles, 177 Cal Rptr. 239, 242-43 (Cal. App. 1981); Director General of R.R. v. Wilford, 88 So. 256, 258 (Fla. 1921). Plaintiff's claim, including principal and $41.42 in accrued interest at 18 percent as of the filing date, as well as contractually-promised attorney's fees, reasonably estimated at a minimum of $550 and not intentionally inflated to reach the jurisdictional amount, totals more than $5,000. Hence, the Trial Division has jurisdiction over this matter.

Plaintiff is granted summary judgment against defendant in the principal amount of $4,421.83, to which is added $300 as attorney's fees for the cost of negotiating and drafting the settlement agreement, plus 18 percent pre-judgment interest, reasonable attorney's fees and costs of collection to be determined upon submission of an affidavit therefor by plaintiff's counsel, and 18 percent post-judgment interest.

It is so ordered.

**********

Jennings v. Thompson,


TINOUSI JENNINGS, Appellant

v.

JACK THOMPSON and ELIZA THOMPSON, Appellees

High Court of American Samoa
Appellate Division

AP No. 13-92

December 7, 1994

__________

[1] It is within the court's discretion to treat an argument misdesignated as an affirmative defense, as if it had been properly pleaded as a compulsory counterclaim. T.C.R.C.P. Rule 8(c).

[2] A court may refuse to determine the merits of a claim on the ground that, even though the claim may be correct, the litigant advancing it is not entitled to its judicial determination. Standing concerns the party , and not the issue to be adjudicated.

[3] Conduct which has been induced by trickery cannot later be used as a basis for estoppel.

[4] Laches will generally be found where there is an unexcused or unreasonable delay by one party in asserting his or her rights, and a concomitant prejudice to the other party.

[5] As an equitable defense, laches is committed to the sound discretion of the trial court. and is reviewed for an abuse of that discretion. An appellate court will not reverse unless it has a definite and firm conviction that the court below committed a clear error of judgment upon a weighing of relevant factors, and should not substitute its own judgment for that of the lower court.

[6] A constructive trust is a remedy used by a court of equity to compel a person who has acquired property to which he is not justly entitled to transfer it to the person entitled thereto. The wrongful act giving rise to a constructive trust need not amount to fraud or intentional misrepresentation. All that must be shown is that the acquisition of the property was wrongful and that the keeping of the property by the defendant would constitute unjust enrichment.

[7] A constructive trust may arise from violation of a fiduciary duty, such as where the property is obtained by constructive fraud or undue influence. Where there is a preexisting fiduciary relationship between the parties, a person whose property has been taken is entitled to restoration of the property itself. [25ASR2d78]

Before CANBY,* Acting Associate Justice, MUNSON,** Acting Associate Justice, and WARD,*** Acting Associate Justice

Counsel: For Appellant, Charles V. Ala'ilima
For Appellees, Roy J.D. Hall,

MUNSON, Acting Associate Justice:

This appeal (1) concerns title to approximately 3.5 acres of land in Pava'ia'i, on the island of Tutuila. the trial court held in favor of Jack and Eliza Thompson. (2)

A recitation of the facts is necessary for a full understanding of all that has transpired. On December 13, 1948, Pule, Matai of the Pule family, for himself and Pule family, conveyed title to the disputed land to Jack Thompson, as his individually-owned land, for the sum of $800. Jack Thompson is three-quarters Samoan blood. On April 25, 1949, the Land Commission recommended to the Governor that he approve the sale, which he did, in accordance with then-existing law. The deed was recorded with the Territorial Registrar.

On July 31,1950, Jack Thompson signed a Deed of Conveyance, transferring the land to his father-in-law, Alexander Eli Jennings, as Alexander's individually-owned land, for consideration of one dollar. Alexander Jennings, Eliza's father, was one-half Samoan blood. Neither the Land Commission nor the Governor approved this deed, but it was [25ASR2d79] somehow recorded with the Territorial Registrar. Jack Thompson testified that he did not realize that he was signing a deed. He claimed that Alexander had always told him that he would watch over the land when Jack, who was serving with the U.S. Navy, was assigned elsewhere. Jack Thompson said that Alexander only showed him the second page of what later proved to be a deed, and told him he needed to sign it to give Alexander permission to look after the land in Jack's absence.

Between July, 1950, and his death in 1958, Alexander built a small house on the land, but it was never used as his family's primary dwelling.

Probate of Alexander's estate began in 1958 and the subject land was included as an asset of his estate. by court order dated July 26, 1962, the final distribution was made. Each of Alexander's surviving children received an undivided 2/15s interest in the property (including appellant Tinousi's husband, David), as did the heirs of Alexander's daughter Zilpher, who had predeceased him. (3)

Jack Thompson testified that he did not know the land was included in Alexander's estate until 1962, when the estate was probated.

A transcript of the proceedings in the 1962 probate shows that both Eliza (appellee) and her brother, David (appellant's deceased husband), wcre present and from their comments at the hearing both knew that the property was included in Alexander's estate.

David and Tinousi Jennings married in July, 1962. From 1964 until 1967 they lived in the small house which Alexallder had built on the disputed land. Tinousi testified that David had told her that it was Alexander, not Jack, who had purchased the land for $800 from Pule in 1948. David told her Alexander could not register the land because he was only half Samoan blood and thus could not own land in 1948. David claimed Alexander had the land registered in Jack's name, because Jack was three-quarters Samoan. Shortly after the law challged in 1949, Alexander asked Jack to reconvey the land to him, which Jack did b)' the 1950 deed.

Eliza and Jack Thompson returned to American Samoa to live in 1968 and 1969, respectively. When Eliza preceded Jack to Samoa she moved [25ASR2d80] in to the house on thy land. She and Jack have lived on the land continuously since 1968, and have built two more houses, a small store, and a tennis court.

Tinousi claimed that she first learned of Jack and Eliza's claim to the land in 1968. However, the evidence at trial showed that neither she nor any other member of her family objected to the Thompson's claim until 1975, when Tinousi sought to build a house on the land but was refused buy the Thompson.

After the dispute with Tinousi arose in 1975, Jack Thompson in 1976 obtained a deed to the land, executed by Wallace H. Jennings, one of Alexander's sons, as "Trustee of the Estate of Alcxander E. Jennings, Deceased."

After trial, the court made several rulings based on its findings. the trial court first found the 1976 deed invalid. The court held that because Wallace was not the trustee of his father's estate he had no legal authority to execute the 1976 deed to Jack and Eliza Thompson.

In considering the conflicting versions of the facts relating to the 1948 and 1950 deeds, the trial court found that the evidence supporting Jack Thompson's version of events was clear and convicting. The court found that under the law in 1948, Jack Thompson could own land but Alexander could not, since the former was three-fourths Samoan blood and the latter only one-half (and the court found no compelling evidence to support appellant's claim that Jack and Alexander had conspired in 1948 to circumvent Samoan land ownership law). The fact that Alexander had access to other, family-owned land upon which to build and live and Jack did not also favored Jack's account of the acquisition of the land in 1948, as did the fact that the 1950 deed had never been approved by the Land Commission or the Governor.

The court found that Alexander's 1950 acquisition of the land had come about in one of two ways. Either Alexander had induced Jack to sign the deed through constructive fraud or undue influence by playing on the family ties, or there was an implied promise by Alexander to reconvey to Jack and Alexander had reneged on the agreement. The court deemed the evidence sufficient to support either construction of the facts. Having found that, the trial court imposed a constructive trust on Alexander to convey to Jack. The court found that upon Alexander's death the constructive trust was borne by his estate and, in turn, by the distributees after the 1962 probate. [25ASR2d81]

Having concluded its analysis, the trial court canceled the 1950 deed and ordered that title to appellant's undivided 2/15s interest in the title should be vested in Jack Thompson through the valid 1948 deed.

ISSUES ON APPEAL

Appellant raises five issues on appeal: whether or not the trial court erred by treating the constructive trust (which had been dominated an affirmative defense) as a counterclaim; whether the trial court failed to join indispensable parties; whether estoppel by deed should have prevented Jack Thompson from denying the validity of the 1950 deed; whether the equitable doctrine of laches should have been applied to this fact situation; and, whether the evidence establishing fraud and the existence of a fiduciary duty was sufficiently clear and convincing to warrant imposition of the constructive trust.

ANALYSIS

[1] As to the first issue, appellant concedes that it is within the court's discretion to treat the claim for imposition of a constructive trust, misdesignated as an affirmative defense, as if it had been properly pleaded as a compulsory counterclaim. Trial Court Rule of Civil Procedure 8(c) provides for such treatment and there was no real prejudice to appellant. Accordingly, we find that the trial court did not abuse its discretion and the decision is AFFIRMED as to this issue.

In its July 22, 1992, decision on appellant's motion for reconsideration or a new trial, the court agreed with appellant's assertion that the court's order was too broad, because it affected property rights of persons not before it, to wit, all the remaining heirs of Alexander whose interests in the land, derived from the 1962 probate of Alexander's estate, would be affected by the court's decision. Appellant's lawsuit had sought an adjudication only of her 2/15s interest in the land. The court deemed it appellees' responsibility to attempt to join all other interested parties or the court's order regarding the land would of necessity be limited to the undivided 2/15s interest claimed by appellant Tinousi Jennings.

[2] We find that the trial court's judgment as to any interest of appellant in the land is final, and that she lacks standing to argue the [25ASR2d82] indispensability of other parties. (4) A court may refuse to determine the merits of a claim on the ground that, even though the claim may be correct, the litigant advancing it is not properly situated to be entitled to its judicial determination. See, e.g. DKT Memorial fund Ltd. v. Agency for Int. Dev., 887 F.2d 275,283 (D.C. Cir. 1989). Standing focuses on the party and not the issue to be adjudicated. Flast v. Cohen, 392 U .S. 83, 99, (1968). The issue of possible claims by other heirs of Alexander, while potentially problematic, must remain for another day, as we discuss below.

[3] Appellant argues that the trial court erred by basing its decision on equitable estoppel, rather than estoppel by deed. However it is characterized, the estoppel argument is not persuasive. Appellant asks us to find estoppel by deed when the trial court found that Jack Thompson's signature on the 1950 deed had been obtained through trickery. We accept appellant's argument we would be countenancing an illegal transaction, since accepting her version of the facts would compel us to ratify Jack and Alexander's purported 1948 attempt to circumvent the blood requirements of Samoan law.

[4] Appellant next argues that the doctrine of laches should have been applied to prevent appellees from claiming title to this property. Laches is an equitable doctrine and, as such, its application depends on the facts of each case. Brown v. Continental Can, 765 F.2d 810814 (9th Cir. 1985). Generally, laches will be found where there is an unexcused or unreasonable delay by one party in asserting his or her rights, and a concomitant prejudice to the other party.

[5] The time-honored equity maxim that one who seeks equity must do equity applies forcefully here because the laches argument cuts both ways: Appellant failed to pursue her alleged right to the property for several years (from at least 1968 to the filing of her first lawsuit in 1983), which certainly acted to the prejudice of appellees. appellees' open and notorious possession of the land from 1968 onward put appellant on notice of their claim. As an equitable defense, laches is committed to the sound discretion of the trial court, and reviewed for an abuse of that discretion. A.C. Aukerman Co. v. Chaides Const., 960 F.2d 1020 (Fed. Cir. 1992). We will not reverse unless we have a definite and firm conviction that the court below committed a clear error [25ASR2d83] of judgment in the conclusion it reached upon a weighing of relevant factors, United States v. Plainbull, 957 F.2d 724,725 (9th Cir. 1992), and we will not substitute our judgment for that of the lower court. United States v. BNS., 858 F. 2d 456, 464 (9th Cir. 1988).

We cannot say that, given the facts before it, the trial court committed a clear error of judgment in the conclusion it reached. Equity aids the vigilant. Neither appellant nor appellees zealously pursued their competing claims to the property through legal channels, but appellees' presence on the property since 1968 certainly put appellant on notice of their claim. We will not alter the trial court's conclusion on that issue.

Finally, the trial court imposed a constructive trust on Alexander and, in turn, his estate and its distributees, after having found that Alexander had either a fiduciary duty to reconvey the land or that he had breached an implied promise to do so.

[6-7] A constructive trust is a remedy used by a court of equity to compel a person who has acquired property to which he is not justly entitled to transfer it to the person entitled thereto. See, e.g., Haskel Eng. & Supply Co. v. Hartford Accid. & Indem., 144 Cal.Rptr. 189 (Cal.App.1978); Calistoga Civic Club v. City of Calistoga, 191 Cal.Rptr. 571 (Cal.App. 1983). "The wrongful act giving rise to a constructive trust need not amount to fraud or intentional misrepresentation. All that must be shown is that the acquisition of the property was wrongful and that the keeping of the property by the defendant would constitute unjust enrichment." Calistoga Civic Club, 191 Cal. Rptr. at 576. A constructive trust may arise from violation of a fiduciary duty, such as where the property is obtained by constructive fraud or undue influence. See WITKIN, SUMMARY OF CALIFORNIA LAW §308 (9th ed. 1990). Where there is a preexisting fiduciary relationship between the parties, a person whose property has been taken is entitled to restoration of the property itself. Heckmann v. Ahmanson, 514 Cal.Rptr. 177 (Cal.App. 1985). Both Restatement of Trust 2d §44 and Restatement of Restitution § 182 approve the imposition of a constructive trust where the transfer was procured by fraud or where the transferee was in confidential relation to the transferor.

CONCLUSION

Given the facts as the trial court found them to be, we cannot say that the court erred as a matter' of law in fashioning the remedy of constructive trust to undo a forty-year-old wrong and finally clear at least a portion [25ASR2d84] of the title to the land. Our consideration of this issue is constrained by our recognition that the judges in the trial court had the opportunity to listen to the witnesses, to observe their demeanor as they testified, and to make judgments as to their veracity and credibility.

FOR THE REASONS SET FORTH ABOVE, the judgment of the trial court is AFFIRMED as to appellant. We join in the trial court's ad1Donition to appellees to promptly resolve, whether by quitclaim deed, further litigation, or otherwise, any and all questions concerning the remaining undivided interests. We note, again, however, that appellees' victory is but a partial one. As the trial court ruled, appellees must expeditiously seek to quiet title to the remaining undivided interests which have not yet been adjudicated in this proceeding. Until they have done so, they will continue to suffer uncertainty as to their full ownership.

It is so ordered.

*********

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

**Honorable Alex R. Munson, Chief Judge, United States Court of Appeal for the Ninth Circuit, serving by designation by the Secretary of the Interior.

***Honorable John L. Ward, II, Judge. District Court of American Samoa. serving by designation of the Secretary of the Interior.

1. Two separate actions were consolidated below for trial, Civil Action No.11-84, and Land and Titles No. 54-90.

2. The trial court denied appellant's request to award her an undivided 2/15s interest in the land, to evict appellee, to change the Territorial Registrar's records regarding ownership of the land, to impose a constructive trust on appellee's property, and to enjoin appellees from making further improvements on the land and for $10,000 in punitive damages.

3. Alexander's wife apparently received the remaining 5/15s interest in the land.

4. Indeed. appellant's argument about the indispensability of the other parties rings somewhat hollow, given the fact that she could have included them in her lawsuit and, for whatever reason, did not do so.

F/V Korbee #1; YKL Japan Ltd. v.


YKL JAPAN LTD., a Japanese Corporation, Plaintiff

v.

F/V KORBEE #1, Defendant In Rem, and
KOREA OCEAN FISHERIES, Defendant In Personam,
STARKIST FOODS, INC. and STARKIST SAMOA, INC.,
Intervenors- Plaintiffs,
PEARL OF PARADISE, INC., Intervenor-Plaintiff.

YKL JAPAN LTD., a Japanese Corporation, Plaintiff

v.

F/V KORAM #2, Defendant In Rem, and
KOREA OCEAN FISHERIES, Defendant in Personam,
STARKIST FOODS, INC. and STARKIST SAMOA, INC.,
Intervenors-Plaintiffs,
PEARL OF PARADISE, INC., Intervenor-Plaintiff.

PAGO PETROLEUM PRODUCTS, INC., Plaintiff,

v.

M/V KORBEE #1, Defendant In Rem,
STARKIST FOODS, INC. and STARKIST SAMOA, INC.,
Intervenors- Plaintiffs.

SAMOA EXPORT & IMPORT INC., an American Samoa
Corporation, Plaintiff,

v.

F/V KORBEE #I and F/V KORAM #2, Defendants In Rem, and
KOREA WONYANG CO., Defendant In Personam,
STARKIST FOODS, INC. and STARKIST SAMOA, INC.,
Intervenors-Plaintiffs,
PEARL OF PARADISE, INC., Intervenor-Plaintiff.

SOUTHWEST MARINE OF SAMOA, INC., Plaintiff

v.

M/V KORAM #2, Defendant In Rem, and
KOREA WONYANG FISHERIES CO., LTD., a Korean
Corporation, and STARKIST SAMOA, INC., a Corporation,
Defendants In Personam
[25ASR2d122]

STARKIST SAMOA, INC., Cross-Complainant

v.

M/V KORAM #2, Cross-Defendant In Rem, and
KOREA WONYANG FISHERIES CO., a Korean Corporation,
Cross-Defendant In Personam.

SOUTHWEST MARINE OF SAMOA, INC., an American Samoa
Corporation, Plaintiff,

v.

F/V KORBEE #5 and F/V KORBEE #6, Defendants In Rem, and
KOREA WONYANG CO., Defendant In Personam,
STARKIST FOODS, INC. and STARKIST SAMOA, INC.,
Intervenors-Plaintiffs
PEARL OF PARADISE, INC., Intervenor-Plaintiff.

PAGO PETROLEUM PRODUCTS, INC., Plaintiff,

v.

M/V KORBEE #6, Defendant In Rem and
KOREA WONYANG CO., Defendant In Personam,
STARKIST FOODS, INC. and STARKIST SAMOA, INC.,
Intervenors-Plaintiffs.

High Court of American Samoa
Trial Division

CA No. 08-92
CA No. 10-92
CA No. 11-92
CA No. 15-92
CA No. 17-92
CA No. 18-92

January 31. 1994

__________

[1] Summary judgment is only appropriate when "no genuine issue as to any material fact" exists. In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non-moving party. 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. T.C.R.C.P. 56(c). [25ASR2d123]

[2] Summary judgment is a drastic remedy to be granted only where the requirements of Rule 56 have clearly been met. A motion for such a judgment does not entitle the court to try issues of fact. In deciding the existence of factual issues to be tried, a court must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought with the burden on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. Thus, summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances.

[3] A trial court possesses the discretion to deny a summary judgment motion. A summary judgment motion may be denied when the trial court desires an inquiry into the facts to clarify the application of the law, even if summary judgment is technically justified. This is especially true when a court may be able to avoid deciding difficult or uncel1ain questions of law by making factual determination.

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

Counsel: For Plaintiffs YKL Japan and Samoa Export & Import,
William H. Reardon
For Plaintiff Southwest Marine, Michael H. Crew
For Plaintiff Pago Petroleum, Ellen A. Ryan
For Intervenor-Plaintiff Pearl of Paradise, Aumoeualogo Salanoa Soli
For Defendants/Intervenors-Plaintiffs Star-Kist Foods
and Star-Kist Samoa, Roy J.D. Hall, Jr.

Order on Motions for Summary Judgment:

PROCEDURAL HISTORY

On August 9, 1993, Southwest Marine filed its motion and memorandum for summary judgment. On August 24, 1993, Pearl of Paradise filed its motion and memorandum for summary judgment. On August 20, 1993, YKL/SEI filed its motion and memorandum for summary judgment. On August 26, 1993, Pago Petroleum filed a "Memorandum in Response to Motion for Summary Judgment." Star-Kist filed its own motion and memorandum for summary judgment on August 26, 1993. The motions were presented in court on August 27, 1993, but the hearing on these motions were continued to Sept. 24. On September 24, 1993, the court held a hearing on the summary judgment motions and requested that the parties file proposed findings of fact and conclusions of law. These proposed orders were filed on October 15, 1993 (with supplemental memoranda accepted on December 2). [25ASR2d124]

STANDARD OF REVIEW

[1] Summary judgment is only appropriate when "no genuine issue as to any material fact" exists. T.C.R.C.P. 56(c); see Anderson v. Liberty Lobby, 477 U.S. 242, 247-50 [91 L. Ed. 2d 202,211-12] (1986) (Fed. R. Civ. P. 56(c)); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 [91 L. Ed. 2d 265, 273-74] (1986) (Fed. R. Civ. P. 56(c)). In reviewing the pleadings and supporting papers, a court must view them in the light most favorable to the non-moving party. D. Gokal & v. Daily Shoppers Inc., 13 A.S.R.2d 11, 12 (Trial Div. 1989) (citing United States v.Diebold, 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 Govt (Mem.), 11 A.S.R.2d 133, 136 (Trial Div. 1989).

[2] As such, "[s]ummary judgment is a drastic remedy to be granted only where the requirements of Rule 56.... have clearly been met. A motion for such a judgment does not entitle the court to try issues of fact." United States v.Bosurgi, 530 F.2d 1105, 1110 (2d Cir. 1976). In deciding the existence of factual issues to be tried, a court "must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought with the burden on the moving party to demonstrate the absence of any material factual issue genuinely in dispute." Id. (quoting Heyman v. Commerce & Indus. Ins., 524 F.2d 1317,1320 (2d Cir. 1975)). Thus, "summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances." United States v. Bachman, 601 F. Supp. 1537, 1540 (E.D. Wis. 1985) (citing Prince v. Pittston, 63 F.R.D. 28,32 (S.D.W. Va. 1974)).

[3] Furthermore, a trial court possesses the discretion to den.y a summary judgment motion. A summary judgment motion may be denied when the trial court desires an "inquiry into the facts to clarify the application of the law." Bachman, 601 F. Supp. at 1540. Even if technically justified, a summary judgment motion may be denied in order "to give the parties an opportunity to fully develop the case." United States v. Merchants Natl Bank of Mobile, 772 F .2d 1522, 1524 (11th Cir. 1985) (per curiam) (quoting Marcus v. St. Paul Fire & Marine Ins., 651 F .2d 379, 382 (5th Cir. Unit B 1981)). This is especially true when a court may be able to avoid deciding difficult or uncertain questions of law by making factual [25ASR2d125] determinations. See Olberding v. United States Dept of Defense, 564 F. Supp. 907, 908-09 n.1 (S.D. Iowa 1982),aff'd 709 F.2d 621 (8th Cir. 1983).

DISCUSSION

The claimants have all sought summary judgment, which should mean that no disputes over material facts exist. However, this is not the case. Despite each party's assertions of its entitlement to summary judgment, "genuine issues of material fact" clearly exist. Indeed, this court is hard pressed to find any area which is not in dispute.

The parties' motions and supporting memoranda, including the proposed findings of fact and conclusions of law, demonstrate profound disagreements as to the existence, characterization, priority, and amounts of the asserted claims. Even when some parties claim to adopt arguments of other parties, issues such as priorities of liens are present. Even a so-called stipulation states that each party reserved the right to claim amounts in excess of those supposedly agreed to. Additionally, the parties' claims are sometimes self-contradictory .

Beyond the parties' across-the-board dispute over factual issues, this case involves complicated legal issues. The disputes over material facts are exacerbated by the" shotgun" approach to the law taken by the parties in pressing their respective claims. As a consolidation of seven cases, this action involves complex issues of fact and law. Not only does this lawsuit involve the arcane area of admiralty law, the development of which is in its infancy in the territory , but it also concerns areas including contracts and secured transactions.

In short, summary judgment is inappropriate here. Even if summary judgment were technically permissible on certain matters, this case is best handled as a whole and decided on the merits after a full exposition of the facts and applicable law.

DEPOSIT OF FISH-SALES PROCEEDS INTO COURTS FUND

The following stipulations among claimants, Star-Kist, and KWF to release fish cargos to the Star-Kist Samoa cannery for processing and to deposit the "total proceeds" in the court registry were filed by the parties and implemented by these c:ourt orders: (1) YKL-M/V Korbee # 1 (CA No.7-92, Order of Jan. 28, 1992); (2) YKL-M/V Koram #2 (CA No. 8-92, Order of Jan. 28, 1992); and (3) SEI-M/V Korbee #1 & Koram #2 [25ASR2d126] (CA No.11-92, Order of Jan. 28, 1992). An order granted an ex parte application to the same effect regarding Pago Petroleum-M/V Korbee #1 (CA No.10-92, Order of Jan. 29, 1992).

The following stipulations to release the fish cargos for processing and to deposit the proceeds, "subject to withholding of Starkist Samoa, Inc.'s trip advances to this vessel for its last voyage only and for funds sufficient to pay crew wages for costs attributable to the last fishing voyage," were filed by the parties and implemented by these court orders: (1) SWM-M/V Koram #2 (CA No.15-92, Order of Feb. 14, 1992); (2) SEI-F/V Korbee #5 & F/V Korbee #6 (CA No.17-92, Order of Feb. 18, 1992); (3) Pago Petroleum-M/V Korbee #6 (CA No.18-92, Order of Feb. 18, 1992).

Prior to depositing the proceeds of the fish sales, Star-Kist subtracted amounts for fish which were rejected for processing and for what it terms "prepaid fish advances." The other claimants dispute both subtractions from the gross sales proceeds. Because the amounts subtracted for the rejected fish seems to reflect industry practice regarding payments for fish deliveries, Star-Kist will be permitted to retain these amounts for the time being.

On the other hand, Star-Kist's withholding of sums for its "prepaid fish advances" is contrary to the terms of at least some of the stipulations. Similarly, permitting Star-Kist to subtract those amounts while the other claimants wait for resolution of this case before they can receive payment does not appear to be fair. Thus, Star-Kist should pay these amounts into the court registry .

CONCLUSION

Therefore, all motions for summary judgment are denied. As for the amounts withheld from the fish-sales proceeds, Star-Kist may retain, for the time being, the amounts for the fish rejects. However, Star-Kist must pay into the court registry the amounts it claims as "prepaid fish advances." Insofar as previous court orders may conflict, they are superseded.

It is so ordered.

*********

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

November 29, 1993

__________

[1] A motion to stay execution of judgment pending appeal is properly initiated in the trial court pursuant to A.C.R. Rule 8(a).

[2] A judgment cannot be stayed pending appeal, pursuant to A.C.R. Rule 8(a) except by court order for cause shown. A.S.C.A. § 43.0803; T.C.R.C.P. Rule 62(a)

[3] Under T.C.R.C.P. Rule 62(d), the trial court has discretion to stay a judgment pending appeal when a bond or undertaking is given. The decision depends on the likelihood of success on appeal, and on weighing the "balance of equities," meaning to balance the harm to the party prevailing at trial if the stay is granted. against the hardship to the losing party if it is not.

[4] Factors affecting the balance of equities pertaining to a T.C.R.C.P. Rule 62(d) motion for a stay pending appeal may include: (1) the complexity of the collection process; (2) the time it may take to collect a judgment after affirmance on appeal; (3) the availability of funds to pay the judgment; and (4) the ability to pay the judgment.

[5] Factual findings of the Trial Division will not be reversed on appeal unless they are clearly erroneous. A.S.C.A. § 43.0801(b).

[6] Losing litigants should not be encouraged to bring hopeless appeals simply to delay the effect of a judgment, but in a legitimate appeal the effects of delay in collecting a judgment can partially be neutralized by an undeliaking and an award of post-judgment interest.

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

Counsel: For Plaintiff/Appellee, Marshall Ashley
For Defendants/Appellants Rini Etimani and
Continental Transport Services, Afoa L. Su'esu'e Lutu
For Defendant/Appellant Insurance Company of the Pacific,
Roy J.D. Hall, Jr. [25ASR2d55]

Order Granting in Part Motions to Stay Execution of Judgment Pending Appeal:

Defendants/appellants' motions to stay execution of the judgment pending appeal of this action came regularly for hearing on November 16, 1993. For purposes of these motions, plaintiff/appellee appeared by her counsel, and all three defendants/appellants appeared by counsel Roy J.D. Hall, Jr.

[1-2] These motions were properly made in the first instance in this court. A.C.R. Rule 8(a). A judgment cannot be stayed pending appeal except by court order for cause shown. A.S.C.A. § 43.0803; T.C.R.C.P. Rule 62(a); Asifoa v. Luulemana, 17 A.S.R.2d 10, 12 (App. Div. 1990). Under T.C.R.C.P. Rule 62(d), the court has discretion to stay a judgment pending appeal when a bond or undertaking is given. See Asifoa, 17 A.S.R.2d at 12; see also Fed. R. Civ. P. Rule 62(d).

[3] This decision depends partly on weighing the harm to the party prevailing at the trial if a stay is granted and the hardship to the losing party if a stay is not granted, often called the "balance of equities," and partly on the likelihood of success on appeal. Asifoa, 17 A.S.R.2d at 13; In re Matai Title Mulitauaopele, 17 A.S.R.2d 71, 73 (Land & Titles Div. 1990).

[4] Equity factors to consider when the judgment is solely for the recovery of money may include: (1) the complexity of the collection process; (2) the time it may take to collect a judgment after affirmance on appeal; (3) the availability of funds to pay the judgment; and (4) the ability to pay the judgment. See Olympia Equip. Leasing Co. v. Western Union Tel. Co., 786 F .2d 794, 796 (7th Cir. 1986).

[5] Defendants/appellants' success on appeal is highly improbable. The issues raised are largely, if not exclusively, related to the findings of fact. Those findings will not be set aside on appeal unless they are clearly erroneous. A.S.C.A. § 43.0801(b); Uiagalelei v. Ulafale, 17 A.S.R.2d 158,160 (App. Div. 1990); Moea'i v. Alai'a, 12 A.S.R.2d 91, 92 (1989). The evidence in support of those findings is, in our view, sufficient.

[6] Concerning the equities, on the one hand, plaintiff/appellee is certainly entitled to expeditiously recover and presently enjoy her judgment, obtained some three years after this serious and inexcusable accident. Losing litigants should not be encouraged to bring hopeless [25ASR2d56] appeals simply to delay a judgment's effect. However, plaintiff/appellee's best interest is also to be able to readily collect her judgment. The negative effects of further delay can be at least partially neutralized by an undertaking and post-judgment interest.

On the other hand, defendant/appellant Continental Transport Services is one of the major aiga bus companies providing public transportation in American Samoa and could effectively use proper accounting procedures to accommodate this expense. However, it does not have unlimited financial resources. Moreover, at the hearing on this motion, defendant/appellant Insurance Company of the Pacific offered to immediately pay $10,000 of the judgment, its maximum statutory liability in this case.

Considering these circumstances, as they relate to the elements of both the probability of success on appeal and the equities, execution of the amount of the judgment in excess of $10,000 will be stayed, effective when the following two conditions are met.

1. Defendant/appellant Insurance Company of the Pacific has paid its $10,000 share of the judgment to plaintiff/appellee.

2. Defendant/appellant Continental Transport Services has deposited with the clerk of courts a bond or undertaking, with one or more sureties approved by the court, in double the amount of the judgment unless the surety is a corporate surety insurer authorized to do business in American Samoa, in which event the amount shall be one and one-half times the amount of the judgment. The bond or undertaking shall be on the condition that if the judgment, or any part of it, is affirmed or the appeal is withdrawn or dismissed, and if defendant/appellant Continental Transport Services is ordered to pay the judgment, or any part of it, and fails to pay the entire amount, including post-judgment interest and costs, within 30 days after the filing of the remittitur from the Appellate Division, the surety(ies) shall forthwith pay the entire amount then owing, not to exceed the amount of the bond or undertaking, and liability on the bond or undertaking may be immediately enforced. In accordance with A.C.R. Rule 8(a), the bond or undertaking shall also stipulate that, with respect to liability on the bond or undertaking, each surety is subject to the jurisdiction of the Trial Division and that the clerk of courts is irrevocably appointed as each surety's agent for service of process and other papers. [25ASR2d57]

Defendants/appellants shall have 60 days from the entry of this order to meet the two conditions required to implement the stay of execution of the judgment pending appeal. During this 60-day period, plaintiff/appellee is enjoined from execution of her judgment. If defendants/appellants fail to meet the two conditions required to implement the stay of execution of the judgment pending appeal, this entire order shall terminate, and plaintiff/appellee may proceed with execution of her judgment.

It is so ordered.

*********

Estate of Fuimaono,


ESTATE OF TUINANAU FUIMAONO, Deceased

High Court of American Samoa
Appellate Division

AP No. 25-92
AP No. 27-92

January 4, 1994

__________

[1] The question of the existence of a marriage is one of fact.

[2] Cohabitation and reputation as husband and wife are not only relevant for purposes of common-law marriage; they constitute evidence that a marriage ceremony in fact took place.

[3] The presumption arising from this long and consistent pattern of behavior bears weight of its own.

[4] We conclude that the law of American Samoa may recognize equitable adoption for purposes of inheritance from the individual estate of the equitable adoptive parent. This doctrine may be applied in the absence of proof of a specific contract to adopt.

[5] The trial court retains discretion to adjudicate claims that were not pleaded.

[6] Equitable adoption requires a finding that the equitably adopted child has stood from an age of tender years in a position exactly equivalent to a formally adopted child.

Before CANBY*, Acting Associate Justice, MUNSON**, Acting Associate Judge, AFUOLA, Associate Judge, and LOGOAI, Associate Judge.

Counsel: For Fa'alua Fuimaono and Ato Fuimaono, Gata E.W. Gurr,
For Sapati Fuimaono, Charles V. Ala'ilima.

CANBY, Acting Associate Justice: [25ASR2d111]

This appeal arises from a decision of the trial division determining heirship in the estate of Tuinanau Fuimaono. (1) Tuinanau died intestate in 1984. Those claiming to be heirs include: Fa'alua Fuimaono, who was held out as Tuinanau's wife for a period of 37 or 38 years prior to his death; Saumaleato ("Ato") Fuimaono, Fa'alua's son by a prior marriage, who had been raised as a son of Tuinanau and Fa'alua; and Sapati Fuimaono, a son of Tuinanau 's by a prior marriage. The disputed claims are those of Fa'alua and Ato; there is no dispute over Sapati's claim, although the amount of his inheritance is necessarily increased if either of the other claims are defeated.

DISCUSSION

I. Fa'alua 's Claim

It appears from the evidence that Tuinanau was originally married to one Selepa, and Sapati was born of that relationship in 1940. The couple separated in approximately 1945, and it is not clear whether they were ever legally divorced.

Tuinanau and Fa'alua began living together in 1946 or 1947. There is no marriage certificate in the files of the Registrar of Vital Statistics of American Samoa, and no other certificate was entered into evidence. Several other documents were admitted into evidence and referred to by the trial court: a church document purporting to show a marriage in 1946, performed by a person named "Morrow" --apparently a reference to former Chief Justice Arthur A. Morrow; a Certificate of Identity travel document, issued to Fa'alua on September 8, 1976, by the American Samoa Attorney General's Office, stating that she was married; an American Samoa Birth Certificate, issued as a late registration of January 28, 1971, and appended to the Certificate of Identity, stating that Fa'alua was born in Fagatogo, American Samoa, on January 11, 1905; and an Alien Registration Form issued by the Attorney General, which Fa'aIua completed under oath on February II, 1964, using her maiden name of LetuIi and stating that she was born on March 14, 1930, in Western Samoa, that she was a citizen of Western Samoa, and that she had entered American Samoa at Fagatogo on June 22, 1947, and was living with the Fuimaono family in Nu'uuli. [25ASR2d112]

The trial court found that not all of these documents could be genuine, and that only the Alien Registration Form was accurate (except for its recited date of birth). As a consequence, the court found that the union of Tuinanau and Fa'alua had never been solemnized by a marriage ceremony. The court further found that, despite their having held themselves out as married for some 38 years, Tuinanau and Fa'alua both knew that the relationship was not a legal marriage. The court therefore concluded that, because common law marriages are not recognized in American Samoa, see A.S.C.A. § 42.0101(e), Fa'alua was not a spouse of Tuinanau for purposes of inheritance.

On appeal, Fa'alua argues that the trial division gave insufficient force to the presumption of the validity of a marriage derived from long cohabitation and holding out as man and wife. See e.g., Trower v. Board of County Commissioners, 75 N.M. 125, 401 P. 2d 109 (1965). She relied on the fact that the community had recognized her marriage to Tuinanau for 38 years, that she and Tuinanau executed deeds and other documents as husband and wife, that Tuinanau would not have been appointed a deacon of his church if he had not been married to her, that the immigration service issued her an identity document with the last name Fuimaono, and that the Social Security Administration had satisfied itself that she was entitled to benefits as Tuinanau's widow.

We conclude that Fa'alua's contentions have merit, and that the ruling that she was not entitled to inherit as Tuinanau's widow must be reversed.

[1-2] We are aware that the question of the existence of a marriage is one of fact, see 52 Am. Jur. 2d, Marriage, § 127, but we are satisfied that, in making its rulings of fact, the trial division gave too little force to the presumptions applicable to a case like this, and to the evidentiary force of the exceptionally long period during which Tuinanau and Fa'alua held themselves out as being married, and acted wholly consistently with that status. Cohabitation and reputation as husband and wife are not only relevant for purposes of common-law marriage; they constitute evidence that a marriage ceremony in fact took place. "[P]ersons living together in apparent matrimony will ordinarily be presumed to have been married ceremonially in states rejecting the doctrine of common-law marriages." Id. at § 132; see Suddeth v. Hawkins, 202 S.W.2d 572, 575, 577-78 (Mo. App. 1947). The strength of the presumption depends on the circumstances of the case, 52 Am.Jur .2d at 132, and in this case the circumstances are unusually strong in favor of marriage. Not only did Tuinanau and Fa'alua consistently hold themselves out as married for 37 [25ASR2d113] or 38 years, they appear to have been accepted almost universally as being legitimately married. Tuinanau's position as deacon of his church is perhaps the weightiest indication of community belief in the validity of the marriage.

[3] We agree with those cases holding that the presumption arising from this long and consistent pattern of behavior bears weight of its own, see, e.g., In re Nidever's Estate, 181 Cal. App. 2d 367, 5 Cal. Rptr. 343, 350-51 (1960) .The length and consistency of this relationship and of the community understanding compel, in our view, a finding that a ceremony had occurred; it is not overcome by the representations in the Alien Registration Document --the sole document suggesting that Fa'alua was not married, and one that misstates Fa'alua's birth date by some 25 years. We also note that the uncertainty whether Tuinanau had been divorced from his prior wife is no bar to recognizing Fa'alua's marriage to Tuinanau; there is a strong presumption that the prior of two marriages has been dissolved. See 52 Am. Jur.2d, Marriage, § 140.

The trial division, while recognizing that Tuinanau and Fa'alua consistently acted as a married couple for 37 or 38 years, found that they both knew that their marriage was not a legal marriage. This finding, however, depended on the earlier finding that there had been no marriage ceremony --a finding that we have determined to be erroneous.

We accordingly reverse the ruling of the trial division to the extent that it determined that Fa'alua was not entitled to inherit as the spouse of Tuinanau.

II. Ato's Claim

The trial division originally found that Ato was the child of Tuinanau and Fa'alua, but it modified this finding in its amended order. There it determined that Ato was Fa'alua's son by a previous relationship, not Tuinanau's son, but that he had been raised from infancy by Fa'alua and Tuinanau ''as their genuine son." Recognition of Ato as their child extended expressly and implicitly to several legal documents. The Fuimaono family "essentially accepted the practical, day-to-day, father-son relationship between Tuinanau and Ato."

On the strength of these findings, the trial division held that Tuinanau had effected an "equitable" or "de facto" adoption of Ato for inheritance purposes. See 97 A.L.R.3d, Adoption by Estoppel, 347, 353-55, 359-65 [25ASR2d114] (1991). Ato was accordingly held to be entitled to inherit from Tuinanau's estate as if he had been a natural son.

[4] Sapati appeals this ruling, raising several arguments, all of which we reject. First, Sapati contends that adoption is entirely a creature of statute, and that Ato cannot have been adopted because the statutory requirements of American Samoa for adoption were neither followed nor attempted to be followed. See Title 45, chapter 4, American Samoa Code Annotated. Sapati relies on cases refusing to recognize the doctrine of equitable adoption. See, e.g., Clarkson v. Bliley, 185 Va. 82, 38 S.E.2d 22 (1946); Brassiel v. Brassiell, 228 Miss. 243, 87 So.2d 699, 722 (1956). There is, however, a line of authority to the contrary, that recognizes equitable adoption despite the existence of statutory procedures for adoption. See 97 A.L.R.3d, Adoption by Estoppel, supra. The question is an open one in American Samoa, and the trial division was not compelled to follow the cases on which Sapati relies. We agree with the trial division that the more just approach is to permit equitable adoption upon a showing of long and consistent treatment of the claimant as the "genuine son" of the decedent. We conclude that the law of American Samoa may recognize equitable adoption for purposes of inheritance from the individual estate of the equitable adoptive parent. As the trial division recognized, this doctrine may be applied in the absence of proof of a specific contract to adopt. Wheeling Dollar Savings & Trust Co. v. Singer, 250 S.E.2d 369,373-74 (W. Va. 1979).

[5] Sapati next argues that Ato failed to plead a claim of equitable adoption, and that the trial division erred in recognizing that claim sua sponte. We disagree. The underlying facts were adequately placed in issue by Ato's claim that he was the son of Tuinanau, and there was ample evidence that he was held out as Tuinanau's son. The trial court retains discretion to adjudicate claims that were not pleaded. See T.C.R.C.P. 15(b). Sapati has not shown that he had additional relevant evidence on the question that he was deprived of an opportunity to present when the trial court entertained the equitable adoption claim. As for Sapati's argument that there was a failure of evidence of a specific agreement to adopt, we have already pointed out that no such evidence is needed under the rule of Wheeling Dollar Savings, supra.

[6] Finally, Sapati argues that the doctrine of equitable adoption runs counter to Samoan public policy and custom, in that it gives recognition to numbers of individuals who may be known as'' sons" in an extended family. Sapati overstates the trial court's ruling, however. The trial court was well aware that in Samoa a head of family may refer to many persons as "sons" when those persons are not biological sons and are not [25ASR2d115] intended to inherit from the putative father's individual estate. The trial court, however, required and found that in the present case there was much more of a relationship than that. Tuinanau held Ato out as his "genuine" (i.e., biological or statutorily adopted) son during the many years that commenced with Ato's infancy. The rule adopted by the trial court, and affirmed here, requires a finding that the equitably adopted child "has stood from an age of tender years in a position exactly equivalent to a formally adopted child." Wheeling Dollar Savings, 250 S.E.2d at 373-74 (emphasis in original). The trial court's ruling was a narrow one, and does not encompass the many looser "father-son " relationships found in a customary extended family. We note as well that the trial court's ruling holds Ato to have been equitably adopted for purposes of inheritance from his father's individual estate. No other effect of equitable adoption was adjudicated, and no other effect is affirmed here. All that we conclude is that Ato is entitled to share in his father's inheritable estate as an equitable adopted son.

CONCLUSION

The ruling of the trial division that Fa'alua is not entitled to inherit as Tuinanau's surviving spouse is REVERSED. The ruling that Ato is entitled to inherit as an equitably adopted son is AFFIRMED. The case is REMANDED to the trial division.

It is so ordered.

*********

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

**Honorable Alex R. Munson, Chief Judge, United States Court of Appeal for the Ninth Circuit, serving by designation by the Secretary of the Interior.

1. The trial court modified the title of this case to "Estate of Tuinanau Fuimaono, Deceased." The court observed that all proceedings for the administration of the estates should bear such a simplified caption We follow the practice of the trial court.

Drabble; Transpac Corp. v.


TRANSPAC CORPORATION, Plaintiff

v.

CHANDE DRABBLE dba BEACHCOMBER 
(A Sole Proprietorship), Defendant

TRANSPAC CORPORATION, Plaintiff

v.

CHANDE DRABBLE, dba TJ's RESTAURANT & BAR, 
Defendant

High Court or American Samoa 
Trial Division

CA No. 1-93 
CA No. 2-93

November 29, 1993

__________

[1] A domestic relationship between parties to a contract taints claims of arms length dealing for purposes of determining the existence or meaning of the agreement

[2] The court should not fabricate an agreement based on reasonable inferences, where the parties have either failed to agree or have yet to agree.

[3] The appropriate remedy for a lack of financial support from an estranged spouse is a lawsuit against him at common law, not a self-help resort to the assets of his corporation.

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

Counsel: For Plaintiff, Roy J.D. Hall, Jr. 
For Defendant, Afoafouvale L.S. Lutu [25ASR2d67]

Transpac Corporation (hereafter "Transpac"), a local corporation, filed suit to evict the defendant Chande Drabble (hereafter "Chande"), as the "sole proprietor" of Beachcomber, a clothing shop, and TJ's, a bar and restaurant, from its Nu'uuli Shopping Center. These two establishments were lately managed and operated (unsuccessfully) by Chande. Beachcomber is no longer in business, and the space it once occupied has, since July 1993, reverted to Transpac. TJ's, on the other hand, is attempting some sort of comeback after several months of dormancy.

Besides its prayer for eviction, Transpac also seeks back rent from Chande. For Beachcomber, Transpac claims unpaid rent from January l, 1988, to October 31, 1992, in the amount of $96,362.34. This amount is said to be inclusive of interest calculated at the rate of 6% per annum. (1) For TJ's, Transpac similarly claims rental arrears in the amount of the $83,935.71. Additionally, Transpac's complaint prays for unspecified rent to date; however, its evidence in this regard was tentative and approximate.

There are no written leases; however, Transpac claims oral leases and has tendered rental- arrearage statements on the basis that its figures are what third-party, arm's-length transactions would have yielded for comparable space at the Nu'uuli Shopping Center .

DISCUSSION

I. Rents

[1] We find the claims for rent and arrearage to be unfounded and, therefore, deny the same. First, there is a domestic aspect to the alleged leases which thoroughly taints any claim to arm's-length dealings. Chande is married to Tom Drabble (hereafter "Tom"), who testified that he is both president and majority shareholder of Transpac. The Drabbles' marriage has in fact failed, and Chande and Tom have gone their separate ways since January 1989, after the latter left the marital home in Iliili. Their respective attempts to obtain a divorce have been unsuccessful; the domestic court dismissed their cross-petitions, pursuant to A.S.C.A. § 42.0206(a)(5), after sustaining each party's claim of fault against the other. See Drabble v. Drabble, DR No.69-90 (1992). With [25ASR2d68] the dismissal of the divorce case, the domestic Court did not therefore address the usual ancillary issues regarding the division of marital property. See A.S.C.A. § 42.0210. Consequently, these proceedings have taken on the unmistakable flavor of a continuing, and as yet unresolved, domestic dispute.

In Beachcomber's case, the evidence shows that this business had its inception in the pursuit of a marital purpose. This business was conceived and set up by Tom in 1975, to be run by his wife, to provide a source of income to meet the family's needs and expenses. Chande testified that she essentially ran the marital household from Beachcomber earnings without having to ask Tom tor money. She further testified that Beachcomber had contributed the sum of $30,000 towards the construction of the marital home. Although Tom now claims that Beachcomber is Chande's "sole proprietorship," the evidence showed that Tom had, until quite recently, treated and held out Beachcomber as a marital asset for purposes of personal income tax filings: personal financial statements, and property settlement proposals during the divorce action. The evidence also revealed that while Beachcomber had in the past paid rent to Transpac, it further showed that it was Tom, and not Chande, who created the clothing Shop and set up some sort of a tenancy arrangement with Transpac. According to Chande, Transpac at one time was also utilizing Beachcomber's attic for storage.

A lease, like any other bilateral contract, requires at least two parties to agree to something. Chande was not a negotiating party to any leasehold arrangement with Transpac, until quite recently, when the latter began to make demands upon her for a written leasehold relationship--these demands, which arose after the Drabbles' separation, have yet to be accepted by Chande. Tom's mere renunciation of intercst in Beachcomber and his insistence that the now-defunct Beachcomber is Chande's "sole proprietorship" does not make Chande any more a Transpac lessee than Tom. (2) That Chande is the sole defendant in this matter has, in our view, more to do with the fact that Tom is Transpac's chief executive officer rather than any arm's-length dealings between Transpac and Chande. [25ASR2d69]

[2] In the case of TJ's, the evidence is also lacking with respect to a lease between Transpac and Chande. Indeed, the evidence has been to the contrary; Transpac's recent lease proposal to Chande has yet to be accepted. In these circumstances, it is not for the court to fabricate an agreement, under the guise of reasonable inferences, where clearly the parties have either failed to agree or have yet to agree. Furthermore, TJ's was another idea of Tom's that started out either as a Transpac venture, a Sadie's Restaurant (an affiliate) venture, or a personal venture, a time when the Drabbles were still a domestic unit. All that may be leaned from the testimony is that the intentions were ill-defined at the outset, and they became even more so as the Drabbles' marital situation deteriorated. What is clear now is that Tom wants nothing more to do with TJ's. We conclude that there are no oral lease agreements express or implied, between Transpac and Chande.

II. Eviction

[3] On this count, Chande's only defense is that she needs the space occupied by TJ's in order to support herself, as she has no other source of income. Although plaintiff may be a closed corporation and may well be part of the marital assets subject to equitable distribution at the appropriate proceeding, see Rocha v. Rocha, 20 A.S.R.2d 63 (App. Div. [992), Chande's self-help resort to corporate assets cannot be sustained. Her need for support is no defense; her remedy lies at common law against her husband, (3) not the plaintiff corporation. The petition for eviction should thus be granted.

For reasons given, judgment will enter for defendant Chande Drabble on plaintiff's claim for rent and arrearage and for plaintiff Transpac Corporation on its petition for eviction.

It is so ordered.

*********

1. Interest at the rate of 6% per annum may he presumed on overdue dents when there is no written agreement. A.S.C.A § 28.1501.

2. Chande contends that if she is liable to Transpac for rent then Tom. as her husband, is responsible for her debt under the ancient common law doctrine of coverture. Because of the result we reach. we need not confront the question whether this obsolete, and statutorily abolished, marital convention of old England squares with the modem day fa 'a Samoa on le nofotane (the married woman).

3. See e.g. Garlock v. Garlock, 18 N.E.2d 521 (N.Y. App. 1939); Guthrie v. Bobo, 43 So.2d 871 (Miss. 1950).

Development Bank of American Samoa v. Mau,


DEVELOPMENT BANK OF AMERICAN SAMOA, Plaintiff

v.

MAU MAU, JR., and TUILUAAI MAU, dba MASEFAU MART,
Defendant

AMERICAN SAMOA GOVERNMENT, Garnishee

High Court of American Samoa
Trial Division

CA No. 46-92

October 19, 1993

__________

[1] An application for an order directing the Government of American Samoa to show cause why it should not be held liable for a judgment remains unsupported if it is not accompanied by evidence that tile Governor has given prior approval to tile garnishment of the Government pursuant to A.S.C.A. §§ 43.1803(b).

KRUSE, Chief Justice.

Counsel: For Plaintiff, Marshall Ashley
For Defendant, Tautai Aviata F. Fa'alevao

[1] Plaintiff judgment creditor seeks to hold the American Samoa Government (ASG) liable as garnishee for the full amount of its judgment, entered against the defendants, citing ASG's failure to respond to interrogatories propounded pursuant to A.S.C.A. §§ 43.1801 et seq. Plaintiff moves the Court to issue an order directed to ASG to show cause why it should not be held liable for the full amount of plaintiff's judgment, in the amount of $54,177.50. The application, however, is unsupported; it fails to show that the Governor has given his "prior approval" to the garnishment of ASG, in accordance with the mal1datory requirements of § 43.1803(b). The motion is, therefore, DENIED.

It is so ordered.

*********

DeStael v. Strasburg,


ELIZABETH ANN DeSTAEL, Plaintiff

v.

KEITH HEADLEY STRASBURG, Defendant

High Court of American Samoa
Trial Division

CA No. 121-93

December 17, 1993

__________

[1] The High Court of American Samoa is empowered to enforce a judgment of any United States court or other court entitled to full faith and credit in American Samoa under the Uniform Enforcement of Foreign Judgments Act. A.S.C.A. §§ 43.1701-09.

[2] In enforcing a foreign judgment, the High Court may not relitigate the merits of the original action or consider a defense that could have been raised in the original action.

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

Counsel: For Plaintiff, Marshall Ashley
For Defendant, Ellen A. Ryan

Order on Motions for Permanent Injunction and Enforcement of Foreign Judgment:

On August 25, 1993, a Judgment and Decree of Dissolution of Marriage was filed in the Circuit Court for Multnomah County, Oregon. Subsequently, defendant entered American Samoa aboard the yacht "Pangaea," a marital asset. On November 19, 1993, the High Court issued a preliminary injunction barring defendant from "entering onto, interfering with, or damaging the yacht." On December 16, 1993, a hearing was held concerning plaintiff's motion for enforcement of a foreign judgment and her motion for a permanent injunction. [25ASR2d97]

[1-2] The High Court is empowered to enforce a judgment of any United States court or other court entitled to full faith and credit in American Samoa under the "Uniform Enforcement of Foreign Judgments Act." A.S.C.A. §§ 43.1701-43.1709; see 28 U.S.C. § 1738. In this regard, the general rule is that a court may not relitigate the merits of the original action or consider a defense that could have been raised in the original action. Bahr v. Bahr, 180 N.W.2d465,467 (S.D. 1970) (citing Picking v. Local Loan Co. , 44 A.2d 462, 468 (Md. App. 1945)); see Klee v. Cola, 401 So. 2d 871,872 (Fla. App. 1981) (citing Whiteside v. Dinkins, 97 So. 517 (Fla. 1923)).

In granting the divorce decree, the Oregon court made a factual finding that DeStael was a resident under the residency/domicile requirement of or. Rev. Stat. § 107.075. This court is thus precluded from questioning the Oregon court's findings of fact and its corresponding interpretation of Oregon law. Therefore, plaintiff's motions are granted.

It is so ordered.

**********

Coulter; Johnson v.


RICHARD JOHNSON, Plaintiff

v.

ROBERT B. COULTER dba SOUTH PACIFIC ENGINE &
REPAIR, and SOUTH PACIFIC ENGINE & REPAIR, INC., a
Corporation, and SAMOA NAPA, INC., a Corporation,
Defendants

High Court of American Samoa
Trial Division

CA No. 22-91

December 7, 1993

__________

[1] A request to produce under T.C.R.C.P .Rule 34 may only he directed to parties to the action. Parties may include non-party corporations which are subsidiaries of parties.

[2] A witness who is not an officer of a party is a non-party witness. and her testimony may he compelled only by a subpoena issued and served in accordance with T.C.R.C.P. Rule 45(d).[25ASR2d85]

[3] The party upon whom a request to produce is served, pursuant to T.C.R.C.P. Rule 34(b), must serve a written response within 30 days after service of the request unless the court permits a shorter length of time.

[4] Discovery is a liberal process under T.C.R.C.P. Rule 26(b)(1), and may include any relevant, non-privileged material.

[5] Under a motion for attorney's fees and costs filed pursuant to T.C.R.C.P. Rule 37(a), the court may require either party , or the attorney advising the conduct that necessitated the motion, to bear all or part of such costs.

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

Counsel: For Plaintiff, Robert Dennison III
For Defendants, Roy J.D. Hall, Jr.

Order on Motion Compelling Discovery and for Sanctions:

Plaintiff Johnson requested the production of certain documents to be made at the deposition of defendant Coulter and one Katherine Lindgren. Coulter and Lindgren refused to produce documents relating to events after June 1990. Johnson now seeks an order under T.C.R.C.P. 37 compelling production and the award of sanctions. Coulter, in his memorandum in opposition to plaintiff's motion, makes three points: (1) that Coulter and Lindgren were improperly noticed, (2) that insufficient notice was afforded Coulter and Lindgren, and (3) that the materials sought are not relevant or are subject to restrictions. Coulter also objects to the request for sanctions as being outside the court's discretion.

DISCUSSION

I. Improper Notice

[1] Coulter correctly states that a request to produce under T.C.R.C.P. 34 may only be directed to parties to the action. However, the rule also talks about the production of documents or things in the "possession, custody or control" of a party. Thus, documents in the possession of a party's subsidiary were found to be within the party's control and were required to be produced under T.C.R.C.P. 34's federal counterpart, F.R.C.P. 34. Georg Hantscho v. Miehl-Goss-Dexter, 33 F.R.D. 332 (1963 S.D. N.Y.). In Standard Insurance v. Pittsburg Electrical Insulation, 29 F.R.D. 185, 188 (1961 D.C. Pa) the court ruled that a motion for production .of documents was not defective even though it requested documents from a corporation not a party to the action. The [25ASR2d86]court held that because the corporate defendant owned 100 % of the non-party's stock, both corporations occupied the same premises, and the defendant's corporate manager was also in charge of the records, the corporations were "substantially one."

In this case, Coulter is a party, and the suit itself names Coulter personally and "doing business as'' South Pacific Equipment and Repair, South Pacific Equipment and Repair, Inc., and Samoa Napa, Inc. Additionally, in defendant's answers to plaintiff's interrogatories, question 25, Coulter lists only himself as the shareholder of Spear or Samoa Napa (Defendant's Answers to Interrogatories at 7). The deposition as regards Coulter was, therefore, proper.

[2] Lindgren, on the other hand, is not a party to the action. (1) She was identified by Coulter in his answers to plaintiff's interrogatories as an expert witness whom he intends to call at trial (Defendant's Answers to Interrogatories at 7). Johnson could have sought, .pursuant to T.C.R.C.P .26(b)(4)(A), a court order to obtain further information from Lindgren in her capacity as an expert witness, but he has not. If Lindgren's expertise relates only to matters not in preparation for trial, that is; in the course of her employment, she is to be treated as a regular witness in any case. Therefore, Lindgren could have been deposed as an employee of the defendants. If Lindgren is an officer of Coulter's, and we do not now have enough information to state that she is, the notice given would have been sufficient. However, assuming that Lindgren is not an officer of Coulter's, her attendance is properly sought through T.C.R.C.P. 45, as a non-party witness. "A mere witness ...attendance may be compelled only by subpoena issued and served in accordance with Rule 45(d)" Sekely v. Salkind, 10 F.R.D. 503 (S.D.N.Y. 1950). Therefore, the deposition as regards Lindgren was improper.

II. Insufficient Notice

[3] Coulter claims that insufficient notice was afforded Coulter and Lindgren (although brief refers only to "defendants" we assume Coulter meant himself and Lindgren, although he is also arguing that Lindgren [25ASR2d87] is a non-party). The notice of "deposition duces tecum" was forwarded to defendant's lawyer 3 days in advance of Lindgren's deposition and 4 days in advance of Coulter's deposition. As per Coulter, who was deposed according to rule 30(b)(5), the proper procedure is that of rule 34. Rule 34(b) states that "the party upon whom the request is served shall serve a written response within 30 days after the service of the request. ..." The court may allow a shorter length of time. Here Coulter choose not to produce the asked for documents and there is no showing that he was unable to produce the documentation because of insufficient time. Additionally, in plaintiffs' requests for production of documents and things, served June 5, 1991, plaintiff requested all documents that related to the lawsuit. While this was a broad request, plaintiff did begin seeking relevant documentation over 2 years ago.

As Lindgren was improperly noticed, we need not address whether or not the 3 days notice she was afforded was sufficient.

III. Issue of Relevancy

[4] Relevancy is a liberal process. T.C.R.C.P. 26(b)(1) states that, in general:

Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved
in the pending action, whether it relates to the claim or
defense of the any other party.... It is not ground for
objection that the information sought will be inadmissible
at the trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.

Coulter claims, for several reasons, that the information sought is irrelevant or subject to restrictions. First, Coulter claims that Spear and Samoa Napa are not partnerships, but separate business entitles. However, this question is central to the lawsuit and discovery here is an attempt to answer this question. Materials so related are obviously relevant. Coulter next submits that sought materials are confidential business information whose withholding would not prejudice Johnson. Again, it is this business information that is relevant to determining the central questions of the suit. The materials sought here are relevant and "not privileged" and therefore, not exempt from disclosure, although certain items (such as tax returns) do contain confidential information. If reasonable protective measures are needed, relief can be sought under [25ASR2d88] T.C.R.C.P. 26(c)(7)--indeed, Johnson "agrees to reasonable terms regarding selective non-disclosure. " Additionally, Coulter states that it is "irrelevant" whether or not partnership funds were used to capitalize the corporations named herein. However, this information may relevant to issues of the dissolution of any partnership, and the possible constructive trust. Relevance is liberally construed to encompass matters that could lead to matters that bear on the case. Therefore, the items sought are relevant.

IV. Sanctions

[5] As stated by defendant, sanctions (save costs, as discussed below) would be inappropriate at this time. However, plaintiff has not requested sanctions under 37(b) (available only after a court order has not been obeyed). Plaintiff has only requested attorney's fees and costs, sanctions that are available under rule 37(a).

Under rule 37(a) the court may require the party or deponent whose conduct necessitated the motion, or the party or attorney advising such conduct, or both, to pay reasonable expenses incurred in obtaining the order, including attorney's fees. Expenses may also be awarded to the non-movant if the motion is denied, or allocated if the motion is granted in part. The court may find that opposition to the motion, or other circumstances, make an award of expenses unfair .

In this case both sides have made a good faith showing for their respective arguments, and an award of expenses is, in our view, not warranted.

CONCLUSION

Coulter was properly noticed. He was afforded insufficient time, although there is no showing that because of this he was unable to produce the requested items. As the items asked for are relevant to suit at hand, Coulter is directed to produce them, provided that Johnson abides by his agreement to reasonable terms regarding selective non-disclosure.

Lindgren was not properly noticed. Relief sought against her is denied.

Sanctions appear inappropriate at this time and thus plaintiff's request costs and attorney's fees is denied. [25ASR2d89]

It is so ordered.

**********

1. The notice of deposition to Lindgren merely certifies that "plaintiff's counsel" was served through his court box; there is no indication that Lindgren herself, a non-party, was at all served in accordance with the rules. TCRCP 30(a) provides that "the attendance of witnesses may be compelled by subpoena as provided in 45 TCRCP," and where production is sought from the person to be deposed, TCRCP 30(b)(1) provides for the use of a subpoena duces tecum. A subpoena, however, has to be served personally. TCRCP 45(c).

Bryant v. Southwest Marine of Samoa, Inc. ,


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

v.

SOU1'HWEST MARINE OF SAMOA, INC., VESSEL
SOUTHWEST MARINE CRANE BARGE, Its Engines, Tackle
and Gear, McCONNELL DOWELL COMPANY, McCONNELL
DOWELL COMPANY PONTOON RAFT VESSEL, Its Engines,
Tackle and Gear, and DOES I-XX, Defendants,

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

v.

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

MCCONNELL DOWELL COMPANY and MCCONNELL
DOWELL COMPANY PONTOON RAFT VESSEL,
Cross-Complainants and Cross-Defendants,

v.

SOUTHWEST MARINE OF SAMOA, INC., Cross-Defendant and
Cross-Complainant.

High Court of American Samoa
Trial Division

CA No. 41-92

March 22,1994

__________

[1] Summary judgment is appropriate where the pleadings and supporting papers show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. T.C.R.C.P.56. In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party. and draw from such evidence the inferences most favorable to that party. [25ASR2d172]

[2] If the proof in support of a motion for summary judgment has a high degree of credibility , the opponent must produce convincing proof to warrant denial of the motion.

[3] For summary judgment purposes, party must provide a minimum level of convincing proof when faced with opposing party's credible and convincing evidence.

[4] No novel obligation to protect others' vessels when faced with an act of God.

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

Counsel: For Plaintiffs, Charles V. Ala'ilima
For Defendant and Third-Party Plaintiff South West Marine of
Samoa, Inc. and Defendant Southwest Marine Crane Barge,
Robert A. Dennison III, Mary Cox and Marshall Ashley
For Defendants, Cross-Complainants and Cross-Defendants
McConnell Dowell Company and McConnell Dowell
Company Pontoon Raft Vessel, and Third-Party Defendants
StarKist Samoa, Inc. and StarKist Foods, Inc., Roy J.D. Hall, Jr.
For Third-Party Defendant American Samoa Government,
Cheryl A. Quadlander, Assistant Attorney General

Order Denying Motion for Reconsideration of Summary Judgments:

On October 25, 1993 this court issued its order granting the motions for summary judgments brought by defendants SouthWest Marine of Samoa, Inc., McConnell Dowell Company and McConnell Dowell Company Pontoon Raft Vessel. Plaintiffs' motion for reconsideration came regularly for hearing on November 22, 1993, at which plaintiffs asserted that the court made a number of errors in granting the summary judgment motions. We will address them in turn.

[1-2] Plaintiffs begin by submitting that the court did not apply the correct standard of review. Sumn1ary judgment is appropriate where the pleadings and supporting papers show "that there is no genuine issue as to any materia] fact and that the moving party is entitled to judgment as a matter of law." T.C.R.C.P .56. In ruling on such a motion, the court must view all pleadings and supporting papers in the light most favorable to the opposing party, United States v. Diebold, 369 U.S. 654 (1962), treat the opposing party's evidence as true, and draw from such evidence the inferences most favorable to that party. Lokan v. Lokan, 6 A.S.R.2d [25ASR2d173] 44, 45 (1987). However, as the court stated in its order: "[I]f the proof in support of the motion. ..has a high degree of credibility the opponent must produce convincing proof." Order Granting Motions for Summary Judgment at 4, citing WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE, §§ 2727 at 143 (2d ed. 1983).

This standard has been articulated by the Supreme Court in what is commonly referred to as the Celotex trilogy. These cases stand for the proposition that an inadequate showing cannot defeat a moving party's competent motion for summary judgment. In Celotex Corp. v. Catrett, 91 L.Ed.2d 265, 275 (1986) (a wrongful de;}th action), the court stated " ...the burden on the moving party may be discharged by. .. pointing out. ..that there is an absence of evidence to support the nonmoving party's case." In Anderson v. Liberty Lobby, 91 L.Ed.2d 202, 212 (1986) (public figure libel action), the court defined a genuine issue of dispute as one in which " ...a reasonable jury could return a verdict for the nonmoving party. " The court elaborated: " As (cites omitted) indicate, there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is not significantly probative, summary judgment may be granted." (cites omitted). And in Matsushita Elec. Ind. v. Zenith Radio, 89 L.Ed.2d 538, 552 (1986) (antitrust conspiracy case), the court stated: "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial'." (citing First National Bank of Arizona v. Cities Service, 20 L.Ed.2d 569 (1968)).

Since the Celotex trilogy, the above standard has been used throughout the federal system. See Cal. Arch. Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466 (9th Cir. 1987) (RICO action); In Re Agricultural Research and Technology Group, 916 F.2d 528 (9th Cir. 1990) (bankruptcy action); Stitt v. Williams, 919 F.2d 516 (9th Cir. 1990) (RICO action). The standard elaborated herein is the correct one applied by the court. It remains one the plaintiffs simply fail to meet.

Defendants submitted affidavits, depositions and data of high credibility in support of their motions for summary judgment. The burden was then on the plaintiffs to offer convincing proof sufficient to create a factual dispute. This is the burden that has not been met. Plaintiffs have only offered unsubstantiated assertions and the single affidavit of Silia Patane. As the court stated in its order, a nonmoving party's single affidavit, if inadequate, may be insufficient opposition. Order Granting Motions for [25ASR2d174] Summary Judgment at 4, citing Ashwell & Company v. Transamerica Insurance Company, 407 F.2d 762 (7th Cir. 1956).

Plaintiffs also assert that the court made a number of specific errors in its order. First, plaintiffs claim that the court erred in characterizing Hurricane Val as extraordinary and unexpected, as the evidence shows hurricanes are not unusual in the territory .This line of reasoning suffers from the same flaw previously mentioned by the court. While defendants have advanced evidence supporting the characterization of this hurricane as an act of God, plaintiffs have countered this argument with nothing more than denials. These denials, however forceful, do not automatically entitle plaintiffs to a full trial on the merits.

[3] Plaintiffs also take issue with the court's characterization of Patane's affidavit. The real issue here is that, faced with defendants credible and convincing evidence, plaintiffs needed to provide a minimum level of convincing proof. The court did not disregard plaintiffs' offering, nor did it summarily decide the case on the merits. Instead, the court searched for a minimum threshold offering by plaintiffs that has not been met. Plaintiffs' arguments to the contrary are without merit.

[4] Finally, plaintiffs assert that the court's order summarily determines the standard upon which it based its decision, without a clear rationale for that standard. What the court said was that, when faced with an act of God (a characterization, we again note, not seriously disputed by plaintiffs), defendants do not have a novel obligation to protect others' vessels.

For the reasons stated herein, plaintiffs' motion for reconsideration is hereby denied.

It is so ordered.

**********

Bryant v. Southwest Marine of Samoa, Inc.,


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

v.

SOUTHWEST MARINE OF SAMOA, INC., VESSEL
SOUTHWEST MARINE CRANE BARGE, Its Engines, Tackle
and Gear, MCCONNELL DOWELL COMPANY, MCCONNELL
DOWELL COMPANY PONTOON RAFT VESSEL, Its Engines,
Tackle and Gear, and DOES I-XX, Defendants

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

v.

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

MCCONNELL DOWELL COMPANY and MCCONNELL
DOWELL COMPANY PONTOON RAFT VESSEL,
Cross-Complainants and Cross-Defendants

v.

SOUTHWEST MARINE OF SAMOA, INC., Cross-Defendant and
Cross-Complainant

High Court of American Samoa
Trial Division

CA No. 41-92

October 25, 1993

__________

[1] An act of God need not be unprecedented in a particular locality, if the event is extraordinary and unexpected.

[2] As non-moving parties, plaintiffs cannot prevail on a motion for summary judgement merely by asserting that a genuine issue exists for trial. Plaintiffs are not entitled to a trial upon the unsubstantiated hope that they can produce such evidence at trial. [25ASR2d19]

[3] T.C.R.C.P. Rule 56(e) states clearly that "affidavits shall be made on personal knowledge, ...[containing] facts as would be admissible..., and shall show affirmatively that the witness is competent to testify to the matters therein. Evidence necessary to defeat a motion for summary judgment may depend on the quality of the moving party's offering. If the proof in support of the motion has a high degree of credibility the opponent must produce convincing proof.

[4] A non-moving party's single affidavit, if inadequate, may be insufficient opposition.

[5] No novel obligation exists to protect another's boats in the face of an act of God.

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

Counsel: For Plaintiffs, Charles V. Ala'ilima
For Defendant and Third-Party Plaintiff Southwest Marine of
Samoa, Inc. and Defendant Southwest Marine Crane Barge,
Robert A. Dennison III, Mary Cox
For Third-Party Defendants StarKist Samoa, Inc. and
StarKist Foods, Inc., Roy J.D. Hall, Jr.
For Third-Party Defendant American Samoa Government,
Assistant Attorney General Cheryl A. Quadlander

Order Granting Motions for Summary Judgment:

This matter is now before the court on the motions for summary judgment by defendant SouthWest Marine of Samoa, Inc. ("SWM"), and defendants McConnell Dowell Company ("MDC") and McConnell Dowell Company Pontoon Raft Vessel ("MDC Pontoon Raft").

[1] Both motions are based primarily upon the defense of act of God. This defense is not available in the aftermath of every natural occurrence, but is reserved for occasions rising to the level of an unexpected natural catastrophe. While plaintiffs have correctly pointed out that American Samoa has experienced damaging hurricanes in the past, that fact alone does not exclude Hurricane Val, the central event underlying this action, from being an act of God. An act of God need not be unprecedented in a particular locality, if the event is extraordinary and unexpected. As SWM correctly points out, Hurricane Val was a storm fitting Schoenbaum's definition of an act of God as a natural event "catastrophic enough as to triumph over safeguards usually [employed] by skillful and vigilant seamen" (SWM brief, p. 11). [25ASR2d20]

[2] Plaintiffs' response failed to advance any counterarguments directly disputing the characterization of Hurricane Val as an act of God. Instead, plaintiffs rely on the fact that the Fiji Meteorological Service bulletin (Tropical Cyclone Report 91/2) may be subject to correction. However, plaintiffs have not indicated where the bulletin may be mistaken, or even if they plan to challenge the bulletin at a later date. As non-moving parties, plaintiffs cannot prevail on this contention merely by asserting that a genuine issue exists for trial. Plaintiffs are not entitled to a trial upon the "unsubstantiated hope that [they] can produce such evidence at trial." Chapman v. Rudd Paint &Varnish Co., 409 F.2d 635, 643 (9th Cir. 1969).

[3] Plaintiffs also urge that the reasonableness of precautions employed by SWM, MDC and MDC Pontoon Raft is a genuine issue of fact, despite the characterization of Hurricane Val as an act of God and as a proximate cause of their damage. In this respect, plaintiffs advanced only Silila Patene's affidavit to create an issue of fact. T.C.R.C.P .Rule 56(e) states clearly that "affidavits shall be made on personal knowledge, ...[containing] facts as would be admissible. .., and shall show affirmatively that the witness is competent to testify to the matters therein." Evidence necessary to defeat a motion for summary judgment may depend on the quality of the moving party's offering. Thus, "if the proof in support of the motion. ..has a high degree of credibility the opponent must produce convincing proof." See, Wright, et al., Federal Practice and Procedure, § 2727 at 143 (2d ed. 1983).

[4] A non-moving party's single affidavit, if inadequate, may be insufficient opposition. Ashwell & Company, Inc., v. Transamerica Insurance Company, 407 F.2d 762 (7th Cir. 1969). Patane's affidavit is inadequate, and cannot defeat the evidence amply presented by the moving parties. His affidavit contradicts his own, earlier deposition testimony. Even on Patane's version of the facts, SWM, MDC and MDC Pontoon Raft are entitled to prevail. He does not dispute the characterization of Hurricane Val as an act of God. He does not assert that such a characterization, in fact, still made the actions of any or all of the defendants unreasonable, or that they should have anticipated an act of God. Patane only states that hurricanes are not uncommon in the territory , and that the tying up of the crane barge was inadequate as such.

[5] SWM, MDC and MDC Pontoon Raft were under no legal obligation to the longline fishing vessels moored at SWM's facility. They do not have a novel obligation to protect another's boats in the face of an act of [25ASR2d21] God. They did not possess particular information regarding docking conditions, about which they were obliged to inform plaintiffs. Contrary to plaintiffs' assumption, an act of God defense does not per se require this court to conduct a further in-depth review of the situation.

For the reasons discussed above, the motions for summary judgments are granted. This decision necessarily extends to Korea Wonyang Fisheries Co., Ltd., Korean Tuna Ventures, S.A., StarKist Samoa, Inc., StarKist Foods, Inc., and the American Samoa Government. Therefore, all causes of action are dismissed with prejudice.

It is so ordered.

*********

Blue Pacific Mgmt. Corp.; Paisano’s Corp. v.


PAISANO'S CORPORATION and JAMES STEPHENS,
Appellants

v.

BLUE PACIFIC MANAGEMENT CORP., Appellee

High Court of American Samoa
Appellate Division

AP No. 6-93

December 7, 1993

__________

[1] A judgment of the Trial Division remains in the jurisdiction of the Trial Division, and attempts to enforce the judgment should be made at the trial level, not in the Appellate Division.

Before RICHMOND, Associate Justice.

Counsel: For Appellants, Roy J.D, Hall, Jr.
For Appellee, William H. Reardon

Order Directing Motion for Order in Aid of Judgment to Trial Division: [25ASR2d76]

Appellee's motion for an order in aid of judgment came regularly for hearing on July 6, 1993. Both appellants and appellee appeared by counsel.

[1] The motion is improperly before the Appellate Division of the High Court of American Samoa. Once jurisdiction over a matter is within the province of a court, that jurisdiction continues to be in force regarding judgments arising out of the litigation. As stated in State v. Pritchard, 138 N.E.2d 233, 235 (Ind. 1956): "It is well established that once a court acquires jurisdiction over parties, the jurisdiction continues until the final disposition of the litigation including the enforcement of the judgment or decree." In Central National Bank v. Stevens, 169 US 432, 459 (1898), the Supreme Court noted: "It is a doctrine of law too long established to require a citation of authorities, that, where a court has jurisdiction, it has a right to decide every question which occurs in the cause . . . ." This authority clearly extends to enforcing judgment, and removing obstacles to that judgment. Akers v. Stephenson, S.W.2d 704, 706 (Ky 1970).

This motion rightfully belongs in the province of the Trial Division. Therefore, without expressing an opinion on the merits, this motion is hereby directed to the Trial Division for further proceedings.

It is so ordered.

***********

American Samoa Gov’t v. Mata'u,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

SIONE MATA'U, Defendant

The District Court of American Samoa

TR No. 137217

March 16, 1994

__________

[1] It is beyond dispute that a stop of a motor vehicle at a check point or roadblock is a seizure within the meaning of the 4th Amendment. The precise issue for the Court to decide in such cases is whether or not the seizure is unreasonable, and therefore, prohibited.

[2] D.U.I. roadblocks advance a legitimate government interest with minimal intrusions upon the rights of the motoring public.

[3] The U .S. Supreme Court did not expressly require identical procedures as those set forth in Michigan State Police v. Sitz to insure the constitutionality of a D.U.I. roadblock. Local procedures which were substantially similar were sufficient.

[4] Judicial review proceeds from the determination of whether the seizure was reasonable, considering. and balancing the government's compelling interest in protecting the motoring public from alcohol related traffic accidents, with the individual's constitutional right to be free from unreasonable seizures. [25ASR2d153]

Before District Court Judge WARD

Opinion:

This matter came on regularly before the Court on 11th of March 1994, upon Defendant's Motion To Suppress Evidence.

The Court heard testimony from the arresting officer, Officer Fuifatu and his supervisor, Inspector Mika Kelemete. At issue was whether or not the D.U.I. roadblocks conducted by the Department of Public Safety during the Christmas 1993, and New Years Holidays were in violation of the 4th Amendment search and seizure provisions.

The testimony from the police officers may be summarized as follows: The Christmas and New Years Day roadblocks were publicized in advance in the two local newspapers of the Territory .The roadblocks were at 3 locations and conducted from 6:00 p.m. to 6:00 a.m. , as ordered in writing by the Commissioner of Public Safety. The locations were selected based upon public safety, officer safety, and space requirements. Each location was duly marked with traffic cones, reflectors, flashing lights and additional lighting provided by A.S.P.A., all officers were in uniform and the roadblocks conducted according to written procedures.

Every vehicle passing the roadblock was stopped and its driver briefly questioned by an officer. On average, such stops took 20 seconds each. In those instances where the driver, based upon the reasonable suspicion of the interviewing officer, was directed off the roadway for subsequent investigation by other uniformed officers, that investigation proceeded in the same fashion as a traffic stop. Driver's license and registration were required to be produced and, if during that process the Officer had reasonable grounds to proceed, field sobriety tests were conducted. The failure of which lead to an arrest for D.U.I. (A.S.C.A. § 22.0707).

In the 1993-1994, Holiday Season, no fatal traffic accidents related to alcohol were recorded. The roadblocks averaged 15% of the drivers passing through being arrested for D.U.I. In previous years when roadblocks were not in force alcohol related traffic fatalities in the Holiday season totaled three in 1991 and one in 1992.

Defendant contends that the 4th Amendment to the U.S. Constitution prohibits D.U.I. roadblocks as unreasonable, warrantless seizures unless the government has followed all of the procedures set forth in Michigan [25ASR2d154] State Police v. Sitz, 496 U .S. 44, 110 S. Ct 2481, 110 L. Ed.2d 412 (1990). The Government argues that only those procedures necessary to demonstrate that such seizures are not unreasonable, considering all of the circumstances, are required, and the Government has met that burden in the instant case.

DISCUSSION AND OPINION

[1] It is beyond dispute that a stop of a motor vehicle at a check point or roadblock is a seizure within the meaning of the 4th Amendment. The precise issue for the Court to decide in such cases is whether or not the seizure is unreasonable, and therefore, prohibited.

In the instant case, by either a subjective or objective measure, the intrusion upon the freedoms of the motoring public was slight. Most drivers passed through the roadblock in a brief period, the average interview taking 20 seconds. The questioning also appeared to the of low intensity - the Officers explaining the purpose of the roadblock and advising drivers to drive safety.

Although the Executive Branch, not the Court, had the authority to decide between alternative law enforcement approaches, the Court notes in passing that a 15% D.U.I. offense rate of drivers stopped at the roadblock, does provide empirical evidence in support of the roadblock as an effective tool in promoting highway safety.

[2] The D.U.I. roadblock advanced a legitimate government interest with minimal intrusions upon the rights of the motoring public. Its effectiveness is borne out by the arrest rate and the decline in alcohol-related traffic accidents and fatalities. The procedures leading up to, and at, the roadblock demonstrate it was safety and uniformly conducted.

[3-4] Although not all of the procedures used by the Michigan State Police, (see Michigan State Police v. Sitz, supra), were used in the instant matter, there were substantial similarities in the local procedures utilized for the D.U.I. Roadblock. The Court notes, however, that the U .S .Supreme Court did not expressly require identical procedures be used in all roadblock or checkpoint situations. Judicial review proceeds from the determination of whether the seizure was reasonable, considering, and balancing the government's compelling interest in protecting the motoring public from alcohol related traffic accidents, with the individual's constitutional right to be free from unreasonable seizures. [25ASR2d155]

The D.U.I. roadblock conducted by the Department of Public Safety was not prohibited by the 4th Amendment, Evidence obtained pursuant to this roadblock will not be suppressed solely because it was obtained as a result of the D.U,I. Roadblock. (1)

The motion is denied.

It is so ordered.

*********

1. The other cases affected by this decision are: UTC# 137339 (Junior Mageo): UTC# 136889 (Susana Correia); and UTC# 135723 (Tofi Taimanini).

American Samoa Gov’t v. Leoso,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

ANTONIO MAOTA FOMAI LEOSO, Defendant

High Court of American Samoa
Trial Division

CR No. 26-93

December 29, 1993

__________

[1] In deciding whether to issue a search warrant based on a confidential informant's information, a magistrate makes a practical, common-sense decision as to whether all the circumstances set forth in the supporting affidavit provide a substantial basis that probable cause exists.

[2] A finding of probable cause is to be given great deference on review, because of the strong constitutional preference that searches be authorized by warrants.

[3] In determining whether probable cause exists, for purposes of issuing a search warrant, a totality of circumstances test is used. A confidential informant's veracity and his basis of knowledge are weighed as two elements in the totality of circumstances analysis, but not as two independent tests which must be separately satisfied. A deficiency in one of these two elements may be compensated for by a strong showing as to the other, or by some other indicia of reliability.

[4] An otherwise insufficient statement by an informant can support the issuance of a search warrant if the police have corroborating evidence. Corroborating evidence is unnecessary if the informant's credibility and basis for knowledge are sufficient.

[5] In determining whether information is too stale to establish probable cause supporting the issuance of a search warrant, the court considers the nature of the criminal activity, the length of the activity, and the nature of the property to be seized.

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

Counsel: For Plaintiff, Fainu'ulelei L.F. Ala'ilima-Utu, Assistant Attorney General
For Defendant, William H. Reardon

Order Denying Motion to Suppress Evidence:

On October 1, 1993, defendant filed his motion to suppress evidence obtained during the execution of a search warrant issued by the district [25ASR2d104] court judge on July 20, 1993. A hearing on this motion was held on November 15, 1993.

[1-2] In deciding whether to issue a search warrant based on a confidential informant's information, a magistrate makes "a practical, common-sense decision" whether all the circumstances set forth in the supporting affidavit provide a "substantial basis" that probable cause exists. Illinois v. Gates, 462 U.S. 213, 238-39, 76 L. Ed. 2d 527, 548 (1983); Massachusetts v. Upton, 466 U.S. 727, 732-33, 80 L. Ed. 2d 721, 727 (1984); American Samoa Gov't. v. Lam Yuen, 13 A.S.R.2d 49, 51 (Trial Div. 1989). A finding of probable cause is to be given "great deference" on review, because of the "strong preference" that, under the Fourth Amendment to the U.S. Constitution, police conduct searches pursuant to a warrant. Gates, 462 U.S. at 236, 76 L. Ed. 2d at 547; Upton, 466 U.S. at 733, 80 L. Ed. 2d at 727. The wording of the Fourth Amendment is repeated verbatim in the first sentence of Article I, section 5 of the Revised Constitution of American Samoa.

[3] In determining probable cause, a "totality of circumstances" approach is used. A confidential informant's "veracity" or "reliability" and his "basis of knowledge" are weighed as two elements in the "totality of circumstances" analysis but not as two independent tests which must be separately satisfied. As such, "a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Gates, 462 U.S. at 233, 76 L. Ed. 2d at 545. Thus, information given by a highly reliable informant can support probable cause, even if he fails to thoroughly set forth the basis for his knowledge. Likewise, information given by an informant with questionable motives can be sufficient if he gives a detailed description based on a claimed first-hand observation. Id.

[4] Furthermore, an otherwise insufficient statement by an informant can support the issuance of a search warrant if the police have corroborating evidence. Id. at 241-42, 76 L. Ed. 2d at 550; Lam Yuen, 13 A.S.R.2d at 50. Contrary to the defense position in this case and in Lam Yuen, though, corroborating evidence is not necessary if the informant's credibility and basis of knowledge are sufficient. See Lam Yuen, 13 A.S.R.2d at 50-51 (citing Upton, 466 U.S. at 730-31, 80 L. Ed. 2d at 725-26).

[5] Applying the "totality of circumstances" analysis, the search warrant executed against defendant and his family was supported by sufficient evidence. In his affidavit, the police officer stated that he knew the confidential informant, who was knowledgeable about marijuana and had [25ASR2d105] provided, on two occasions in the past, accurate information leading to arrests for felony narcotic offenses and seizure of narcotic paraphanalia. The informant said his knowledge was based on observations during several personal visits to defendant's residence over a period of some three years, beginning in 1990. In October 1991, the informant visited defendant's residence and saw 30 to 40 marijuana plants growing within the boundaries of a 15-foot high, wooden fence attached to back of the house and covered with a black fishing net. He also purchased four bags of suspected marijuana for $100. The police tested samples from this purchase, which proved positive for THC (the active ingredient in marijuana). During the last visit, in June 1993, the informant stated that he saw defendant and his family selling marijuana and observed about 40 marijuana plants growing in the same fenced-off area. The informant also described the sales procedure in detail. As for the timeliness of the facts supporting the search warrant, determining "whether information is too stale to establish probable cause depends on the nature of the criminal activity, the length of the activity, and the nature of the property to be seized." United States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986). Here, the criminal activity was ongoing, and the marijuana was being cultivated rather than merely possessed or distributed. This information, as a whole, constituted probable cause for issuance of the search warrant.

A defendant challenging the validity of a search warrant must overcome the deference which is to be given to a magistrate's finding of probable cause. The defendant has failed to show that the district court judge's finding of probable cause lacked a sufficient basis in the evidence. Therefore, defendant's motion to suppress evidence is denied.

It is so ordered.

**********

American Samoa Gov’t; Crispin v.


PETER CRISPIN and HENRY JAMIESON, Appellants

v.

AMERICAN SAMOA GOVERNMENT, Appellee

High Court of American Samoa
Appellate Division

AP No. 10-92

November 11,1993

__________

[1] Negligence of a landowner or occupant is not a substantial factor proximately causing harm, if harm would have occurred anyway, despite the negligence of the landowner or occupant.

[2] The question of whether a litigant's conduct was a substantial factor is for the trial court to determine unless testimony is so undisputed and uncontradictory that reasonable men could not differ.

Before KRUSE, Chief Justice, CAN BY, Acting Associate Justice, MUNSON, Acting Associate Justice, VAIVAO, Associate Judge, MAILO, Associate Judge.

Counsel: For Appellants, Roy J.D. Hall, Jr.
For Appellee, Cheryl Quadlander, Assistant Attorney General

KRUSE, Chief Justice [25ASR2d50]

In this case strong winds blew over a government shed, sending its roof onto a motorboat co-owned by appellants and parked near appellant Crispins' place of business located in the Industrial Park at Tafuna. As a result, the motorboat was damaged, and appellants sued the government, alleging negligent construction of the shed as being the proximate cause of that damage.

[1] The trial court, while noting that the shed was of inferior quality, found that its construction met minimum applicable building-code requirements and therefore concluded that the government was not negligent. At the same time, the trial court also found that even a reasonably constructed shed, of the type in question, "probably would not have repelled hurricane winds in excess of 80 to 90 miles per hour" and that "[r]ecorded Hurricane Ofa winds reached 88.5 miles per hour in velocity at or about the time the shed's roof was blown onto plaintiffs' motorboat." Slip op. at 12. In these circumstances, the court decided that the shed's construction was not a "substantial factor" in bringing about appellants' damage, citing to RESTATEMENT (SECOND) OF TORTS § 432(1) for the proposition that "[n]egligence of the landowner or land occupier is not a substantial factor proximately causing harm if harm would have occurred despite the negligence of the landowner or land occupier." Rather, the lower court concluded, "Hurricane Ofa was the legal proximate cause of plaintiffs' property damage." Slip op. at 13.

[2] Appellants contend that the trial court's conclusion of no negligence was erroneous, in that it was premised on the outmoded 1964 Uniform Building Code, since replaced by the post-Ofa adoption of the 1988 Uniform Building Code. Appellant submits that the heightened requirements of the later version of the Uniform Building Code set or established the applicable standard of reasonableness and that those requirements were known to appropriate government officials at all relevant times. Additionally, appellants contend that the trial court's finding that damage would have occurred even without negligence 011 the government's part was the product of "conjecture." To this end, appellants argue that the court must necessarily have assumed that the day's strongest wind gusts caused the shed's roof to be blown off, when there was no testimony to that effect. Appellants further argue that the trial court was unduly influenced by irrelevant testimony as to damage occurring in the vicinity later on in the day.

The question whether the defendant's conduct was a "substantial factor" in producing harm to plaintiff is one for the fact-finder to determine, unless the testimony is so undisputed and uncontradictory that reasonable [25ASR2d51] men could not differ. RESTATEMENT (SECOND) OF TORTS, § 434, see Comment c. From our review of the record below, we arc satisfied that the evidence sufficiently permits one reasonably to draw the conclusion that damage would have occurred regardless of any negligence by the government. The testimony regarding damage occurring later in the day was hardly irrelevant, as the court was attempting to determine whether proximate cause was or would have been the hurricane. Additionally, the court also looked at damage occurring at approximately the same time as the event in question. Furthermore, the testimony alluded to considerable other damage in the Tafuna Industrial Park area, and nothing on the record suggests that these other structures were also minimally constructed.

The trial court's conclusion as to causation is amply supported, and as long as reasonable people could differ on the facts as presented below, the decision of the fact-finder should not be disturbed. We affirm.

It is so ordered.

**********

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

**Honorable Alex R. Munson, Chief Judge, United States Court of Appeal for the Ninth Circuit, serving by designation by the Secretary of the Interior.

American Samoa Gov’t v. Berry,


AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

JOHN BERRY aka JOHN ROE, Defendant.

The District Court of American Samoa

TR No. 131687

March 16, 1994

__________

[1] A motorist stopped by a traffic officer may be detained briefly by that Officer. upon a reasonable belief that the driver was under the influence, until a qualified officer may be summoned by radio to administer field sobriety tests.

[2] A person who was pursued for a traffic offense by a police officer, apprehended, identified, and taken into custody by another officer, taken to the Police Station, and subsequently administered field sobriety tests and then arrested for D.U.I. could not have been legally arrested at the Police Station.

[3] Under A.S.C.A. § 22.0803 an officer at the scene of an accident must conduct a personal investigation, and upon reasonable and grounds to believe a misdemeanor traffic offense, (or infraction), has occurred, issue a traffic citation.

[4] A.S.C.A. § 22.0803 autllorizes an investigating officer to view the accident scene and follow any driver involved therein who is receiving medical treatment and, if reasonable grounds exist, to issue that driver a traffic citation.

[5] Only a valid arrest for D.U.I. invokes the implied consent to chemical testing under A.S.C.A. § 22.0601 et. seq.

[6] A.S.C.A. § 22.0803 does not apply to felonies. [25ASR2d150]

[7] Under A.S.C.A. § 22.0708 the injury to any person resulting from the operation of a motor vehicle by a person under the influence of intoxicating liquor creates a felony offense.

[8] Officers may upon reasonable grounds, arrest persons found near the scene of a felony within a short time after its commission.

Before District Court Judge WARD

This matter came on regularly before the Court on March 11, 1994, on Plaintiff's Motion to Suppress Evidence.

The Court heard testimony from Sgt. Mikaele and Officer Fuifatu. The Defendant also gave limited testimony on the extent of his injuries.

The essential facts are as follows: Sgt. Mikaele came upon Defendant's vehicle in a ditch near Vaitogi. Defendant was injured, (a cut above his eye), and Sgt. Mikaele radioed the O.M.V. substation and the E.M.S. that Defendant would be transported to the O.M.V. substation for treatment. After being treated by the E.M.S. at the O.M.V. and after Sgt. Mikaele had left, field sobriety tests were conducted by Officer Fuifatu. Upon Defendant's failure to pass these tests, Defendant was subjected to a breathalizer test after being arrested for driving under the influence.

At some later time in the evening, Defendant and his family members were allowed to push his vehicle out of the ditch. This is, at ]east, what the Court understood to be Officer Fuifatu's testimony. Also, at some point after the arrest, Officer Fuifatu inspected the accident scene, most likely at the time the vehicle was removed from the ditch.

The issue before the Court is whether the arrest for D.U.I. was valid.

[1-2] By way of discussion the Court notes that Officer Fuifatu has information from Sgt. Mikaele that Defendant's vehicle was involved in an accident and that Defendant was injured by that accident. As this Court has previously ruled, a motorist stopped by a traffic officer may be detained briefly by that Officer, upon a reasonable belief that the driver was under the influence, until a qualified officer may be summoned by radio to administer field sobriety tests. This Court has also previously ruled that a person who was pursued for a traffic offense by a police officer, apprehended, identified, and taken into custody by another officer, taken to the Police Station, and subsequently 150 administered field sobriety tests and then arrested for D.U.I. could not have been legally arrested at the Police Station.

The instant case appears to fall precisely midway between the Court's prior rulings. This Defendant was in the custody of the police and at the police sub-station when the field sobriety tests were administered. Yet, Sgt. Mikaele was not qualified to administer field sobriety tests and upon first procuring medical attention for the Defendant, turned him over to Officer Fuifatu for further investigation. Counsel have argued that the previous rulings of this Court support their respective positions on the validity of this arrest. Indeed, both are equally correct in that regard.

[3] This case is different, however, since it involves a motor vehicle accident. The Legislature has specifically set forth its requirements for a valid arrest of a driver involved in an accident under A.S.C.A. § 22.0803. The requirements are that an officer at the scene of an accident must conduct a personal investigation, and upon reasonable and grounds to believe a misdemeanor traffic offense, (or infraction), has occurred, issue a traffic citation.

[4] This Court has interpreted this statute as authorizing an investigating officer to view the accident scene and follow any driver involved therein who is receiving medical treatment and, if reasonable grounds exist, to issue that driver a traffic citation.

[5] In the present case only the sequence of the arrest is at odds with the statute. Officer Fuifatu viewed the accident scene after, not before issuing the traffic citation. In a case not involving personal injury caused by a traffic accident, this sequence would likely prove fatal to the validity of the arrest. And, only a valid arrest for D.U.I. invokes the implied consent to chemical testing under A.S.C.A. § 22.0601 et. seq.

[6-8] Yet A.S.C.A. § 22.0803 does not apply to felonies. Under 22.0708 A.S.C.A. the injury to any person resulting from the operation of a motor vehicle by a person under the influence of intoxicating liquor creates a felony offense. Officers may upon reasonable grounds, arrest persons found near the scene of a felony within a short time after its commission, A.S.C.A. § 46.0805(3).

Under all of the circumstances, Defendant's arrest for driving under the influence was valid. The breathalizer results are therefore admissible as evidence lawfully obtained. [25ASR2d152]

As a logical consequence of this decision, the Court is compelled, however, to dismiss, without prejudice, UTC#131687. The validity of the arrest being predicated upon a felony having been committed, A.S.C.A. § 22.0803 does not authorize a uniform traffic citation to serve as a valid summons, complaint, and affidavit for initiating or sustaining a criminal action. See A.S.C.A. §§ 22.0801, 22.0803, and 22.0810(d).

Nothing prevents the government from refiling a summons, complaint and affidavit in this matter, but uniform traffic citation #131687, issued in violation of A.S.C.A. § 22.0803, can not sustain the present action.

It is so ordered.

*********

Alofipo; Moananu v.


MOANANU VA, Appellant

v.

PAULO ALOFIPO, Appellee

High Court of American Samoa
Appellate Division
[25ASR2d38]

AP No. 5-92

November 15, 1993

__________

[1] A trial court's determination of negligence is reviewed under the "clearly erroneous" standard, not by a de novo re-weighing of the evidence at the appellate level. The test for clear error is not whether a dissatisfied litigant has presented evidence of superior evidentiary support to sustain his version of the facts, but whether the trial court's findings are substantially supported.

Before KRUSE, Chief Justice, CANBY,* Acting Associate Justice, MUNSON,** Acting Associate Justice, VAIVAO, Associatc Judgc, LOGOAI, Associate Judge.

Counsel: For Appellant, Gata E. Gurr
For Appellee, Charles V. Ala'ilima

KRUSE, Chief Justice

This matter involves a vehicle-pedestrian collision that occurred on the morning of May 2, 1989. The trial court found the driver/appellant, Moananu Va, 75% negligent and the pedestrian/appellee, Paulo Alofipo, 25% negligent. Among other things, the court found "that the defendant was inattentive to plaintiff's presence on the road until it was too late to take effective evasive action" and that plaintiff was "jogg[ing] on the right side of the road with his back turned to oncoming traffic." CA No. 32-91, slip op. at 5 (Trial Div. March 25, 1992). The court concluded that both defendant and plaintiff were in breach of certain traffic statutes relating to the general duty of care required of drivers and of pedestrians, respectively. The court accordingly apportioned damages and awarded plaintiff $12,018.

Moananu contends that the evidence was inadequate to sustain the lower court's finding of negligence on his part. He has submitted his own version of the facts, which he claims has superior "evidentiary support." [25ASR2d39]

[1] Appellant appears to be arguing for a re-weighing of the evidence presented at trial. The trial court's determination of negligence is reviewed under the "clearly erroneous" standard. Saufo'i v. American Samoa Government, 19 A.S.R.2d 54, 56-57 (App. Div. 1991). The test for clear error is not whether a dissatisfied litigant has presented evidence of superior evidentiary support, to sustain his version of the facts, but whether the trial court's findings are Substantially supported. Moea'i v. Alai'a, 12 A.S.R.2d 91, 93 (App. Div. 1989). Unless the trial court's factual determinations are clearly not supported on the record, "[i]t is not within the province of the appellate court to reweigh the evidence and interfere with a decision based on the lower court's choice of one version of the facts over another. Utuutuvanu v, Mataituli, 12 A.S.R.2d 88, 90 (App. Div. 1989); see also Leituala v. Faleafine, 9 A,S.R.2d 16 (App. Div. 1988). Here, the trial court's resolution of the negligence issue was not clearly erroneous. To the contrary, it is well supported on the record and, therefore, may not be disturbed on appeal.

Moananu's second assignment of error is that damages are excessive in the light of previous awards in similar cases. Again, the standard of review is clear error, A.S.C.A. § 43.0801(b), and the trial court's decision on damages is not to be upset unless it is clearly unsupported by the evidence. Kim v. Star-Kist Samoa, 8 A.S.R.2d 146, 151 (App. Div. 1988). Having regard to the evidence bearing on plaintiffs injuries and resultant pall and suffering, we cannot say that the award below is not supported on the record. We affirm.

It is so ordered.

**********

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

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

Ale v. Peter E. Reid Stevedoring, Inc.,


SANELE ALE, Appellant

v.

PETER E. REID STEVEDORING, INC., SIATU'U FA'ASIU and
NATIONAL PACIFIC INSURANCE CO., LTD, Appellees

High Court of American Samoa
Appellate Division

AP No. 10-93

March 1, 1994

__________

[1] Pain and suffering resulting from conversion reaction. or physical symptoms resulting from the psychological trauma of an actual injury, are compensable in tort.

[2] To recover for symptoms resulting from conversion reaction, a victim must establish that the negligence of the defendant is the proximate cause of the symptoms.

[3] A plaintiff bears the burden to prove that, more likely than not. the defendant's conduct is the proximate cause of the relevant injury. The trial court has the duty to make definite findings as to causation. [25ASR2d143]

Before RICHMOND, Associate Justice, CANBY,* Acting Associate Justice, MUNSON,**

Acting Associate Justice, VAIVAO, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Appellant, Jill W. Crew
For Appellees, Roy J.D. Hall, Jr.

RICHMOND, Judge:

On December 19, 1989, appellant Sanele Ale ("Ale") was struck by a pickup truck while working as a security officer in the American Samoa Government's dock area. The truck was driven by appellee Siatu'u Fa'asiu ("Fa'asiu"), an employee of appellee Peter E. Reid Stevedoring, Inc. ("Reid Stevedoring"), during the regular course of his employment.

In its opinion issued May 7, 1993, the trial court found that Fa'asiu, by then deceased, was negligent in the operation of the pickup truck. Reid Stevedoring, under the doctrine of respondeat superior, was found vicariously liable for damages arising as a result of Fa'asiu's negligence. The trial court found that Ale, as a result of the accident, had sustained three fractured ribs on his left side and suffered lung contusion. The court awarded damages for these injuries, inclusive of medical expenses, at $25,000. The court, however, found in appellees' favor as to Ale's claimed injuries of debilitating weakness and sensory loss on his left side. It is this aspect of the trial court's findings that Ale now challenges.

[1-2] The type of injury that Ale seeks compensation for is what is most commonly known as a conversion reaction, although other descriptive terms are frequently used. This type of injury occurs when an individual suffers a particularly traumatic and unusual event. Following the incident, by days or months, the person "converts" the mental and emotional anguish into physical symptoms. Therefore, while the physical aspects of a conversion reaction are real, their origin lies in the individual's psychological make-up. These reactions are generally held to be compensable, as both parties to this appeal agree, particularly when coupled with a physical injury. In this case, the trial court has already established Fa`asiu's negligence. The questions remaining on this appeal [25ASR2d144] are whether or not Ale did indeed exhibit a conversion reaction, and, if he did, whether or not the accident was its proximate cause.

From this court's review of the record, medical reports and counsel's briefs, it appears that Ale did indeed exhibit symptoms of physical injury after the accident in addition to his three fractured ribs and lung contusion. The physicians that examined Ale at the LBJ Tropical Medical Center after the accident noted motor deficiencies in Ale's left side and recommended off-island follow-up to determine the cause of this weakness.(1) Ale was subsequently examined by three additional physicians during off-island treatment in Hawaii.(2) Although these doctors, who represent a variety of medical specialties, did not agree on many aspects of Ale's injuries, they did observe varying levels of sensory loss and weakness on his left side.

Lastly, Ale was examined by a seventh physician, Dr. Aloimoa Anesi, who definitively noted both Ale's weakness and sensory loss. Dr. Anesi testified at trial that these symptoms were part of Ale's conversion reaction. While the reports of the other doctors, who did not testify at trial, did not wholeheartedly support Dr. Anesi's conclusions, none positively ruled out this possibility. Therefore, the trial court was faced with ample evidence of Ale's physical symptoms and evidence that he either had, or may have had, a conversion reaction. The court could only find that the proffered evidence clearly established the existence of Ale's physical symptoms.(3) [25ASR2d145]

[3] We turn now to the question of causation. As stated by the trial court, the burden of proof in this regard lies with Ale, who must establish a reasonable basis for the conclusion that Fa`asiu's conduct was, more likely than not, the cause-in-fact of the injury (Decision and Opinion issued May 7, 1993 at 2, citing Prosser and Keeton on Torts, § 41 at 269 (5th ed. 1984)). In light of our holding that the trial court was obliged to find definite evidence of Ale's symptoms of weakness and sensory loss (regardless, for the moment, of their origin) we examine the issue of causation in that light.

Ale submitted that he was in fine health prior to the accident, and that he had never before experienced the symptoms at issues. While Ale's testimony, in this regard, appears to be uncontroverted, there is dispute as to his level of health prior to the accident. About seven months prior to the accident, Ale was involved in an altercation with some youths in Pago Pago, after which he received medical treatment. While Ale submitted that he had fully recovered from this incident prior to the accident, appellees implied that the head injuries received during this earlier incident contributed to the symptoms now being exhibited. This dispute was left unresolved by the trial court.

The parties also differed as to the issue, if any, of Ale's malingering. Ale submitted that he was a faithful worker who had never malingered. Appellees noted Ale's varying levels of weakness, as shown by medical tests, and his contradictory responses to questions by medical personnel. This issue, another aspect of causation, was also left unresolved at the trial level.

The third aspect of causation is evinced by the testimony and written reports of the physicians who examined Ale prior to trial. In this regard, Ale relied heavily on Dr. Anesi's testimony that, without qualification, Ale's symptoms were the result of the accident. Dr. Anesi also testified that the written reports submitted by other physicians documented real problems and were consistent with his own evaluation. Appellees, in [25ASR2d146] turn, submitted that the medical reports were inconclusive and incomplete and that Dr. Anesi's testimony did not itself establish a causal link. At trial, the court found that it would be "pure conjecture" to attempt to conclude whether or not the accident was the cause of Ale's symptoms.

Examining the parties respective submissions and the holding at trial, this court is unable to rule on the causal connection between Ale's demonstrated symptoms and the accident. This is an issue that needs to be examined in greater depth, most appropriately at the trial level. Both parties would then have the opportunity to submit further evidence and briefs on the extent of Ale's symptoms and the possible causal connection between the accident and Ale's symptoms of weakness and sensory loss on his left side.

Accordingly, the trial court's decision is hereby remanded for further proceedings consistent with this opinion.

It is so ordered.

**********

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

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

3. While none of the three LBJ physicians was sure as to the extent or cause of Ale's injuries all agreed that he did exhibit sensory loss and weakness on his left side. Dr. Te'ariki No'ovao noted that further evaluation was necessary and that Ale's grip strength was weak. Dr. Ronald Vinyard, while stating that there was no physical explanation, noted symptoms of motor and sensory deficiencies. Dr. Victor Williams, whose findings were only available to the court via another doctor's summary, found he was unable to diagnose without speculation.

4. Dr. Michael Okihiro noted complete sensory loss on Ale's left side, with no neurological correlates. Dr. Clyde Ishii found Ale's grip and muscle strength weak and concluded that Ale might be "... suffering from a conversion type of reaction ...". Dr. Ishii recommended further testing by Dr. Robert Marvit. Dr. Marvit viewed the majority of Ale's symptoms as products of Ale's own perceptions, and noted weakness in Ale's left side.

5. Although the opinion of the trial court does not definitively state whether or not it felt Ale had established the existence of his physical symptoms, its decision alludes to the existence of those symptoms. It is true that, on page 2 of the trial transcript, the court states that the dispute was over Ale's claims that his weakness was a result of the accident, while appellees claimed that it was a result of malingering. But on pages 8-9 of the transcript, the trial court, seemingly assuming the existence of Ale's symptoms, wonders only at their cause (conversion reaction, malingering or some combination). On page 10, the trial court states that "... we find the weight of medical opinion ... to preponderate in favor of a non-organic explanation to plaintiff's symptoms". Therefore, we can conclude from the trial court's own statements, taken together with the available medical evidence, that the trial court did indeed find that Ale had some undetermined level of weakness and sensory loss on his left side.

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


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

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, Defendants,

High Court of American Samoa
Trial Division

CA No. 92-93

December 20, 1993

__________

[1] Federal FICA applies to any employment performed within the U.S. or outside the U.S. if performed by U.S. citizens or residents, pursuant to 26 U.S.C. § 3121(b), and applies specifically to American Samoa, pursuant to 26 U.S.C. § 3121(e). [25ASR2d98]

[2] Federal laws need not be passed by the American Samoa legislature, since Congress has the constitutional power to make rules and regulations for the territories, pursuant to U .S, Const. art. VI, and the federal Constitution and laws are the supreme law of the land, pursuant to U .S. Const. art. IV, § 3.

[3] American Samoa's constitution was promulgated under the authority of Congress and the President of the United States, as delegated to the Secretary of the Interior. Revised Const. of American Samoa, Preamble and art. V, § II (1967).

[4] Under the Deeds of Cession between the chiefs of Eastern Samoa and the United States, all vestiges of sovereignty passed from former to the latter.

[5] The High Court lacks jurisdiction to block enforcement of federal tax laws.

[6] The High Court lacks jurisdiction to grant relief for unauthorized tax collection by the IRS, since such actions must be brought in a district court of the United States, pursuant to 26 U .S.C. § 7433(a).

[7] American Samoans may litigate unauthorized tax collections in the federal district could where the defendant resides, where a substantial part of the claim arose, or where 3 substantial part of the relevant property is situated.

[8] Appeals of the High Court's decisions are accomplished by suing the Secretary of the Interior in his official residence in Washington, D.C.

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

Counsel: Plaintiff Alamoana S. Mulitauaopele, Pro Se
For Defendant American Samoa Government,
Chery A. Quadlander, Assistant Attorney General
For Defendants William A. Melendez, Internal Revenue Service
and Department of the Interior, Thomas J. Sawyer, Trial
Attorney, U.S. Department of Justice

Order on Motions to Dismiss:

PROCEDURAL HISTORY

On October 26, 1993, defendant American Samoa Government filed its motion to dismiss. Defendants Melendez, Internal Revenue Service, and Department of the Interior filed their motion to dismiss on November l9, 1993. A hearing on ASG's motion, scheduled on November 22, 1993, was continued to permit both motions to be heard on December 17, 1993. [25ASR2d99]

FICA'S APPLICATION TO AMERICA SAMOA

[1] As noted in the "Opinion and Order Denying Petition for Temporary Restraining Order," FICA applies to any employment performed within the U.S. or outside the U.S. if performed by U.S. citizens or residents. 6 U.S.C. § 3121(b). For purposes of the FICA chapter, Congress explicitly defined "state" and "United States" to include American Samoa. 26 U.S.C. § 3121(e). As such, employers and employees in American Samoa must pay the mandated Social Security taxes.

[2] Furthermore, plaintiff Mulitauaopele's argument that the federal laws must be passed by the American Samoa legislature in order to be effective in the territory is clearly wrong. The Supremacy Clause declares that "[t]his Constitution, and the laws of the United States which all be made in Pursuance thereof. ..shall be the supreme Law of the Land." U.S. Const. art. VI. Furthermore, "Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property of the United States." U.S. Const. Art. IV, § 3.

[4] Likewise, American Samoa's constitution itself proclaims that it as promulgated under the authority of Congress and the President of the United States, as delegated to the Secretary of the Interior. Revised Const. of American Samoa Preamble and Art. V, § 11 (1967); see 48 U.S.C. § 1662(a) ("Amendments of, or modifications to, the constitution of American Samoa, as approved by the Secretary of the Interior. .. may be made only by Act of Congress."). Under the Deeds of Cession between the chiefs of Eastern Samoa and the United States, all vestiges of sovereignty passed from the former to the latter. See 48 U .S.C. §§ 661, 1662; Cession of Tutuila and Aunu'u, April 17, 1900, A.S.C.A., Historical Docs. & Consts.; Cession of Manu'a Islands, July 14, 1904, U.S.C.A., Historical Docs. & Consts.; Bell v. Commissioner, 278 F.2d 100, 102 (4th Cir. 1960) ("rulers of Samoa ceded absolutely all rights of sovereignty over these islands to the United States"); Vessel Pacific Princess v. Trial Division of the High Court of American Samoa, 2 A.S.R.2d 21, 23 (App. Div. 1984) ("American Samoa is still legally governed by executive fiat and administered by the Secretary of the Interior"). Thus, Social Security taxes may be collected without the Fono's approval.

JURISDICTION AND VENUE
[25ASR2d100]

[5] Plaintiff Mulitauaopele has once more requested a temporary restraining order and an injunction barring enforcement of the FICA assessment. He also seeks damages for alleged injury resulting from his business' closure. However, the High Court is powerless to grant the desired relief, even if proper .

First, as this court observed in denying a temporary restraining order, the prohibitions of the Anti-Injunction Act are comprehensive. This statute states that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." 26 U.S.C. § 7421(a) (emphasis added); see Enochs v. Williams Packing & Navigation, 370 U.S. 1, 5, 8 L. Ed. 2d 292,295 (1962). Thus, the High Court lacks jurisdiction to block enforcement of federal tax laws.

[6] Second, the High Court lacks jurisdiction over plaintiff's request for money damages. Although Congress has authorized suits to collect damages for "unauthorized collection actions" by the Internal Revenue Service, these suits must be brought in a "district court of the United States." 26 U .S.C. § 7433(a). However, the High Court is not a U.S. "district court," nor has it been given the authority to act as a district court for purposes of this statute. This conclusion is supported by the fact that Congress explicitly named American Samoa in a number of places in the tax code (including the definitions of "state" and "United States") but did not do so when it mentioned "district courts." This situation is similar to that of the High Court's admiralty jurisdiction, in which the High Court is not a "district court" for purposes of the federal Limitation of Liability Act but has been given the authority to act as one for purposes of the federal preferred mortgage lien statute. Compare In re Complaint of Interocean Ships, Inc., 2 A.S.R.2d 76, 79 (App. Div. 1985) (no jurisdiction under Limitation of Liability Act, 46 U .S.C. § 185) with United Airlines Employees' Credit Union v. M/V Sans End, 15 A.S.R.2d 95, 100 (Trial Div. 1990) (46 U.S.C. § 31301(2)(E) defines the High Court as a "district court" for the purposes of enforcing preferred mortgage liens under 46 U.S.C., Chapter 313). In any event, plaintiff has not shown that he has exhausted his administrative remedies, and the request for damages exceeds the $100,000 statutory limitation. See 26 U.S.C. § 7433(b), (d)(1).

[7-8] If plaintiff was denied any opportunity for review by a federal court created under Article III, serious constitutional problems could arise. See Guam v. Olsen, 431 U.S. 195, 204, 52 L. Ed. 2d 250, 258 (1977) (denying appellate review of territorial-court decisions by Article III courts "might present constitutional questions"); King v. Morton, 520 [25ASR2d101] F.2d 1140, 1144 (D.C. Cir. 1975) ("availability of remedies in the Samoan courts [to persons challenging actions of United States Government officials] ...cannot act as a complete bar to district court proceedings "). A rational basis, though, may exist to justify Congress' failure to provide for direct review by an Article III court. Corporation of the Presiding Bishop of the Church of Jesus Christ of the Latter-Day Saints v. Hodel, 830 F.2d 374, 386 (D.C. Cir. 1987). So while the High Court lacks jurisdiction in this case, plaintiff is not precluded from litigating in a federal district court.

Regarding civil suits against an officer or agency of the United States, the federal venue statute reads as follows:

A civil action in which a defendant is an officer or employee of
the United States or any agency thereof acting in his official
capacity or under color of legal authority, or an agency of the
United States, or the United States, may, except as otherwise
provided by law, be brought in any judicial district in which (1)
a defendant in the action resides, (2) a substantial part of the
events or omissions giving rise to the claim occurred or a substantial
part of property that is the subject of the action is situated, or (3)
the plaintiff resides if no real property is involved in the action.

28 U.S.C. § 1391(e); see generally Annotation, Construction and Application of 28 USC § 1391 (e) Providing for Venue and Process in Civil Actions Against Federal Officers, Employees, or Agencies, 9 A.L.R. Fed. 719 (1971 & supp. 1990); 1 MOORE'S FEDERAL PRACTICE ¶ 0.142[7] (1985). Under this provision, proper venue could at least be established under subsection (1) .While such a forum may not be convenient, it is no more so than appeals of the High Court's decisions in federal court, which is accomplished by suing the Secretary of the Interior in his official residence in Washington, D.C. See King, 520 F.2d at 1144 ("Secretary [of the Interior] is within the geographical jurisdiction of the United States District Court for the District of Columbia"); Presiding Bishop, 637 F. Supp. at 1416 ("litigants in [25ASR2d102] American Samoa may obtain review in this Court via the mechanism of suing the Secretary of the Interior"). (1)

CONCLUSION

First, Congress has mandated that Social Security taxes be assessed in American Samoa. The absence of approval by the Fono is irrelevant. Second, the High Court lacks jurisdiction to enjoin the collection of FICA or to hear a suit for damages resulting from unauthorized collection actions. Therefore, defendants' motions to dismiss are granted.

It is so ordered.

**********

1. Nevertheless. the absence of a court which can handle all federal matters arising in American Samoa has not only led to great inconvenience to plaintiffs and defendants but has also resulted in confusion as to the High Court's jurisdiction over questions of federal law. The piecemeal approach of giving the High Court authority to act as a federal district court for the purposes of specific laws has also been shown to be unsatisfactory. See Pacific Princess, 2 A.S.R.2d at 24 (Gardner, C.J., concurring) ("lack of access by the residents of this territory to a court with federal jurisdiction is troublesome"); Interocean Ships, 2 A.S.R.2d at 81-82 (Murphy, Acting C.J., concurring) (lack of access to a federal court is probably the "result of Congressional oversight").
The current jurisdictional and forum problems again bespeak the need for revisiting the question of access to the federal courts. However, in the absence of territorial initiative, Congressional attention will continue to remain uncertain, while American Samoan litigants are left having to look to the federal courts located some 7 ,500 miles away) in Washington D.C., in order to avail themselves of their federal remedial rights.

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


ALAMOANA RECIPE INC., a Corporation, and ALAMOANA S.
MULITAUAOPELE, Appellants

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, Appellees

High Court of American Samoa
Appellate Division

AP No.18-93

November 15, 1993

__________

[1] Although A.C.R. Rule 8(a) contemplates that an application for a stay of execution pending appeal must ordinarily be made in the first instance to the trial court, a hearing at the appellate level was granted in this case in view of the immediate availability of a full appellate panel.

[2] The Federal Anti-Injunction Act prevents the High Court, at any level, from restraining the assessment of collection of any federal tax. 26 U.S.C. §§ 876, 7421 (a).

[3] The Federal Anti-Injunction Act is applicable to temporary , as well as permanent pleas for injunctive relief.

[4] Trial court decisions regarding temporary restraining orders are appealable only when evident risk of harm cannot be corrected by the preliminary injunction review, or when the decisions are effectively final dispositions of the case.

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

Counsel: For Appellants, Alamoana S. Mulitauaopele, Pro Se [25ASR2d47]
For Appellees, Cheryl A. Quadlander, Assistant Attorney General,
and Thomas J. Sawyer, Trial Attorney, Tax Division, U.S. Department of Justice

RICHMOND, Judge:

[1] On November 9, 1993, appellants filed a motion for a stay of execution pending appeal of the Trial Division's denial of a temporary restraining order. Appellants requested an expedited hearing. A.C.R. Rule 8(a) contemplates that an application for a stay must ordinarily be made in the first instance to the trial court. However, in view of the immediate availability of a full panel of judges for Appellate Division proceedings, an expedited hearing was granted and held on November 10, 1993, to entertain the motion.

This action concerns the assessment and collection of taxes imposed on employers and employees, in support of the federal Social Security program, under the Federal Insurance Contributions Act ("FICA"). It was filed by appellants on September 14, 1993, to obtain injunctive and monetary relief. In essence, appellants sought immediate release of existing levies on assets and permanent prevention of further such levies and closure of their business by appellees, in connection with assessment and collection of FICA taxes. They also claimed both compensatory and punitive damages with respect to these enforcement actions.

The Trial Division denied appellants' application for a temporary restraining order on September 16, 1993, and their motion for reconsideration of this denial on October 29, 1993. On November 9, 1993, appellants appealed these decisions and applied for a stay of execution, in effect an injunction during the pendency of appeal under A.C.R. Rule 8(a), to release existing levies and enjoin further levies.

[2] Two factors are dispositive of appellants' motion and this appeal. First, the federal Anti-Injunction Act prohibits this court from restraining the assessment or collection of any federal tax. 26 U.S.C.A. § 7421(a). This limitation is applicable to the High Court of American Samoa. 26 U.S.C.A. § 876.

[3] In no event, due to the Anti-Injunction Act, can either the Trial Division or the Appellate Division grant the temporary injunctive relief sought by appellants. The Anti-Injunction Act was enacted to allow, with very narrow exceptions inapplicable to this case, "...the United States to assess and collect taxes alleged to be due without judicial intervention..." J.L. Enochs v. Williams Packing and Navigation Co., Inc., 8 L. Ed.2d 292, 296 (1962), reh den8 L. Ed.2d 833 (1962). The Act is applicable to temporary, as well as permanent, pleas for injunctive relief. Sipkoff v. Whinston, 354 F. Supp. 683 (1973). We cannot deal with any risk of harm pending a final decision in this case.

[4] Second, the Trial Division holdings at issue are not appealable. These decisions only relate to a temporary restraining order, which by nature is based on an incomplete hearing process, is short-lived, and is subject to review at the hearing on the concurrent preliminary injunction request. A.S.C.A. §§ 43.1304 and 43.1305(a). Decisions on temporary restraining orders are only appealable when the evident risk of harm cannot be corrected by the preliminary injunction review, or when the decisions are effectively final dispositions of the case. See Wright, et al., Federal Civil Practice and Procedure, § 3914.3 at 522 (2d Ed. 1992).

Clearly, the Trial Division's decisions are not a final disposition. Such a decision will not occur, at the earliest, unless and until the Trial Division grants appellee American Samoa Government's pending motion to dismiss for lack of jurisdiction. The other appellees have not yet joined in that motion, but they may do so before the hearing on it, scheduled for 9:00 a.m., on November 22, 1993.

We can understand appellants' perspective regarding the harshness of appellee United States Internal Revenue Service's FICA tax assessment and collection procedures in American Samoa. Apparently, this activity is managed by the Internal Revenue Service office at Hato Rey, Puerto Rico. Sheer distance, mail service delays, and lack of locally-maintained federal tax records and locally-stationed tax personnel, as examples, certainly can contribute to frustrating and unsatisfactory personal contacts and poor communications. Forums within the federal judiciary for such matters are inconveniently located.

However, under the restraint of the Anti-Injunction Act and given the nonappealability of the decisions at issue, appellants motion must be denied. Furthermore, this appeal must be dismissed, and the case must be remanded to the Trial Division to continue with the proceedings properly pending in that court.

It is so ordered.

**********

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

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

Ala'ilima v. Zoning Board,


CHARLES V. ALA'ILIMA and JAMES McGUIRE, Appellants

v.

ZONING BOARD, Appellee
and
OTTOVILLE DEVELOPMENT CORP., Appellee/Intervenor

High Court of American Samoa
Appellate Division

AP No. 4-91

March 8, 1994

__________

[1] A stay of zoning variance entered by stipulation will be lifted where a third-party intervenes, in order to return the parties to the status quo. Any party remains free to seek a new stay of variance. [25ASR2d147]

[2] Court orders entered pursuant to a stipulation of the parties, without the benefit of factual evaluation, may be vacated when a third party intervenes and a factual evaluation is necessary.

[3] Appeals of Zoning Board decisions proceed in like manner to appeals under the Administrative Procedures Act, in that the administrative record must be submitted within 30 days and the court is confined to that record, though it may receive evidence to supplement the record.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, WARD,* Acting Associate Justice, TAUANU'U, Chief Associate Judge, and BETHAM, Associate Judge.

Counsel: For Appellant James McGuire, Reginald E. Gates
For Appellee, Douglas J. Juergens, Assistant Attorney General
For Appellee/Intervenor, Roy J.D. Hall, Jr.

Order on Motions to Dismiss or in the Alternative to Dissolve Stay:

DISCUSSION

I. Procedural History

On May 3, 1991, appellants James McGuire and Charles Ala'ilima and appellee Zoning Board stipulated to a stay of the zoning variance granted to the Ottoville Development Corporation (hereinafter ODC) on February 14, 1991. This court granted O DC ' s motion to intervene on December 6, 1993, and the order was filed on January 26, 1994. Appellant Ala'ilima entered into a stipulation to dismiss as to himself with appellee Zoning Board and appellee/intervenor ODC on February 2, 1994.

Appellee/intervenor ODC then filed its "Motion to Dismiss or in the Alternative to Post a Bond " on February 7, 1994. Along with its motion to dismiss, ODC also requested that this court dissolve the stay of the variance. Appellant McGuire filed his memorandum in opposition on March 2, 1994. Appellee Zoning Board filed its response and "Motion for Summary Judgment and Support Memorandum " on the morning of March 3, 1994, just before a hearing on the parties' motions.

II. Motion to Dissolve Stay [25ASR2d148]

[1] Appellee/intervenor ODC's motion to dissolve the stay of the zoning variance is granted. At the time appellant McGuire and appellee Zoning Board stipulated to the stay, ODC was not a party to this lawsuit. However, this court later granted ODC's request to intervene because ODC had sought and obtained the zoning variance for its project. By dissolving the stay, which was stipulated to without ODC's consent, this court is merely returning the parties to the status quo ante. Of course, any of the parties remains free to seek another stay of the variance.

[2] Furthermore, due to the stipulation, this court never made a factual evaluation in determining whether and on what conditions to grant a stay of the variance. See A.C.R. 18; see also A.S.C.A. § 4.1041(b) ("the court may order[] a stay on appropriate terms"). Dissolving the stay permits this court to properly evaluate any future requests for a stay.

III. Motion to Dismiss

On the other hand, a number of issues deserving the court's attention have been raised in the parties' memoranda. For this reason, dismissal of this action is inappropriate. In light of the existing factual disputes, appellee Zoning Board's motion for summary judgment is also inappropriate.

IV. Absence of the Agency's Record

[3] Appeals of the Zoning Board's decisions proceed "in like manner" to appeals under the Administrative Procedure Act. A.S.C.A. § 26.0341 (citing A.S.C.A. §§ 4.1040-4.1044). Within 30 days from the service of the petition for appellate review, an agency is to send the court the record of the agency's proceedings in the matter under review. A.S.C.A. § 4.1042; A.C.R. 17(a). Indeed, appellate review is confined to the agency's record, though the court may receive evidence to supplement the record. A.S.C.A. § 4.1043(a); see A.C.R. 16(a). Thus, the statute presupposes that a record has been filed with the court. However, no record of the hearing on the request for the variance has been received by this court. Before the Zoning Board's actions in this matter can be reviewed, it must transmit the record of the proceedings to the court.

CONCLUSION

Therefore, appellee/intervenor ODC's motion to dissolve the stay of the zoning variance is granted, though its motion to dismiss is denied. [25ASR2d149] Likewise, appellee Zoning Board's motion for summary judgment is denied.

This matter concerning the zoning variance has languished without much activity by the parties. With an eye toward moving this process along, this court sets a hearing on the appeal for April 29, 1994.

It is so ordered.

*********

*Honorable John L. Ward, II, Judge, District Court of American Samoa, serving hy designation of the Secretary of the Interior.

Afemata v. Pasa,


PEMASA AFEMATA, for himself and on behalf of the
AFEMATA FAMILY, Plaintiffs,

v.

FAGA PASA, Defendant.

High Court of American Samoa
Land and Titles Division

LT No. 24-92

February 8, 1994
[25ASR2d133]

__________

[1] While hearsay evidence of family histories and traditions is admissible in communal land disputes, such evidence must always be viewed with caution.

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

Counsel: For Plaintiffs, Afoa L. Su`esu`e Lutu
For Defendant, Charles V. Ala`ilima

Opinion and Order:

Plaintiff Pemasa Afemata ("Afemata") brought this action, for himself and the Afemata family, to permanently enjoin defendant Faga Pasa ("Faga") from constructing a house on certain land in the Village of Alao, American Samoa.

The court approved the parties' stipulation to permit construction of the house and to let the court decide after trial whether the house would remain or be removed from the land. The parties were also mutually enjoined from interfering or harassing each other. However, certain persons allegedly interfered with Faga's survey. One, Taua Efi ("Taua"), was then joined as a necessary party. He agreed to allow the survey to continue. He failed to defend, though, and trial proceeded without his participation.

Trial began on September 29, 1993, and testimony was concluded on September 30, 1993. Afemata and Faga were personally present with counsel on both days. The parties were advised that the court desired to inspect the land and surrounding area. This was done on December 8, 1993.

Alao is located at the eastern end of the Island of Tutuila. Its principally populated part is situated along the ocean shoreline. The disputed Faga house is located westward, north and east of streams flowing from the nearby mountains, in a small, inland valley. The area south and west of the streams rises steeply within a short distance. The area is accessed from the east by a dirt road beginning in populated Alao and ending at an undisputed Afemata family house. As the road reaches the area, it connects with another dirt road leading to a house occupied by a daughter of Faga and her family. The disputed Faga house is located near this intersection towards the stream at the south end of the area. [25ASR2d134]

The boundaries of Afemata's survey of 1.2364 acres, more or less, which the American Samoa Government approved for registration on September 21, 1992, encompasses the Afemata house and disputed Faga house and runs through Faga's daughter's house. The boundaries of Faga's survey of 0.5385 acres, more or less, which the Government approved for registration on September 29, 1993, generally follow the streams at the south and west ends of the land and parallel, a short distance below, the road to the Afemata house along the north side. The eastern boundaries are substantially the same in both surveys. The two surveys create a triangular-shaped overlap below the Afemata house, enclosing the disputed Faga house and a portion of Faga's daughter's house.

[1] Considerable hearsay testimony was offered, not only by Afemata and Faga, but also by Taua family members, other than Taua himself, on the long-term historical use of the disputed land and nearby surrounding area. Other Alao elders contributed their memories as well. By its detail, Faga's discourse on these matters was the most impressive of these recitations. However, while hearsay evidence of family histories and traditions is admissable in communal land disputes, such evidence must always be viewed with caution. See Tupuola v. Moali`itele, 1 A.S.R.2d 80, 81 (App. Div. 1983).

In this case, when compared to each other, these historical compilations standing alone were essentially inconclusive. The three families, Afemata, Faga and Taua, have long occupied and used this general area, and each family has apparently included the area of the disputed house within its domain at one time or another. Agreements have been reached and modified on their families' respective rights in the area. The three families are also interrelated by marriages. Additionally, family members have left and returned. We can not definitely discern from this evidence alone rights ripening into title to the land under and immediately surrounding the house at issue. Rather, these histories do indicate confusion and misunderstanding among living family members and others about the persons who, in the past, worked the land and what authority permitted them to do so.

Faga's history is corroborated by recent, actual occupancy and use of land immediately adjacent to the disputed house. Unquestionably, Faga's family has been there continuously since at least 1982, without strenuous objection by Afemata and without any objection by Taua. Faga's daughter's house, now potentially bisected, is there. Construction of this house began in 1982 and was completed in 1984. It also consists of the [25ASR2d135] primitive road leading to this house and cultivation by the Faga family.

During 1982, Faga pointed out to another Afemata the boundary between the Afemata and Faga lands, as was shown to Faga by his father and is depicted in Faga's survey. Afemata disputed this second Afemata's authority to accede to this demonstration. Afemata stated that he was invested with the Afemata title in 1974 and that the second Afemata, who died in 1984, was unregistered and recognized by the family solely to handle family affairs but not to enter land agreements, except with his consent, during his extended, medical absences from American Samoa. He further stated that while away he learned of the Faga family's presence on the land but knew nothing of the boundary discussion with the second Afemata until the time of trial. However, Afemata waited until he returned, after the house was built, to raise the issue with Faga, at which time he claimed to have agreed to let this house remain. From his perspective, Faga continued with unauthorized uses, such as the house now in dispute, whenever he was absent, and the present litigation became necessary.

We are unpersuaded by Afemata's effort to establish that the Faga family's presence on the land was by his sufferance. We are convinced that their presence corroborates Faga's history of the land and was by right of title.

The physical features of the area further corroborate the Faga family's history of the title to the land. Development of the land west and south of the streams is restricted by the steeply ascending rise of the mountains. The area east and north of the streams is relatively level and large enough to accommodate useage by the Afemata, Faga and Taua families. We are satisfied that these natural characteristics were recognized by the three families long ago when they mutually established areas for each family's use.

We conclude that the Faga house in dispute is on the Faga family's communal land. This house shall remain on the land as Faga property.

It is so ordered.

**********

 

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