27ASR2d

27ASR2d

Nunu v. Nunu,


LUCY NUNU, Petitioner

v.

TOAIVA NUNU, Respondent

High Court of American Samoa
Trial Division

DR No. 73-94

March 10, 1995

__________

[1] An application for a stay of proceedings pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940 will not be granted merely because the applicant is in the military or at a particular duty station. 50 U.S.C.A. App. § 501et. seq.

[2] To deny an application for a stay of proceedings pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940, the court must reach the opinion that the applicant will not be prejudiced by his military service. 50 U.S.C.A. App. § 501 et. seq.

[3] In exercising our discretion as to whether or not to grant a stay under the Soldiers' and Sailors' Civil Relief Act of 1940, the court is not required to make explicit factual findings, nor to assign a rigid burden of proof. 50 U.S.C.A. App. § 501 et. seq.

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

Counsel: For Petitioner, Asaua Fuimaono
For Respondent, pro se

Order for Relief Pendente Lite and on Motion to Stay:

INTRODUCTION
[27ASR2d147]

Petitioner Lucy Nunu filed for divorce against Respondent Toaiva Nunu on November 2, 1994, praying for, among other things, child support in the amount of $300 monthly per child and alimony of $500 monthly. Subsequently, petitioner filed an affidavit with the High Court on January 11, 1995, claiming that she had received no monetary support from her husband for two months. The parties' three minor children are within the jurisdiction of this court.

On January 12, 1995, respondent filed an affidavit stating that he was stationed in Okinawa, Japan pursuant to his duties as a member of the United States Armed Forces, and that his duties and the cost of travel prevented him from obtaining leave to attend proceedings in this court. Accordingly, respondent requests a stay of proceedings under the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A. App. § 501 et. seq. ("the Act").

DISCUSSION

The Act applies to all territories, including American Samoa, pursuant to the Act § 512(1). A stay may be obtained pursuant to the Act § 521, which reads:

At any stage thereof any action or proceeding in any court in
which a person in military service is involved, either as plaintiff
or defendant, during the period of such service or within sixty
days thereafter may, in the discretion of the court in which it is
pending, on its own motion, and shall on application to it by
such person or some person on his behalf, be stayed as provided
in this Act, unless in the opinion of the court, the ability of plaintiff
to prosecute the action or the defendant to conduct his defense
is not materially affected by reason of his military service.

(emphasis added). The language of the foregoing provision seems to indicate that the court is given full "discretion" whether to grant a stay "on its own motion," but when the defendant applies for the stay, the court must grant it unless the court believes that military service will not materially affect the defense. Gates v. Gates, 28 S.E.2d 108, 112 (Ga. 1943). On this ground, we could potentially deny the request for a stay as a matter of discretion, since respondent requested that the court stay the proceedings "on its own motion," rather than by application of respondent. Although the nature of respondent's request is not entirely clear, we will give him the benefit of the doubt and [27ASR2d148] measure his request as though he were applying for the stay.

[1-2] In the precedent setting case of Boone v. Lightener, 319 U.S. 561, 565 (1942), the U.S. Supreme Court held that the Act does not require a stay merely on a showing that the applicant is in the military or at a particular duty station. See also Gross v. Williams, 149 F.2d 84, 86 (8th Cir. 1945); Miller v. Miller, 156 P.2d 931, 933 (Cal. 1935). To deny an application for a stay of proceedings pursuant to the Act, the court must reach the opinion that the applicant will not be prejudiced by his military service. Boone, 319 U.S. at 571; Miller, 156 P.2d at 933. If the stay is to be granted, the court must be able to infer that the service member has a debatable legal defense which he or she will be materially impaired in presenting because of military status. Holtzman's Furniture Store v. Schrapf, 39 So.2d 450, 452 (La. 1949).

If military service does not prevent the respondent from being present and doing all that can be done in his defense, the trial court does not abuse its discretion in denying a motion for a stay under the Act. Boone, 319 U.S. at 572. It is also expected that the respondent "make some move to get leave to be present." Id.; see also Graves v. Bednar, 95 N.W.2d 123, 127 (Neb. 1959); Cadieux v. Cadieux, 75 So.2d 700, 703 (Fla. 1954); In re Stromberg's Adoption, 58 N.E.2d 88, 90 (Ohio 1944). Even where the respondent is unable to be present, the court may decide that his absence is not materially prejudicial to his defense and proceed anyway. Cadieux, 75 So.2d at 703. Although absence when one's rights or liabilities are being adjudged is usually prima facie prejudicial, military absence is not an excuse to put the protections of the Act to unworthy use. Boone, 319 U.S. at 575; Smith v. Smith, 149 S.E.2d 468, 470 (Ga. 1966).

[3] In exercising our discretion as to whether or not to grant a stay, we are not required to make explicit factual findings, nor to assign a rigid burden of proof. Boone, 319 U.S. at 569-71; Gates, 28 S.E.2d at 112. Instead, the court has discretion to call for whatever factual information it deems necessary to reach a fair decision. Boone, 319 U.S. at 570; Gates, 28 S.E.2d at 113. If, based on this material, we embrace the opinion that respondent's ability to defend himself is not affected by military service, we have discretion to deny the petition for a stay. Boone, 319 U.S. at 571.

In the present case, respondent filed an affidavit asserting his presence in Okinawa, Japan "until January, 1995." It is now March 1995, and [27ASR2d149] the parties' children have, according to petitioner, recently received letters from respondent postmarked in Hawaii. Not knowing the circumstances of respondent's military assignment, his present location, whether or not he has applied for leave, and his reasons for desiring to be present at proceedings, we are not comfortable concluding that respondent would or would not be prejudiced by a denial of the stay. Accordingly, we order respondent to appraise this court, within fourteen (14) days of receiving notice of this order, of: (1) whether he is presently on active duty; (2) what and where his present assignment is; (3) whether or not at any time he has applied for leave to attend the proceedings; and (3) any other information tending to demonstrate that his present military assignment materially affects his ability to defend himself in this action.

Regardless of whether or not we grant respondent's motion for a stay under the Act, petitioner will remain his legal wife until a divorce is final and, accordingly, she will be entitled to spousal support during that time. Ahrens v. Ahrens, 185 S.W.2d 694, 695-96 (Ky. 1945) (awarding alimony during a stay granted under the Act). Similarly, respondent's children will remain his children regardless of the divorce, and respondent will continue to bear a support burden for them until they reach the age of majority. Id. at 695. Accordingly, and on the evidence received regarding recent allotments arranged by respondent on behalf of petitioner and the minor children, the respondent is further ordered to pay to petitioner the sum of $300 per month in spousal support, and $300 per month for each of his children, a monthly total of $1200, until the matter of the divorce is adjudicated in a final judgment.

It is so ordered.

*********

Ninna Marianne; Mobile Marine Ltd. v.


MOBILE MARINE LIMITED, DAVID BELL, and PETER
BRENTON, Plaintiffs

v.

NINNA MARIANNE, its fish, cargo, freight, equipment, engines,
mast, boats, anchors, cables, chains, rigging, its engines, tackle,
furniture and all other necessaries appertaining to the vessel,
Defendant in Rem,

and

ARNE BJORCK and ROSE MARIE BJORCK, Defendants in
Personam

High Court of American Samoa
Trial Division

CA 29-95

March 3, 1995

__________

[1] No maritime lien need be present for admiralty jurisdiction to attach in an action for partition, to try title, for possession of cargo, or by part owners attempting to secure the return of their vessel. T.C.R.C.P. Supp. Rule D.

[2] The tort of conversion is a long-standing basis for admiralty jurisdiction.

Before RICHMOND, Associate Justice, VAIVAO, Associate Judge, and [27ASR2d144] LOGOAI, Associate Judge.

Counsel: For Plaintiffs, Brian M. Thompson
For Defendants, Togiola T.A. Tulafono

Order Denying Motion to Dismiss:

BACKGROUND

This motion to dismiss arises from a dispute regarding the vessel Ninna Marianne ("vessel"). Plaintiffs allege partial ownership of the vessel and the right to share in profits earned through its use. Plaintiffs further claim that Arne and Rose Marie Bjorck ("defendants") failed to communicate with plaintiffs while the vessel was at sea, intended to sell fish cargo for cash to deprive plaintiffs of the proceeds, and intended to take the vessel to their native Sweden rather than returning it to New Zealand. A warrant issued for the arrest of the vessel on March 7, 1995.

On March 8, 1995, defendants filed this motion to dismiss the complaint in rem and quash the arrest warrant for lack of subject matter jurisdiction, T.C.R.C.P. 12(b)(1), and failure to state a claim upon which relief can be granted, T.C.R.C.P. 12(b)(6). The motion came regularly for hearing on March 24, 1995 with counsel for both parties present.

DISCUSSION

Defendants' argument for dismissal is based on the theory that no maritime lien exists, and can be reduced to two essential arguments: (1) defendants own the subject vessel; or alternatively (2) the owner of a vessel cannot have a maritime lien against that vessel.

Both of these concerns are put to rest by T.C.R.C.P. Supplemental Rule D, which reads:

In all actions for possession, partition, and to try title maintainable
according to the course of admiralty practice with respect to
a vessel, in all actions so maintainable with respect to the
possession of cargo and other maritime property, and in all
actions by one or more part owners against the others to obtain
security for the return of the vessel from any voyage undertaken
without their consent, or by one or more part owners against
the others to obtain possession of the vessel for any voyage
on giving security for its safe return, the process shall be by
warrant of arrest for the vessel, [27ASR2d145] cargo, or
other property, and by notice in the manner provided by Rule
B(2) to the adverse party or parties.

(emphasis added). T.C.R.C.P. Supplemental Rule D mirrors F.R.C.P. Supplemental Rule D, which was created explicitly to provide the remedy of arrest in controversies involving title, possession, or disputes between co-owners respecting the employment of a vessel. F.R.C.P. Supplemental Rule D, Note of Advisory Committee on Rules, 1966 Adoption. The present case appears to fit squarely within the parameters of the rule. Plaintiffs and defendants assert conflicting claims regarding ownership; plaintiffs have requested a partition, and plaintiffs dispute the security of their alleged interest in the fish cargo.

[1] Although defendants allege that a maritime lien must be present for admiralty jurisdiction to attach, T.C.R.C.P. Supplemental Rule C provides, in relevant part:

(1) When available. An action in rem may be brought:
(a) To enforce any maritime lien; or
(b) Whenever a statute of American Samoa or the United States
provides for a maritime action in rem or a proceeding analogous
thereto.

(emphasis added). It is not necessary for us to consider whether a maritime lien exists, since an alternative basis of admiralty jurisdiction is found in T.C.R.C.P. Supplemental Rule D, allowing admiralty jurisdiction to attach in an action for partition, to try title, for possession of cargo, or by part owners attempting to secure the return of their vessel.

[2] A second alternative basis of admiralty jurisdiction may be found in 28 U.S.C.A. § 1333, which provides admiralty jurisdiction to adjudicate "[a]ny civil case of admiralty or maritime jurisdiction." Admiralty jurisdiction will attach "where a tort occurs on navigable waters and bears a significant relationship to traditional maritime activity." LaMontage v. Craig, 817 F.2d 556, 557 (9th Cir. 1987). The tort of conversion, alleged by plaintiffs, is a long-standing basis for admiralty jurisdiction. Evergreen Marine v. Six Consignments, 4 F.3d 90, 94 (1st Cir. 1993).

Finding that arrest was a legally proper remedy in a case involving a dispute as to ownership of the vessel and cargo, we deny defendants' motion to dismiss the complaint and to quash the resulting arrest warrant.

It is so ordered.

*********

Taianamu v. Taianamu


PENI TAIANAMU, Petitioner

v.

DIANA LOGOI TAINAMU, Respondent

High Court of American Samoa
Trial Division

DR No. 58-94

December 22, 1994

__________

[1] A marriage may be dissolved by divorce or annulment only on the grounds set forth by statute in A.S.C.A. §§ 42.0202 and 42.0203. A.S.C.A. §§ 42.0202, 42.0203.

[2] Habitual cruelty or ill usage involves such things as physical violence, threats, and gratuitous harassment, or other conduct so shameful and bizarre as to be unbearable.

[3] "Irreconcilable differences" will establish neither habitual cruelty nor ill usage.

[4] The standard rule precludes annulment based on pregnancy misrepresentations when the parties engage in sexual intercourse prior to marriage.

Before RICHMOND, Associate Justice, VAIVAO, Associate Judge, and [27ASR2d72] AFUOLA, Associate Judge.

Counsel: For Petitioner, Albert Mailo

Petitioner's motion for a default judgment came regularly for hearing on December 16, 1994. Petitioner and his counsel were present. Respondent was duly served with process and executed a waiver of her rights to be present at any hearing or trial and to notice thereof, and a consent to proceed without her presence. The Court heard testimony and has considered the evidence.

FINDINGS OF FACT

Petitioner has been a bona fide and continuous resident of American Samoa for at least one year immediately preceding the commencement of this action.

The parties began dating in July 1993 and first had sexual relations in August 1993. Respondent told petitioner that she was pregnant by petitioner, and they married on November 10, 1993. In February 1994, respondent gave birth and admitted to petitioner that another man is the father of the child. The parties separated the same month, and since then have not lived together as husband and wife.

CONCLUSIONS OF LAW

[1] 1. A marriage may be dissolved by divorce or annulment only on the grounds set forth by statute in A.S.C.A. §§ 42.0202 and 42.0203. West v. West, 5 A.S.R.2d 88, 89 (Trial Div. 1987).

[2-3] 2. Petitioner seeks a divorce on allegations of habitual cruelty and ill usage, a cause recognized by A.S.C.A. § 42.0202(2). However, the evidence fails to establish any facts constituting this ground. Habitual cruelty or ill usage involves such things as physical violence, threats, and gratuitous harassment, or other conduct so shameful and bizarre as to be unbearable. Chun v. Chun, 3 A.S.R.2d 23 (Trial Div. 1986); Lea`e v. Lea`e, 3 A.S.R.2d 51, 52-53 (Trial Div. 1986). "Irreconcilable differences" will establish neither habitual cruelty nor ill usage. Id.

[4] 3. The evidence does show respondent's misrepresentation of pregnancy by petitioner. However, this fact does not render the marriage void or illegal, the only cause recognized for annulment by A.S.C.A. § 42.0203. Moreover, although statutes frequently authorize annulment of [27ASR2d73] marriages voidable by fraud, the standard rule precludes annulment based on pregnancy misrepresentations when the parties engage in sexual intercourse prior to marriage. Peacon v. Peacon, 30 S.E.2d 640, 641 (Ga. 1944); Kawecki v. Kawecki, 35 N.E.2d 865, 866 (Ohio Ct. App. 1941); Santer v. Santer, 188 A. 531, 533 (Pa. 1936); Herr v. Herr, 165 A. 547 (Pa. 1933); Wallace v. Wallace, 114 N.W. 527, 528 (Iowa 1908); Young v. Young, 127 S.W. 898, 899 (Tex. Ct. App. 1910); Gondouin v. Gondouin, 111 P. 756 (Cal. Ct. App. 1910).

4. The Legislature, not the Court, is the proper forum to formulate any policy changes in the legal bases for dissolving marriages. West, 5 A.S.R.2d at 89. Accordingly, the petition must be denied and dismissed with prejudice.

It is so ordered.

*********

Lutu v. Ale,


AFOA L. SU`ESU`E LUTU, Petitioner

v.

TALAVOU SAVALI ALE, Speaker of the House of 
Representatives, and SAVALI SAVALI, JR., Legislative Financial 
Officer, Respondents

High Court of American Samoa
Trial Division

CA No. 25-95

March 1, 1995

__________

[1] A writ of mandamus is appropriate only if the claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt.

Before KRUSE, Chief Justice.

Counsel: For Petitioner, Afoa L.S. Lutu, pro se [27ASR2d139]

Order of Continuance on Petition for Writ of Mandamus:

Petitioner seeks a writ of mandamus directed to the Speaker of the House of Representatives and the Legislative Financial Officer to disclose records of expenditures and overruns of the House of Representatives for Fiscal Year 1994.

[1] We direct counsel's attention to Rule 89(a), requiring a memorandum of points and authorities. This rule must be read in conjunction with the requirement of T.C.R.C.P. 90(g) for "reasons why the court should grant the petition." As this court recently stated in Mulitauaopele v. Maiava , 24 A.S.R.2d 97 (Trial Div. 1993),

[T]he party seeking mandamus bears the burden of showing that [his] right to issuance of the writ is clear and indisputable. Thus, mandamus is appropriate only if the claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt.

Id. at 99 (citations omitted). Although petitioner has labeled his filing a "memorandum of points and authorities", he has, among other things, cited no authority for his assertion that the information he desires is a public record. Furthermore, petitioner has offered no recitation of the applicable legal standard by which this court should measure a petition for a writ of mandamus; nor has petitioner given us sufficient factual information to conclude that he has no other adequate remedy as required by T.C.R.C.P. 90(e). The total authority that petitioner has cited is composed of a single cursory citation of 15 rules of civil procedure, and two statutory citations which are unaccompanied by analysis or case law. The meaning and application of the cited statutory language is not obvious in the context of this petition, and could have been explained and fortified by case law.

We will continue this matter for seven (7) days from the entry of this order and invite petitioner to supplement his memorandum of points and authorities. If he elects not to do so, we will consider the petition on its merits.

It is so ordered.

*********

Lutali ; Senate v.


THE SENATE OF THE LEGISLATURE OF AMERICAN
SAMOA, LETULI TOLOA, in his capacity as Senate President,
and TUILEFANO VAELA`A and TUANA`ITAU TUIA, in their
capacities as Senators, Plaintiffs

v.

A.P. LUTALI, Governor of American Samoa, MALAETASI
TOGAFAU, in his capacity as Attorney General of American
Samoa, AITOFELE SUNIA, Treasurer of American Samoa,
OPA JOSEPH IULI, Director of Program Planning and Budget
Development, and SAPINI SIATU`U, Director of Human
Resources, Defendants

High Court of American Samoa
Trial Division

CA No. 40-94

March 17, 1995

__________

[1] The American Samoa Government does not have, and cannot obtain, any ownership interest in the monies representing income tax refunds.

[2] The American Samoa Government collects income taxes, through wage withholdings, periodic estimated payments and other means, with [27ASR2d158] the clear-cut statutory obligation to pay refunds for overpayments. 26 U.S.C. § 6402, A.S.C.A. § 11.0403(a).

[3] Refund monies are the taxpayers' private funds.

[4] The American Samoa Government holds tax refund monies with the fiduciary duty to account for and refund those monies to the taxpayers as the rightful owners, with interest if not timely paid.

[5] The American Samoa Government's fiduciary obligations regarding income tax refunds are absolute, regardless of the tax year in which the government assumes responsibility to return to its taxpayers their excess tax payments in the government's possession.

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

Counsel: For Plaintiffs, Arthur Ripley, Jr., Counsel for the Senate, and Gata E. Gurr, Legislative Counsel
For Defendants, Jennifer L. Joneson, Assistant Attorney General, and Elvis R.P. Patea, Assistant Attorney General

Order on Income Tax Refunds:

The Court issues this order on income tax refunds on its own initiative and without hearing.

Defendants filed a motion for new trial and to amend judgment on March 13, 1995, at 3:50 p.m., 10 minutes before the time for filing legally expired. The motion raises several questions concerning the judgment entered in this action on March 1, 1995, and has been set for hearing on April 19, 1995. The Court will rule on all but one of these questions after the hearing and due deliberation on them.

The exception concerns the application of the judgment to income tax refunds owed by the American Samoa Government ("ASG") to American Samoa's taxpayers. Compelling circumstances require that the Court deal with this question immediately and forcefully. With extensive media attention, defendants' counsel assert that the judgment may prevent ASG's Executive Branch from paying income tax refunds until ASG's Legislature appropriates fiscal year 1995 revenues for this purpose. Hence, the Executive Branch is presently withholding these [27ASR2d159] payments.

This assertion classifies taxpayers as vendors of goods and services who are owed debts by ASG. This analysis is legally ludicrous and frivolous advocacy. American Samoa's taxpayers need to promptly know that they are entitled to their income tax refunds, established in fact and law, without any further legislative action.

[1-4] ASG does not have, and cannot obtain, any ownership interest in the monies representing income tax refunds. ASG collects income taxes, through wage withholdings, periodic estimated payments and other means, with the clear-cut statutory obligation to pay refunds for overpayments. 26 U.S.C. § 6402, adopted by A.S.C.A. § 11.0403(a) as the law of American Samoa. Refund monies are the taxpayers' private funds. In re Donley, 242 F. Supp. 403, 407 (D.C. Mo. 1965). ASG holds these monies with the fiduciary duty to account for and refund those monies to the taxpayers as the rightful owner, with interest if not timely paid. The Legislature has neither authority to appropriate these private funds nor any legal role in the payment of the refunds.

[5] ASG's fiduciary obligations regarding income tax refunds are absolute, regardless of the tax year in which ASG assumes responsibility to return to its taxpayers their excess tax payments in ASG's possession. This fiduciary duty continues until the Executive Branch discharges its duty by payment of the income tax refund to the taxpayer.

ORDER

The judgment in this action is completely unrelated to the payment of income tax refunds and provides no justification for withholding those refunds.

It is so ordered.

*********

Lutali; Senate v.


THE SENATE OF THE LEGISLATURE OF AMERICAN
SAMOA, LETULI TOLOA, in his capacity as Senate President,
and TUILEFANO VAELA`A and TUANA`ITAU TUIA, in their
capacities as Senators, Plaintiffs

v.

A.P. LUTALI, Governor of American Samoa, MALAETASI
TOGAFAU, in his capacity as Attorney General of American
Samoa, AITOFELE SUNIA, Treasurer of American Samoa, OPA
JOSEPH IULI, Director of Program Planning and Budget
Development, and SAPINI SIATU`U, Director of Human
Resources, Defendants

High Court of American Samoa
Trial Division

CA No. 40-94

March 1, 1995

__________

[1] The American Samoa Government does not have a legal obligation to pay step increments to its employees for past fiscal years. A.S.C.A. § 7.1001.

[2] In general, money appropriated for a particular budgetary purpose, which remains unexpended and unobligated at the expiration of the appropriation legislation, lapses and becomes public revenue under the Legislature's plenary control.

[3] Under the administrative rules of American Samoa, the authority to spend public funds "is available for obligation only during a specified fiscal year and expires at the end of that time." A.S.A.C. § 5.0103(16)(B)(I).

[4] Once the Legislature appropriates funds for a budgetary purpose defined in the annual budget acts, the funds are only available for the term stated in the annual act and no longer, unless expressly provided by the [27ASR2d127] Legislature.

[5] In American Samoa, program managers are given some flexibility to deal with contingencies that were not anticipated during the regular budget development process but this flexibility must be dealt with prudently and in consideration of the policymakers' and the people's wishes. A.S.A.C. § 5.0134(b).

[6] The Executive Branch does not have authority to pay anything in excess of an appropriation without express language granting such action.

[7] The Executive Branch's power to fix employees' salaries is limited by the amount appropriated by the Legislature.

[8] If appropriated funds are available for payment of a particular vendor contract and are properly obligated under the procurement process before the end of the current fiscal year, the obligated funds will carry forward until the obligation is paid rather than revert to the general fund. Otherwise, the Executive has no legal authority to disperse public funds to pay past due debts to vendors incurred in a prior fiscal year without a current fiscal year appropriation for such purposes and timely completion of the procurement process. A.S.A.C. § 5.0103(13)(A).

[9] The Revised Constitution and laws are clear that the Executive Branch recommends and proposes an annual budget to the Legislature, and the Legislature in turn has the authority to appropriate public funds to implement that budget as it deems necessary.

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

Counsel: For Plaintiffs, Arthur Ripley, Jr., Counsel for the Senate, and Gata E. Gurr, Legislative Counsel
For Defendants, Jennifer L. Joneson, Assistant Attorney General, and Elvis R.P. Patea, Assistant Attorney General

This case is about power--constitutional power to expend public funds and constitutional constraints on that power. Plaintiffs, who are Senators in the bicameral Legislature of American Samoa ("Legislature"), consisting of the Senate and the House of Representatives, charge that defendants, who are officials of the Executive Branch ("Executive") of the American Samoa Government ("ASG"), proposed to have the Executive encroach upon the [27ASR2d128] constitutional prerogative of the Legislature to appropriate public funds prior to expenditure and seek declaratory relief to enjoin these Executive officials from such action.

BACKGROUND

In March 1994, defendant A.P. Lutali, the Governor of American Samoa ("Governor"), announced his plan to effectuate salary step increments ("step increments") to qualified ASG career service employees. These employees had not received step increments in fiscal years 1989, 1990, 1991, 1992 and 1993, due to a freeze by gubernatorial Executive Order No. 7-1989 ("Executive Order No. 7-1989"), issued by the preceding governor on October 18, 1989. Fiscal year 1994 is now added to the list. The Governor's plan directed that salaries be immediately raised to the levels where they would have been had the step increments been operative during fiscal years 1989, 1990, and 1991. The estimated cost of this proposal was $2.1 million.

In response, plaintiff Letuli Toloa, the President of the Senate ("President"), expressed concern that the proposed step increments were not funded through proper legislative channels and, therefore, could not be lawfully implemented.

On March 14, 1994, the President filed this action and obtained a preliminary injunction. On June 14, 1994, plaintiffs submitted the amended complaint on which this action now proceeds, adding Senators Tuilefano Vaela`a and Tuana`itau Tuia as plaintiffs and seeking a permanent injunction. The amended complaint also asserted that defendants had authorized the disbursement of funds for the payment of ASG's past due debts to vendors without proper legislative appropriation.

On August 30, 1994, the Court granted defendants' motion to dismiss with respect to the individual plaintiffs' standing to sue as taxpayers. However, the Court also ruled that the plaintiffs as Senators had standing to sue as legislators. The Court further held that, although the Governor had withdrawn immediate implementation of his step increment plan, the case was not moot, and that it would not be dismissed for plaintiffs' failure to join ASG career service employees and vendors as parties to the action.

Trial began on September 2 and concluded on September 7, 1994.

ISSUES
[27ASR2d129]

The main issues in this case are not whether ASG employees deserve step increments from previous fiscal years or whether ASG vendors are entitled to payment of contracts entered in previous fiscal years. Rather, the issues are whether unilateral executive action granting employees these past fiscal year step increments or paying any past fiscal-year vendor contracts violate the Revised Constitution, laws and administrative rules of American Samoa.

DISCUSSION

Plaintiffs assert that defendants, acting on the Executive's behalf, would violate the Revised Constitution, laws and administrative rules of American Samoa if they pay employee step increments scheduled in previous fiscal years or past vendor contracts unless the Legislature provides funds for such payments either by reprogramming funds appropriated by the fiscal year 1994 Appropriations Act ("1994 Act") for such purposes, or by appropriating funds from supplemental sources during the fiscal year for such purposes.

On the other hand, defendants claim that the Executive has the authority to spend public funds without a specific appropriation as long as the expenditures do not exceed the 1994 Act's total appropriation.

The dispute over the proper means to spend public funds on step increments is clearly defined by the following correspondence. In a letter to the Governor, dated February 15, 1994, the President and the Speaker of the House of Representatives of the Legislature stated:

The appropriation bills which contained the increments of past
years ended their effectiveness at the conclusion of those fiscal
years. Therefore, the only increment outstanding, and one which
we can pay, is that of the current fiscal year, 1994. The current
budget does not contain any appropriation for past increments.

In a letter to the Governor, dated February 28, 1994, they added:

No funds have been appropriated in fiscal year 1994 for the
payment of "past due" government employee increments.

While your decision and plan is commendable, and, appears
to be made in the interest of government employees, we believe
that this impending expenditure for "past" pay increments is not
in accordance with the law, because funding through sufficient
[27ASR2d130] revenue measures must first be appropriated for
this unbudgeted expenditure.

In a letter to the President and the Speaker, dated March 1, 1994, the Governor responded:

. . . I will proceed with my administration to pay retroactive salary
increments to the workers of ASG who were deprived of such
increments in the past five years as planned for next week. I feel
that the legal, moral, social, and financial obligations of this
Government to its workers supersede any differences we may
have in the interpretation of our constitutional mandates as separate
branches of the American Samoa Government.

. . . I disagree with you that I will be violating the appropriation
act of the Fiscal Year 1994 by paying these past due increments.
I . . . am quite satisfied that I will not create an overrun of the
totals that the Fono passed, and signed into law by the Lieutenant
Governor. When I overrun those totals, there is a violation.

Although the Governor and the other defendants believed that they were fulfilling legal, moral, social, and financial obligations, we are only addressing legal obligations in this case. The Governor and the other defendants were correct that an overrun of the total amount appropriated by the Legislature would be a violation of law, but they were incorrect in concluding that expending funds for past step increments without proper current appropriations would not be a violation of the Revised Constitution, laws and administrative rules of American Samoa.

1. ASG has no legal obligation to pay step increments from past fiscal years.

[1] ASG does not have a legal obligation to pay step increments to its employees for fiscal years 1989 through 1994. First of all, it is not mandatory under the laws of American Samoa to pay annual step increments to its employees. The law merely states: "A compensation plan shall be established for the career service . . . [and] shall provide for maximum and minimum salary and wage rates and such intermediate steps as seem appropriate." A.S.C.A. § 7.1001(a) (emphasis added). The law further provides: "The government shall adopt an incentive program to provide a method of recognizing employees who show exceptional resourcefulness or skills, or perform exceptional acts." A.S.C.A. § 7.1003. Neither of these statutory provisions requires ASG to pay annual [27ASR2d131] step increments to its employees.

Secondly, eligibility for step increments is contingent on the completion of a personal evaluation in accordance with the procedures outlined in A.S.A.C. § 4.0409, which in immediately relevant part states:

(a) Every employee is entitled to an annual step-increment increase
. . .
(d) . . . [If] an employee performance evaluation . . . [is] completed
. . .
(1) If the performance evaluation is satisfactory or better, the
employee will receive a step-increment . . .
(3) If no performance evaluation is received, no increment will be
processed . . .

A.S.A.C. § 4.0409 (emphasis added).

Under this administrative rule, which was adopted under the Administrative Procedures Act, A.S.C.A. §§ 4.1001 et seq. and, thus, has the force and effect of law, A.S.C.A. § 4.1009(c), completion of a performance evaluation with a satisfactory or better score is a condition precedent for an ASG employee to be eligible for a step increment. The evidence shows that during fiscal years 1989 to 1993, performance evaluations were completed only for some government employees. Clearly, this necessary condition precedent to process step increments was not generally met for these fiscal years.

Finally, even if any ASG employees were given satisfactory or better performance evaluation and were otherwise eligible for a step increment in any fiscal year from 1989 to 1993, any obligation that might have existed to pay the step increments was nullified by Executive Order 7-1989. This Executive Order directed a general freeze "on all annual increments for all government employees irrespective of funding source."

2. An appropriation terminates at the end of the fiscal year.

[2] It is a well-established principle that appropriated funds that are not spent at the end of the fiscal year in which they were appropriated, revert back to the general fund and cannot be spent by the Executive branch without further appropriation by the Legislature. In general, money appropriated for a particular budgetary purpose, which remains unexpended and unobligated at the expiration of the appropriation legislation, lapses, Hilton Construction Co., Inc. v. Rockdale County Bd. [27ASR2d132] of Ed., 266 S.E.2d 157, 162 (Ga. 1980), and becomes public revenue under the Legislature's plenary control. State v. Duxbury, 160 N.W.2d 88, 92 (Neb. 1968) (court found agency that authorized the expenditure of state funds without a specific appropriation in violation of the state constitution and further held that the funds would be unavailable to the agency unless reappropriated by the legislature).

[3] It is evident from the administrative rules of American Samoa, which have full force and effect of the law under A.S.C.A. § 4.1009(c) when they are adopted pursuant to the Administrative Procedures Act, §§ 4.1001 et seq., that the authority to spend public funds "is available for obligation only during a specified fiscal year and expires at the end of that time." A.S.A.C. § 5.0103(16)(B)(I).

Budget authority, which is the authority to enter into obligations that will result in immediate or future outlays of Government funds, is classified into various periods of availability. A.S.A.C. § 5.0103(16). In 1-year accounts, the unobligated balance, which is the portion of budget authority that has not yet been obligated, expires at the end of the fiscal year. A.S.A.C. § 5.0103(13)(B)(I).

"All annual appropriations lapse at fiscal year end." American Samoa Govt., Comprehensive Annual Financial Report, at 43 (1989). "In accordance with the annual budget law, any uncommitted appropriations for operating or maintenance expenditures automatically lapse at the close of the fiscal year . . . ." Id. at 44. (1)

Under federal law:

the balance of an appropriation or fund limited for obligation
to a definite period is available only for payment of expenses
properly incurred during the period of availability or to complete
contracts properly made within that period of availability . . .
However, the appropriation or fund is not available for expenditure
for a period beyond the period authorized by law. [27ASR2d133]

31 U.S.C. § 1502(a). 31 U.S.C. § 1502(b)(2) states in relevant part that § 1502(a) requires "that the balance of an appropriation or fund be returned to the general fund of the Treasury at the end of a definite period."

A.S.C.A. § 10.0602, which mirrors 31 U.S.C. § 1502(b), states: "Any provision of law which requires unexpended funds to return to the general fund at the end of the fiscal year shall not be held to affect the status of any lawsuit or right of action involving the right to those funds."

[4] Once the Legislature appropriates funds for a budgetary purpose defined in the annual budget acts, the funds are only available for the term stated in the annual act and no longer, unless expressly provided by the Legislature. For fiscal years 1989 to 1994, the Legislature only appropriated funds for step increments for each specific fiscal year. Once the Governor chose not spend the money by the end of the fiscal year, the authorizing appropriation and the funds returned to the general fund. Previous year step increments can be paid in a future fiscal year only by an express appropriation by the Legislature to pay for past year step increments.

3. The Legislature did not appropriate fiscal year 1994 funds to pay step increments from past fiscal years.

The Legislature did not specifically appropriate funds in 1994 to pay prior fiscal year step increments. Without this appropriation, the Executive has only limited authority to reprogram current appropriations for this purpose.

[5] The Executive has discretion to reprogram appropriated funds, but "[a]ll reprogrammings [of budgeted funds] which exceed $25,000 or 30% of the line account must be approved by the Legislature." A.S.A.C. § 5.0135(g). Any other expenditure needs an appropriation by the Legislature or it is in violation of the laws of American Samoa. Thus, program managers are given some "flexibility to deal with contingencies that were not anticipated during the regular budget development process" but "[t]his flexibility must be dealt with prudently and in consideration of [27ASR2d134] the policymakers' and the people's wishes." A.S.A.C. § 5.0134(b).

Furthermore, the budgetary administrative rules expressly provide that "[n]o territorial agency may increase the salaries of its employees, employ additional employees, or expend money or incur any obligations except in accordance with law and with a properly approved operations plan . . . ." A.S.A.C. § 5.0138(a).

The evidence is clear that no line account or similarly identified portion of the 1994 Act appropriated any amount for the purpose of paying $2.1 million for past fiscal year step increments. Also, the Governor did not include information to pay such step increments in the fiscal year 1994 budget plan. Thus, no funds may lawfully be expended for these purposes in excess of the Executive's discretionary reprogramming authority without the Legislature's prior concurrence.

4. Executive cannot spend without appropriation.

[6] The Executive does not have authority to pay anything in excess of an appropriation without express language granting such action. Bradley v. United States, 98 U.S. 105, 107 (1878).

[7] The Executive's power to fix employees' salaries is limited by the amount appropriated by the Legislature. See McCarthy v. City of Malden, 22 N.E.2d 104, 108 (Mass. 1939) (city employee entitled only to the amount appropriated and any payment of expenses incurred during the preceding year would be unauthorized); Remington Typewriter Co. v. Revere, 188 N.E. 634 (Mass. 1934).

A.S.C.A. § 10.0601(a), similarly to the federal Anti-Deficiency Act, provides: "No officer . . . may make or authorize an expenditure from or create or authorize an obligation under any appropriation or fund in excess of the amount available therein . . . ."

The United States Government Accounting Office (GAO) has concluded that ASG has disbursed and expended funds in excess of authorized amounts and without proper appropriations and recommended that ASG enforce A.S.C.A. § 10.0601 in an effort to prevent further obligations and expenditures in excess of appropriations. U.S. Govt. Accounting Office, American Samoa Inadequate Management and Oversight Contribute to Financial Problems, at 40-41 (1992). Any ASG employee who violates this law is subject to disciplinary suspension without pay or removal from office. Further, any ASG employee who knowingly violates § 10.0601(a) [27ASR2d135] can be convicted of a felony. A.S.C.A. § 10.0601(c).

GAO has also concluded that a main reason why ASG had increased the deficit from $500,000 in 1987 to over $17 million in 1991 was because the laws prohibiting the obligation or expenditure of funds in excess of amounts appropriated have been routinely disregarded, regulations have been ignored, and responsible officials have not been held accountable. Id. at 3.

5. Past Due Debts to Vendors

[8] If appropriated funds are available for payment of a particular vendor contract and are properly obligated under the procurement process before the end of the current fiscal year, the obligated funds will carry forward until the obligation is paid rather than revert to the general fund. A.S.A.C. § 5.0103(13)(A). Otherwise, the Executive has no legal authority to disperse public funds to pay past due debts to vendors incurred in a prior fiscal year without a current fiscal year appropriation for such purposes and timely completion of the procurement process. Thus, any expenditure by the Executive of funds which have not been properly obligated and carried forward in this manner to pay past due debts to vendors would be in violation of the administrative rules of American Samoa.

6. Separation of Powers

We now reach the fundamental principle involved in this case, the doctrine of the separation of powers between the Legislature and the Executive for the lawful expenditure of public funds. The authorities cited in the foregoing discussion are designed to support and protect this cherished, constitutional dogma in large measure. This doctrine defines the roles and tasks to be performed by the Legislature and the Executive in the budgetary process and is clearly embodied in the Revised Constitution of American Samoa, supplemented by the laws of American Samoa.

Article II, § 1 of the Revised Constitution confers the authority to pass legislation upon the Legislature, while article IV, § 10 confers upon the Governor, as head of the Executive, the power to recommend laws to the Legislature for its consideration. Regarding budgeting and appropriations, Article II, § 1 of the Revised Constitution states:

(c) Money bills enacted by the Legislature of American Samoa
shall not provide for the appropriation of funds in excess of
such [27ASR2d136] amounts as are available from revenues
raised pursuant to the tax laws and other revenue laws of
American Samoa. Prior to his submission to the Secretary of
the Interior of requests for Federal funds necessary for the
support of governmental functions in American Samoa, the
Governor shall prepare a preliminary budget plan. He shall
submit such plan to the Legislature in joint session for its review
and approval with respect to such portions as relate to
expenditures of funds proposed to be appropriated by the
Congress of the United States.

(d) Legislation involving the expenditure of funds other than as
budgeted shall include revenue measures to provide the needed
funds.

The laws further refine the roles of both the Governor and the Legislature in the budgetary process. A.S.C.A. § 10.0502 requires the Governor to "direct the preparation and administration of the territorial budget." This section further requires the governor to "provide information and propose a financial plan to the Legislature," but it is the Legislature who, upon consideration of such a plan, decides the nature, manner and amount of expenditures.

A.S.C.A. § 10.0506(a) requires the Governor to "formulate the program and financial plan to be recommended to the Legislature [and] . . . include recommended goals and policies, recommended plans to implement the goals and policies, recommended budget for the succeeding fiscal year, and recommended revenue measures to support the budget." The Governor is further required to "present the proposed comprehensive plan and financial program in a message to the Legislature. The message must be preceded by 1 week by a budget document which shall contain the Governor's recommended goals, plans, and appropriations." A.S.C.A. § 10.506(b).

The Legislature shall "consider the program and financial plan recommended by the Governor," and then shall "adopt programs and alternatives to the plan recommended by the Governor as it deems appropriate" and shall "adopt legislation to authorize the implementation of a comprehensive program and financial plan." A.S.C.A. § 10.0503. The Legislature shall "determine the comprehensive program and financial plan to support the services to be provided the people of the territory; provided, however, that in its determination authorized expenditures shall not exceed receipts and surpluses." A.S.C.A. § 10.0507. The Legislature shall have "full authority and control of the request, approval, and [27ASR2d137] disbursement of funds in its budget." A.S.C.A. § 10.0601(a).(3)

[9] The Revised Constitution and laws are clear that the Executive recommends and proposes a annual budget to the Legislature, and the Legislature in turn has the authority to appropriate public funds to implement that budget as it deems necessary.

REMEDIES

We make the following declarations:

(a) Annual step increments for ASG employees that were not paid in fiscal years 1989 through 1994 are not ASG's legal obligations.

(b) The unbudgeted expenditure of current fiscal-year revenues to pay prior fiscal-year step increments would be unconstitutional and unlawful without further current appropriations by the Legislature for this purpose, in that they would exceed the role and powers assigned to the Executive and would infringe upon the role and powers of the Legislature, and would violate the constitutional and lawful constraints, requirements, and procedures applicable to the budgeting, appropriation, and expenditure of ASG's funds.

(c) The unbudgeted expenditure of current fiscal year revenues to pay ASG's unobligated, past due debts to vendors, not previously and properly obligated during the fiscal year in which the debt was incurred, would be unconstitutional and unlawful without further current appropriations by the Legislature for this purpose, in that they would exceed the role and powers assigned to the Executive and would infringe upon the role and powers of [27ASR2d138] the Legislature, and would violate the constitutional and lawful constraints, requirements, and procedures applicable to the budgeting, appropriation, and expenditure of ASG's funds. Since a judgment for money damages would be an inadequate remedy for the plaintiffs, we grant, pursuant to A.S.C.A. § 43.1302, plaintiffs' request for a permanent injunction prohibiting defendants, their successors in office, and their agents, employees, servants, attorneys, and all persons or entities in active concert or participation with them, from the disbursement of ASG's funds to pay for retroactive step increments to ASG employees for fiscal years 1989, 1990, 1991, 1992, 1993, and 1994, or to pay any debt to a vendor from funds not properly obligated from appropriations for the fiscal year in which the debt was incurred, without current appropriations by the Legislature for such purposes.

It is so ordered.

*********

1. The language quoted in this paragraph has been included in more recent Comprehensive Annual Financial Reports. See American Samoa Govt., Comprehensive Annual Financial Report, at 43-44 (1990) and American Samoa Govt.,Comprehensive Annual Financial Report, at 47-49 (1991).

2. Under federal law, the only instances where an appropriation in a regular, annual appropriation law may be construed to be permanent or available continuously are where the appropriation is for rivers, harbors, lighthouses, public buildings, or the pay of the Navy or Marine Corps, or where the appropriation expressly provides that it is available after the fiscal year covered by law in which it appears. 31 U.S.C.S. § 1301(c).

3. The American Samoa annual budget is compiled from budgets generated by individual departments within a budget ceiling established by the Budget Office. After the Budget Office approves the budget, it is presented to the Governor for signature and then presented to the Legislature in September of each year for review, modification, and approval.

The Budget Office shall review each agency's operations plan to determine that it is consistent with the policy decisions of the Governor and appropriations by the Legislature . . . and that appropriations have been made for the planned purpose and will not be exhausted before the end of the fiscal year. A.S.C.A. § 10.0508(c)(1).

Lutali v . Pedro,


JOSEPHINE LUTALI, Plaintiff

v.

JOE PEDRO dba T.J. PEDRO CONSTRUCTION, Defendant

__________

AMERIKA SAMOA BANK, Intervenor

High Court of American Samoa
Trial Division

CA No. 42-92

March 24, 1995
[27ASR2d162]

__________

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

Counsel: For Plaintiff, Charles V. Ala`ilima
For Defendant, Marshall Ashley and Tate J. Eldridge
For Intervenor, William H. Reardon

Order Vacating Judgement as to Personal Liability and Writ of Garnishment, and Releasing Garnished Funds:

FACTS

This case concerns a judgment against defendant Joe Pedro ("Pedro"), which was obtained by plaintiff Josephine Lutali ("Lutali") prior to Pedro's petition for bankruptcy in the United States Bankruptcy Court for the Western District of Washington ("bankruptcy court"), and a garnishment order which Lutali obtained after the filing of the petition. On December 29, 1994, we held that Lutali's garnishment order violated the automatic stay in bankruptcy pursuant to 11 U.S.C.A. § 362, but declined to release the garnished funds without knowledge of whether Pedro had been permitted to amend his bankruptcy schedules to include Lutali. Instead we ordered Pedro to provide us with information regarding the status of his efforts to amend his bankruptcy schedules, and any resulting decrees by the bankruptcy court or trustee. Pursuant to that order ("our order"), Pedro filed a copy of the amended schedules, a copy of the letter sent to Lutali by Pedro's attorney in Seattle, and a copy of the Discharge Order issued by the bankruptcy court.

DISCUSSION

1. Amendment of the Schedules

When we issued our order, we were under the impression(1) that the case [27ASR2d163] may have been closed at the time the discharge order was issued, requiring it to be reopened by order of the court for the schedules to be amended. See In re Stark, 717 F.2d 322 (7th Cir. 1983). The letter sent to Lutali by Pedro's attorney in Seattle indicates that the case was still open at the time the amendments were filed. Accordingly, Pedro had a right to amend the schedules "as a matter of course . . . at any time before the case is closed." 11 U.S.C.A. Bankruptcy Rule 1009. Pedro's power to amend the schedules before the closure of the case is, therefore, not within the discretion of the bankruptcy court. In re Gershenbaum, 598 F.2d 779, 781 (3d Cir. 1979).

2. Discharge of Debts

In our order we held that the discharge of debts added to the bankruptcy schedules by amendment was a question for the bankruptcy court. We retained the garnished funds, however, in case Pedro's bankruptcy proceeding was closed and the bankruptcy court declined to reopen it to schedule previously unscheduled debts and exempt unscheduled debts from discharge. Since the case was open at the time the amendments were filed, and amendment was done as a matter of course, we have no reason to continue holding the garnished funds. In its discharge order of August 10, 1993, the bankruptcy court said:

2. Any judgment heretofore or hereafter obtained in any court
other than this court is null and void as a determination of the
personal liability of the debtor with respect to any of the following:

a. debts dischargeable under U.S.C. section 523 . . .

The foregoing language plainly requires that debts alleged to be non-dischargeable are declared null and void as determining the debtor's personal liability. The proper forum for seeking a determination of whether the debt is discharged is the bankruptcy court, and we therefore do not consider the issue of whether Pedro's debt to Lutali is somehow excepted from discharge. [27ASR2d164]

ORDER

1. Seeing no evidence that the bankruptcy court has declared any of the disputed debts to be non-dischargeable, nor any evidence that Lutali has sought an adjudication of the issue in the bankruptcy court, the judgment obtained by Lutali on January 22, 1993 is null and void as a determination of Pedro's personal liability. As to any other issues adjudicated therein, it remains valid.

2. The garnishment order resulting from the January 22, 1993 judgment was obtained in violation of the automatic stay and is, therefore, vacated.

3. As to the intervenor, Amerika Samoa Bank ("ASB"), the bankruptcy trustee's attorney wrote a letter on December 7, 1994, assenting to the disbursement of garnished funds to ASB. It is unnecessary to consider whether or not this letter has any binding effect since it represents the desires of both ASB and Pedro, who are the only remaining parties with interests in the funds. Accordingly, we direct that the garnished funds be disbursed to ASB.

It is so ordered.

*********

1. Our mistaken impression reminds us once again of the all too familiar problem of attorneys in our jurisdiction failing to fully brief their cases or to include essential facts in their arguments. Considering the complexity of this case, coupled with the fact that this court rarely hears cases in this area of the law, attorneys for all parties would have been well advised to do more legal research in order to ascertain what facts are legally relevant to the outcome. This would have enabled them to provide us with satisfactory factual information and legal arguments at an earlier date, and to avoid the protracted deliberation that this case has unfortunately required.

Lutali v. Pedro,


JOSEPHINE LUTALI, Plaintiff

v.

JOE PEDRO dba T.J. PEDRO CONSTRUCTION,
Defendant

_________

AMERIKA SAMOA BANK, Intervenor

High Court of American Samoa
Trial Division

CA No. 42-92

December 29, 1994

___________

[1] A bankruptcy court which has acquired jurisdiction over a debtor and his legal rights and obligations may issue a judgment which is binding in American Samoa.

[2] Judgments obtained or other actions taken in violation of a stay in bankruptcy are void and of no effect.

[3] The rule voiding actions in contravention of a stay applies to unlisted creditors, even if [27ASR2d74] the creditor had no notice of the stay.

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

Counsel: For Plaintiff, Charles V. Ala`ilima
For Defendant, Marshall Ashley and Tate J. Eldridge
For Intervenor, William H. Reardon

Order Requiring Further Information:

FACTS

On January 22, 1993, plaintiff Josephine Lutali ("Lutali") was awarded a judgment, following trial, against defendant Joe Pedro ("Pedro"). On April 29, 1993, Pedro and his wife filed a petition for bankruptcy in the federal District Court for the Western District of Washington, automatically instituting a stay preventing creditor collection actions. Lutali was not listed as a pre-petition creditor in the bankruptcy schedules. On August 6, 1993, the federal court issued the bankruptcy discharge order.

Meanwhile, on June 30, 1993, without notice or actual knowledge of the bankruptcy proceedings, Lutali obtained a writ of garnishment. On August 4, 1994, she moved for release of the garnished funds, which amounted to rent payments owed by the American Samoa Government ("ASG") for the lease of Pedro's house and leasehold interest in the underlying communal land. The garnishment first reached these rents on August 3, 1994, and as of December 22, 1994, the court was holding garnished funds totaling $11,200. On August 17, 1994, Pedro moved to stay the execution of Lutali's judgment. The court heard both motions on August 31, 1994, with counsel for the original two parties present.

Then, on November 1, 1994, intervenor Amerika Samoa Bank ("ASB") moved to intervene in this action and on November 30, 1994, was permitted to do so. With ASB formally involved, the court heard this matter again on December 16, 1994, to further consider the proper disbursement of the garnished funds. Counsel for the three parties were present.

ASB is Pedro's creditor on a loan in the original amount of $90,000 which was secured by a mortgage established on September 17, 1991, on the property leased from Pedro by ASG. The house is listed as an asset in the [27ASR2d75] bankruptcy schedules, described as "a potential partial leasehold interest" with the proceeds assigned to ASB for payment of a loan to build the house. ASB was not listed as a pre-petition creditor.

The mortgage provides that on Pedro's failure to make any loan payment he will be in default, and the whole outstanding debt, at ASB's option and without notice, will become due and payable. In that event, as one remedy, and after giving notice to Pedro as lessor, ASB becomes Pedro's assignee to receive all accrued and future rents payable by ASG, and his attorney in fact to manage the leasehold. Pedro defaulted in the loan payments on or about August 1, 1994. ASB elected to treat the whole amount due and payable and, it appears, actually notified Pedro and ASB that it would exercise its mortgage rights in the leasehold between the first and second garnishments of the rental payments. ASB is also pursuing its non-judicial foreclosure rights, with the sale scheduled on January 6, 1995. (1)

Pedro is currently processing amendments to the bankruptcy schedules to add all pre-petition creditors located in American Samoa and seeking discharge of his debts to them.

DISCUSSION

A. Indebtedness to Lutali

As to Lutali, two legal issues are immediately before this court: (1) whether the automatic stay effective in bankruptcy proceedings is binding upon the courts of American Samoa; and if so (2) whether an automatic stay operates as a bar to legal action by unlisted creditors who have no notice of the proceedings.

1. Actions of the Bankruptcy Court Are Binding in American Samoa

[1] In 1987, this court held that a bankruptcy court "which has acquired jurisdiction" over a debtor and his legal rights and obligations may issue a judgment which is binding in American Samoa. Southwest Marine of Samoa v. S & S Contracting, 5 A.S.R.2d 70, 82 (Trial Div. 1987) (emphasis in original). The automatic stay in bankruptcy proceedings is effective in American Samoa against all legal proceedings or efforts to collect debts. Id. at 83. This stay bars creditor actions in courts of law, administrative proceedings, non-governmental tribunals or private collection efforts of any sort. Id. We readily conclude, by precedent and the rule of stare decisis, that this court has jurisdiction in the present case and can give effect to the bankruptcy court's decisions.

2. Automatic Stay Bars Unlisted Creditors

[2] The automatic stay in bankruptcy was in place on June 30, 1993, when Lutali obtained the writ of garnishment. Judgments obtained or other actions taken in violation of the stay are void and of no effect. Kalb v. Fuerstein, 308 U.S. 433 (1940); Ellis v. Consolidated Diesel Elec. Corp., 894 F.2d 371, 372 (10th Cir. 1990); Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir. 1982); Caribbean Food Products v. Banco Credit Y Ahorro Ponceno, 575 F.2d 961, 966 (1st Cir. 1978); Meyer v. Rowen, 181 F.2d 715, 716 (10th Cir. 1950); Potts v. Potts, 142 F.2d 883, 888 (6th Cir. 1944), cert. denied, 324 U.S. 868 (1945).

[3] Lutali argues that Pedro's debt to her is not discharged, and that her actions to collect were not stayed since she did not have notice or actual knowledge of the bankruptcy proceedings. 11 U.S.C.A. § 523(a). While notice or actual knowledge to make a timely claim is required for a discharge to be effective, the rule voiding actions in contravention of a stay applies to unlisted creditors, "even if the creditor had no notice of the stay," as in the present case. In re Calder, 907 F.2d 953, 956 (10th Cir. 1990); In re Smith, 876 F.2d 524, 526 (6th Cir. 1989).(2) Following this [27ASR2d77] rule, Lutali's writ of garnishment was in violation of the automatic stay, since she obtained it after Pedro had filed for bankruptcy and prior to the discharge in bankruptcy.

The question of whether relief from the stay is available under 11 A.S.C.A. § 362 is one for the bankruptcy court. Furthermore, amendment of the schedules and discharge of added debts are also questions for the bankruptcy court. While this court potentially has jurisdiction to determine dischargeability of debts as articulated in In re Tinnenberg, 57 B.R. 430, 432 (E.D.N.Y. 1985), we decline to do so without knowing whether or not the bankruptcy court has allowed amendment of the schedules to include Pedro's creditors in American Samoa and has discharged these debts. We will not speculate as to what action the bankruptcy court will take with respect to Pedro's motion to amend the schedules.

The bankruptcy court may find that the schedules cannot be amended, or that Pedro's debt to Lutali is not dischargeable. If so, quashing the writ of garnishment would prejudice Lutali's (or ASB's) interests, since Lutali (or ASB) was entitled to this remedy the day the automatic stay terminated on August 6, 1993. At that time, Lutali reasonably believed that she already had a valid writ on which she could rely to protect her interests.

On very similar facts, the bankruptcy court for the Eastern District of New York refused amendments to bankruptcy schedules.

Debtors did not make an appearance in state court to argue
that the debt is dischargeable, nor did debtors move to reopen
their bankruptcy until after the judgment was taken. We do
not condone the debtor's disregard for the state court action
because it would be unfair to impose upon [the creditor] the
burden of the delay in the resolution of this matter, and the cost
of the state court litigation. In short, debtor's failure to appear
in the state court action makes it beyond the sound discretion
of the court to reopen this case to discharge the state court
judgment.

Tinnenberg, 57 B.R. at 432 (emphasis added). However, we are not prepared to hold that Pedro's debts to Lutali are exempt from discharges as the state court did in Tinnenberg. At the time judgment was taken, Pedro had not yet filed for bankruptcy. Furthermore, Lutali has not been [27ASR2d78] prejudiced under 11 U.S.C.A. § 523(a)(3), which exempts unscheduled creditors from discharge unless they possess "notice or actual knowledge" of the proceeding to make a "timely filing" of a claim. Initially, this bankruptcy was a no-asset proceeding, in which creditors were instructed not to file claims until further notice.(3) If assets are discovered permitting a dividend, the deadline for filing claims is 90 days after the mailing of notice to creditors, meaning that the deadline to a make a "timely filing" has not yet arrived. Under these circumstances, we cannot hold Pedro's debt to Lutali exempt from discharge. 11 U.S.C.A. Rule 3002(c)(5); In re Stark, 717 F.2d 322, 324 (7th Cir. 1983). On the other hand, we plainly cannot hold Pedro's debt to Lutali a closed issue, unless the bankruptcy court permits amendments to the bankruptcy schedules to include Lutali and discharges this debt.

B. Indebtedness to ASB

The rights of ASB and Lutali differ only in that ASB is a secured creditor. The automatic stay applied to ASB as well as to Lutali. The present status of Pedro's indebtedness to both creditors remains unclear. (4) The bankruptcy court may allow amendment to schedule and then discharge these debts. If this turns out to be the bankruptcy court's decision, and the garnished funds give rise to an asset which is part of the bankruptcy estate, it will be the province of the trustee in bankruptcy to administer these funds. We therefore decline to preempt the bankruptcy court's decisions in this case by awarding the funds to either ASB or to Lutali at this juncture.

ORDER

Finding that we are unable to make a principled decision without knowing the status of the proceedings in the bankruptcy court, we take no action either on Lutali's motion to release all or any part of the garnished funds to her or on Pedro's motion to quash Lutali's writ of garnishment at this time. Instead, we direct Pedro to advise this court within 30 days of the entry of this order on the status of his motion in the bankruptcy court to amend the bankruptcy schedules, and any resulting discharge order or other decree from either the bankruptcy court or from the trustee.

It is so ordered.

*********

1. Although this issue is not before us, we simply note that ASB's action in this matter potentially violates the automatic stay, since the bankruptcy proceedings may have been reopened to consider amendment of the bankruptcy schedules, and the house which is the subject of the foreclosure sale is potentially the property of the bankruptcy estate.

2. Some federal courts are applying an equitable exception, but until we know whether the schedules have been amended and the added debts have been discharged, we need not consider whether it applies in this case. We note, however, the Sixth Circuit has cautioned that the exception be applied "sparingly." Easley v. Pettibone, 990 F.2d 905, 911 (6th Cir. 1993); In re Smith, 876 F.2d 524, 527 (6th Cir. 1989). In all cases where the exception has been applied, debtors were attempting to "use the stay as a shield after an unreasonable [and deliberate] delay in asserting debtors rights." Id. at 910 (construing In re Calder, 907 F.2d 953 (10th Cir. 1990); Matthews v. Rosene, 739 F.2d 249 (7th Cir. 1984); and In re Smith Corset Shops, 696 F.2d 971 (1st Cir. 1982)). The two criteria for application of the exception are (1) unreasonable withholding of notice of the stay by the debtor, and (2) prejudice to the creditor.

3. "DO NOT FILE A CLAIM AT THIS TIME. If assets are discovered that may result in payment to creditors, you will be notified of a deadline for filing claims." W.D. WA Case No. 93-03335.

4. Pedro has submitted a letter which appears to be a legal opinion from the attorney for the bankruptcy trustee, stating the view that ASB is entitled to the funds. There is no language in that letter which purports to have any binding effect, and we are not willing to release the funds without a more official decree from the trustee or from the bankruptcy court.

Leomiti v. Pu`efua,


FILIPELE LEOMITI, for himself and on behalf of the
LEOMITI FAMILY, Plaintiffs

v.

PELE PU`EFUA, Defendant

High Court of American Samoa
Trial Division

LT No. 5-94

March 15, 1995

__________

[1] A material failure to accurately describe land or parties is sufficient to render a separation agreement invalid.

[2] After eviction, former possessors of land are entitled to remove fixtures and possessions, even where they exercise their licenses in bad faith. When possessors of land are evicted, having exercised their licenses in good faith, they are entitled to the choice of either removal of improvements or compensation for expenses incurred in reliance on the license.

[3] In the case of a bad faith possessor's eviction, if fixtures and possessions are not removed within the time set by the court, they become the property of the legal possessor of the land.

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

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

Opinion and Order:

Plaintiff Filipele Leomiti ("Leomiti") brought this action for eviction and injunctive relief, alleging that defendant Pele Pu`efua ("Pu`efua") was trespassing on plaintiff Leomiti family's communal land. Pu`efua responded by asserting that he was present on the land with Leomiti's permission and counterclaiming, alternatively, for specific performance of a separation agreement for a residence, authorized under A.S.C.A. §§ 37.1501-37.1506, or damages for its breach. [27ASR2d151]

Under A.S.C.A. § 43.0302, three hearings were conducted in December 1993 during the required dispute resolution proceedings before the Secretary of Samoan Affairs. The Deputy Secretary issued the certificate of irreconcilable dispute on January 3, 1994.

Trial was on January 19 and 20, 1995. Both Leomiti and Pu`efua were present with their counsel.

FINDING OF FACTS

Leomiti is the senior chief or sa`o of the Leomiti family of the Village of Pava`ia`i, American Samoa. The Leomiti's communal land at issue, named "Fenuinuiaitu," consists of approximately 0.6894 acres located in Pava`ia`i.

Pu`efua migrated from Western Samoa in 1973. Presently, he lives with his parents on communal land owned by the Ava family, also of Pava`ia`i. He is a trained mechanic and operates a motor vehicle repair shop on leased land in the Village of Nu`uuli, American Samoa. He is not a blood member of the Leomiti family.

In 1992, Leomiti's nephew Sonny Leomiti ("Sonny") returned to American Samoa from the states with his wife. Sonny became a welder and his wife an office worker at Pu`efua's repair shop in Nu`uuli. Pu`efua testified that Sonny and his wife were his employees rather than business associates, although they had no set salary and were compensated for their work as they needed funds.

Regardless of the nature of this relationship at the Nu`uuli repair shop, Pu`efua decided to join forces with Sonny to obtain use of the land at issue. He recognized that Sonny as a Leomiti family member could provide "insurance" (Pu`efua's characterization) for his future on this land. Pu`efua claimed that he wanted the land primarily for his own house and possibly later for his business interests. He also stated that Sonny intended to build a house nearby.

Pu`efua and Sonny approached Leomiti in January or February of 1993 regarding use of the land for a joint business venture. Leomiti, motivated to help his recently returned relative, verbally assigned occupancy of the land to Pu`efua and Sonny for their business [27ASR2d152] operations.(1)

Later, on or about February 18, 1993, Leomiti signed an agreement, establishing separate ownership by Pu`efua and Sonny of a dwelling house to be erected on the land. This document was prepared by Pu`efua's wife. Pu`efua presented it to Leomiti, without any explanation or discussion of its legal significance. Although Pu`efua and Sonny are named as the building owners, the document does not bear their signatures. The name of the land is shown as "Fuaiupu" in the agreement which was clearly altered to do so. Pu`efua admitted to making this alteration which, at a minimum, was a mistake. The document includes an approved survey of the land. Pu`efua testified that this survey is based on boundaries previously shown to Pu`efua by Leomiti. However, Leomiti was not present when the survey was made, and the site as shown is larger than the area authorized by him. Despite the obvious alteration and execution defects, the Territorial Registrar recorded the agreement on March 31, 1993.

In June 1993, Sonny and his wife returned to the states. Leomiti understood that Sonny had left the territory because the business relationship between Pu`efua and Sonny had soured. Pu`efua testified that the relationship was not strained, and that Sonny's wife simply wanted to leave. Either way, Sonny left and was no longer occupying the land. Hence, Leomiti decided to rescind Pu`efua's permitted business use of the land. In July or August 1993, Pu`efua prevented the family members, sent by Leomiti, from replanting the area. The next day, Pu`efua apologized for his actions. Nonetheless, Leomiti told Pu`efua to vacate the land.

Pu`efua, however, had already spent a considerable amount of money developing the land. At the time Sonny left the territory, Pu`efua had already cleared the land, removing numerous coconut, breadfruit and banana trees. By the time Leomiti directed him to leave, Pu`efua had erected the foundation and walls of a building which he intended to be his house, rather than business premises. Further, he had relocated motor vehicles in various states of disrepair onto the land. Thus, in short, he disregarded Leomiti's directive and carried on his construction and other use of the land. He even brought others to the land to watch over his interests. They lived in a shack near the house [27ASR2d153] under construction.

This state of affairs continued even after Leomiti's present counsel wrote to Pu`efua on October 14, 1993, and demanded his departure from the land. Finally, Pu`efua ceased construction, at least with his present counsel's advice pending the outcome of this case, when the American Samoa Government's Development Planning Office effectively terminated his building permit as of January 6, 1994, and this action was filed on January 7, 1994.

CONCLUSIONS OF LAW

1. Pu`efua deliberately concealed his true intention of finding a location to build his house, when he and Sonny obtained Leomiti's verbal occupancy authority.

2. Pu`efua furthered this misrepresentation by securing Leomiti's signature on the separation agreement by consciously and deceptively avoiding explanation or discussion of its legal effect.

[1] 3. Pu`efua, by his own admission, altered the separation agreement and inserted an incorrect name for the land. We find that this change is a material defect. This court has held that a material failure to accurately describe land or parties is sufficient to render a separation agreement invalid. Meredith v. Aumavae , 4 A.S.R. 680, 682 (Trial Div. 1965). One would scarcely question materiality where a groom incorrectly changed the name of his bride after she had signed the marriage license, or of an automobile purchaser who changed the description of the vehicle after he had signed the purchase agreement. Pu`efua could no more obtain an interest in Fenuinuiaitu by recording the name Fuaiupu, than he could legally marry Sina by recording the name Losa on the marriage license.

4. Neither Pu`efua nor Sonny signed the separation agreement.

5. The land as surveyed and described in the separation agreement was larger than Leomiti had authorized for business use.

6. Under these circumstances, we find that the separation agreement is null and void. We also find that Pu`efua's only interest in the land is a revocable license, which Leomiti clearly revoked.

7. Leomiti is entitled to have Pu`efua evicted from the land and [27ASR2d154] permanently enjoined from undertaking any construction, any business operations, or any other activities on the land.

8. Leomiti is also entitled to have Pu`efua required to remove the motor vehicles which Pe`efua deposited on the land.

[2] 9. After eviction, former possessors of land are entitled to remove fixtures and possessions, even where they exercise their licenses in bad faith. Aufata v. Afatia , 5 A.S.R.2d 158, 160 (Land & Tit. Div. 1987); Roberts v. Sesepasara , 8 A.S.R.2d 124, 130-31 n.1 (Trial Div. 1988). When possessors of land are evicted, having exercised their licenses in good faith, they are entitled to the choice of either removal of improvements or compensation for expenses incurred in reliance on the license. Aufata , 5 A.S.R.2d at 158; Roberts , 8 A.S.R.2d at 131-32. We find that Pu`efua exercised his license in bad faith, in light of: (1) his attempt to change the name of the land without informing Leomiti, nor obtaining his consent; (2) his neglect of Leomiti's directions to cease construction activity; (3) his action in bringing others to the land to secure his activities; and (4) his successful attempt to mislead Leomiti as to his intended use of the land when securing Leomiti's verbal permission to conduct a business on the land and later Leomiti's signature on the separation agreement.

ORDERS

1. Pu`efua is evicted from the land at issue, effective immediately.

[3] 2. Pu`efua has permission to enter the land, for a period not exceeding 60 days after the entry of this order, to remove at his option, other than the deposited motor vehicles, any improvements, possessions and fixtures belonging to him. If such items are not removed within that time, they shall become the Leomiti family's property. Laulu v. Taaseu , 23 A.S.R.2d 1, 6 (Land & Titles Div. 1992).

3. During the foregoing 60-day period, Pu`efua shall remove the motor vehicles which he deposited on the land. If he fails to remove these motor vehicles during this period, Pu`efua shall, upon Leomiti's motion, be subject to pay Leomiti's cost of their removal and other applicable damages.

4. Pu`efua, his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, are [27ASR2d155] permanently enjoined from entering the land after the 60-day period, and from undertaking any construction, any business operations, or any other activity on the land at any time without Leomiti's permission.

It is so ordered.

*********

1. Pu`efua did provide traditional service or tautua to Leomiti on one or two occasions after this assignment.

Le`iato; McKenzie v.


AUGUSTINE M. McKENZIE, Plaintiff

v.

TUIMAVAE T. LE`IATO and GAFA TAUVEUVEU, Defendants

High Court of American Samoa
Trial Division

CA No. 113-94

December 14, 1994

__________

[1] Court will exercise its discretion under T.C.R.C.P. 15(a) to grant a motion to amend pleadings where the amended pleadings merely restate the same allegations contained in the original complaint and do not give plaintiff an unfair advantage in the proceedings. T.C.R.C.P. 15(a). [27ASR2d64]

[2] In ruling on a motion for summary judgment, 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 the opposing party. T.C.R.C.P. 56.

[3] In reviewing a motion to dismiss, it is improper for the court to consider documents outside of the pleadings without converting the motion into a motion for summary judgment pursuant to T.C.R.C.P. 56. T.C.R.C.P. 56.

[4] When a court converts a motion under T.C.R.C.P. 12(b) into a motion for summary judgment under T.C.R.C.P. 56, the court must make the parties aware that the court is considering a motion for summary judgment by giving the parties 10 days notice of the conversion. T.C.R.C.P. 12(b), 56.

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

Counsel: For Plaintiff, Augustine M. McKenzie, pro se
For Defendant, Henry W. Kappel, Assistant Attorney General

Order Granting Motion to Amend Complaint, Denying Plaintiff's Motion for Partial Summary Judgment, and Granting Defendant's Motion for Summary Judgment:

PROCEDURAL HISTORY

On June 7, 1994, plaintiff Augustine M. McKenzie, an inmate serving a life sentence at the American Samoa Government's Correctional Facility, initiated this action, alleging claims pursuant to 42 U.S.C. § 1983 against Tuimavae T. Le`iato, Warden of the facility, and Gafa Tauveuveu, Corrections Officer at the facility. Plaintiff asserts that defendants, in their official capacity, deprived him of his federally protected liberty interest without due process of law and asks this court to issue injunctive relief against further violations.

On June 27, 1994, defendants filed a motion to dismiss the complaint on the grounds that this Court lacks jurisdiction over the subject matter of this case, and that plaintiff has failed to state a claim upon which relief can be granted.

On July 6, 1994, plaintiff filed a motion for leave to file an amended complaint.

On July 18, 1994, plaintiff filed a motion for partial summary judgment against defendants, submitting his own affidavit in support. On August 31, [27ASR2d65] 1994, defendants responded to plaintiff's motions, submitting defendant Le`iato's affidavit with several supporting documents attached.

These three motions came regularly for hearing on September 1, 1994. Plaintiff appeared pro se, and defendants by their counsel.

DISCUSSION

I. Motion to Amend Complaint

Although styled as an "amended complaint" the proposed new complaint merely complements the original complaint. The two complaints will, therefore, be read as a single document, with amendments to the original complaint as indicated.

T.C.R.C.P. 15(a), which mirrors F.R.C.P. 15(a), allows:

A party [to] amend the party's pleading once as a matter of
course at any time before a responsive pleading is served or,
if the pleading is one to which no responsive pleading is permitted
and the action has not been placed upon the trial calendar, the
party may so amend it at any time within 20 days after it is served.
Otherwise a party may amend the party's pleading only by leave
of court or by written consent of the adverse party; and leave
shall be freely given when justice so requires.

[1] Plaintiff cites Foman v. Davis, 371 U.S. 178 (1962), to support the principle that a trial court may not deny leave to amend a pleading without justification. We find no reason to deny the motion to file plaintiff's motion in this case. He filed the motion on July 6, 1994, before a trial date had been set and early enough not to surprise defendants. The proposed amendments to the original complaint basically restate the same allegations, in a somewhat expanded form, from that set forth in the original complaint, and do not give plaintiff an unfair advantage in the proceedings. Due to the discretion allowed this court in applying Rule 15(a), plaintiff's motion for leave to file amended complaint is granted as an amendment to the original complaint.

II. Motion for Partial Summary Judgment

[2] 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. [27ASR2d66] 56, which mirrors F.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, Inc., 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 (Probate Div. 1987).

Although plaintiff claims that there are no material facts in dispute as to the alleged violations of his constitutional rights, defendants submitted ample evidence of genuine issues of material fact in this matter. Defendant Le`iato's affidavit incorporates supporting documentation in four parts.

The first is the rules and regulations, adopted on January 31, 1986. Defendants assert that copies of the rules were made available to all inmates, including plaintiff, and were posted at various sites throughout the facility. This document contradicts plaintiff's allegation that defendants failed to provide him with prison rules and regulations.

The second is a release authorization for the weekend furlough program which states in part that there shall be "[a]bsolutely no consumption of alcoholic beverages" as a condition to participation in the program. This document, signed by plaintiff on August 22, 1987, refutes his assertion that he was placed in administrative segregation and revoked of his home release program without having been notified that returning to the facility intoxicated was against regulations.

The third is the warden's decision, dated January 5, 1994, to place plaintiff in administrative segregation for 60 days and revoke his home release privileges for two years. This decision, which was based on review of the recommendations from a hearing panel, is inconsistent with plaintiff's allegation that he was deprived of his liberty interest without due process of law.

The last includes records of four other disciplinary incidents involving plaintiff while in prison. These records put in issue plaintiff's allegation that defendants lodged false information in his inmate file.

Since defendants' affidavit clearly shows that genuine issues of fact exist, plaintiff's motion for partial summary judgement must be and is denied.

III. Motion to Dismiss [27ASR2d67]

Since arguments regarding defendants' motion to dismiss and plaintiff's motion for partial summary judgment were heard together by this court, we considered the affidavits submitted by both parties in support and opposition to plaintiff's motion for partial summary judgment in our review of defendants' motion to dismiss. Since these affidavits are matters outside the pleadings, the motion to dismiss should be treated as one for summary judgment. Richardson v. Rivers, 335 F.2d 996, 998 (D.C. Cir. 1964).

[3] In reviewing a motion to dismiss, it is improper for the court to consider documents outside of the pleadings without converting the motion into a motion for summary judgment pursuant to T.C.R.C.P. 56 and dispose of it as provided by that Rule. Carter v. Stanton, 405 U.S. 669 (1972); Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir. 1985).

T.C.R.C.P. 12(b), which mirrors F.R.C.P. 12(b), states in part:

If, on a motion asserting the defense numbered (6) to dismiss
for failure of the pleading to state a claim upon which relief can
be granted, matters outside the pleading are presented to and
not excluded by the court, the motion shall be treated as one
for summary judgment and disposed of as provided in 56 TCRCP,
and all parties shall be given reasonable opportunity to present
all material made pertinent to such a motion by 56 TCRCP.

[4] When a court converts a motion under Rule 12(b) into a motion for summary judgment, the court must make the parties aware that the court is considering a motion for summary judgment by giving the parties 10 days notice of the conversion pursuant to Rule 56. Rose v. Bartle, 871 F.2d 331 (3rd. Cir. 1989); Heron v. Beck, 693 F.2d 125, 126 (11th Cir. 1982). Rule 56 further requires that the parties have the opportunity to submit "pleadings, depositions, answers to interrogatories, and admissions on the file, together with . . . affidavits" to support or oppose the motion for summary judgment.

On October 28, 1994, this court gave notice to the named parties in this matter of its intention to convert defendants' motion to dismiss to a motion for summary judgment pursuant to Rule 12(b) and allowed the parties until November 10, 1994, to submit further affidavits and/or other materials made pertinent to such a motion by Rule 56.

In the additional time allowed by the court, plaintiff filed an additional affidavit and defendants filed nothing further. Previously, plaintiff had [27ASR2d68] submitted his own affidavit, whereas defendants had submitted Le`iato's affidavit with several supporting documents.

The standard of review this court applies in deciding the appropriateness of a motion for summary judgment is stated on p. 3 of this order, but in reviewing this summary judgment motion, where the defendant is the moving party, we must view all pleadings and supporting papers in the light most favorable to plaintiff.

In plaintiff's most recent affidavit he alleges that defendants: 1) placed false information in his inmate file; 2) failed to enact prison rules or regulations; and 3) placed him in administrative segregation and revoked his release program without due process of law. These allegations are identical to those made in plaintiff's first affidavit. Plaintiff has filed no supporting documents or any new information to show that genuine issues of material fact exist. As stated earlier, upon review of Le`iato's affidavit and supporting documentation, defendants have clearly shown that no genuine issue of material fact exists. Therefore, treating their motion to dismiss as one for summary judgment, defendants are granted summary judgment dismissing plaintiff's complaint as amended with prejudice.

CONCLUSION

Plaintiff's motion for leave to file an amended complaint is granted as an amendment to the original complaint. However, his motion for partial summary judgment is denied, and defendants are granted summary judgment dismissing plaintiff's complaint as amended with prejudice.

It is so ordered.

*********

Leiataua; American Samoa Gov’t v.


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

FANUAEA THERESA GURR LEIATAUA, Defendant

High Court of American Samoa
Trial Division

CR No. 44-94

November 7, 1994

__________

[1] Federal financial privacy laws contained in 12 U.S.C. §§ 3401 et seq., apply only to agencies and officials of the United States Government.

[2] The American Samoa Government is not a federal agency.

[3] The High Court of American Samoa is not a federal court. [27ASR2d27]

Before RICHMOND, Associate Justice.

Counsel: For Plaintiff, Henry W. Kappel, Assistant Attorney General
For Defendant, Afoa L. Su`esu`e Lutu

Order Granting Motion for Early Production of Subpoenaed Documents:

Plaintiff American Samoa Government ("ASG") caused service of a subpoena duces tecum on the Amerika Samoa Bank ("ASB") and, pursuant to T.C.R.Cr.P. 17(c), moved to require early production of the documents to the court. The motion was heard on November 4, 1994, with counsel for both parties present. Through counsel, defendant Fanuaea Theresa Gurr Leiataua waived her right to be present. At the hearing, ASB questioned the applicability of the federal financial privacy laws, 12 U.S.C. §§ 3401 et seq., in particular 12 U.S.C. § 3407, setting forth several requirements, including notice to the account holder, when bank-possessed documents are subpoenaed.

[1-3] 12 U.S.C. §§ 3401 et seq. apply only to agencies and officials of the United States Government. In this context, ASG is not a federal agency. The High Court of American Samoa is not a federal court. High Court justices and judges are not federal officials when performing their judicial functions. In short, 12 U.S.C. §§ 3401 et seq. are not applicable to and do not restrict the judicial processes of this court.

The court grants ASG's motion for early production of the subpoenaed documents. ASB shall deliver those documents in its possession to the clerk of this court no later than 4:00 p.m. on November 8, 1994.

It is so ordered. ASB is advised that if it fails without good cause to comply with this order, it is guilty of contempt of court and may be punished therefor.

*********

Laumatia; Pasesa v.


MILIAMA PASESA, individually and as next friend of SERINA
PASESA, Plaintiff

v.

TUILUA T. LAUMATIA, Defendant

High Court of American Samoa
Trial Division

CA No. 67-93

January 18, 1995

__________

[1] The one-year statute of limitations in A.S.C.A. § 43.0126 begins to accrue on the date on which a Guardian Ad Litem is appointed. A.S.C.A. § 43.0126.

[2] A suit dismissed without prejudice leaves the situation the same as if the suit had never been brought in the first place.

[3] A party cannot deduct from the limitations period applicable to his case the time consumed by the pendency of an action in which he sought to have the matter adjudicated, but which was dismissed without prejudice as to him and if, before he commences a new action after having become nonsuited or having had his action abated or dismissed, the limitations runs, the right to a new action is barred.

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

Counsel: For Plaintiff, Cheryl Crenwelge, Dennison & Ashley
For Defendant, Albert Mailo

Order Granting Motion to Dismiss:

INTRODUCTION

On June 23, 1994, Serina Pasesa ("Serina"), a minor, filed this action, by and through her Guardian Ad Litem, Miliama Pasesa ("Miliama"), naming Tuilua T. Laumatia ("Laumatia") as defendant, and seeking money damages for physical injuries suffered on February 9, 1990, as the result of a car accident involving Laumatia.(1) [27ASR2d89]

On December 6, 1994, Laumatia filed a motion to dismiss this action on the grounds that it is barred by the statute of limitations pursuant to A.S.C.A. § 43.0120(2). In response, plaintiff filed a memorandum in opposition to motion to dismiss on December 16, 1994.

On January 12, 1995, the hearing came regularly before the court and both parties were represented by counsel.

DISCUSSION

A.S.C.A. § 43.0120(2) is the statute of limitations applicable to this action. A.S.C.A. § 43.0120(2) provides in relevant part that "actions founded on injuries to the person . . . whether based on contract or tort, or for a statutory penalty, [must be brought] within two years [after their causes accrue]." Although this action was filed on June 23, 1993, over three years after the accident, plaintiffs assert that it is not barred by A.S.C.A. § 43.0120(2) because Serina is a minor and her suit is governed by A.S.C.A. § 43.0126. As an exception to A.S.C.A. § 43.0120, A.S.C.A. § 43.0126 states that "[m]inors and insane persons shall have one year from after the termination of such disability within which to commence any action regardless of any otherwise applicable limitations period."

[1] Plaintiff further asserts that since Miliama was appointed Guardian Ad Litem the same day this action was filed, that this action is not barred by the one-year statute of limitations stated in A.S.C.A. § 43.0126. Although § 43.0126 is applicable, (2) it does not aid plaintiff in this case. The one-year statute of limitations in A.S.C.A. § 43.0126 begins to accrue [27ASR2d90] on the date on which a Guardian Ad Litem is appointed, because the minor's inability to bring suit is terminated at that juncture. Lutu v. American Samoa Government , 7 A.S.R.2d 61, 63 (1988). Since Miliama was originally appointed Guardian Ad Litem on November 16, 1990, plaintiffs only had until November 16, 1991 to bring this action. The order appointing Miliama as a Guardian Ad Litem, signed on June 23, 1993, does not allow Miliama to extend the statute of limitations defined in A.S.C.A. § 43.0126, especially when the earlier action, CA No. 102-90, was also brought on behalf of Serina against Laumatia and claimed the same damages from the same accident as in this matter. Although the earlier action against Laumatia was dismissed without prejudice, plaintiffs are still required to bring an action again within the statute of limitations defined by statute.

[2-3] A suit dismissed without prejudice leaves the situation the same as if the suit had never been brought in the first place. Humphreys v. United States, 272 F.2d 411, 412 n.1 (9th Cir. 1959). The Humphreys court further commented on the effect upon the statute of limitations of a dismissal without prejudice in stating:

In the absence of statute, a party cannot deduct from the period
of the statute of limitations applicable to his case the time consumed
by the pendency of an action in which he sought to have the matter
adjudicated, but which was dismissed without prejudice as to him
and if, before he commences a new action after having become
nonsuited or having had his action abated or dismissed, the limitation
runs, the right to a new action is barred.

Id. at 412 (citing 34 Am. Jur. Limitation of Actions § 281, now appearing in 51 Am. Jur. 2d Limitation of Actions § 311 (1970)).

Miliama filed this action on June 23, 1993, more than a year after she was originally appointed Guardian Ad Litem, and is therefore barred by A.S.C.A. § 43.0126. For these reasons we grant defendant's motion to dismiss with prejudice.

It is so ordered.

*********

1. Miliama and Serina previously brought an action in this court, docketed CA No. 102-90, against Laumatia, Laau Liufai, and Insurance Company of the Pacific, Inc., seeking damages resulting out of the same accident at issue before us now. On February 18, 1993, this court approved a settlement in CA No. 102-90 and dismissed the action as to Laau Liufai, the owner of the vehicle Laumatia was driving at the time of the accident, and Insurance Company of the Pacific, Inc., the insurer of the vehicle. On June 4, 1993, the court approved the stipulation of the parties as to the dismissal of the action as to Laumatia without prejudice.

2. This court has held that no conflict exists between A.S.C.A. §§ 43.0120 and 43.0126, since A.S.C.A § 43.0126 clearly makes an exception to any statute of limitations and establishes a one-year statute of limitations. Lutu v. American Samoa Government , 7 A.S.R.2d 61, 63 (1988).

Lagarejos; Dev. Bank of American Samoa v.


DEVELOPMENT BANK OF AMERICAN SAMOA, Plaintiff

v.

CHRISTINE LAGAREJOS, Defendant

High Court of American Samoa
Trial Division

CA No. 30-94

January 18, 1995

__________

[1] Motion to intervene in an action after court has entered judgment is barred when movants possessed knowledge of the action prior to the entering of judgment. T.C.R.C.P. 24.

[2] Post-judgment intervention is generally allowed only upon a strong showing of entitlement by the applicant.

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

Counsel: For Plaintiff, Tate J. Eldridge
For Movants Carl & Starr Schuster, Arthur Ripley, Jr.

Order Denying Motion for Post-Judgment Intervention:

On August 22, 1994, this court entered judgment in favor of plaintiff mortgagee, Development Bank of American Samoa, against defendant mortgagor, Christine Lagarejos, awarding, among other things, plaintiff's petition to foreclose a certain leasehold mortgage which defendant had executed in favor of plaintiff as collateral for the repayment of her loan. The leasehold interest was created in favor of defendant by her parents, movants herein Carl and Starr Schuster, in order to facilitate her loan application with plaintiff. To this end, movants gave plaintiff an instrument styled "Lessor's Consent to Mortgage and Estoppel Certificate," which on its face sanctioned the mortgaging of defendant's leasehold interest to plaintiff. Defendant subsequently defaulted on the loan and plaintiff filed suit, which resulted in the judgment entered herein.

On October 11, 1994, movants filed their motion for post judgment intervention, claiming, among other things, intervention as of "right" under T.C.R.C.P. 24(a), in that they were not joined in the action and [27ASR2d92]hence their interest in the subject matter of the leasehold mortgage was not adequately represented. Alternatively, they claim intervention under T.C.R.C.P. 24(b) contending that the lease agreement and the lessor's-consent-to-mortgage instrument presented common questions of fact and law, relating to movants' intent with respect to their execution of these documents, which the court should consider.

DISCUSSION

[1] A motion to intervene whether under subdivision (a) or (b) of Rule 24 is subject to the requirement of "timeliness." NAACP v. New York, 413 U.S. 345, 365 (1973). We hold that the application before us is untimely since movants have had knowledge of this action for some time before it went to judgment, as counsel for the mortgagee had early appraised movants of these proceedings. To sanction movants' wait-and-see posture by reopening this matter would be to unduly prejudice plaintiff's rights and substantially interfere with the orderly processes of the court. See McDonald v. E.J. Lavino Corp., 430 F.2d 1065, 1072, (5th Cir. 1970); United States v. Blue Chip Stamp Co., 272 F. Supp. 432, 436 (C.D. Cal. 1967) ("The interest in expeditious administration of justice does not permit litigation interminably protracted through continuous reopening. A motion to intervene after entry of decree should therefore be denied in other than the most unusual circumstances.").

[2] At the same time, post judgment intervention is generally allowed only upon a "strong showing" of entitlement by the applicant. United States v. Associated Milk Producers, Inc., 534 F.2d 113, 116 (8th Cir. 1976), cert. denied, 429 U.S. 940 (1976). In this matter, movants cannot demonstrate any proprietary interest whatsoever in the subject matter of the action, namely, the leasehold estate and mortgage interest on the land. In contrast, movants' interest, a fee estate in the land, is not in any way affected by the judgment in this case. While that fee estate happens to be presently encumbered by leasehold and mortgage interests, these encumbrances, which movants now complain of, were not of the court's doing but that of movants' themselves, when they gave to the defendant and her assigns a leasehold estate on their land with the right to mortgage that leasehold estate to prospective lenders.

Furthermore, what movants essentially seek at this time is the opportunity to assail those encumbrances by going back on the language of the instruments which they have given. In other words, they seek the opportunity to present parol evidence to explain their real "intentions" with [27ASR2d93] respect to the Leasehold Agreement and Lessor's Consent to Mortgage and Estoppel Certification. This course of action is of dubious merit, and in terms of the "strong showing" requirement for post judgment intervention, movants can hardly be said to have met their burden.(1)

For reasons given, the motion for post-judgment intervention is denied.

It is so ordered.

*********

1. It is apparent from the supporting papers filed with the motion that this attempt to reopen the matter was prompted by the plaintiff mortgagee's unwillingness to accept movants' proposal for extended purchase terms to discharge the mortgage. Discharge of the mortgage and subsequent cancellation of the lease is still available to the movants, and, under the circumstances, is the more realistic course for relief.

Korea Deep Sea Fisheries Assn. v. M/V Corona # 1 ,


KOREA DEEP SEA FISHERIES ASSN. (SAMOA OFFICE),
an American Samoa Corporation, Plaintiff

v.

THE M/V CORONA #1, her cargo, etc., Defendant In Rem

v.

KYUNG YANG TRADING COMPANY, Defendant in
Personam

SOUTH WEST MARINE OF SAMOA, INC., Intervenor

__________

SOUTH WEST MARINE OF SAMOA, INC., Plaintiff

v.

KOREA DEEP SEA FISHERIES ASSN. (SAMOA OFFICE)
and I.S. LEE, Defendants

High Court of American Samoa
Trial Division

CA No. 103-92
CA No. 15-93
(Consolidated)

March 16, 1995

__________

[1] Under the partially disclosed principal theory of an agent's liability to a third party for actions the agent has taken on behalf of a principal, the third party must establish that the third party was aware of the agency, was without knowledge of the principal's identity, and had formed a valid contract with the agent.

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

Counsel: For Korea Deep Sea Fisheries Assn. and I.S. Lee, William H. Reardon
For South West Marine of Samoa, Inc., Marshall Ashley

Order Denying Motion for a New Trial:

On December 2, 1994, this court entered judgment in favor of plaintiff Southwest Marine of Samoa, Inc. ("SWM") against defendant Kyung Yang Trading Company ("KYTC") in the sum of $52,369.84 for moorage of KYTC vessels abandoned at SWM's dock between August 30, 1992 to May 31, 1993. The court also held that defendant Korea Deep Sea Fisheries Association ("KDSFA") was not liable to SWM for such mooring services because KDSFA was merely an agent of the boat owner, KYTC. SWM moved for a new trial on the grounds that KYTC was a partially disclosed principal, making KDSFA, the agent, liable as a party to the transaction.

[1] SWM argues that an agent is liable as a party to a contract even though the other party is aware of the agency but has no knowledge of the principal's identity. In these situations, the agent is said to be acting for a partially disclosed principal. See Jensen v. Alaska Valuation Service, Inc., 688 P.2d 161, 163 (Alaska 1984) (citing Restatement (Second) Of Agency §§ 321, 332 (1958) (an agent who makes a contract for an undisclosed or partially disclosed principal will be liable as a party to the contract)). However, as counsel conceded at the hearing of the motion, SWM's liability [of the agent] contention presupposes that the parties had entered into an underlying contract for moorage services. In this court's original opinion and order, however, this court did not award damages to SWM on contract theory; rather, it awarded SWM damages on a quantum meruit basis, finding that $52,369.84 was the "reasonable value" of the mooring services rendered to vessels that are abandoned at its dock. (1) Under these circumstances, we see no basis for imputing liability to KDSFA because of its agency status. The motion for new trial is, therefore, denied.

It is so ordered.

*********

1. At trial, SWM's contract theory of liability was premised on a document styled "Standard Open Quotation Contract." This same contract argument advanced by SWM in another abandoned boat case was similarly rejected by this court as unsubstantiated. See Southwest Marine of Samoa, Inc., v. M/V Korbee #2, et al., CA No. 96-92, slip op. (Order on Motion for Default Judgment, Dec. 23, 1992).

Korea Deep Sea Fisheries Assn. v. M/V Corona #1 ,


KOREA DEEP SEA FISHERIES ASSN. (SAMOA OFFICE),
an American Samoa Corporation, Plaintiff

v.

THE M/V CORONA #1, her cargo, etc., Defendant In Rem

v.

KYUNG YANG TRADING CO., Defendant in Personam

SOUTH WEST MARINE OF SAMOA, INC., Intervenor

_________________________________________

SOUTH WEST MARINE OF SAMOA, INC., Plaintiff

v.

KOREA DEEP SEA FISHERIES ASSN. (SAMOA OFFICE) and
I.S. LEE, Defendants

High Court of American Samoa
Trial Division

CA No. 103-92
CA No. 15-93
(Consolidated)

February 14, 1995

__________

[1] Memoranda supporting motion for a new trial must be filed no later than 10 days after the judgment to provide the adverse party an opportunity to respond. A.S.C.A. § 43.0802(a).

[2] Court will not entertain a motion to alter or amend a judgment when adverse party has been served with the motion later than 10 days after entry of judgment. T.C.R.C.P. 59(e).

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

Counsel: For Korea Deep Sea Fisheries Assn. and I.S. Lee, William H. Reardon
For South West Marine of Samoa, Inc., Marshall Ashley

On December 2, 1994, this court found that Korean Deep Sea Association ("KDSFA") was not liable to South West Marine of Samoa, Inc. ("SWM") because KDSFA was merely acting as an agent for Kyung Yang Trading [27ASR2d121] Co. ("KYTC"). On January 2, 1995, SWM moved for a new trial, pursuant to A.S.C.A. § 43.0802(a), on the grounds that KYTC was a partially disclosed principal, making KDSFA, the agent, liable as a party to the transaction. SWM's motion further sought to alter and amend the judgment accordingly, pursuant to T.C.R.C.P. 59.

[1-2] While SWM's motion for a new trial was filed within 10 days after the judgment as required by A.S.C.A. § 43.0802(a), the supporting memorandum of points did not accompany the motion as required by T.C.R.C.P. 7(b)(1), but was instead filed on January 27, 1995, the day of the hearing. The late filing therefore effectively deprived KDSFA of the opportunity to respond.(1) At the same time, T.C.R.C.P. 59(e) requires that "a motion to alter or amend a judgment shall be served not later that 10 days after entry of judgment" (emphasis added). A motion which has not been served on the other side in compliance with the rule will not be entertained as a motion to alter or amend. Olotoa v. Bartley , 3 A.S.R.2d 21 (Land & Titles Div. 1986).

Accordingly, SWM's motion to reconsider will be reset for rehearing on March 1, 1995. KDSFA shall have until February 24, 1995, to file a responsive memorandum regarding the partially disclosed principal doctrine, stating its version of the relevant facts and applicable law regarding those facts.

It is so ordered.

*********

1. We recognize, but do not condone, the undesirable tendency in the filing motions for new trial without accompanying memoranda or the filing of memoranda after the filing of the motion. Although we will consider SWM's memorandum despite its tardiness, in future matters we may be inclined to use our discretion to deny the motion pursuant to T.C.R.C.P. 59.

Korea Deep Sea Fisheries Assn. v. M/V Corona #1,


KOREA DEEP SEA FISHERIES ASSN. (SAMOA OFFICE),
an American Samoa Corporation, Plaintiff

v.

THE M/V CORONA #1, her cargo, etc., Defendant In Rem

v.

KYUNG YANG TRADING COMPANY, Defendant in Personam

SOUTH WEST MARINE OF SAMOA, INC., Intervenor

_________________________________________

SOUTH WEST MARINE OF SAMOA, INC., Plaintiff

v.

KOREA DEEP SEA FISHERIES ASSN. (SAMOA OFFICE) and
I.S. LEE, Defendants

High Court of American Samoa
Trial Division

CA No. 103-92
CA No. 15-93
(Consolidated)

December 2, 1994

__________

[1] A known agent is not liable for the debts of its disclosed principal.

[2] The court has inherent equitable power to give priority to costs arising out of the administration of property within its jurisdiction.

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

Counsel: For Korea Deep Sea Fisheries Assn. and I.S. Lee, William H. Reardon
For South West Marine of Samoa, Inc., Marshall Ashley

INTRODUCTION

I. CA No. 103-92 [27ASR2d54]

On October 27, 1992, Korea Deep Sea Fisheries Association (Samoa Office) ("KDSFA"), a South Korean corporation, filed its complaint in admiralty against Kung Yang Trading Company ("KYTC"), a South Korean corporation, and its vessel the M/V Corona #1, for monies owed in the amount of $8,573.29 on goods supplied and funds advanced to the M/V Corona by KDSFA, while acting as local agent for KYTC and its fishing vessels. The Clerk of Courts docketed the matter as CA No. 103-92 and duly issued a warrant for the arrest of the vessel M/V Corona #1; the Marshall of the High Court duly executed the warrant. Subsequently, Southwest Marine of Samoa, Inc., ("SWM") and a number of other creditors, intervened to assert their respective claims against KYTC and the defendant vessel. In addition, SWM joined KDSFA and its employee I.S. Lee as co-defendants.

Upon interlocutory application, the vessel was ordered to be sold by public auction to the highest bidder and it was eventually sold for $1,000. The proceeds of sale are on deposit with the registry of the court. Following the sale, all but KDSFA and SWM had lost interest in these proceedings and the further pursuit of their individual claims. KYTC, on the other hand, never answered nor in any way responded to the claims filed herein against it and its vessel the M/V Corona #1; the vessel was in effect abandoned and there is every indication that KYTC no longer exists.

II. CA No. 15-93

On February 3, 1993, SWM filed its complaint, in CA No. 15-93, for mooring fees on the vessel M/V Kwang Yang #5. SWM claims that mooring was requested by KDSFA as agent for the vessel, which is alleged to be owned by KDSFA's local manager, defendant I.S. Lee. Upon stipulation of the parties, these matters were consolidated for trial.

FINDINGS & CONCLUSIONS

A. KDSFA v. KYTC

On the evidence, we find that KDSFA was at all relevant times, local agent for KYTC and its vessel M/V Corona #1; that as agent, KDSFA had advanced money and paid for supplies furnished to the M/V Corona #1; that KYTC is indebted to KDSFA in the amount of $8,573.29 for such advances and payments. KDSFA will, therefore, take judgment against KYTC in the amount of $8,573.29.

B. SWM v. KYTC [27ASR2d55]

We further find that the vessel M/V Corona had been abandoned by KYTC and left moored at SWM's dock from August 30, 1992, to May 31, 1993. We find that the reasonable value of such mooring services rendered the vessel M/V Corona #1 is $52,369.84. SWM will, therefore, take judgment against KYTC in the amount of $52,369.84.

C. SWM v. KDSFA

[1] We are unable to see on the evidence why KDSFA should be held liable for KYTC's mooring indebtedness to SWM. It is clear from the testimony of SWM's general manager, Arnold A. Walker, that his company dealt with KDSFA as agent for KYTC and a number of their other boat-owner customers as well. SWM in its dealings with KDSFA was dealing with a known agent acting within the scope of its authority to order services for vessels belonging to Korean boat owners. KDSFA's relationship to the vessels in question here, the M/V Corona #1 and the M/V Kwang Yang #5, was that of the owner's agent, KYTC. In these circumstances, the law is well settled that a known agent is not liable for the debts of its disclosed principal. See generally 3 Am. Jur. 2d, Agency, § 302. At the same time we find no evidence to suggest that KDSFA had acted as guarantor of its principal's indebtedness. SWM's complaint against KYTC is, therefore, dismissed and SWM shall take nothing thereby.

D. SWM v. Lee

I.S. Lee is being sued on the incorrect premise that he owns the vessel Kwang Yang #5. The evidence reveals that the vessel's registered owner is the "Kyung Yang Trading Co., Ltd." SWM's complaint against I.S. Lee shall, therefore, be dismissed and SWM shall take nothing thereby.

E. Proceeds In Rem

[2] While the evidence clearly establishes that KDSFA holds a preferred maritime lien to the M/V Corona #1, it was also equally clear that while the M/V Corona #1 remained under process of this court, SWM had to suffer the continued mooring of the vessel at its dock for a period of 5 months principally because nobody else would take responsibility for securing the same. We find that value of this service to the res was well in excess of $1,000. It goes without saying that the safe haven provided at SWM's dock to the effectively abandoned M/V Corona #1 pending its disposition by court ordered sale, inured not only to the benefit of the res itself but to the benefit of all the parties concerned. In these [27ASR2d56] circumstances, the court has inherent equitable power to give priority to costs arising out of the administration of property within its jurisdiction. See New York Dock Co. v. SS Pozan, 274 U.S. 117 (1927); Kingsgate Oil v. M/V Star, 815 F.2d 918 (3d Cir. 1987).

We hold that equity and good conscience requires that SWM be first compensated from the sale proceeds of the res for the reasonable value of mooring services while the vessel was in custodia legis. We so exercise our discretion and accordingly direct that the $1,000 on deposit with the registry of the court, together with any accumulated interest, be paid to SWM to defray mooring costs in custodia legis. Judgment will enter in accordance with the foregoing.

It is so ordered.

*********

Kent Samoa, Inc. v. Shimasaki,


KENT SAMOA INC., dba KENT RENTAL & EQUIPMENT
LEASING, Plaintiff

v.

FINA L. SHIMASAKI, Defendant

High Court of American Samoa
Trial Division

CA No. 125-94

March 2, 1995

__________

[1] To determine that no material fact exists on a motion for summary judgment, the facts must be "beyond dispute," even though the non-moving party's factual assertions, supported by discovery material, are presumed to be true, and all inferences are construed in a light most favorable to the non-moving party. T.C.R.C.P. 56.

[2] The existence of an accord and satisfaction becomes a question of law when both sides allege the same set of facts, but offer opposing applications of the law to those facts.

[3] A demand is not liquidated even if it appears that something is due, unless it appears how much is due; and when it is admitted that one of two specific sums is due, but there is a genuine dispute as to which is the proper amount, the demand is regarded as "unliquidated" within the meaning of that term as applied to the subject of accord and satisfaction.

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

Counsel: For Plaintiff, Katopau T. Ainu`u
For Defendant, Barry I. Rose

Order Denying Motion for Summary Judgment:

I. HISTORY

On February 14, 1992, defendant Fina L. Shimasaki ("Shimasaki") rented an automobile from plaintiff Kent Samoa, Inc., dba Kent Rental & Equipment Leasing ("Kent"), listing herself as the driver. On February [27ASR2d141] 18, 1992, Shimasaki's son, Andy Tafua ("Tafua"), drove the rental vehicle and was involved in an accident resulting in damage to the rental vehicle and several others. Tafua is under the age of 21 years and does not have a legally valid driver's license. The rental agreement provided that the vehicle not be operated by any person not duly licensed and 21 years or older. The rental agreement further provided the option for the renter to purchase insurance for the vehicle, and made the renter absolutely liable otherwise. Shimasaki elected not to exercise the option. Kent now seeks summary judgment, arguing that there are no triable issues of fact, since the rental agreement imposes absolute liability. This motion was heard on December 19, 1994 with counsel for both parties present.

II. STANDARD OF REVIEW

[1] Summary judgment is appropriate where there is no issue with respect to any material fact, and the moving party is entitled to judgment as a matter of law. T.C.R.C.P. 56. It may be invoked only when "no genuine issue as to any material fact" exists. Anderson v. Liberty Lobby, 477 U.S. 242, 247-250 (1986); Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). To determine that no material fact exists, the facts must be "beyond dispute," even though the non-moving party's factual assertions, supported by discovery material are presumed to be true, and that all inferences are construed in a light most favorable to the non-moving party. Ah Mai v. American Samoa Government , 11 A.S.R.2d 133, 136 (1989); see also Lokan v. Lokan , 6 A.S.R.2d 44, 46 (1987); U.S. v. Diebold, 369 U.S. 654 (1952).

III. DISCUSSION

Shimasaki argues that her debt was discharged by an "accord and satisfaction," pointing to a telephone call, and subsequent meeting where Kent's office manager allegedly assured her that payment of Kent's $1,000 insurance deductible would satisfy her obligations. Shimasaki claims that she agreed to pay $1,000 on that condition.

In order to constitute an accord and satisfaction,

it is necessary that the money should be offered in full satisfaction
of the demand, and be accompanied by such acts and declarations
as amount to a condition that the money, if accepted, is accepted
in satisfaction; and it must be such that the party to whom it is
offered is bound to understand therefrom that, if he takes it, he
takes it subject to such conditions. [27ASR2d142]

Kinkey v. Maxon, 114 N.E.2d 852, 855 (Ohio App. 1952) (quoting Pitts v. National Independent Fisheries, 206 P. 571 (Colo. 1922)). Kent, citing Kinkey, alleges that a check lacking a notation that it represents payment in full fails to satisfy all obligations. The Kinkey court suggested, however, that a verbal statement that "she would pay the $1,000 only on condition that it would be accepted in full settlement," would probably be sufficient to create a binding accord. Kinkey,114 N.E.2d at 854-55. Shimasaki alleges that such statements were made and agreed to by both parties in this case.

[2] The existence of an accord and satisfaction becomes a question of law when both sides allege the same set of facts, but offer opposing applications of the law to those facts. Kinkey, 114 N.E.2d at 855. In this case, Shimasaki deserves an opportunity to present evidence on whether her payment of $1,000 to Kent was done with the mutual understanding that it would represent full payment. If we construe all factual material in a light most favorable to the non-moving party, we must conclude that Kent orally agreed with Shimasaki that $1,000 represented full payment. This conclusion demonstrates a genuine issue as to material fact that warrants full adjudication.

[3] Kent argues that accord and satisfaction may not result from part payment of a liquidated or undisputed amount. That argument, however, begs the question of whether the damages alleged by the plaintiff are undisputed. There is no liquidated damages clause in the rental agreement. Furthermore, an argument could be made that payment of Kent's insurance deductible compensated Kent for "all loss or damage" as the rental agreement required. Whether payment of the deductible could actually satisfy the agreement is unimportant. If there is a reasonable basis for a good faith dispute as to the amount of a debt, that dispute may be settled by an accord and satisfaction, even where the claim or defense giving rise to the dispute was invalid. Restatement (Second) Contracts § 74 (see also cmts. b & c, and ill. 4). The debt may be undisputed in the sense that the contract seems to impose absolute liability on the renter, but the amount of the damages is a genuine issue of fact for proof at trial. Id. at cmt. c.

A demand is not liquidated even if it appears that something is due, unless it appears how much is due; and when it is admitted that one of two specific sums is due, but there is a genuine dispute as to which is the proper amount, the demand is regarded as "unliquidated" within the meaning of that term as applied to the subject of accord and satisfaction. Winter Wolff v. Co-op Lead & Chemical, 111 N.W.2d 461, 465 (Minn. [27ASR2d143] 1961) (quoting Nassoiy v. Tomlinson, 42 N.E. 715, 716 (NY 1896)). Most importantly, the old common law rule that one cannot waive part of an undisputed obligation by accord and satisfaction is arguably the product of judicial mistake, and is increasingly disfavored by some courts. Id. at 465-66.

We therefore deny Kent's motion for summary judgment.

It is so ordered.

*********

Interocean Ships, Inc. v. Samoa Gases,


INTEROCEAN SHIPS, INC., a Delaware corporation, Plaintiff

v.

SAMOA GASES, a corporation, Defendant

High Court of American Samoa
Trial Division

CA No. 123-85

September 23, 1994

__________

[1] The court has wide discretion in allowance of various cost awards in [27ASR2d6] admiralty.

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

Counsel: For Plaintiff, William H. Reardon
For Defendant, Arthur Ripley, Jr.

Order on Application for Costs:

On July 22, 1994, plaintiff Interocean Ships, Inc. ("Interocean") submitted a memorandum of costs pursuant to T.C.R.C.P. 54(d). In this memorandum, Interocean requested a total of $36,006.75 for the filing fee, witness fees, depositions, expert witness fees and trial exhibits, associated with this action but not claimed and, in the court's Opinion and Decision of May 2, 1994, denied. Interocean submitted numerous, if convoluted, exhibits in proof of these claims.

On September 21, 1994, defendant Samoa Gases ("Samoa Gases") submitted a memorandum in opposition to these costs, claiming that witness fees and deposition expenses should have been approved prior to expenditures, and that attorney travel expenses and expert witness fees are not taxable.

[1] This court has wide discretion in allowance of various cost awards in admiralty. Compania Galeana, S.A. v. Motor Vessel Caribbean Mara, 565 F.2d 358, 360 (9th Cir. 1978); Dillingham Shipyard v. Associated Insulation Co., 649 F.2d 1322, 1329 (9th Cir. 1981). In this case, Samoa Gases' objections as to the costs submitted by Interocean must fail. Not only is such an award within our discretion, but also Samoa Gases has submitted no admiralty cases in support of its argument.

In our previously issued decision on damages, we assessed the comparative liability of Interocean, Samoa Gases and two product suppliers, PRI and Radiator Specialty, as follows:(1)

Radiator Specialty--0%
PRI--1%
Samoa Gases--4%
Interocean--95%

In our discretion, we grant Interocean's application for costs using the same percentage of comparative liability. "In admiralty in particular, the court has wide latitude in [awarding costs], especially if it is felt that making such an award would produce injustice." Stevens v. F/V Bonnie Doon, 655 F.2d 206, 210 (9th Cir. 1981), appeal after remand 731 F.2d 1433 (9th Cir. 1984).

Interocean is entitled to receive 4% of their allowed costs from Samoa Gases, the same percentage allowed them in all claims in which they prevailed. Therefore, Samoa Gases is liable to Interocean, for costs, in the amount of $1,440.27.

It is so ordered.

*********

1. Although we are utilizing the percentages of liability assessed to settling non-parties (PRI and Radiator Specialty), we again note that we are disregarding any actual dollar amounts paid by these parties in settlement.

In re the Election for Representative from District No. 3,


LAVEA SEALIITU F. MAUGA, Plaintiff

v.

CHIEF ELECTION OFFICER and ELISARA T. TOGIA`I, 
Defendants

_______

IN RE THE ELECTION FOR REPRESENTATIVE FROM 
DISTRICT NO. 3, INCLUDING THE VILLAGES OF VATIA, 
AOA, ALAO, TULA, and ONENOA, and CONCERNING 
ELISARA TOGIA`I, OFFICIAL CANDIDATE.

High Court of American Samoa
Appellate Division

AP No. 17-94

November 25, 1994

__________

[1] Statutory provision stating that an election tie "shall be decided by lot" is a mandatory rather than optional mechanism for breaking the tie. A.S.C.A. § 6.0901.

[2] Statutory provision requiring election ties to be decided by lot does not invalidate any votes of the qualified electors, nor does it taint the requirement that representatives be elected by secret ballot, since the lot comes into play as a result of the balloting process. A.S.C.A. § 6.0901.

[3] Statutory provision requiring election ties to be decided by lot is not inconsistent with the Revised Constitution of American Samoa. A.S.C.A. § 6.0901.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, VAIVAO, Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Plaintiff, Togiola T.A. Tulafono
For Chief Election Officer, Malaetasi M. Togafau, Attorney General, and Elvis R.P. Patea, Deputy Attorney General
For Elisara T. Togia`i, pro se

Order Denying Petition for a New Election:

Lavea Sealiitu F. Mauga (hereafter "Mauga") and Elisara T. Togia`i (hereafter "Togia`i") are candidates for the American Samoa House of Representatives, Vaifanua County, Voting District #3. The election for District #3, held November 8, 1994, resulted in a tie between Mauga and [27ASR2d29] Togia`i, each having polled 241 votes.

On November 14, 1994, Mauga and Togia`i filed separate complaints with the High Court praying for a new election to decide who should be seated in the House of Representatives, rather than submit to a decision by lot pursuant to A.S.C.A. § 6.0901. This enactment reads:

In the case of failure of an election by reason of the equality of 
vote between 2 or more candidates, the tie shall be decided by 
lot, under the supervision of the chief election officer. When an 
election is decided by lot, the candidates may agree in a signed 
statement to the use of the lot. If the candidates agree, they shall 
be bound by the lot and shall not bring an election contest under 
sections 6.0902 and 6.0903 after the drawing of the lot. Each 
candidate shall be present at the drawing of the lot together with 
2 witnesses to be selected by him. (Emphasis added.)

Mauga argues that the election should be declared invalid "because it cannot be determined that a clear majority or plurality of votes [was] cast in said election and the defendant, Chief Election Officer, cannot certify any candidate elected from District #3 after the November 8th election." Complaint para. 6. Togia`i seeks the same relief arguing that no candidate has been "elected" in his district in accordance with Article II, Section 3(c) of the Revised Constitution of American Samoa. (1) He also cites A.S.C.A. § 2.0302, which uses language outlining "the number of representatives to be elected therefrom," (emphasis added) to further assert that the use of a lot is in violation of the constitutional requirement that representatives be "elected."

[1] We have consolidated these matters for hearing and for reasons given we deny the relief sought. Contrary to Mauga's submission, the Legislature has expressly and unambiguously provided for a decision in a tie vote situation, by the drawing or casting of lots. A.S.C.A. § 6.0901 is couched in mandatory language. (2) We fail to see anything in the [27ASR2d30] American Samoa Electoral Reform Act of 1977, A.S.C.A. Title 6, which provides any basis to the suggestion that a new election is an available alternative to A.S.C.A. § 6.0901, to be invoked at the option of the candidates. We note that while A.S.C.A. § 6.0901 goes on to state that "candidates may agree in a signed statement to the use of lot," this does not mean that they may by stipulation excuse themselves from the mandated lot process, and, thereby, demand a new election. Under the terms of the statute, the candidates have the opportunity to stipulate to be bound by the result of the lot; i.e., they may agree that the result of the draw shall be final and unappealable. In contrast, the candidate who does not wish to be bound by the use of a lot will have merely reserved his access to judicial review in the normal course. Finally, Togia`i's argument, that a tie vote does not result in an "elected" representative, is unsupported. A candidate that wins an election by lot satisfies the "elected" requirement. Article II, § 4 of the Revised Constitution of American Samoa provides that "[r]epresentatives shall be chosen by secret ballot of the qualified electors of their representative districts." In this case, the candidate who prevails by lot, pursuant to A.S.C.A. § 6.0901, will have been placed in the position to prevail because he received 241 votes of valid electors. A provision that a tie vote shall be settled by drawing lot has been held not to be in conflict with a constitutional provision that elections shall be by ballot. See Johnston v. State, 27 N.E. 422 (Ind. 1891). The Indiana Supreme Court reasoned:

[A]ppellant's counsel ingeniously and plausibly argues [sic] that 
the provision [requiring that the election be decided by lot in the 
case of a tie] is invalid, for the reason that it is conflict with the 
provision [in the state's constitution] that all elections shall be by 
ballot. . . . Such a statute as the one before us does give the 
electors an opportunity to vote by ballot, and affixes to each vote 
the force it is possible to assign it. [27ASR2d31]

Id. at 423.

[2] The lot provision, A.S.C.A. § 6.0901, is merely a procedural mechanism devised to supplement the election process in case of the unlikely event of a tie result at the ballot boxes. The use of this procedure does not invalidate any votes of the qualified electors, nor does it taint the requirement that they be elected by secret ballot, since the lot comes into play as a result of the balloting process.

[3] We hold that A.S.C.A. § 6.0901 is not inconsistent with the provisions of the Revised Constitution of American Samoa and, therefore, deny the petitions for a new election. The matter is accordingly remanded to the Chief Election Officer for resolution of the tie election result in District #3 in accordance with A.S.C.A. § 6.0901.

It is so ordered.

*********

1. Article II, § 3 of the Revised Constitution of American Samoa states in relevant part, "[a] representative shall. . . have been a bona fide resident of the representative district from which he is elected for at least one year next preceding his election . . . ." (emphasis added).

2. Cf. Cal. Ann. Elec. Code § 20501, which also requires that a tie vote in California's elections be similarly broken, with the provision that the "Secretary of State shall...determine the tie by lot." (emphasis added). Hawaii, on the other hand, takes the position that the lot is an optional method of settling a tie with language which provides that a tie may be decided by lot." Hawaii Statutes Revised, § 11-157 (emphasis added). We note that American Samoa's statute uses the precise language of the Hawaii statute, except that the Fono has substituted the word "shall" in lieu of Hawaii's choice of the word "may." This indicates that the substitution is deliberate and that the statute intends to make the lot binding.

In re Matai Title “Tuaolo”,


PUNEFUOLEMOTU M. TUAOLO, Claimant

v.

SAELUA FA`ATE`A, MANUTAFEA E. MEREDITH, and
MANAIA E.T. VAIVAO FRUEAN, Counterclaimants

________

In the matter of the Matai Title "TUAOLO"

High Court of American Samoa
Land and Titles Division

MT No. 3-94

January 30, 1995

___________

[1] The traditional rule determines hereditary rights based on a candidate's direct relationship to his closest ancestor holding the title.

[2] Clans customarily consist of the lineal descendants of the original titleholder's children and take each such child's name.

[3] Under the fourth category of A.S.C.A. § 1.0409(c) the court evaluates each candidate's prospective value to his family, village, and American Samoa as the titleholder.

[4] A.S.C.A. § 1.0409(b) gives 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, TAUANU`U, Chief Associate Judge, AFUOLA, Associate Judge, LOGOAI, Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Claimant, Lutu T.S. Fuimaono and Tautai A.F. Fa`alevao
For Counterclaimant Saelua Fa`ate`a, Romero Solomona Toailoa
For Counterclaimant Manaia E.T. Vaivao Fruean, Afoa L. Su`esu`e Lutu [27ASR2d98]

Opinion and Order:

On December 12, 1992, claimant Punefuolemotu M. Tuaolo ("Punefu") filed his claim to the matai title Tuaolo of Pago Pago with the Territorial Registrar, pursuant to A.S.C.A. § 1.0405. Within the required 60-day notice period, under A.S.C.A. §§ 1.0406 and 1.0407, Saelua Fa`ate`a ("Tutuvanu"), Manutafea E. Meredith ("Manutafea"), and Manaia E.T. Vaivao Fruean ("Vaivao") counterclaimed for the title.

On March 17, 1993, the Territorial Registrar referred the claims to the Secretary of Samoan Affairs for dispute resolution proceedings under A.S.C.A. § 43.0302. On January 27, 1994, after the claimants failed to reach a resolution following four scheduled hearings, the Deputy Secretary of Samoan Affairs issued a certificate of irreconcilable dispute. On March 3, 1994, the Territorial Registrar forwarded the dispute to this court for judicial determination.

Manutafea formally withdrew his candidacy on December 13, 1994. The trial, with the remaining three candidates and their counsel, began on January 5 and concluded on January 12, 1995.

On the day the trial began, Tutuvanu had a motion pending to recuse the four associate judges assigned to this case due to their association with Vaivao, who is also an associate judge. Punefu indicated that he was joining in this motion. However, Tutuvanu withdrew his motion, and Punefu did not pursue this question.

Punefu did move to disqualify Vaivao's counsel on the grounds that counsel represented Punefu's father, Tuaolo Maliuga II, in an interfamily dispute involving authority over family communal land tried in this court in 1983, LT No. 51-83. The court ruled that for purposes of this action, Vaivao's counsel did not have any conflict of interest with respect to any present or former client, by reason of any proprietary transactions, or resulting from any other adverse circumstance, and denied the motion.

The court, having heard testimony and weighed the evidence, states findings of fact and conclusions of law, as required by A.S.C.A. § 1.0409(d).

FINDINGS OF FACT

At the outset, the court observes that two distinct matai titles Tuaolo, with independent histories, thrive in the social fabric of Pago Pago. The decision in this case will not have any impact on the second Tuaolo title. [27ASR2d99] The court also finds that each of the three candidates possesses the requisite qualifications established by A.S.C.A. §§ 1.0403 (a), (b) and (d) and 1.0404 (a). The court further finds the following facts regarding the four considerations set forth in A.S.C.A. § 1.0409(c), prioritized in the order of importance.

1. Best Hereditary Right

[1] In this case, the court will use the traditional rule, based on a candidate's direct relationship to his closest ancestor holding the title, to determine hereditary rights. See In re Matai Title "Iuli" , 14 A.S.R.2d 116, 117-18 (Land & Titles Div. 1990). (1)

Punefu is the son of Tuaolo Maliuga II, the last titleholder, and, under the traditional rule, has one-half Tuaolo blood.

Tutuvanu is directly descended from the brother of Tuaolo Tuli Asuega, who Tutuvanu claims to be original titleholder. As such, Tutuvanu would not be a direct descendent of a titleholder and would not have Tuaolo blood under the traditional rule. However, from the evidence, the court finds that Tutuvanu is directly descended from Tuaolo Lea`oa, also known as Lea`oa Apaisa. It appears that he is four generations removed from this [27ASR2d100] titleholder. Thus, under the traditional rule, Tutuvanu has 1/16th Tuaolo blood.

Vaivao is directly descended from Tuaolo Vailiili Aosimea II, the son of Tuaolo Vailiili Aosimea I. Vaivao is removed by seven generations from Tuaolo Vailiili Aosimea II and, under the traditional rule, has 1/128th Tuaolo blood.

Clearly, Punefu has the best hereditary right, the category with the highest priority, to succeed to the Tuaolo title.

2. Wish of the Majority or Plurality of the Family's Customary Clans

[2] In this consideration, the court seeks to account for the wish of the majority or plurality of the family's clans. Clans customarily consist of the lineal descendants of the original titleholder's children and take each such child's name. See In re Matai Title "Iuli" , 14 A.S.R.2d at 118.

Based on the evidence, Tuaolo Vailiili Aosimea I is the first Tuaolo titleholder. He had two children, a son Tuaolo Vailiili Aosimea II and a daughter Tamasailau. Thus, the Tuaolo family has two clans descended from Vailiili Aosimea II and Tamasailau. However, at one point in the family's history, the family found it necessary to venture outside these two clans for a titleholder. In this manner, Tuaola Fealofani became the titleholder and, although non-blood related to the original two clans, established the clan now long-recognized and known within the family as the Fealofani clan. In fact, it appears that most, if not all, succeeding Tuaolo titleholders have been members of the Fealofani clan.

While some members of the Fealofani clan prefer Vaivao, Punefu as a clan member has the consensus support of this clan. Similarly, Tutuvanu is the choice among his closer relatives in the Tamasailau clan. However, many members of this clan are related to the matai title Lea`oa, the senior matai, or sa`o, within the extended family including Tuaolo and Lago as the other major matai titles. The present Lea`oa, Lea`oa Viavia, and most of his family, as members of the Tamasailau clan, constitute a consensus of this clan in favor of Vaivao.

Vaivao also has the consensus support of the Vailiili Aosimea II clan, of which he is a member and which has significant connections with the matai title Lago. [27ASR2d101]

Thus, on this second priority issue, the Tuaolo family clans stand behind Vaivao's candidacy by a two-to-one majority.

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

In this area, the court weighs the breadth and depth of human traits among the candidates.

Punefu is still quite young and of limited experience. Tutuvanu, now in his twilight years, has the wisdom of lengthy experience but shows signs of declining vitality. Vaivao is in his prime and vigorous.

The court does not question the character of any of the candidates. All three have uniquely likeable and enduring personalities. However, Vaivao's forcefulness stands out.

All three candidates demonstrated knowledge of the Tuaolo family's history and traditions, albeit each with different versions tending to promote his claim to the title. Punefu admittedly lacks thorough knowledge of Samoan customs but is ready to learn. Tutuvanu and Vaivao are well-versed in such matters. Tutuvanu and Vaivao are ranked equally on their knowledge of customs and superior to Punefu.

Vaivao prevails in this third priority category.

4. Candidates' Value as Holder of the Title to Family, Village and Country

[3] In this category, the court evaluates each candidate's prospective value to his family, village, and American Samoa as the titleholder. See In re Matai Title "Sala", 4 A.S.R. 21, 23 (Land & Titles Div. 1970).

Punefu, despite his youth and relative inexperience, has the potential to be a respected and successful leader of the Tuaolo family, but without doubt, both Tutuvanu and Vaivao are prepared for this role.

Punefu now resides in Pago Pago. Tutuvanu resides in Amanave but would take up residence in Pago Pago as the titleholder. Either one can, of course, become quickly immersed in Pago Pago affairs acting on behalf of the Tuaolo family. On the other hand, Vaivao is a lifelong resident of Pago Pago and, as the present holder of the matai title Vaivao, is already very active in Pago Pago matai matters. The Tuaolo title is a high talking [27ASR2d102] chief for High Chief Mauga, the paramount matai title of Pago Pago. In this capacity, Tuaolo ranks higher than Lea`oa in matters outside the extended family consisting of the Lea`oa, Tuaolo and Lago families. In this respect, Vaivao in his present matai capacity has gained distinct advantageous experience over Punefu and Tutuvanu.

Vaivao also has a distinguished record of public service, particularly as six-term member of the House of Representatives of the Legislature of American Samoa and as an associate judge. In this regard, Vaivao also has superior credentials.

Thus, in this fourth priority consideration, Vaivao prevails substantially.

CONCLUSIONS OF LAW

Based on the foregoing findings, the court makes the following conclusions of law.

1. Punefu has the best hereditary right to succeed to the Tuaolo title.

2. Vaivao is supported by the majority of the Tuaolo clans to succeed to the Tuaolo title.

3. Vaivao prevails in the consideration of forcefulness, character and personality, and knowledge of Samoan customs.

4. Among the candidates, Vaivao has the greatest potential value to family, village and country as the next Tuaolo titleholder.

[4] 5. A.S.C.A. § 1.0409(b) gives 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 69-70. Vaivao prevails in clan support, in personal characteristics and knowledge of Samoan customs due to his vitality and greater forcefulness, and especially in potential value as the leader of the Tuaolo family. His superior credentials in these three areas outweigh Punefu's best hereditary right. Thus, the court awards the matai title Tuaolo to Vaivao.

ORDER

The Territorial Registrar shall register the matai title Tuaolo in the name [27ASR2d103] of Manaia E.T. Vaivao Fruean.

Judgment shall enter accordingly.

It is so ordered.

ATIULAGI J., dissenting:

I wholeheartedly agree with the finding in this decision that Punefu has the best hereditary right to succeed to the Tuaolo title.

However, I am troubled by the finding that Vaivao is supported by a majority of the Tuaolo family's clans. The judicially-noticed files of this court's earlier decisions, in 1935, 1949, 1964 and 1983, in all of which the Tuaolo family's genealogy played a significant role, do not reveal titleholders named either Tuaolo Vaiilili Aosimea I or II. In fact, in the 1949 case, the clans presently identified as Tuaolo Vailili Aosimea II and Tamasailau appear to be progeny known as Lago Vailiili and Tamasailau of entirely different parentage. In addition, in this case, the present Lea`oa, Lea`oa Viavia, has no knowledge of anyone named Aosimea in the extended family. Under these circumstances, I am not persuaded by the evidence as to either the number or names of the Tuaolo family's clans in Vaivao's alleged ancestral heritage. I can only find that he has the consensus support of one-half of the family, while Punefu enjoys such support from the Fealofani clan, the only family clan clearly identified. As such, I would find that while they prevail over Tutuvanu, Punefu and Vaivao draw on this issue.

Furthermore, I do not find evidence that convincingly differentiates any of the three candidates on the consideration of their leadership styles, characters, personalities, or knowledge of Samoan customs. I consider them equal and would find them tied in this regard.

Finally, regarding the category of potential value to family, village and country, I believe either Punefu or Vaivao could prevail. Vaivao's record includes matai experience and admirable public service. On the other hand, Punefu is youthful but mature and has the potentially lasting value of successfully leading the Tuaolo family for a great number of years to come. In this area, I am inclined to find that Punefu is certainly no less than equal.

Since Punefu has the best hereditary right to the Tuaolo title and at least matches Vaivao on the three lesser priority considerations, I would award [27ASR2d104] the Tuaolo title to Punefu.

**********

1. No circumstances justify application of the more recent, alternative rule tracing blood relationships from the original titleholder or from the nearest common ancestor. See In re Matai Title "Sotoa" , 2 A.S.R.2d 15 (Land & Titles Div. 1984). The "Sotoa rule" is no longer the universal rule, but may be applied where: (1) "the customs and traditions of the . . . family" call for its application, In re Matai Title "Tauaifaiva" , 5 A.S.R.2d 13, 14 (Land & Titles Div. 1987); or (2) where:

. . . it appears that a particular family's tradition is to rotate the matai title among the different branches of the family; or where domination of the title by one branch of the family has resulted from previous Court decisions rather than from the family's own consensus, such decisions having produced the unintended result that no person from any other branch has a close relationship to any recent titleholder.

In re Matai Title "Tuiteleleapaga" , 15 A.S.R.2d 90, 91 (Land & Titles Div. 1990).

In re Matai Title “Olomua”,


TE`O J. FUAVAI, Claimant

v.

LAUMOLI SASA, Counter-claimant

[In re the Matai Title "OLOMUA" of the village of Aoa.]

High Court of American Samoa
Land and Titles Division

MT No. 07-93

October 31, 1994

__________

Before KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, VAIVAO Associate Judge, LOGOAI Associate Judge and ATIULAGI, Associate Judge.

Counsel: For Claimant, Albert Mailo
For Counter-claimant, Asaua Fuimaono

On January 9, 1992, Te`o J. Fuavai (hereafter "Te`o") filed his [27ASR2d21] application with Territorial Registrar to register the matai title "Olomua" from the village of Aoa. Laumoli Sasa (hereafter "Sasa") objected and sought succession to the title himself. There being no resolution to the dispute before the Office of Samoan Affairs, the matter was referred to the Land and Titles Division.

In matai title disputes, the Court is guided by the four criteria set out in A.S.C.A. § 1.0409(c): (1) best hereditary right; (2) the wish of the majority or plurality of the clans in the family as customary in that family; (3) forcefulness, character and personality, and knowledge of Samoan customs; and, (4) value to the family, village, and country.

FINDINGS

1. Hereditary Right

On this consideration we find that both candidates are heirs to the title Olomua. Both candidates trace descent to Olomua Aipouliuli; we find Laumoli's degree of hereditary right to be 1/16th and Te`o's to be 1/32. Laumoli prevails on this criterion, being one generation ahead of Te`o.

2. Wish of the Clans

Although each party has named multiple clans in their answers to questionnaires filed in this matter, neither has been able to satisfactorily explain the basis of his claim. We find on the preponderance of the evidence that the original titleholder was Olomua Aipouliuli. According to the genealogies of both candidates, this Olomua appears to have had only one issue. In the traditions of Te`o's side of the family, she was known as Teuaililo, while in Laumoli's family history, she was known as Tailevasa. This tends to suggest that the Olomua family is not a multiple clan family, and we so find.

With regard to the wish of the family on a successive titleholder, we find that the Olomua family did not meet on the matter prior to the title being offered for registration and had not, therefore, had the opportunity to address the issue of appointing a matai successor. Rather, what we see here on the evidence is a recurring practice that we have noticed with other family disputes, where an impatient family faction imposes, rather fruitlessly, its own agenda to wrest matai pule for itself by presenting the kava cup to one of its own, and thereby inciting a reaction from yet another faction to offer the family's matai title for registration, before the family even convenes to address the issue of matai succession. Subsequent [27ASR2d22] family meetings are then seldom conciliatory. We find that neither party has been able to demonstrate a majority of clan support.

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

In our assessment of the parties, we rank both candidates equal with respect to their knowledge of Samoan customs. As to forcefulness, character and personality, we find both candidates to be rather forceful personalities; however, we find candidate Laumoli to be forceful to a fault. As an untitled person, he has unilaterally attempted to assume matai control within the family; he asserted pule over family lands, unlawfully destroyed plantations of another Olomua family member whom he thought was undeserving, and called family meetings on the premise that he and others, referred to equivocally as the "aiga tau maota," were exclusively entitled to convene family gatherings to select a matai. These are hardly actions that demonstrate the leadership necessary to promote peace and harmony within the family.

Te`o's forcefulness, on the other hand, has demonstrated the sort of leadership quality that has made him an important member of the community. From humble beginnings as a clerk with the Customs Division, he has risen to such leadership positions as Speaker of the House of Representatives, Commissioner of Public Safety, Director of Public Works, and delegate for his county to a number of the territory's constitutional conventions; he has participated on a host of other government and public agencies. In addition to an active life of public service, Te`o has also maintained a small family business. At the same time, he has been a leading matai within the Aoa village council, as the Te`o titleholder, for twenty-six years, and has thus enjoyed the sort of deference accorded to matai of many years standing and visibility within the community. We find that Te`o prevails on this consideration.

4. Value to Family, Village, and Country

Laumoli has spent most of his life in the ministry of the church and his vocation has principally taken him off-island. Although we do not marginalize the importance of an ecclesiastical career and the revered role of the pastor in Samoan society, the secular role which Laumoli now seeks is one in which Te`o has undeniably had the greater experience. Te`o has naturally had more involvement with family, village, and government affairs. The evidence shows that as a government leader, Te`o has been able to voice the concerns of both his village and county councils in the [27ASR2d23] policy making process of the territory; he has also been able to effectively ensure that Aoa and the other adjacent North Shore villages acquired their fair share of ongoing government capital improvement projects relating to roads, erosion conservation, schools, water, and street lighting. As a ranking matai, Te`o has for many years been able to voice his family's concerns within both the village and county councils. In short, he can point to better rapport with village, county, and government officials; he can thus point to a track record for more effective service to the family, village, and country. We rate Te`o ahead of Laumoli on this consideration.

CONCLUSIONS

Based on the foregoing, we conclude that Te`o J. Fuavai is qualified and suited to hold the title Olomua. Although Laumoli prevails over Te`o on the first criterion, Te`o prevails on the third and fourth. In accordance with A.S.C.A. § 1.0409(b), the Territorial Registrar shall, therefore, register the matai title Olomua from the village of Aoa in candidate Te`o J. Fuavai. Consistent with the requirements of A.S.C.A. § 1.0402, the Territorial Registrar shall ensure that Te`o first resigns the matai title Te`o before being registered as the next Olomua titleholder.

It is so ordered.

**********

In re Matai Title “Niumatalolo”,


VAAITAUTIA T. TALAMONI, Claimant

v.

TAVITA TUFAGA, JR., Objector/Counterclaimant

[In re the Matai Title "NIUMATALOLO" of the village of Aua.]

High Court of American Samoa
Land and Titles Division

MT No. 08-91

November 4, 1994

__________

Before KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, AFUOLA Associate Judge, LOGOAI, Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Claimant, Tauese P. Sunia
For Objector, Asaua Fuimaono

Order of Dismissal:

On September 20, 1990, Vaaitautia T. Talamoni ("Talamoni") filed with the Territorial Registrar's Office his claim to succession to the matai title Niumatalolo attached to the village of Aua. Fifty-two signatories subscribed to Talamoni's claim, each proposing to be qualified family heirs to the title. On December 12, 1990, Tavita Tufaga ("Tufaga") filed his objection and counterclaim, which was supported by fifteen allegedly qualified family heirs to the title. Since his succession claim was short of the required twenty-five supporting family signatories pursuant to A.S.C.A. § 1.0407(b), (1) he additionally filed an affidavit under A.S.C.A. [27ASR2d25] § 1.0407(d), (2) stating that the family had less than twenty-five qualified family members. The matter was then duly submitted by the Territorial Registrar, pursuant to A.S.C.A. § 43.0302, to the Office of Samoan Affairs.

On September 6, 1991, the Secretary of Samoan Affairs certified an irreconcilable dispute to the Land and Titles Division of the High Court in accordance with A.S.C.A. § 1.0409. Pursuant to T.C.R.L.T. 3, each party filed his answers to questionnaires and the matter was set for trial on July 2, 1992. Trial, however, was continued on the stipulation of counsel because one of the parties was undergoing a major medical operation. The matter then lay dormant until July 21, 1994, when Tufaga filed his motion to have the title Niumatalolo awarded to him by default since Talamoni had passed away. This motion came regularly before the Court on August 24, 1994. The motion was denied. However, the matter was continued, by way of a show cause hearing, in order to give Tufaga time to be heard on the issue of whether his succession petition should not be dismissed for failure to comply with the requirements of A.S.C.A. §1.0407(b).

At the show cause hearing, held on October 28, 1994, Tufaga presented no evidence and submitted the matter on his Memorandum of Points and Authorities filed herein. His principal contention seems to be that his case is distinguishable from In re Matai Title I`aulualo, 25 A.S.R.2d 116 (Land & Titles Div. 1994), (3) since the candidate in I`aulualo was disqualified on "documentary evidence and that of his own," which proved his A.S.C.A. [27ASR2d26] §1.0407(d) affidavit to be factually incorrect; whereas in the matter before the court, no evidence has been presented contradicting his own corresponding A.S.C.A. §1.0407(d) affidavit--to the effect that the Niumatalolo family has less than twenty-five qualified family members.

We note that claimant Talamoni had fifty-two supporting signatories to his verified petition, which immediately suggests that the Niumatalolo family exceeds twenty-five in number. Additionally, Talamoni obtained another ninety-one signatories, each claiming to be qualified family members of the Niumatalolo family. Tufaga, however, provided no evidence to disprove the claims of the signatories to Talamoni's petition that they were qualified family members. Tufaga has failed to show cause and accordingly we hold that his counterclaim is defective for failure to comply with the requirements of A.S.C.A. §1.0407(b). The succession claim of Tavita Tufaga, Jr., to the title Niumatalolo is, therefore, dismissed without prejudice, and the matter of a successor to the Niumatalolo title is hereby remanded back to the Niumatalolo family.

It is so ordered.

*********

1. This enactment requires that "[a] counterclaim or objection must be supported by a petition signed by no less than 25 persons related by blood to the title in question" (emphasis added).

2. This enactment provides that "[i]n the event the family does not have the number of members qualified as required to support the counterclaim or the objection, the counterclaimant or objector shall so state in a signed affidavit." It is to be noted that the exact same requirement is also required of an initiating claimant. See A.S.C.A. § 1.0405(b).

3. In In re Matai Title I`aulualo, we rejected an argument that merely filing an A.S.C.A. §1.0407(d) affidavit excused an objector/counterclaimant from A.S.C.A. §1.0407(b)'s mandate of twenty-five supporting family signatories when the affidavit proved to be factually incorrect. Accordingly, we dismissed an objection/counterclaim that contained less than the statutorily mandated twenty-five qualified supporting family signatories. Similarly in In re Matai Title Patea , 25 A.S.R.2d 139 (Land & Titles Div. 1994), the Court also rejected the succession claim of an objector who could only muster seventeen supporting family signatures.

In re Matai Title “Aoelua”,


VALOVALO AOELUA, Claimant

v.

MANU MIKA LEALAI, and LEVEA TAGOA`I, 
Objectors/Counterclaimants

[In re the Matai Title "Aoelua" of the village of Afono.]

High Court of American Samoa
Land and Titles Division

MT No. 01-93

October 26, 1994

__________

Before KRUSE, Chief Justice, VAIVAO, Associate Judge, BETHAM,* Associate Judge, ATIULAGI, Associate Judge, and MAILO, Temporary Associate Judge.

Counsel: For Valovalo Aoelua, Afoa L.S. Lutu
For Manu M. Lealai, Togiola T.A. Tulafono
Fetulele Levea Tagoa`i, pro se [27ASR2d18]

On May 12, 1992, Valovalo Aoelua (hereafter "Valovalo") offered the title "Aoelua," attached to the village of Afono, County of Sua, for registration with the Office of the Territorial Registrar. This offer attracted the objections of Manu Mika Lealai (hereafter "Manu") and Fetulele Levea Tagoa`i (hereafter "Fetulele"). After the requisite conciliatory attempts before the Office of Samoan Affairs, the Secretary of Samoan Affairs certified an irreconcilable dispute and the matter was then referred to the Land and Titles Division. Trial was set for September 8, 1994, at which time only Valovalo and Manu appeared ready for trial whereas Fetulele informed the court that he was withdrawing his succession claim. After several days of testimony, the matter was taken under advisement.

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

FINDINGS

1. Hereditary Right

Both candidates measured entitlement to his nearest ancestor who held the Aoelua title. On this issue, Valovalo clearly prevails. His father was a former titleholder and thus his degree of hereditary right is 50%. By comparison, Manu claims his hereditary degree to be 12.5%, tracing his ancestral line to his great-grandfather, Moke, whom he claims was also a titleholder.

2. Wish of the Clans

On this issue, the parties were hopelessly at odds as to the family's clans. According to Valovalo's family history, which seems to have varied since the last time this title was previously contested in court, there is only one traditional clan, Leuluvao. Manu's family history, on the other hand, defines clans somewhat novelly, if not oddly, in terms of the five issue of his great-grandfather, together with two other former titleholders, Aoelua Salipopo, said to be his great-grandfather's brother, and Aoelua Uale.

The evidence suggests, however, that in terms of family affairs, the contemporary family practice seems to have evolved with family sides translated roughly in terms of the most recent titleholders. Suffice it to say, however, neither side has presented credible proof of family clan support, simply because this rather divided family has never really met as [27ASR2d19] a whole to address the issue of a succeeding titleholder. The evidence merely shows that certain family factions had at different times convened for the purpose of nominating a titleholder. Therefore, the best that can be claimed by each candidate is some family support, but neither the majority nor a plurality of clan support as mandated by A.S.C.A. §1.0409(c)(2). In these circumstances, we find that neither candidate prevails on this criterion.

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

As to knowledge of Samoan customs, both candidates fared roughly equally well in their responses to the examination by the Associate Judges. In terms of forcefulness, character and personality considerations, we rate Valovalo ahead of Manu. Valovalo has the more impressive education and work credentials. After High School, he joined the United States Navy and subsequently retired after 20 years of active duty. After returning to the territory, Valovalo attended some classes at the American Samoa Community College and began working for the Department of Port Administration in various managerial positions, rising eventually to the position of deputy director of the department which he holds to this day. Manu's accomplishments, on the other hand, while equally important to the community, do not bespeak the same drive and level of ambition shown by Valovalo. Manu, a carpenter by trade, now enjoys retirement after almost 26 years of service rendered to the government. One serious character flaw which Manu has displayed, however, and which has also weighed against him, is his contempt for the law which prohibits the unlawful use of a matai title. See A.S.C.A. §§ 1.0401 et seq. For many years, he has held himself out unlawfully as an Aoelua titleholder within the village, county, and even to the extent of presenting himself to the government for the position of County Chief under the pretext of holding the Aoelua title. Manu's defense in this regard is ignorance of the law, a claim that we find to be neither believable nor an excuse.

In our evaluation of the parties, we rate candidate Valovalo ahead of Manu on forcefulness, character, and personality, but equal on knowledge of Samoan customs. Accordingly, we find Valovalo to prevail over Manu on this consideration.

4. Value to Family, Village, and Country

Both candidates have been involved in various ways in both family and village concerns, including service to their respective churches. On this [27ASR2d20] requirement, we find that neither candidate particularly surpasses the other in this regard and, accordingly, we rank them equal.

CONCLUSIONS

Based on the foregoing, we hold that Valovalo Aoelua is qualified to hold the title Aoelua. He prevails over Manu Mika Lealai on the first and third criteria with neither prevailing with regard to the second and fourth. The Territorial Registrar shall, therefore, in accordance with the requirements of A.S.C.A. § 1.0409(b), register the Aoelua title from the village of Afono in candidate Valovalo Aoelua.

It is so ordered.

*********

In view of the time limits imposed by A.S.C.A. § 3.0209, Associate Judge Seuva`ai M. Betham did not participate in the deliberations because of a sudden and extended need for off-island medical treatment.

Fiaui v. Faumuina,


TROY FIAUI, Plaintiff

v.

SANELE FAUMUINA, PITA TALIVA`A, and DOES I-X, 
Defendants

High Court of American Samoa
Trial Division

CA No. 47-92

November 30, 1994

__________

[1] If multiple tortious acts concurrently cause a single indivisible injury, then those who committed the acts are liable as joint tortfeasors, and as joint tortfeasors, they are jointly and severally liable for compensatory damages.

[2] A participant in a tortious act is jointly and severally liable for harm resulting to a third person if the tortious act is done in concert with another, or if the participant knows that another's conduct constitutes a breach of duty and gives substantial assistance or encouragement, whether or not the participant's own conduct, separately considered, constitutes a breach of duty to the third person.

[3] The court may apportion damages among joint tortfeasors instead of applying joint and several liability, but only when it is feasible.

[4] Apportionment of damages among joint tortfeasors is feasible when the plaintiff has suffered factually separable or divisible harm that can be allocated among tortfeasors with reasonable certainty.

[5] Even if apportionment of damages among joint tortfeasors can be reasonably applied, joint and several liability remains the rule for intentional torts.

[6] Damages for intentional infliction of emotional distress are usually only awarded for mental suffering so extraordinary, vindictive, extreme, or outrageous as to give rise to a cause of action for intentional infliction of emotional distress.

[7] Punitive damages may be recovered whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy in order to punish the defendant and deter others from the commission of similar wrongs.

[8] Attorney's fees are not ordinarily recoverable by the prevailing party, but courts do have the power to award attorney's fees when an opposing party has acted in bad faith, wantonly, oppressively or when a statute dictates.

[9] If only one of several tortfeasors is a party to the litigation, then the court must assure that the plaintiff is compensated even if a single defendant must pay all of the damages.

[10] If only one of several tortfeasors is a party to the litigation, then the single defendant has a right of contribution against any absent tortfeasor. [27ASR2d37]

[11] Shifting the burden of recovery to the tortfeasors assures that the injured party is compensated.

[12] If only one of several tortfeasors is a party to the litigation, the amount of recovery should be diminished by the amount of settlements with absent tortfeasors and not by percentage of fault.

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

Counsel: For Plaintiff, Charles V. Ala`ilima
For Defendants, Afoa L. Su`esu`e Lutu

Opinion and Order:

Plaintiff Troy Fiaui ("Troy") brings this action to recover the cost of repairs to his 1989 Isuzu pickup, loss of its use, damages for intentional infliction of emotional distress, punitive damages, and attorney's fees and costs. Through counsel, Troy and defendant Sanele Faumuina ("Sanele") reached a settlement before trial. The trial as to defendant Pita Taliva`a ("Pita") took place on June 10 and 13, 1994.

STATEMENT OF FACTS

The underlying incident in this action occurred at Nam's store in the Village of Leloaloa in American Samoa at about 10:00 p.m. on Saturday, September 7, 1991. Around 5:00 p.m., Troy and three friends had purchased two cases of large-bottled beer and began consuming them in their Village of Auto, which is east of Leloaloa. Later that evening, Troy drove his friends in the pickup to the vicinity of the American Samoa Government's port facilities in the Village of Fagatogo, which is located west of Leloaloa, where they consumed more beer. On the return to their village they stopped at Nam's store to buy something to eat. Troy purchased a package of frozen mussels from the sales clerk and Sitoa Masoe ("Sitoa"), one of Troy's companions, took the mussels across the road to defrost them in Pago Pago Bay. Shortly thereafter, Troy decided to eat the mussels and found that they tasted and smelled bad.

Troy returned to Nam's store to exchange the package of mussels for a new one, but encountered resistance from the sales clerk. Nam Jun Gul, the store's owner, heard the dispute and came down from the second floor to the store below. Nam was reluctant to exchange the mussels because he had just procured the mussels the day before and Troy had already opened the package, but after further discussion, Nam detected a kerosene-[27ASR2d38]like smell to the mussels and agreed to the exchange.

While agreement on the exchange was being reached, Sitoa entered the store and in a loud voice called Nam a crook, cursed him, and demanded a case of beer. Troy sought to control Sitoa and ushered him outside. Nam immediately closed the store and boarded the front windows. His regular closing time was at hand, as the 10:00 p.m. village curfew hour began.

Some members of the village aumaga, or young men's organization, began assembling to patrol the village and enforce the 10:00 p.m. curfew when their attention focused on the commotion at Nam's store.

Meanwhile, someone had telephoned Faumuina Ione ("Faumuina"), the sa`o, or senior chief, of the Faumuina family who owns the land on which Nam's store is located. Ione also owns the store building and lives in the house immediately next to the store. At the time, Faumuina was in the Village of Aua, a short distance to the east, with his son, Sanele, and his son-in-law, Pita.

Sanele and Pita persuaded Faumuina to let them return to Nam's store and investigate the reported disturbance. When they arrived the aumaga were gathering near the front of Nam's store. Troy decided to leave when one aumaga member that he knew told him about the curfew, but as he attempted to drive away with his companions, Sanele parked his Ford sedan in a manner that temporarily blocked Troy from driving onto the main road. Sanele and Pita got out of the sedan and Sanele reached inside Troy's pickup, turned off the ignition, and removed the key.

The immediate instigator of the melee that next took place is disputed. Troy testified that Sanele ignored his inquiries about the taking the key and walked towards the rear of the pickup. At the same time Pita allegedly hit Sitoa, who was seated in the pickup bed, on the back of his head with a bottle. Next, as Sanele appeared to be approaching Sitoa, Troy threw a bottle at Sanele. The aumaga members then began the ensuing rock and bottle throwing contest between Troy's group and the aumaga, Sanele and Pita.

Pita denied striking Sitoa with or without any object. He claimed that Sitoa was standing in the pickup bed and that the melee began because Troy threw a bottle at Sanele. In another version, Filipo Tualo, a member of the aumaga present, testified that the onslaught commenced when Sitoa threw a bottle moments before Sanele and Pita arrived. [27ASR2d39]

We are persuaded that the following most likely occurred. First of all, the aumaga interpreted the situation as an intrusion to the sanctuary of their village and armed themselves with rocks in anticipation of possible open warfare. Further, as essentially simultaneous events, without one being the immediate cause of the other, Pita struck Sitoa with an object while he was in the back of the truck, and Troy threw a bottle at Sanele. Next, the aumaga jumped in, almost instantaneously, and escalated the physical hostilities between the two groups.

We cannot conclude from the evidence who threw what particular object and with what result, but certain events of some significance are evident. Pita removed the sedan to relative safety near Faumuina's house and went to the side of Nam's store where a principal source of the thrown rocks was located. Troy struck Sanele on the shoulder with a bottle as he was walking to Faumuina's house. A short time later Sanele was seen with a gun. Direct testimony was offered that, at a minimum Sanele fired the gun into the air, ostensibly to bring matters under control. Vastly outnumbered and fearing for their safety, Troy and his group retreated to a passing aiga bus to return to Aua. Later, Troy returned to the site of the incident and found his truck severely damaged.

Certainly, intoxication played a major part in the events at Nam's store. Of particular significance, Sitoa had consumed a substantial quantity of beer and reached the point of manifest inebriation when the episode at Nam's store began. His intoxicated behavior was a significant contributing factor to the confrontation that followed. Troy, a commissioned harbor patrol officer, testified to only drinking one to two beers. It is evident that he did not drink as much as Sitoa, but it appears that he consumed more beer than he admitted.

According to the evidence, Troy's other two companions also consumed their share of beer, but their precise role in the situation was not directly demonstrated by evidence. No one was permanently injured during the object-throwing fray, but Troy's pickup did not fare so well. Although it had already suffered minor damage before Troy and his companions retreated, by the time the aumaga was finished, the truck was destroyed. The front grille was removed; the windshield and rear window of the cab were smashed; the headlights and at least one taillight were broken; the body was dented and scratched in numerous locations; and many bullets were shot into the rear of the cab.

The pickup would have ended up in Pago Pago Bay had not Sala Uti, Leloaloa's pulenu`u, or mayor, intervened. He stopped the aumaga as [27ASR2d40] they attempted to navigate the pickup over a dirt embankment into the water and forced them to leave. Sanele and Pita were present when the pulenu`u arrived. Even though they assisted, the evidence of their role as leaders during the devastation of the pickup was not convincing.

DISCUSSION

I. Joint and Several Liability

The primary issue is whether Pita is at fault, and if so should he be liable for all of Troy's damages. In other words, even though Pita is not the lone tortfeasor, is he joint and severally liable for the harm caused to Troy?

[1] The general rule covering joint and several liability is that when two or more persons legally cause harm to another, each is liable for the entire harm. Gorelick v. Dept. of State Highways, 339 N.W.2d 635, 643 (Mich. Ct. App. 1983); Restatement (Second) Of Torts, § 433A (1965). If the tortious acts concurrently(1) cause a single indivisible injury, then those who committed the acts are liable as joint tortfeasors, Margain v. Maize and Blue Properties, Inc., 753 F.2d 47, 49 (6th Cir. 1985), and as joint tortfeasors, they are jointly and severally liable for compensatory damages. Clark v. Bunker, 453 F.2d 1006, 1011 (9th Cir. 1972).

[2] The principle behind concert of action is that the participants are not acting independently, but are jointly engaged in a common tortious endeavor that is the proximate cause of the plaintiff's injury. Ryan v. Eli Lilly & Co., 514 F. Supp. 1004, 1015 (D.S.C. 1981). A participant in a tortious act is jointly and severally liable for harm resulting to a third person if the tortious act is done in concert with another, or if the participant knows that another's conduct constitutes a breach of duty and gives substantial assistance or encouragement, whether or not the participant's own conduct, separately considered, constitutes a breach of [27ASR2d41] duty to the third person. Restatement (Second) Of Torts, § 876 (1979).

Concert of action has been found in group assault and battery, conversion, and trespass. Ryan, 514 F. Supp. at 1015. Pita, Sanele and the aumaga, acted in concert in damaging Troy's truck. They blocked the travel of Troy's truck and withheld the keys so he could not leave. Next, they jointly damaged the vehicle by striking it with stones, removing parts, and shooting at it a number of times with a gun. Pita substantially assisted and encouraged the group throughout these events. These actions resulted in an intentional tort that was the proximate cause of plaintiff's injury. But for the actions of Pita, Sanele and the aumaga, Troy would not have sustained any harm. Since they acted in concert to cause these damages, Pita is jointly and severally liable for Troy's compensatory damages.

[3-4] Many courts now apportion damages among joint tortfeasors instead of applying joint and several liability, but only when it is feasible. Apportionment is feasible when the plaintiff has suffered factually separable or divisible harm that can be allocated among tortfeasors with reasonable certainty. Margain v. Maize and Blue Properties, Inc., 753 F.2d 47, 49 (6th Cir. 1985). If apportionment is reasonable, then each tortfeasor is subject to liability only for the portion of the total harm that each has personally caused. U.S. v. Monsanto, 858 F.2d 160, 171 (4th Cir. 1988); Rauscher v. Halsted, 557 P.2d 1324, 1326 (Wash. Ct. App. 1976) (apportioned damages was feasible among tortfeasors who trespassed on plaintiff's land and cut down trees, because defendant only cut two of 32 trees and is ascertainably liable for one-sixteenth of the total damages).

In this case, the damages cannot be apportioned with reasonable certainty. It cannot be known who threw how many rocks or shot how many bullets at plaintiff's truck; only that defendant intentionally participated in the destruction of the vehicle. This was a single incident and due to the number participants that acted together and the surrounding events, the harm cannot be divided in a reasonable manner. Therefore, apportionment of damages is not feasible. (2)

[5] Moreover, even if apportionment could be reasonably applied, joint and several liability remains the rule for intentional torts. Haynes v. [27ASR2d42] Manning, 717 F. Supp. 730, 737 (D. Kan. 1989); Lynn v. Taylor, 642 P.2d 131, 135 (Kan. Ct. App. 1982) (no authority for including an intentional tort within the realm of comparative fault principles). We do not see any principle or other valid reason warranting any modification of the joint and several liability rule in this intentional tort situation.

II. Intentional Infliction of Emotional Distress

[6] Troy claims that Pita's actions placed him in great fear for his life and prays this court for $10,000 in damages resulting from intentional infliction of emotional distress. Damages for intentional infliction of emotional distress are usually only awarded for mental suffering so extraordinary, vindictive, extreme, or outrageous as to give rise to a cause of action for intentional infliction of emotional distress. Kajtazi v. Kajtazi, 488 F. Supp. 15, 20 (D.N.Y. 1978).

The conduct of Pita and the others was not beyond all bounds usually tolerated by decent society, or of a nature which causes mental distress of a very serious kind. Restatement (Second) Of Torts, § 46, cmt. g (1948). The aumaga was defending their village, and Troy and his companions participated in the escalation of the incident. We do not believe from the evidence that Pita or anyone else, intentionally inflicted emotional distress on Troy, or for that matter, that Troy actually suffered emotional distress from the event that would be recoverable by law.

III. Punitive Damages

[7] Troy also requests $10,000 in punitive damages. Punitive damages may be recovered whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy in order to punish the defendant and deter others from the commission of similar wrongs. Lynn v. Taylor, 642 P.2d at 136. Although this court wishes to deter intentional torts, it would be too extreme to hold Pita liable for punitive damages.

IV. Attorney's Fees and Costs

[8] Troy seeks attorney's fees and costs. Attorney's fees are not ordinarily recoverable by the prevailing party, but courts do have the power to award attorney's fees when an opposing party has acted in bad faith, wantonly, oppressively or when a statute dictates. F.D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129 (1973). We find no valid reason to award attorney's fees in this case. Troy is, of course, entitled to costs of suit in addition to his compensatory damages. T.C.R.C.P. [27ASR2d43] 54(d).

V. Compensatory Damages

[9-11] Troy has proven $7,774.65 in actual damages, $7,114.65 for the cost of repairing his truck and $600 for alternative transportation. Since Pita is joint and severally liable for these compensatory damages, we must now take into consideration Troy's settlement with Sanele, the absent joint tortfeasor, before trial. A primary purpose behind tort law is to compensate the injured party. If only one of several tortfeasors is a party to the litigation, then the court must assure that the plaintiff is compensated even if a single defendant must pay all of the damages. The single defendant has a right of contribution against any absent tortfeasor. Shifting the burden of recovery to the tortfeasors assures that the injured party is compensated. Hammond v. Kansas, O & G Ry. Co., 234 P. 731, 732 (1925).

When determining the amount of compensation to which a plaintiff is entitled to actually receive, the court is duty-bound to consider settlement payments previously received by the plaintiff. In re Jones, 804 F.2d 1133, 1143 (10th Cir. 1986) (amount of settlements received by plaintiff from two absent tortfeasors before trial was deducted from the final judgment awarded to plaintiff from remaining defendant).

T.C.R.Ev. § 408 states in part: "Evidence of . . . accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. . . ." This rule of evidence does not bar this court from reducing Troy's recovery from Pita by the amount Troy has already recovered in a good faith settlement with Sanele. In fact, if a civil jury trial was involved, our function would be to reduce the verdict by the amount received by the plaintiff from absent tortfeasors because of settlements. Cleere v. United Parcel Service, Inc., 669 P.2d 785, 789, 791 (Okla. Ct. App. 1983).

[12] The amount of recovery should be diminished by the amount of settlement with the absent tortfeasor and not by percentage of fault. This is consistent with the tort policies of 1) encouraging settlements and 2) assuring that a plaintiff is fully compensated for injuries sustained. Mayhew v. Berriren County Road Com'n., 326 N.W.2d 366, 371 (Mich. 1982). Troy has already been fully compensated for actual damages through the settlement with Sanele and would be unjustly enriched if we ordered Pita to in fact pay damages.

Accordingly, although we award judgment for Troy and against Pita in the amount of $7,774.65, we must reduce the amount payable by Pita to Troy by the $9,000 received in the settlement with Sanele. Troy is not entitled to receive any amount from Pita.

It is so ordered.

*********

1Concurrent causation is where the acts of two defendants occur at about the same time and together produce harm, whereas, in successive causation, the acts of two defendants occur at distinct different times and together produce harm. In concurrent injury cases those who caused the harm should be joint and severally liable for the entire harm, whereas, in successive injury cases the damages should be apportioned between the defendants, if they are reasonably apportionable. McLeod v. American Motors Corp., 723 F.2d 830, 834 (11th Cir. 1984).

2The holding to not apportion damages is limited to the specific facts and unique situation of this matter. This court has previously apportioned damages, such as in products liability actions, and may do so in the future depending on a case by case review.

Vance Intl. v. Penn,


VANCE INTERNATIONAL, INC., Plaintiff

v.

IOELU PENN, dba JOHN'S GENERAL CONSTRUCTION and
J.G.C. LUMBER AND HARDWARE, Defendant

High Court of American Samoa
Trial Division

CA No. 145-94

January 3, 1995

__________

[1] Even though defendant failed to serve copy of answer on the plaintiff, court cannot grant a default judgment in favor of plaintiff in the face of an answer effectively denying liability.

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

Counsel: For Plaintiff, William H. Reardon
For Defendant, Togiola T.A. Tulafono

Order Denying Motion for Default Judgment:

Plaintiff's motion for a default judgment came regularly for hearing on December 28, 1994. Counsel for both parties were present.

Plaintiff commenced this action on August 5, 1994. Defendant was served with process on August 9, 1994, and filed an answer on August 11, 1994. However, defendant failed to provide plaintiff's counsel with a copy of the [27ASR2d80] answer. Thus, on November 17, 1994, plaintiff initiated default proceedings and, by oversight of the answer on file, obtained the clerk's entry of defendant's default. On the same day, the clerk issued the notice of the hearing on this motion, which was served on defendant on December 1, 1994.

[1] While we express disappointment with defendant's counsel when he neglected to ensure compliance with service procedures at the time of filing the answer, and perhaps even more so when counsel learned of this correctable mistake, we cannot grant a default judgment in the face of an answer effectively denying liability. As provided in T.C.R.C.P. 55(c), defendant would be properly entitled to relief by setting aside any such judgment by a motion under T.C.R.C.P. 60(b).

Accordingly, the motion for a default judgment is denied.

It is so ordered.

*********

Aumavae; Aumavae v.


ROSE J. AUMAVAE, Petitioner

v.

KENAPE L. AUMAVAE, Respondent

High Court of American Samoa
Trial Division

DR NO. 43-94

March 27, 1995

__________

[1] Although a mother is the natural custodian of her young, other factors that the court should weigh in deciding custody are a good home, congenial surroundings, and intelligent attention and direction [27ASR2d165] in matters affecting the health, education, growth and development of the children.

[2] In American Samoa, for a man and a woman to enter into a valid marriage contract, a marriage ceremony must be performed by a duly authorized person. A.S.C.A. § 42.0101(e).

[3] Common-law marriages, if valid according to the law of the state in which they were initiated, will be recognized in other jurisdictions, even where such marriages cannot be lawfully formed.

[4] An unmarried couple who spend a short period of time in a jurisdiction without taking up permanent residence or attempting to become husband and wife in the state does not give rise to a common-law marriage.

[5] The court has exclusive original jurisdiction when the question of legal custody is incidental to the determination of a cause in the court. A.S.C.A. § 45.0115(d).

[6] The court has the inherent power, due to its authority to protect children, to make an order relative to the custody and support of a child born as an issue of an invalid marriage.

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

Counsel: For Petitioner, Afoa L. Su`esu`e Lutu
For Respondent, Ellen A. Ryan

Order Denying Divorce and Motion to Dismiss and Awarding Custody:

PROCEDURAL HISTORY

On June 27, 1994, petitioner Rose J. Aumavae ("Rose") filed a petition with this court seeking a divorce from respondent Kenape L. Aumavae ("Kenape") on the ground of "habitual cruelty or ill usage." Rose also sought an equitable distribution of marital properties, physical custody of the parties' two children, and child support. On the same day, Kenape's "Consent to Judgment and Waiver of Appearance" was also filed.

The court heard this action on September 21, 1994. At the hearing the [27ASR2d166] parties' "Property Settlement and Agreement," which they signed on June 24, 1994, was admitted into evidence. The court took the matter under advisement. On the following day, the court received Kenape's letter, dated September 21, 1994, in which he denied the alleged grounds for divorce and the existence of any agreement placing physical custody of parties' children with Rose. He further requested another hearing to present his side.

On October 21, 1994, Kenape submitted, after retaining counsel, a motion to dismiss and an affidavit, asserting that the parties were never married, and that he signed the "Property Settlement and Agreement" under duress. He requested that the court dismiss Rose's petition due to lack of jurisdiction and award him custody of the children.

The motion was scheduled for hearing on November 30, 1994, and for various reasons was continued first to December 14, 1994, and then to December 28, 1994, January 11, 1995, and February 16, 1995, and finally to March 2, 1995. The court was persuaded to grant these continuances principally to afford counsel opportunity to obtain documentary evidence that the marriage did or did not exist.

FINDINGS OF FACT

1. Kenape and Rose are both American Samoans.

2. Rose claimed that the parties were legally married on January 18, 1979, in Reno, Nevada. However, according to an official statement, dated February 10, 1994, by the Deputy Recorder of the County Recorder of Washoe County, Nevada, where Reno is located, there is no record of any marriage between Rose and Kenape during the years 1975 to 1985. Nonetheless, the parties voluntarily cohabited as husband wife from 1979 until their separation in 1991. The vast majority of this 12-year relationship was spent living together in American Samoa.

3. In January, 1979, Kenape was living with Rose in the State of Washington. Soon after the alleged marriage ceremony, Kenape accepted a teaching position with the American Samoa Community College. Kenape arrived in American Samoa on or before July 31, 1979, the date he signed an employment contract with ASG. This date was nearly nine months prior to the birth of the parties' first child.

4. Two children were born of the parties' relationship: Lupe Ane [27ASR2d167] Aumavae, female, on April 30, 1980, and Leone Joanna Aumavae, female, on April 28, 1984.

[1] 5. Since the separation of the parties in 1991, the children have been, for the most part, in Kenape's physical custody. They are presently in his custody; Rose is residing in Alaska. Although a mother is the natural custodian of her young, Stevens v. Stevens, 21 A.S.R.2d 76, 78 (Trial Div. 1992), other factors for the court should weigh in deciding custody are "a good home, congenial surroundings, and intelligent attention and direction in matters affecting the health, education, growth and development of the children." Id. at 79 (citing Bemis v. Bemis, 200 P.2d 84, 91 (Cal. Ct. App. 1948)). In this case, the children's welfare would be best served by continuing their custody with Kenape.

CONCLUSIONS OF LAW

[2] 1. To grant a divorce, the court must dissolve a valid marriage contract. A.S.C.A. § 42.0202. In American Samoa, for a man and a woman to enter into a valid marriage contract, a marriage ceremony must be performed by a duly authorized person. A.S.C.A. § 42.0101(e). American Samoa does not recognize common-law marriages. Estate of Tuinanau Fuimaono, 21 A.S.R.2d 121, 125 (Trial Div. 1992). Since the parties never met the ceremonial requirement, they were not legally married, and Rose is not entitled to a divorce from Kenape.

[3-4] 2. Common-law marriages, if valid according to the law of the state in which they were initiated, will be recognized in other jurisdictions, even where such marriages cannot be lawfully formed. Gallegos v. Wilkerson, 445 P.2d 970, 972 (N.M. 1968). However, the State of Washington does not recognize common-law marriages. Therefore, this court is not required to decide whether or not to recognize a common-law marriage between the parties from another jurisdiction. But if Washington did recognize common-law marriages, the parties' brief stay in Washington would be insufficient to compel the recognition of a valid common-law marriage. An unmarried couple who spend a short period of time in a jurisdiction without taking up permanent residence or attempting to become husband and wife in the state does not give rise to a common-law marriage. McGrath v. McGrath, 387 S.W.2d 239, 214-42 (Mo. Ct. App. 1965). The brief time Kenape and Rose spent together in Washington was merely [27ASR2d168] transitory compared with the relationship's many years of existence in American Samoa.

[5-6] 3. The court has exclusive original jurisdiction "when the question of legal custody is incidental to the determination of a cause in the court." A.S.C.A. § 45.0115(d). Even without this statutory authority, the court has the inherent power, due to our authority to protect children, to make an order relative to the custody and support of a child born as an issue of an invalid marriage. Abelt v. Zeman, 179 N.E.2d 176, 178 (Ohio Misc. 1962).

4. Kenape is entitled to the care, custody and control of the parties' two minor children, subject to Rose's visitation rights at all reasonable times.

ORDERS

1. Rose is denied a divorce from Kenape.

2. Kenape's motion to dismiss is denied and jurisdiction is retained regarding custody of the children and child support.

3. Kenape shall have the care, custody and control of the parties' two minor children, subject to Rose's visitation rights at all reasonable times.

4. In furtherance of the children's best interests, neither party shall remove from American Samoa without the court's prior permission. No change in custody of the children shall occur except by the court's order.

It is so ordered.

**********

In re a Minor Child ( JR No. 81-93),


In re a Minor Child,

_________

ELISARA P. ELISARA and ALI`IMAUOFALEUPOLU
ELISARA, Petitioners,

v.

LAUIFI FALEAFAGA and FUAKOKO FALEAFAGA,
Respondents

High Court of American Samoa
Trial Division

JR No. 81-93

March 22, 1995

__________

[1] In action to voluntarily relinquish parental rights pursuant to A.S.C.A. § 45.0402, the court may not dispense with the need to have the natural parents attend court to present such a voluntary relinquishment petition, even if the reason for the natural parents' absence is their inability to afford travel to American Samoa. A.S.C.A. § 45.0402.

Before KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Petitioners, Ellen A. Ryan

Order Denying Motion for Reconsideration:

Petitioners move the court for reconsideration of its order denying their petition to terminate respondents' parental rights in and to the child before the court. The court was not persuaded on the evidence that the respondents had left the child "neglected and dependent," as those terms are defined by A.S.C.A. §45.0103(19), and hence denied the petition.

On the other hand, the court pointed out that the evidence tended to show a situation of "voluntary relinquishment," which would give rise to an entirely separate proceeding, under A.S.C.A. § 45.0115(a)(5) and 45.0401(2), as distinct from the proceeding to terminate parental rights in "neglected and dependent" children, pursuant to A.S.C.A. §§ 45.0115(a)(3) and 45.0401(a)(1). Because of this additional finding, petitioners in their motion for reconsideration now essentially ask the court to treat their § 45.0115(a)(3) and § 45.0401(a)(1) termination petition, as an A.S.C.A. §§ 45.0115(a)(5) and 45.0401(2) voluntary relinquishment proceeding. The logical extension of this request is that the court should now treat the respondent natural parents as the petitioning party, although no petition has been filed by them, as required by A.S.C.A. § 45.0402. Furthermore, petitioners additionally ask the court to dispense with any need to have the natural parents attend court to present such a voluntary relinquishment petition, on the grounds that the latter cannot afford to travel to American Samoa. The motion for reconsideration is denied.

[1] The statutory termination process does not admit the procedural casualness advocated by petitioners. See In the Interest of Three Minor Children, 3 A.S.R.2d 4 (Trial Div. 1987). Second, even if we could properly treat petitioners' termination petition as respondents' petition for voluntary relinquishment, we would nonetheless be inclined to deny the motion for the reasons to which we alluded in our order denying the petition.

It is so ordered.

*********

In re a Minor Child (JR No. 81-93),


In re a Minor Child

High Court of American Samoa
Trial Division

JR No. 81-93

February 16, 1995

__________

[1] When natural parents voluntarily relinquish their parental rights, the appropriate action to legally terminate parental rights is an A.S.C.A. § 45.0402 petition for voluntary relinquishment of parental rights, which must be filed by the natural parents. A.S.C.A. § 45.0402.

[2] A.S.C.A. § 45.0402, the statutory provision that permits natural parents to voluntarily relinquish their parental rights, effectively requires that the natural parents be present in court. A.S.C.A. § 45.0402.

[3] The involuntary parental rights termination proceeding under A.S.C.A. § 45.0103(19) is not to be used to avoid the necessity of having the natural parents attend court. A.S.C.A. § 45.0103.

Before KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Petitioners, Ellen A. Ryan

Order Denying Petition to Terminate Respondents' Parental Rights:

Petitioners are the custodial parents of the minor before the court. The respondents are the natural parents. The minor has been with the petitioners since birth pursuant to a prenatal arrangement with the natural parents to relinquish the child to be raised by petitioners. One petitioner and one respondent are first cousins.

The parties now desire to formalize the arrangement and have petitioners adopt the minor. The respondents, however, are residents of California, and are presently unable to travel to the territory to petition for voluntary relinquishment of all parental rights to the child, pursuant to A.S.C.A. § 45.0403, in order that the child be made available for adoption in accordance with the requirements of A.S.C.A. § 45.0412(2). Consequently, the petitioners have initiated action by filing an A.S.C.A. § 45.0115(a)(3) petition to terminate respondents' parental rights, on the [27ASR2d123] grounds that the child is neglected and dependent. The respondents have, in turn, acknowledged receipt of the summons and have both filed waivers of further notice of the proceedings.

[1-3] We find that the evidence does not sustain a finding of a child "neglected and dependent," as those terms are defined by A.S.C.A. § 45.0103(19). Rather, the evidence suggests the situation of a child whose care and custody were "voluntarily relinquished" by his natural parents to the petitioners. In these circumstances, the appropriate action to be filed is an A.S.C.A. § 45.0402 petition for voluntary relinquishment of parental rights, which must be filed by the natural parents. See In the Interest of Three Minor Children , 3 A.S.R.2d 4 (Trial Div. 1986). A.S.C.A. § 45.0402 effectively requires that the natural parents be present in court, and the alternative involuntary termination proceeding under A.S.C.A. § 45.0103(19) is not to be used in order to avoid the necessity of having the natural parents attend court. Id. at 7. See also In re Two Minor Children , 8 A.S.R.2d 75 (Trial Div. 1988).

The petition is, therefore, denied.

It is so ordered.

*********

In re a Minor Child (AD No. 26-27),


In re a Minor Child

High Court of American Samoa
Trial Division

AD No. 26-27

January 23, 1995

__________

Before KRUSE, Chief Justice.

Order Denying Petition for Certified Copy of Adoption Decree:

Petitioner Pepe Toelupe seeks a certified copy of the adoption decree issued in the above-entitled matter, on the showing that the child's mother has, by way of affidavit, appointed him the child's "legal guardian." Although the said affidavit talks in terms of guardianship, it does not confer "guardianship," as that term is defined in A.S.C.A. § 45.0103(16).

A.S.C.A. § 45.0404 mandates, in relinquishment and adoption proceedings, confidentiality of the record and papers on file, and anonymity of the parties. As petitioner does not appear to be a party [27ASR2d94] authorized under A.S.C.A. § 45.0424(a) to receive a copy of the adoption decree, and there being apparently no good cause as to why the confidentiality requirements should be disturbed, the petition for a certified copy of the adoption decree is, therefore, denied.

It is so ordered.

*********

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

January 26, 1995

__________

[1] A direct order by the court as provided in T.C.R.C.P. 37(a) and (b) is not a prerequisite to imposition of sanctions under T.C.R.C.P. 37(d). T.C.R.C.P. 37.

[2] T.C.R.C.P. 37 permits immediate sanctions against parties for wilful failure to comply with discovery rules. T.C.R.C.P. 37.

[3] Ultimate production of material in question does not absolve a party where it failed to produce the material in a timely fashion. T.C.R.C.P. 37.

[4] The court may tailor the sanction to the severity of the misconduct. T.C.R.C.P. 37.

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

Counsel: For Plaintiff, Tate Eldridge
For Defendant Ralph Tuia, William H. Reardon

Order Imposing Attorney's Fees as Discovery Sanction: [27ASR2d95]

Plaintiff Pago Petroleum Products, Inc. ("PPP") moved to compel discovery and for sanctions against defendant Ralph Tuia ("Tuia"), pursuant to T.C.R.C.P. 37. The motion came regularly for hearing on January 20, 1995, and both PPP and Tuia were represented by counsel.

On August 17, 1994, pursuant to T.C.R.C.P. 33 and 34, PPP served Tuia with interrogatories and requested Tuia to produce the documents at issue in the motion currently before the court. When Tuia failed to either answer the interrogatories or produce the documents requested by September 17, 1994,(1) PPP made several informal requests of Tuia to comply with the discovery requests and informed Tuia that failure to do so would result in the filing of a motion to compel discovery.

PPP filed a motion to compel on November 17, 1994. On January 18, 1995, two days before the hearing, Tuia did answer the interrogatories and produce the documents that PPP was seeking, but the delay has caused PPP to incur legal expenses that could have otherwise been avoided by a timely response to PPP's discovery requests. Tuia has not shown any reasonable justification for the delay.

T.C.R.C.P. 37 states in relevant part:

(d) Failure of Party to . . . Serve Answers to Interrogatories
or Respond to Request for Inspection. If a party . . . fails . . .
(2) to serve answers or objections to interrogatories submitted
under Rule 33, after proper service of the interrogatories, or
(3) to serve written response to a request for inspection submitted
under Rule 34, after proper service of the request, the court
in which action is pending on motion may make such orders in
regard to the failure as are just, and among others it may take
any action authorized under paragraphs (A), (B), and (C) of
subdivision (b) (2) of this rule. In lieu of any order or in addition
thereto, the court shall require the party failing to act or the
attorney advising him or both to pay the reasonable expenses,
including [27ASR2d96] attorney's fees, caused by the failure,
unless the court finds the failure substantially justified or that
other circumstances make an award of expenses unjust.

As is stated above, PPP made a good faith attempt to obtain the documents and gave Tuia reasonable notice of its intention to file a motion to compel discovery. While this court did not ultimately need to take action on the motion to compel discovery, Tuia may not use his eleventh hour compliance to avoid sanctions since his conduct necessitated the motion to compel, and it would have been granted.

[1-2] "A direct order by the court as provided in Rule 37(a) and (b) is not a prerequisite to imposition of sanctions under Rule 37(d). The rule permits immediate sanctions against parties for wilful failure to comply with discovery rules." Fox v. Studebaker-Worthington, Inc., 516 F.2d 980, 993 (8th Cir. 1975).

[3] Once a failure to produce documents in response to a request is established, sanctions under Rule 37(d) are appropriate. Ultimate production of the material in question does not absolve a party when the party failed to produce the material in a timely fashion. Fautek v. Montgomery Ward., Inc., 96 F.R.D. 141, 145 (N.D. Ill. 1982); Wyle v. R.J. Reynolds Indus., 709 F.2d 585, 589 (9th Cir. 1983) (court, in its discretion, may impose a wide range of sanctions when a party fails to comply with the rules of discovery or with the court orders enforcing them).

PPP has asked the court to award $250 as reasonable attorney's fees for its effort in compelling discovery and has submitted its attorney's affidavit with an accounting of these legal expenses.

[4] Due to Tuia's delay in complying with PPP's request for the production of documents, first requested over five months ago, we find that the attorney's fees incurred by PPP to compel discovery from Tuia in the amount of $250 are reasonable. However, the court may tailor the sanction to the severity of the misconduct. Charter House Ins. Brokers v. New Hampshire Ins., 667 F.2d 600, 605 (7th Cir. 1982). Therefore, for immediate purposes of sanctions under Rule 37, we award $100 in attorney's fees payable by Tuia to PPP within 30 days after the entry of this order, to impose an appropriate penalty on Tuia and to partially compensate PPP for its legal expenses incurred in compelling Tuia to answer interrogatories and produce the requested documents. [27ASR2d97]

It is so ordered.

*********

1. Under Rule 33, a party shall serve a copy of the answers, and objections if any, within 30 days of the service of the interrogatories. Likewise, under Rule 34, a party shall serve a written response within 30 days after the service of the request. Since PPP served the interrogatories and request for production of documents on August 17, 1994, Tuia had 30 days from that date in which to respond.

Hildre ; Patau v.


FUIFATU SEFO PATAU, Plaintiff

v.

DONALD F. HILDRE; LUIS CASILLAS-ROBLES; KENNEDY,
CROCKETT, DOUGHERTY & HILDRE, Attorneys at Law; and
WILLIAM H. REARDON, ETC., Defendants

High Court of American Samoa
Trial Division

CA No. 50-94

January 4, 1995

__________

[1] T.C.R.C.P. 6(a) is not intended to modify or change an existing statute of limitations, and it cannot, of its own force, extend a substantive limitation period prescribed by statute, nor does it attempt to change or modify a jurisdictional statute, such as a statute of limitations. T.C.R.C.P. 6.

[2] A.S.C.A. § 43.0210 states that the statute of limitations shall be two years and not afterward; therefore, applying Rule 6(a) to extend the time prescribed by A.S.C.A. § 43.0210 would be in conflict with the expressed intent of the Fono. A.S.C.A. § 43.0210; T.C.R.C.P. 6. [27ASR2d84]

[3] T.C.R.C.P. 6(a) does not extend the computation of time for the statute of limitations regarding a cause of action for legal malpractice pursuant to A.S.C.A. § 43.0210(2). A.S.C.A. § 43.0210; T.C.R.C.P. 6.

Before KRUSE, Chief Justice, TAUANU`U, Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Plaintiff Fuifatu Sefo Patau, Togiola T. A. Tulafono
For Defendant William H. Reardon, Barry I. Rose
For other named Defendants, Cheryl A. Crenwelge

Order Denying Motion for a New Trial (Reconsideration):

On October 12, 1994, we granted summary judgment for the moving defendants on the grounds that plaintiff's action was barred by the applicable two year statute of limitations, A.S.C.A. § 43.0120(2). Plaintiff moves for reconsideration of that order contending in the alternative that: 1) the final day of accrual fell on a Sunday and that T.C.R.C.P. Rule 6(a) applied to extend his filing deadline to the following business day; 2) the applicable statute of limitations is A.S.C.A. § 43.0120(3), which prescribes a three year period of limitations for "unwritten contracts," and not A.S.C.A. § 43.0120(2).

DISCUSSION

I. § 43.0121(2) or § 43.0121(3)

We reiterate our reasons earlier given and reaffirm our conclusion that the applicable statute of limitations in this case is A.S.C.A. § 43.0121(2).

II. Applicability of T.C.R.C.P. 6

T.C.R.C.P. 6(a) provides:

In computing any period of time prescribed or allowed by these
rules, by order of the court, or by an applicable statute, the day
of the act, event, or default from which the designated period of
time begins to run shall not be included. The last day of the period
so computed shall be included, unless it is a Saturday, a Sunday,
or a legal holiday, in which event the period runs until the end of
the next day which is not a Saturday, a Sunday, or a legal holiday.
When the period prescribed or allowed is less than 7 days,
intermediate Saturday, Sundays, and legal holidays shall be
excluded in the computation. [27ASR2d85]

(emphasis added).

[1] There appears to be a divergence of authority on the question of whether Rule 6(a)'s method of computing time extends to the computation of a limitations period prescribed by statute or whether the rule is merely limited to computing time for procedural matters once an action is properly before the court. See Anonymous Banks One Through Three v. FDIC, 645 F. Supp. 706, 707-708 (D. Mont. 1986). Nonetheless, it is well established that Rule 6(a) may provide guidance when the statute is silent as to how the time limitation prescribed is to be computed. Jenkins v. Yoder, 324 N.E.2d 520, 521 (Ind. 1975). Where "no contrary policy is expressed in the statute . . . the considerations of liberality and leniency which find expression in Rule 6(a) are . . . applicable." United States v. Cia Luz Stearica, 181 F.2d 695, 696-697 (9th Cir. 1950) (citing Union National Bank v. Lamb, 337 U.S. 38, 41 (1949)). Conversely, where contrary statutory policy is clear on method of computation of time, the statute shall, of course, be followed. Rule 6(a) is not intended to modify or change an existing statute of limitations, and it cannot, of its own force, extend a substantive limitations period prescribed by statute, nor does it attempt to change or modify a jurisdictional statute, such as a statute of limitations. Joint Council Dining Car Employees Local 37 v. Delaware, L. & W.R.. Co., 157 F.2d 417 (2nd Cir. 1946) (court dismissed plaintiff's action, brought under the Railway Labor Act, on the ground that it was barred by the statute of limitations prescribed by the Act even though the final day of accrual fell on a legal holiday); Rust v. Quality Car Corral, Inc., 614 F.2d 1118 (6th Cir. 1980) (Rule 6(a) did not alter the statute of limitations prescribed by the Truth in Lending Act which stated that an action must be brought "within one year from the date of occurrence").

In our Order Granting Defendants' Motion for Summary Judgment, issued on October 12, 1994, we held that the statute of limitations applicable in this legal malpractice action was prescribed by A.S.C.A. § 43.0120(2). This enactment provides in relevant part:

Actions may be brought within the following times after their
causes accrue, and not afterward, except as otherwise specially
declared . . . . (2) actions founded on injuries to the person . . .
including injuries to relative rights, whether based on contract or
tort . . . within 2 years.

(emphasis added). We read A.S.C.A. § 43.0120 as expressing a contrary policy to Rule 6's method of computing time. The enactment not only [27ASR2d86] states that actions based on a cause of action as the one before us must be filed within two years after their causes accrue, but it states that an action may not be brought after such date, except as otherwise declared. While there are very specific statutory exceptions that toll the statute, see A.S.C.A. §§ 43.0124 - 43.0127, the facts in the present case do not fall within any of those exceptions. See Patau v. Rosendahl Corp. , 19 A.S.R.2d 80, 85 (Trial Div. 1991) aff'd, Patau v. Rosendahl Corp. 20 A.S.R.2d 77, 79 (App. Div. 1991).

[2] The court in Joint Council Dining Car, 157 F.2d 417, reasoned that applying Rule 6(a) to extend the statutory limitations period by one day because the final date fell on a legal holiday, would be in direct conflict with the intent of Congress, which provided in the Railway Labor Act, that the statute of limitations shall be two years and not after. Similarly, A.S.C.A. § 43.0210 states that the statute of limitations shall be two years and not afterward; therefore, applying Rule 6(a) to extend the time prescribed by A.S.C.A. § 43.0210 would, in our view, be in conflict with the expressed intent of the Fono.

[3] We conclude, therefore, that T.C.R.C.P. 6(a) does not extend the computation of time for the statute of limitations regarding a cause of action for legal malpractice pursuant to A.S.C.A. § 43.0210(2). We accordingly reaffirm our earlier conclusion that plaintiff's cause of action is untimely under the terms of this enactment.

III. Accrual Date for Legal Malpractice Cause

The three accepted methods for determining the accrual date for a cause of action for legal malpractice are: (1) from the date of the negligent act; (2) from the date the client sustained injury; and (3) the date the client discovered or should have reasonably discovered the alleged malpractice.

More recent decisions from other jurisdictions have applied the "discovery doctrine" which states that a cause of action for legal malpractice accrues when the plaintiff knows, or in the exercise of reasonable diligence should have known, of the defendant's negligent conduct, or when the plaintiff is first able to sue. AMFAC Distribution Corp. v. Miller, 673 P.2d 795, 796 (Ariz. Ct. App. 1983). In other words, a cause of action against an attorney for legal malpractice does not accrue until the date on which the negligence is irremediable. Banton v. Marks, 623 S.W.2d 113, 116 (Tenn. Ct. App. 1981).

The court in AMFAC Distribution Corp. held that a claim for legal [27ASR2d87] malpractice is not ripe until the damages are ascertainable and the plaintiff has no recourse remaining in the courts. Id. at 796. The reason a client must wait until final judgment is obtained or is waived by failure to appeal is that it protects the trust relationship between a client and his or her attorney. Otherwise, clients would always be second-guessing their attorneys. Also, judicial efficiency is promoted by requiring final judgment because without it, a plaintiff would be allowed to bring a legal malpractice action that would be moot if an earlier decision was overturned on appeal.

A cause of action may not be brought for legal malpractice until the case is finally terminated and a final judgment is rendered. Ameraccount Club Inc., v. Hill, 617 S.W.2d 876, 878 (Tenn. 1981); Woodruff v. Tomlin, 511 F.2d 1019, 1020 (6th Cir. 1975).

CONCLUSION

A.S.C.A. § 43.0120(2) is the applicable statute of limitations in this case. Pursuant to A.S.C.A. § 43.0120(2), plaintiff had two years to file suit against defendants for legal malpractice. The period of time began to accrue on March 13, 1992, the date the Appellate Division upheld the dismissal of plaintiff's action. This was the date in which plaintiff was left with no further recourse and the damages were irremediable. Plaintiff filed suit on March 14, 1994, which was two years and one day following the date of injury. This was beyond the period of time prescribed by A.S.C.A. § 43.0120(a) and was therefore dismissed by this court. Plaintiff argues that T.C.R.C.P. 6(a) should extend the statute of limitations by one day since the period of computation ended on a Sunday; but T.C.R.C.P. 6(a) does not apply in this case because A.S.C.A. § 43.0120 clearly does not allow any actions to be filed beyond the two year requirement unless it satisfies an expressed exception, which is not met in this case. To find otherwise would be contrary to the legislative policy expressed in this statute. Plaintiff's motion for new trial (reconsideration) is, therefore, denied.

It is so ordered.

*********

Hildre; Patau v.


FUIFATU SEFO PATAU, Plaintiff

v.

DONALD F. HILDRE; LUIS CASILLAS-ROBLES; KENNEDY,
CROCKETT, DOUGHERTY & HILDRE, Attorneys at Law; and
WILLIAM H. REARDON, ETC., Defendants

High Court of American Samoa
Trial Division

CA No. 50-94

October 12, 1994

__________

[1] The right to recover damages for a personal injury is a right which is "relative" to the personal injury.

[2] Two-year statutory limitation period applies to causes of action for malpractice, because professional negligence that undermines the right to recover personal injury damages is an injury to a "relative right." A.S.C.A. § 43.0210.

Before KRUSE, Chief Justice, TAUANU`U, Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Plaintiff Fuifatu Sefo Patau, Togiola T. A. Tulafono
For Defendant William H. Reardon, Barry I. Rose
For other named Defendants, Cheryl A. Crenwelge

Order Granting Motion for Summary Judgment:

On March 21, 1987, plaintiff Fuifatu Sefo Patau suffered an amputated forearm while working as an employee of Samoa Packing Company. In June of that same year, plaintiff filed a workmen's compensation claim and retained defendants Donald F. Hildre, Luis Casillas-Robles, and Kennedy Crockett Dougherty & Hildre, Attorneys at Law, (hereafter the "Firm") who negotiated and settled plaintiff's workmen's compensation claim. On November 22, 1988, the Firm contacted defendant William H. Reardon regarding representation of plaintiff. Reardon accordingly filed suit on behalf of plaintiff in this Court on March 22, 1989, two years and one day following plaintiff's injury. We held that the action was barred by a two-year statute of limitations, A.S.C.A. § 43.0120(2), and summarily dismissed on May 13, 1991. See Patau v. Rosendahl Corp. , 19 A.S.R.2d 80 (Trial Div. 1991). The dismissal was upheld on appeal [27ASR2d8] on March 13, 1992. See Patau v. Rosendahl Corp. , 20 A.S.R.2d 77 (App. Div. 1992). On March 14, 1994, two years and one day following the decision of the Appellate Division, plaintiff filed an action in this Court, claiming professional negligence by defendants for failure to file his claim within the prescribed limitations period.

The defendants here move for summary judgment arguing that plaintiff's claim against each of them is also time barred. We are, ironically, presented with the question of whether plaintiff's filing of the malpractice claim is, itself, within the applicable prescribed limitation period. For reasons given, we conclude that it is not.

The threshold issue is whether the applicable limitations period is two years or three years. With respect to legal malpractice, this is a case of first impression in the territory. The American Samoa Code Annotated makes no explicit reference to a limitations period for legal malpractice claims. We must, therefore, determine which broad category the present case falls under, and apply the appropriate limitations period.

It is possible to argue, as the plaintiff does, that the relationship between attorney and client is an unwritten contract, that professional negligence is a breach of that contract, and thus to apply A.S.C.A. § 43.0210(3), which provides:

(3) actions founded on unwritten contracts, or brought for
injuries to property, within 3 years.

[1-2] It is also possible to view a professional negligence claim as a personal injury matter, placing it squarely within the meaning of A.S.C.A. § 43.0210(2). The present case, however, does not require a judgment about the legal theory underlying professional malpractice actions. Since the lawsuit underlying the malpractice claim rested on an injury to the person, the two-year limitations period is, in our view, applicable regardless of whether a tort or a contract theory is used to characterize malpractice. A.S.C.A. § 43.0210 provides in relevant part:

Actions may be brought within the following times after their
causes accrue, and not afterward, except as otherwise
especially declared:

....(2) actions founded on injuries to the person....including
injuries to relative rights, whether based on contract or tort
....within 2 years. [27ASR2d9]

(emphasis added). The right to recover damages for a personal injury is a right which is "relative" to the personal injury. Professional negligence that undermines the right to recover personal injury damages is, therefore, an injury to a "relative right[]," or a right which is related to the personal injury. Accordingly, the two-year limitation period applies regardless of the characterization of malpractice as a contract or tort action. (1)

The motion for summary judgment is, therefore, granted.

It is so ordered.

*********

1. This case also raises the question of the date from which a malpractice cause of action--the date of the trial court's judgment of dismissal, or the date on which judgment was affirmed on appeal. We need not decide this issue at this time; even using the latter date, plaintiff's filing is still one day beyond the applicable two-year limitations period.

Aumavae v. Aumavae,


ROSE J. AUMAVAE, Petitioner

v.

KENAPE L. AUMAVAE, Respondent

High Court of American Samoa
Trial Division

DR NO. 43-94

March 27, 1995

__________

[1] Although a mother is the natural custodian of her young, other factors that the court should weigh in deciding custody are a good home, congenial surroundings, and intelligent attention and direction [27ASR2d165] in matters affecting the health, education, growth and development of the children.

[2] In American Samoa, for a man and a woman to enter into a valid marriage contract, a marriage ceremony must be performed by a duly authorized person. A.S.C.A. § 42.0101(e).

[3] Common-law marriages, if valid according to the law of the state in which they were initiated, will be recognized in other jurisdictions, even where such marriages cannot be lawfully formed.

[4] An unmarried couple who spend a short period of time in a jurisdiction without taking up permanent residence or attempting to become husband and wife in the state does not give rise to a common-law marriage.

[5] The court has exclusive original jurisdiction when the question of legal custody is incidental to the determination of a cause in the court. A.S.C.A. § 45.0115(d).

[6] The court has the inherent power, due to its authority to protect children, to make an order relative to the custody and support of a child born as an issue of an invalid marriage.

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

Counsel: For Petitioner, Afoa L. Su`esu`e Lutu
For Respondent, Ellen A. Ryan

Order Denying Divorce and Motion to Dismiss and Awarding Custody:

PROCEDURAL HISTORY

On June 27, 1994, petitioner Rose J. Aumavae ("Rose") filed a petition with this court seeking a divorce from respondent Kenape L. Aumavae ("Kenape") on the ground of "habitual cruelty or ill usage." Rose also sought an equitable distribution of marital properties, physical custody of the parties' two children, and child support. On the same day, Kenape's "Consent to Judgment and Waiver of Appearance" was also filed.

The court heard this action on September 21, 1994. At the hearing the [27ASR2d166] parties' "Property Settlement and Agreement," which they signed on June 24, 1994, was admitted into evidence. The court took the matter under advisement. On the following day, the court received Kenape's letter, dated September 21, 1994, in which he denied the alleged grounds for divorce and the existence of any agreement placing physical custody of parties' children with Rose. He further requested another hearing to present his side.

On October 21, 1994, Kenape submitted, after retaining counsel, a motion to dismiss and an affidavit, asserting that the parties were never married, and that he signed the "Property Settlement and Agreement" under duress. He requested that the court dismiss Rose's petition due to lack of jurisdiction and award him custody of the children.

The motion was scheduled for hearing on November 30, 1994, and for various reasons was continued first to December 14, 1994, and then to December 28, 1994, January 11, 1995, and February 16, 1995, and finally to March 2, 1995. The court was persuaded to grant these continuances principally to afford counsel opportunity to obtain documentary evidence that the marriage did or did not exist.

FINDINGS OF FACT

1. Kenape and Rose are both American Samoans.

2. Rose claimed that the parties were legally married on January 18, 1979, in Reno, Nevada. However, according to an official statement, dated February 10, 1994, by the Deputy Recorder of the County Recorder of Washoe County, Nevada, where Reno is located, there is no record of any marriage between Rose and Kenape during the years 1975 to 1985. Nonetheless, the parties voluntarily cohabited as husband wife from 1979 until their separation in 1991. The vast majority of this 12-year relationship was spent living together in American Samoa.

3. In January, 1979, Kenape was living with Rose in the State of Washington. Soon after the alleged marriage ceremony, Kenape accepted a teaching position with the American Samoa Community College. Kenape arrived in American Samoa on or before July 31, 1979, the date he signed an employment contract with ASG. This date was nearly nine months prior to the birth of the parties' first child.

4. Two children were born of the parties' relationship: Lupe Ane [27ASR2d167] Aumavae, female, on April 30, 1980, and Leone Joanna Aumavae, female, on April 28, 1984.

[1] 5. Since the separation of the parties in 1991, the children have been, for the most part, in Kenape's physical custody. They are presently in his custody; Rose is residing in Alaska. Although a mother is the natural custodian of her young, Stevens v. Stevens, 21 A.S.R.2d 76, 78 (Trial Div. 1992), other factors for the court should weigh in deciding custody are "a good home, congenial surroundings, and intelligent attention and direction in matters affecting the health, education, growth and development of the children." Id. at 79 (citing Bemis v. Bemis, 200 P.2d 84, 91 (Cal. Ct. App. 1948)). In this case, the children's welfare would be best served by continuing their custody with Kenape.

CONCLUSIONS OF LAW

[2] 1. To grant a divorce, the court must dissolve a valid marriage contract. A.S.C.A. § 42.0202. In American Samoa, for a man and a woman to enter into a valid marriage contract, a marriage ceremony must be performed by a duly authorized person. A.S.C.A. § 42.0101(e). American Samoa does not recognize common-law marriages. Estate of Tuinanau Fuimaono, 21 A.S.R.2d 121, 125 (Trial Div. 1992). Since the parties never met the ceremonial requirement, they were not legally married, and Rose is not entitled to a divorce from Kenape.

[3-4] 2. Common-law marriages, if valid according to the law of the state in which they were initiated, will be recognized in other jurisdictions, even where such marriages cannot be lawfully formed. Gallegos v. Wilkerson, 445 P.2d 970, 972 (N.M. 1968). However, the State of Washington does not recognize common-law marriages. Therefore, this court is not required to decide whether or not to recognize a common-law marriage between the parties from another jurisdiction. But if Washington did recognize common-law marriages, the parties' brief stay in Washington would be insufficient to compel the recognition of a valid common-law marriage. An unmarried couple who spend a short period of time in a jurisdiction without taking up permanent residence or attempting to become husband and wife in the state does not give rise to a common-law marriage. McGrath v. McGrath, 387 S.W.2d 239, 214-42 (Mo. Ct. App. 1965). The brief time Kenape and Rose spent together in Washington was merely [27ASR2d168] transitory compared with the relationship's many years of existence in American Samoa.

[5-6] 3. The court has exclusive original jurisdiction "when the question of legal custody is incidental to the determination of a cause in the court." A.S.C.A. § 45.0115(d). Even without this statutory authority, the court has the inherent power, due to our authority to protect children, to make an order relative to the custody and support of a child born as an issue of an invalid marriage. Abelt v. Zeman, 179 N.E.2d 176, 178 (Ohio Misc. 1962).

4. Kenape is entitled to the care, custody and control of the parties' two minor children, subject to Rose's visitation rights at all reasonable times.

ORDERS

1. Rose is denied a divorce from Kenape.

2. Kenape's motion to dismiss is denied and jurisdiction is retained regarding custody of the children and child support.

3. Kenape shall have the care, custody and control of the parties' two minor children, subject to Rose's visitation rights at all reasonable times.

4. In furtherance of the children's best interests, neither party shall remove from American Samoa without the court's prior permission. No change in custody of the children shall occur except by the court's order.

It is so ordered.

**********

Aoelua of the Village of Afono; In re Matai Title


VALOVALO AOELUA, Claimant

v.

MANU MIKA LEALAI, and LEVEA TAGOA`I,
Objectors/Counterclaimants

[In re the Matai Title "Aoelua" of the village of Afono.]

High Court of American Samoa
Land and Titles Division

MT No. 01-93

October 26, 1994

__________

Before KRUSE, Chief Justice, VAIVAO, Associate Judge, BETHAM,* Associate Judge, ATIULAGI, Associate Judge, and MAILO, Temporary Associate Judge.

Counsel: For Valovalo Aoelua, Afoa L.S. Lutu
For Manu M. Lealai, Togiola T.A. Tulafono
Fetulele Levea Tagoa`i, pro se [27ASR2d18]

On May 12, 1992, Valovalo Aoelua (hereafter "Valovalo") offered the title "Aoelua," attached to the village of Afono, County of Sua, for registration with the Office of the Territorial Registrar. This offer attracted the objections of Manu Mika Lealai (hereafter "Manu") and Fetulele Levea Tagoa`i (hereafter "Fetulele"). After the requisite conciliatory attempts before the Office of Samoan Affairs, the Secretary of Samoan Affairs certified an irreconcilable dispute and the matter was then referred to the Land and Titles Division. Trial was set for September 8, 1994, at which time only Valovalo and Manu appeared ready for trial whereas Fetulele informed the court that he was withdrawing his succession claim. After several days of testimony, the matter was taken under advisement.

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

FINDINGS

1. Hereditary Right

Both candidates measured entitlement to his nearest ancestor who held the Aoelua title. On this issue, Valovalo clearly prevails. His father was a former titleholder and thus his degree of hereditary right is 50%. By comparison, Manu claims his hereditary degree to be 12.5%, tracing his ancestral line to his great-grandfather, Moke, whom he claims was also a titleholder.

2. Wish of the Clans

On this issue, the parties were hopelessly at odds as to the family's clans. According to Valovalo's family history, which seems to have varied since the last time this title was previously contested in court, there is only one traditional clan, Leuluvao. Manu's family history, on the other hand, defines clans somewhat novelly, if not oddly, in terms of the five issue of his great-grandfather, together with two other former titleholders, Aoelua Salipopo, said to be his great-grandfather's brother, and Aoelua Uale.

The evidence suggests, however, that in terms of family affairs, the contemporary family practice seems to have evolved with family sides translated roughly in terms of the most recent titleholders. Suffice it to say, however, neither side has presented credible proof of family clan support, simply because this rather divided family has never really met as [27ASR2d19] a whole to address the issue of a succeeding titleholder. The evidence merely shows that certain family factions had at different times convened for the purpose of nominating a titleholder. Therefore, the best that can be claimed by each candidate is some family support, but neither the majority nor a plurality of clan support as mandated by A.S.C.A. §1.0409(c)(2). In these circumstances, we find that neither candidate prevails on this criterion.

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

As to knowledge of Samoan customs, both candidates fared roughly equally well in their responses to the examination by the Associate Judges. In terms of forcefulness, character and personality considerations, we rate Valovalo ahead of Manu. Valovalo has the more impressive education and work credentials. After High School, he joined the United States Navy and subsequently retired after 20 years of active duty. After returning to the territory, Valovalo attended some classes at the American Samoa Community College and began working for the Department of Port Administration in various managerial positions, rising eventually to the position of deputy director of the department which he holds to this day. Manu's accomplishments, on the other hand, while equally important to the community, do not bespeak the same drive and level of ambition shown by Valovalo. Manu, a carpenter by trade, now enjoys retirement after almost 26 years of service rendered to the government. One serious character flaw which Manu has displayed, however, and which has also weighed against him, is his contempt for the law which prohibits the unlawful use of a matai title. See A.S.C.A. §§ 1.0401 et seq. For many years, he has held himself out unlawfully as an Aoelua titleholder within the village, county, and even to the extent of presenting himself to the government for the position of County Chief under the pretext of holding the Aoelua title. Manu's defense in this regard is ignorance of the law, a claim that we find to be neither believable nor an excuse.

In our evaluation of the parties, we rate candidate Valovalo ahead of Manu on forcefulness, character, and personality, but equal on knowledge of Samoan customs. Accordingly, we find Valovalo to prevail over Manu on this consideration.

4. Value to Family, Village, and Country

Both candidates have been involved in various ways in both family and village concerns, including service to their respective churches. On this [27ASR2d20] requirement, we find that neither candidate particularly surpasses the other in this regard and, accordingly, we rank them equal.

CONCLUSIONS

Based on the foregoing, we hold that Valovalo Aoelua is qualified to hold the title Aoelua. He prevails over Manu Mika Lealai on the first and third criteria with neither prevailing with regard to the second and fourth. The Territorial Registrar shall, therefore, in accordance with the requirements of A.S.C.A. § 1.0409(b), register the Aoelua title from the village of Afono in candidate Valovalo Aoelua.

It is so ordered.

*********

* In view of the time limits imposed by A.S.C.A. § 3.0209, Associate Judge Seuva`ai M. Betham did not participate in the deliberations because of a sudden and extended need for off-island medical treatment.

American Samoa Gov’t; Taufete'e v.


JOE TAUFETE`E, Appellant

v.

AMERICAN SAMOA GOVERNMENT, Appellee

High Court of American Samoa
Appellate Division

AP No. 04-94

January 3, 1995

__________

[1] When reviewing a decision of an administrative agency, the High Court may not consider evidence absent in the administrative record unless the evidence (a) is necessary and (b) supplements or explains the evidence contained in the administrative record. A.S.C.A. § 4.1043(a).

[2] Post hoc rationalizations for an agency decision which are absent from the administrative record are not admissible upon judicial review of the decision. A.S.C.A. § 4.1043(a).

[3] Where evidence consists of affidavits from individuals who were neither employees of the administrative decision-making body nor involved in the administrative proceedings, and the [27ASR2d81] affidavits do not purport to clarify or explain evidence from the existing record, the evidence is not supplemental to the administrative record and is not admissible upon judicial review of the decision. A.S.C.A. § 4.1043(a).

Before KRUSE, Chief Justice.

Counsel: For Appellant, Lutu Afoa
For Appellee, Douglas Juergens

Order Denying Motion to Admit Evidence:

HISTORY

Appellant, Joe Taufete`e ("Appellant"), occupies communal land in the village of Nu`uuli, adjacent to the Pala Lagoon. In 1985, Appellant obtained a permit to conduct landfill activity in that area, but discontinued such activity later that year. Appellant resumed fill activity in 1992, but the government issued a Stop Work Order to Appellant because his permit had expired. Appellant applied for a fill permit through the Project Notification and Review System ("PNRS"). The PNRS reviewed the application and recommended to the director that Appellant's application be denied. Appellant then appealed the recommendation of denial to the PNRS appeals panel, which reviewed and reversed the recommendation of denial. The Director followed the PNRS recommendation and denied the permit. The Government moves this court to receive affidavits not considered in the administrative review, nor on the record of the agency's proceedings, on the ground that the report was unavailable at the time of the agency decision.

DISCUSSION

[1] The scope of review for an administrative decision is governed by A.S.C.A. § 4.1043(a), which provides, in relevant part, "The review shall be confined to the record . . . On motion of any party, the court may, in its discretion, receive any evidence necessary to supplement the record."

The language of this rule requires that "review is confined to the record," giving the court "discretion" to receive new evidence on appeal only when it finds: (1) that the evidence "supplement[s]" or explains matters already in the record; and (2) when the "supplement[al]" material is "necessary" for meaningful review.

[2] Although they are not bound by the same statutory rule as the courts of American Samoa, federal courts have generally held that any evidence [27ASR2d82] outside the administrative record may be admitted only for the limited purpose of explaining the complex technical testimony in the record.

In reviewing administrative regulations, the courts generally are forbidden from conducting a full-fledged and independent evidentiary hearing. Neither can the courts uphold regulations on the basis of post-hoc rationalizations offered by the agency. But in the often difficult task of reviewing administrative regulations, the courts are not straightjacketed to the original record in trying to make sense of complex technical testimony, which is often presented in administrative proceedings without review by nonexpert judges in mind. Here, the augmenting materials were merely explanatory of the original record. No new rationalization of the SO2 regulations was offered by the EPA. Instead, the augmenting materials clarified a dispute that we felt was less clear from the original record and were clearly admissible. Bunker Hill v. E.P.A., 572 F.2d 186, 192 (9th Cir. 1977) (citations omitted). In the present case, the offered affidavits were not in the mind of the Director when he made his decision to deny the permit to appellant, nor do they purport to explain or clarify any specific evidentiary materials already in the record. The affidavits merely present the agency's proffered post hoc rationalization. Furthermore, in interpreting Bunker Hill, the District of Columbia Circuit held that, if "necessary", a reviewing court may, "[G]o outside the administrative record . . . only for background information, as in Bunker Hill, or for the limited purpose of ascertaining whether the agency considered all the relevant factors or fully explicated its course of conduct or grounds for decision." Environmental Defense Fund v. Costle, 657 F.2d 275, 285 (D.C. Cir. 1981) (quoting Asaraco v. E.P.A., 616 F.2d 1153, 1160 (9th Cir. 1980)). The District of Columbia Circuit further found it to be essential that supplementary evidence be provided by "employees" of the relevant agency, or people who "had participated in the pertinent agency actions." Id.

The Government offers us Webb v. Gorsuch, 699 F.2d 157, 159 n.2 (4th Cir. 1983), for the proposition that "we may consider several affidavits and reports . . . which were not placed before the agency in determining whether the agency's action was arbitrary." This language, however, does not take into consideration the limitation upon review of administrative decisions in A.S.C.A. § 4.1043(a). Additionally, the footnote in Webb is narrowly tailored to permit evidence outside the record "when assessing the adequacy of an [Environmental Impact Statement] or a determination that no EIS is necessary," after a pollution elimination permit is already approved. Id. Furthermore, the language of theWebb footnote indicates that non-record evidence may be admitted to determine "whether the [27ASR2d83] agency decision was arbitrary," which seems to indicate that the non-record evidence must be supplemental or explanatory of the evidence considered by the agency. Id.

[3] Finding that Karla Kluge and Thomas E. Yocum are not employees of the Development Planning Office, that they were not involved in the administrative proceedings, and that their affidavits do not purport to clarify or explain evidence from the existing record, we hold that the evidence is not supplemental to the administrative record. The motion to admit these affidavits into evidence or to depose the witnesses is, therefore, denied.

In accordance with A.C.R. Rule 27(c), this ruling may be reviewed by the entire appellate division.

It is so ordered.

*********

American Samoa Gov’t v. Talamoni,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

KING V. TALAMONI, Defendant

High Court of American Samoa
Trial Division

CR No. 58-94

February 21, 1995

__________

[1] Under Article I, Section 6 of the Revised Constitution of American Samoa, a defendant accused of a crime is guaranteed the right to compel the attendance of witnesses in his/her favor. [27ASR2d124]

[2] However, a subpoena may be quashed if a trial court determines the subpoena to be an oppressive and unreasonable use of the process of the court.

[3] Normally, the relevance of a witness's testimony is decided by the trial judge after the witness has been sworn and objections have been made.

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

Counsel: For Plaintiff, Henry J. Kappel, Assistant Attorney General
For Defendant, Barry I. Rose

Order Denying Motion to Quash Subpoena:

The motion by plaintiff American Samoa Government ("ASG") to quash the subpoena served on Jerry Messenbourg ("Messenbourg") came regularly for hearing on January 30, 1995. Both parties were represented by counsel.

By an information filed on October 31, 1994, defendant King Talamoni ("Talamoni") stands accused by ASG of committing the crimes of stealing, and public servant acceding to corruption. These charges relate to events allegedly occurring while Talamoni, as a police officer, was investigating criminal accusations against Mata Tolupauga ("Tolupauga"). Messenbourg, as an assistant attorney general, handled both this investigation and, until January 20, 1995, this prosecution.

On December 28, 1994, when Messenbourg was still the prosecutor in this case, Talamoni had Messenbourg served with a subpoena to testify at trial, now scheduled to begin on February 28, 1995. On January 20, 1995, ASG filed this motion to quash Messenbourg's subpoena. Messenbourg left ASG's employment on the same day and departed the territory the next day.

[1] Under Article I, Section 6 of the Revised Constitution of American Samoa, a defendant accused of a crime is guaranteed the right to compel the attendance of witnesses in his/her favor. This is the territorial counterpart of the Sixth Amendment of the United States Constitution and assures an accused the right to present evidence which he/she believes will negate the government's evidence or support his/her defense. [27ASR2d125] United States v. Seeger, 180 F. Supp. 467, 468 (S.D.N.Y 1960).

[2] However, a subpoena may be quashed if a trial court determines the subpoena to be an oppressive and unreasonable use of the process of the court. Amsler v. United States, 381 F.2d 37, 51 (9th Cir. 1967). ASG contends that Talamoni subpoenaed Messenbourg in an attempt to delay the proceedings and harass the prosecution, but we disagree. The subpoena was served well in advance of the trial date, and Talamoni has adequately shown that Messenbourg's testimony might be relevant to his defense.

[3] Normally, the relevance of a witness's testimony is decided by the trial judge after the witness has been sworn and objections have been made. To find that a witness's testimony is irrelevant before trial could "deprive the defendant of the constitutional right to compulsory process under the Sixth Amendment and his right to a fair trial under the due process clause of the Fifth Amendment." Seeger, 180 F. Supp. at 468.

Talamoni claims that because he is being charged with crimes requiring proof that, in one count, he purposely deprived Tolupauga of his money and, in the other count, he knowingly solicited Tolupauga's money in return for action as a public servant, Messenbourg's testimony regarding conversations with Talamoni about prosecution of the Tolupauga case is relevant to deciding whether Talamoni had the requisite intent. Since the Fifth Amendment protects Talamoni from having to testify, the only other means to offer conversations between Talamoni and Messenbourg into evidence is to subpoena Messenbourg to testify.

ASG claims that Talamoni is calling Messenbourg as a witness in an attempt to disqualify the prosecutor of his case, but this argument holds no present merit, since Messenbourg is no longer employed as an ASG prosecutor.

ASG further claims that Messenbourg's decision not to prosecute the Tolupauga case is neither discoverable by Talamoni nor relevant to this criminal matter, and that any attempt by the court to review the process behind that decision would be a violation of the separation of powers. However, in this case, review or alteration of a decision involving prosecutorial discretion is not the issue. We are simply permitting Talamoni to subpoena Messenbourg as a witness in order to assist in ascertaining the true characterization of Talamoni's acts.

For these reasons, we deny ASG's motion to quash the subpoena served on Messenbourg. [27ASR2d126]

It is so ordered.

*********

American Samoa Gov’t v. Solaita,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

TULAFONO SOLAITA, Defendant

High Court of American Samoa
Trial Division

CR No. 27-94

October 21, 1994

__________

[1] Mistrial issues are usually fact intensive, and, therefore, are largely within the trial court's discretion.

[2] A mistrial is a last resort and should not be declared absent a showing of a high degree of necessity, or manifest necessity.

[3] In granting a mistrial, a trial court must explicitly find no reasonable alternatives.

[4] Failure to disclose, or late disclosure of, evidence is prejudicial when the evidence would [27ASR2d10] provide a significant chance of establishing a reasonable doubt that would not otherwise exist.

[5] To establish a Brady violation, a defendant must demonstrate that the prosecution suppressed evidence that was favorable to the defense or was exculpatory and was material.

[6] The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish "materiality" in the constitutional sense.

[7] A defendant must show a "significant chance" that the evidence suppressed by the government would have produced reasonable doubt as to guilt.

[8] Identities of rebuttal witnesses are not freely discoverable. T.C.R.Cr.P. 16.

[9] The government acts improperly when it introduces evidence of defendant's pleas of nolo contendere in previous criminal proceedings. T.C.R.Ev. 410.

[10] A plea of nolo contendere is recognized as having no effect beyond the action in which it is entered and no evidentiary value as an admission of guilt.

[11] A nolo contendere plea is provided for the purpose of facilitating compromise in the plea bargaining process by allowing the accused to avoid an admission of guilt and the attendant evidentiary impact of that admission in potential future proceedings.

[12] Where prosecutors have improperly introduced evidence of defendant's pleas of nolo contendere in previous criminal proceedings, court will not grant a mistrial, but will strike and disregard the evidence.

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

Counsel: For Plaintiff, Henry W. Kappel, Assistant Attorney General
For Defendant, William H. Reardon

Order Denying Motions for Mistrial:

Defendant Tulafono Solaita is on trial for charges brought by plaintiff American Samoa Government ("the government") consisting of two counts of felony stealing, two counts of embezzlement, and three counts of forgery.

On September 29, 1994, during the government's rebuttal evidence, defendant twice moved for a mistrial. The court took these motions under advisement. At the conclusion of final arguments, the court took the entire case under advisement. On September 30, 1994, defendant filed a written motion for a mistrial, supplementing his earlier oral motions. A further hearing on the motions was held on October 7, 1994, with defendant and both counsel present. [27ASR2d11]

Today, the court is making a general finding that defendant is not guilty of all counts. Ordinarily, this decision would obviate any need to rule on the motions for a mistrial. However, the court will use this opportunity to discuss significant issues raised by defendant's motions. Thus, we will formally deny his motions for a mistrial before issuing our general finding.

GROUNDS FOR A MISTRIAL

Defendant has based his motions for a mistrial on discovery issues. He claims that he was unfairly prejudiced by the government's (1) unreasonable delay in providing him with a questioned document examiner's report and (2) failure to disclose to him two witnesses' identities before their rebuttal testimony.

RELEVANT FACTS

On September 8, 1994, a U.S. Secret Service questioned documents examiner completed a report for documents relevant to this case. On September 12 or 13, while here on a police training mission, the examiner gave his report to the government's chief investigator, who in turn gave it to the government's counsel on September 14 or 15. The report was transmitted by facsimile to defendant's counsel on September 16, and again on September 19, when defendant's counsel first saw it. The examiner left the territory on September 18. Defendant objected on the ground that he was deprived of an opportunity to speak with the examiner regarding the report while the examiner was here.

Defendant also objected to the introduction of testimony by two undisclosed rebuttal witnesses. The first witness, a staff member of the government's development planning office, refuted defendant's denial or lack of recollection of personal knowledge of a letter concerning problems with an indirectly relevant federal grant. The second witness, the accounts payable manager at the government's department of treasury, testified to the procedures involved in the preparation of the government's purchase orders and having personally seen the purchase order, the government's "exhibit 5," prepared in her office and, elicited on defendant's cross examination, signed by defendant, who had denied signing this document. Although the accounts payable manager was subpoenaed before defendant testified, the government did not notify defendant of the names and addresses of these witnesses before either one [27ASR2d12] testified in rebuttal. (1) Thus, defendant did not have opportunity to interview these witnesses prior to their testimony in this rebuttal role.

DETERMINATION CRITERIA

[1-3] Mistrial issues are usually fact intensive, and, therefore, are largely within the trial court's discretion. United States v. Sanford, 673 F.2d 1070, 1073 (9th Cir 1982); United States v. Gardner, 611 F.2d 770, 777 (9th Cir. 1980). A mistrial is a last resort and should not be declared absent a showing of a "high degree" of necessity, or "manifest necessity." Arizona v. Washington, 434 U.S. 497, 505-07 (1978); United States v. Starling, 571 F.2d 934, 937 (5th Cir. 1978). In granting a mistrial, a trial court must explicitly find no reasonable alternatives. United States v. Grasso, 552 F.2d 46, 52-53 (2d Cir. 1977).

[4] Failure to disclose, or late disclosure of, evidence is prejudicial when the evidence would provide a significant chance of establishing a reasonable doubt that would not otherwise exist. United States v. Agurs, 427 U.S. 97, 112, 49 L. Ed. 2d 342, 354-55 (1975); United States v. Rhodes, 713 F.2d 463, 471 (9th Cir. 1983); United States v. Gardner, 611 F.2d 770, 774 (9th Cir. 1980). The prosecution need not disclose every piece of potentially exculpatory evidence, unless such evidence meets this test for materiality. Agurs, 427 U.S. at 109-10; Gardner, 611 F.2d at 774-75. The materiality test is more rigorous and difficult for the defense than the customary "harmless error standard." Agurs, 427 U.S. at 112.

DISCUSSION

1. The Questioned Document Report

Under T.C.R.Cr.P. 16(a)(1)(D), defendant was clearly entitled to inspect and copy, and did receive, the questioned document examiner's report. However, he urges that the government's late production of the questioned document report infringed upon his right to a fair trial. The report itself is inconclusive as to his guilt or innocence. Nonetheless, defendant argues that the delay deprived him of an opportunity to discuss the report with the [27ASR2d13] examiner and potentially discover exculpatory material which he has a right to examine under Brady v. Maryland, 373 U.S. 83 (1963).

[5-7] To establish a Brady violation, a defendant must demonstrate that the prosecution suppressed evidence that was favorable to the defense or exculpatory and was material. United States v. Blasco, 702 F.2d 1315, 1327 (11th Cir. 1983). It is not clear that defendant would have elicited any additional exculpatory information if he had been given the chance to speak with the examiner in person. Defendant argues that he could not know how the lost opportunity might have resulted in prejudice without knowing what the examiner might have told him. Potential prejudice alone, however, is not grounds for a mistrial. The Agurs court enunciated the principle that suppression of a mere possibility does not deprive a defendant of due process of law.

The mere possibility that an item of undisclosed information might
have helped the defense, or might have affected the outcome of
the trial, does not establish "materiality" in the constitutional sense.

Agurs, 427 U.S. at 109-10. A defendant must show a "significant chance" that the evidence suppressed by the government would have produced a "reasonable doubt" as to the guilt. Id. at 112.

Defendant shows no more than a "mere possibility" of prejudice, since he cannot establish what the examiner might have revealed if his counsel had interviewed the examiner. Defendant had a copy of the report at least eight days prior to trial. In those eight days, and during the trial, defendant did not seek a telephonic deposition, make any other effort to interview the examiner, or move for a continuance for this purpose. Defendant failed to pursue any alternative, prior to or during trial, which might have provided other explanations of the report more favorable to him and established genuine prejudice.

Defendant encourages the court to declare a mistrial as a deterrent to the suppression of evidence by the government. This court has no evidence of bad faith by the government, other than a possible inference from the delay in transmitting the report. However, we would not infer this fact without more evidence and are not required to consider it in the absence of any showing of actual prejudice. Prosecutorial bad faith is not enough, by itself, to deprive a defendant of a fair trial without a showing that the suppressed evidence meets the materiality test. At issue is the character of the suppressed evidence, not the prosecutor's character: [27ASR2d14]

Nor do we believe the constitutional obligation is measured by
the moral culpability, or the wilfulness of the prosecutor. If
evidence highly probative of innocence is in his file, he should be
presumed to recognize its significance even if he has actually
overlooked it. Conversely, if evidence actually has no probative
significance at all, no purpose would be served by requiring a
new trial simply because an inept prosecutor incorrectly believed
he was suppressing a fact that would be vital to the defense. If
the suppression of evidence results in constitutional error, it is
because of the character of the evidence, not the character of
the prosecutor.

Agurs, 427 U.S. at 110 (citations omitted).

2. The Rebuttal Witnesses

[8] Defendant claims that he was denied a fair trial because of the surprise testimony of the government's undisclosed rebuttal witnesses. Defendant asserts that these witnesses' testimony was not responsive to any testimony elicited by the defense and that the witnesses were called in rebuttal merely to avoid pretrial discovery. However, we do not need to consider the propriety of calling these witnesses in rebuttal, since their identities are not freely discoverable in any event.

In 1970, the drafters of amendments to F.R.Cr.P. 16 proposed to require discovery of witness identities by both parties, but the U.S. Congress decided to the contrary. Charles A. Wright, 2 Federal Practice And Procedural, Criminal § 251 at 33 (West, 2d ed.).

C. Rules 16(a)(1)(E) and (b)(1)(C) (witness lists).

The House version of the bill provides that each party, the
government and the defendant, may discover the names and
addresses of the other party's witnesses 3 days before trial.
The Senate version of the bill eliminates these provisions, thereby
making the names and addresses of a party's witnesses
nondiscoverable. The Senate version also makes a conforming
change in Rule 16(d)(1). The Conference adopts the Senate
version.

A majority of the Conferees believe it is not in the interest of
the effective administration of criminal justice to require that
the government or the defendant be forced to reveal the names
and [27ASR2d15] addresses of its witnesses before trial.
Discouragement of witnesses and improper contact directed at
influencing their testimony, were deemed paramount concerns
in the formulation of this policy.

U.S.C.S. Rules of Criminal Procedure, Rule 16, Notes of Conference Committee on 1975 Amendments to Rules (House Report No. 94-414) (emphasis added).

Under the federal rules enacted by Congress, defendant's position was explicitly rejected. Since T.C.R.Cr.P. 16 is patterned after the federal rule, with little variation, we see no reason to adopt defendant's position.

Defendant further argues that American Samoa is an "open discovery" jurisdiction because of local attorneys' long standing practice in criminal cases to fully disclose prosecution evidence to defense counsel. Defendant argues that this long standing practice led to his expectation that open discovery would take place, resulting in unfair surprise when the undisclosed rebuttal witnesses were sworn.

As a matter of policy, this court encourages opposing counsel to cooperate with one another, whenever possible, to facilitate fair and orderly criminal proceedings. However, if the court compels prosecutors to provide the names and addresses of witness just because they have voluntarily provided this information in the past, we would instill a chilling effect on prosecutors, making them wary of cooperation in any case lest they lose their power of choice under T.C.R.Cr.P. 16 or any other rule in future cases. Rule 16 intentionally and reasonably gives prosecutors the flexibility to protect witnesses when necessary.

Defendant's argument that the disclosure of some witnesses misled him to believe that the government had disclosed all of its witnesses is similarly misguided. By granting a mistrial this premise, the court would discourage prosecutors from ever voluntarily disclosing any witness, lest they mistakenly or deliberately omit another witness and subject the case to a mistrial.

3. Impeachment by Nolo Contendere Pleas

Although defendant objected to the introduction of his two prior convictions based on pleas of nolo contendere for purposes of impeachment, he did not pursue this issue in his motions for a mistrial. However, the court is troubled that the government produced this evidence [27ASR2d16] and will consider it in this discussion.

The principle at issue is substantively set forth in similar manners in both T.C.R.Ev. 410 and T.C.R.Cr.P. 11(e)(6). T.C.R.Ev. 410 reads, in relevant part: "Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in plea discussions . . . (2) a plea of nolo contendere . . ."

[9] Applying this rule, the government acted improperly per se in introducing defendant's two prior convictions.

[10-11] A plea of nolo contendere is recognized as having no effect beyond the action in which it is entered and no evidentiary value as an admission of guilt. Spencer A. Gard, Jones On Evidence § 13:44 at 510-12 (6th ed. 1972) (explaining F.R.Ev. 410, which T.C.R.Ev. 410 mirrors). Moreover, T.C.R.Ev. 803(22) prohibits the use of a judgment based on a nolo contendere plea in any action under a hearsay exception. Id. (explaining F.R.Ev. 803(22), which T.C.R.Ev. 803(22) mirrors). A nolo contendere plea is provided for the purpose of facilitating compromise in the plea bargaining process by allowing the accused to avoid an admission of guilt and the attendant evidentiary impact of that admission in potential future proceedings. U.S.C.S. Federal Rules of Evidence, Rule 410, Notes of Advisory Committee on Rules.

[12] While it is a clear application of T.C.R.Ev. 410 that the government's use of two former convictions by nolo contendere pleas was improper impeachment, a mistrial is still out of order. As previously stated, a mistrial is a last resort remedy and should only be granted when there is no other available sanction. United States v. Grasso, 552 F.2d 46, 52-53 (2d Cir. 1977).

In a similar case, where a police officer had improperly testified that the defendant had been convicted of attempted murder, the Tenth Circuit upheld the trial court's decision to strike the testimony from the record and instruct the jury to disregard it, rather than granting the defendant's motion for mistrial. United States v. Trujillo, 578 F.2d 285, 286-87 (10th Cir. 1978). A trial court should use its power to declare a mistrial with "the greatest caution" and in a trial by jury, an instruction to disregard inadmissible evidence is generally "sufficient to cure any prejudice to the defendant." United States v. Escalante, 637 F.2d 1197, 1202-03 (9th Cir. 1980). This procedure is the "preferred alternative" unless "there has been so much prejudice that an instruction is unlikely to cure it." Id. [27ASR2d17] This court is not prejudiced by having heard the evidence of the prior convictions and, accordingly, will disregard them in considering the force of defendant's testimony. We strike and will disregard the evidence of defendant's two prior convictions resulting from pleas of nolo contendere. In all other respects, the motions for a mistrial are denied.

It is so ordered.

*********

1. The accounts payable manager also testified during the government's case-in-chief, but only as the custodian of official forms containing specimens of authorized signatures and initials for the government's procurement process. Defendant was notified before trial that the government planned to call various, unnamed record custodians.

J.M. Gebauer, Inc.; Richmond Wholesale Meat Co. v.


RICHMOND WHOLESALE MEAT CO., Plaintiff,

v.

J.M. GEBAUER, INC., dba AIGA BASKET, Defendant

High Court of American Samoa
Trial Division

CA No. 129-94

December 12, 1994

__________

[1] Motion for summary judgment is wholly insufficient where moving party did not file any affidavits or other materials allowed by T.C.R.C.P. 56, and did not cite any authority stating the appropriate standard of review for summary [27ASR2d62] judgment, or affirming that summary judgment is even the proper remedy for failure to respond to a T.C.R.C.P. 36 request for admissions, or showing that the facts admitted, even if true, give rise to the relief prayed for in the complaint. T.C.R.C.P. 56.

[2] It is not the duty of the court to assume or to provide the legal basis of a moving party's motion for summary judgment. T.C.R.C.P. 56.

[3] Where moving party has provided no clear demonstration of legal authority that would allow this court to enter a decision on the motion for summary judgment as a matter of law, the court may exercise its discretion to deny the motion for summary judgment without prejudice. T.C.R.C.P. 56.

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

Counsel: For Plaintiff, William H. Reardon
For Defendant, Aviata F. Fa`alevao

Order Denying Motion for Summary Judgment:

On November 2, 1994, plaintiff filed a motion for summary judgment pursuant to T.C.R.C.P. 56. Plaintiff asserts that it is entitled to judgment based on defendant's failure to respond to plaintiff's request for admissions as required by T.C.R.C.P. 36. This motion came regularly before the court on December 23, 1994, and both parties were represented by counsel.

[1] In support of its motion for summary judgment, plaintiff referred only to an exhibit attached to the request for admissions as proof that there is no genuine issue of material fact. Plaintiff did not file any affidavits or other materials allowed by T.C.R.C.P. 56, and did not cite any authority stating the appropriate standard of review for summary judgment, or affirming that summary judgment is even the proper remedy for failure to respond to a T.C.R.C.P. 36 request for admissions, or showing that the facts admitted, even if true, give rise to the relief prayed for in the complaint. In turn, defendant did not provide written response to plaintiff's motion.

We deem this to be wholly insufficient. While we are inclined to believe that plaintiff's instinct is correct in asserting that a failure to respond to a request for admissions results in a constructive admission of the matters included in the request for admissions, he fails to demonstrate that such facts entitle him to judgment as a matter of law.

[2-3] It is not the duty of the court to assume or to provide the legal basis [27ASR2d63] of a moving party's motion for summary judgment. This would not be fair to either party. The role of the court is to be an impartial decision maker, not an advocate. In the present case, plaintiff has provided no clear demonstration of legal authority that would allow this court to enter a decision on the motion for summary judgment as a matter of law. Therefore, we will follow our instinct and exercise our discretion to deny the motion for summary judgment without prejudice. (1)

In the absence of any cited authority to the contrary, we will also advise plaintiff that at this point we are prepared to reject its claim to interest at 12% per annum. On its face, A.S.C.A. § 28.1501(a) limits the interest rate to 6% per annum in this situation.

It is so ordered.

*********

1. Unlike plaintiff's counsel, we do have support for our instinct that a movant for summary judgment must demonstrate entitlement to summary judgment as a matter of law, by citing legal authority, even when factual issues are not in dispute. Niles v. United States, 520 F. Supp. 808, 814-15 (N.D. Cal. 1981); Hanko v. United States, 583 F. Supp. 1280, 1282 (W.D. Pa. 1984).

Fuimaono; Mau v.


MAU MAU, JR., Petitioner

v.

SOLIAI TUIPINE FUIMAONO, as Chief Election Officer, and
LETUMU TALAUEGA, Respondents

High Court of American Samoa
Appellate Division

AP No. 18-94

December 1, 1994

__________

[1] Where law and Samoan custom conflict, the law prevails.

[2] Court may invalidate an election based on provable fraud by candidates or electors that could cause a difference in the election result, as well as any other illegality which would make the election result uncertain. A.S.C.A. § 6.0902.

[3] Fraud and other illegalities may invalidate an individual ballot, but not an entire election.

[4] Assisting individuals with physical handicaps in marking ballots does not invalidate the individual's vote. A.S.C.A. § 6.1101(b).

[5] Statutory provision permitting individuals with physical handicaps to receive assistance in marking ballots does not place limitations on who may assist the disabled voter. A.S.C.A. § 6.1101(b).

[6] Statutory provision requiring that the polls shall be kept open no later than 6:00 p.m. invalidates all ballots marked after 6:00 p.m. on election day, unless that individual was in line at the polling station prior to 6:00 p.m. A.S.C.A. § 6.0701.

[7] Where an individual challenges a vote after the election, individual must prove that the facts alleged in support of the complaint were not known to the individual, and could not with [27ASR2d45] due diligence have been discovered, prior to the challenged elector casting his ballot. A.S.C.A. § 6.0223(d)(3).

[8] To establish that a payment to a voter constituted election fraud so as to invalidate a voter's ballot, a challenger must show that the money or other consideration was given to induce the voter to cast a ballot for a particular person. A.S.C.A. § 6.1203.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, VAIVAO, Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Petitioner, Aviata F. Fa`alevao
For Respondent Chief Election Officer, Malaetasi M. Togafau, Attorney General,
and Elvis R.P. Patea, Assistant Attorney General
For Respondent Letumu Talauega, Togiola T.A. Tulafono

Order for New Election:

HISTORY

On November 8, 1994, respondent Letumu Talauega ("Talauega"), the incumbent, received three more votes than petitioner Mau Mau, Jr. ("Mau"), the challenger, in the election to represent District No. 6 in the American Samoa House of Representatives. On November 14, 1994, Mau petitioned this Court, pursuant to A.S.C.A. § 6.0902, naming Chief Election Officer Soliai Tuipine Fuimaono ("CEO") and Talauega as respondents, alleging irregularities and improprieties in the administration of the election, and calling for a new election. This Court has jurisdiction over this action under A.S.C.A. § 3.0208(c). The Court heard this matter on November 23, 1994, with all parties and their counsel present.

DISCUSSION

We will first address the issue of election fraud arising from Talauega's presentation of money in varying amounts to four members of the Afono village council. Three of the four village council members voted on election day in District No. 6. Mau alleges that the money was presented in an effort to secure the individual votes and public support of the village council members in the election. A.S.C.A. § 6.1203 states, in relevant part:

The following persons are guilty of election fraud: [27ASR2d46]

(1) every person who directly or indirectly, personally or through
another, gives, procures, or lends, or agrees or offers to give,
procure or lend, or who endeavors to procure any money or . . .
valuable consideration to or for any qualified elector in order to
induce any qualified elector to vote . . . for any particular person;

(2) every person who advances or pays, or causes to be paid,
any money to, or to the use of, any other person, with the intent
that the money, or part thereof, shall be expended in bribery in an
election, or for any purpose connected with or incidental to any
election;

Weeks after Talauega had filed to run for office, he made his presentation of money to the Afono village council. The next day Talauega formally began his campaign. Further, Talauega made the presentation only in Afono, which was the pivotal village in the election, since it was the home village of neither candidate and had a large number of votes at stake.

[1] Although Talauega ably argued that his presentation was in accordance with Samoan custom, we find that it contravenes the law. Where law and custom conflict, the law prevails. A.S.C.A. § 1.0202; In re Matai Title Sotoa, 6 A.S.R.2d 91, 94-95 (Land & Titles Div.1987). There are many potential ways in which a representative could manifest his appreciation for the support of his constituents without presenting money to selected villages or council members with an election immediately impending. Three of the four village council members who received the presentation were qualified electors and ultimately voted. We find that Talauega's presentation to the Afono village council amounted to election fraud as defined by A.S.C.A. § 6.1203.

A.S.C.A. § 6.0902 lists "provable fraud . . . that could cause a difference in the election result" as a cause for contesting an election. A.S.C.A. § 6.0903(c) permits the court to invalidate an election for one of two reasons. First, invalidation is proper if "a correct result cannot be ascertained because of a mistake or fraud on the part of the district or election officials." No fraud is present on the election officials' part.

[2] The second reason to invalidate an election is that "it cannot be determined that a certain candidate, or certain candidates, received a majority or plurality of votes cast and were elected." Although the first reason expressly requires proof of fraud by an election official, the second reason is broader and may allow the court to invalidate an election based [27ASR2d47] on "provable fraud" by candidates or electors "that could cause a difference in the election result," as well as any other illegality which would make the election result uncertain. A.S.C.A. § 6.0902.

[3] Fraud on the part of an elector, or a candidate with respect to an elector, has long been held a sufficient ground to invalidate that elector's ballot rather than vitiating the entire election. Attorney General v. Miller, 253 N.W. 241, 243 (Mich. 1934).

It is well settled that all votes obtained by paying, giving, or offering to pay or give anything of value to electors are, upon proper proof, to be rejected by the court in a contest. But the votes of those who neither directly nor indirectly participated in the bribery or unlawful agreement, and who are not the recipients of any benefits of the unlawful conduct of one who attempts to influence corruptly any election, are not to be rejected. Blackwell v. Newkirk, 121 P. 260, 263 (Okla. 1912).

Since Talauega's margin of victory is three votes, a showing that three ballots are invalid by reason of fraud is adequate to render it impossible to determine which candidate received a plurality. For this reason we do not speculate as to how many other qualified electors in Afono may have indirectly received the fruits of Talauega's presentation of money. Invalidating the votes of the three members of the village council, we find that the outcome of the election in District No. 6 is uncertain.

We acknowledge Talauega's testimony that Mau had earlier given money to members of the Afono village council. This fact, however, does not dilute the importance of election fraud on Talauega's part, nor does it somehow make the outcome of the election any more certain than it would have been if Talauega had unilaterally committed election fraud.

Mau has made eight additional challenges which we will address individually.

1. Siuta Siuta

Siuta Siuta is an elderly resident and qualified elector in District No. 6. On November 4, 1994, he voted at home by a local absentee ballot with the assistance of an election official and in the presence of Siuta's spouse, a representative of Mau, and the Sailele village pulenu`u. The CEO issued a letter on election day authorizing Siuta to vote in District No. 6.

At his home, Siuta told the election official that he desired to vote for [27ASR2d48] Talauega, but instructed the official to mark box #1 which corresponded to Mau. Siuta's wife then corrected Siuta, and box #2 corresponding to Talauega was marked. Siuta's vote has been counted. Mau challenges the validity of Siuta's vote on the basis that: (1) Siuta's ballot was marked by an election official and not by Siuta himself, (2) Siuta was not registered as an absentee voter, and (3) others present influenced Siuta's vote.

[4] As to the first issue, Siuta is clearly qualified to receive assistance in marking his ballot pursuant to A.S.C.A. § 6.1101(b) which allows "any qualified elector by reason of physical disability to receive assistance in marking [his/her ballot]." The election official who marked the ballot testified that Siuta's hands were shaky, and that she was fearful that he would spoil the ballot by marking outside of the proper area. The official further testified that Siuta's signature on the outside of the ballot was unintelligible, which confirmed her judgment that Siuta was incapable of intelligibly marking his own ballot.

As to the second issue, it is unclear whether Siuta requested his absentee ballot less than 75 days and more than 15 days prior to the election as required by A.S.C.A. § 6.1102(a). He did, however, vote in 1992 in District No. 6 by a local absentee ballot. Further, "[q]ualified electors unable to appear at the polls on election day for . . . physical . . . reasons" are permitted to vote by absentee ballot, "in a manner as may be prescribed by rules adopted by the chief election officer." A.S.C.A. § 6.1101(b). This requirement is less restrictive than that required of voters who are absent from their voting districts as outlined in A.S.C.A. § 6.1101(a). The latter requirement subjects voters absent from their voting districts to the requirement of A.S.C.A. § 6.1102, which states that absentee ballots must be requested between the seventy-fifth and fifteenth day prior to the election.

In contrast, A.S.C.A. § 6.1101(b) gives the chief election officer the power to promulgate rules to accommodate the needs of local absentee voters who, for several specific reasons, are unable to appear at the polls. While no formal rules have been promulgated, the CEO in writing authorized Siuta to vote in District No. 6. Although this letter did not expressly authorize a vote by local absentee ballot, we infer that intention since Siuta was allowed to vote in that manner in 1992 and again in 1994.

This court is concerned, however, that no formal rules have been adopted to govern procedures for requesting and collecting local absentee ballots pursuant to A.S.C.A. § 1101(b). Our decision to allow Siuta's vote to count should not be read to allow unbridled discretion to the chief election [27ASR2d49] officer in the absence of rules. We merely uphold his decision in this case because it was so clear that Siuta was a qualified elector and that he had previously voted by local absentee ballot.

As to the issue of others present, Siuta was clearly qualified to receive such assistance in marking his ballot pursuant to A.S.C.A. § 6.1101(b) which allows "any qualified elector by reason of physical disability to receive assistance in marking [his/her ballot]." [5] This provision does not place limitations on who may assist the disabled voter. The correction by Siuta's wife instructing the election official to mark box #2 was merely to assist Siuta in voting for the candidate that he had already expressed his intention to support in the presence of the election officer.

A.S.C.A. § 6.0709 permits any illiterate, blind, or physically disabled voter to seek the aid of two district officials or another qualified elector, which could potentially include his spouse, if marking his ballot is unduly burdensome. This section applies only to the "polling place" or within 100 feet thereof. Although Siuta's house is not a "polling place," we look to this section for persuasive guidance that others may assist an elector in casting his/her ballot.

We are concerned that a campaign worker was present in the room while Siuta voted. Such presence is likely to be unduly influential to the voter and invade the privacy provided for by the Revised Constitution of American Samoa, Article II, § 4, which requires that "Representatives shall be chosen by secret ballot." In this case, we allow Siuta's vote to count since his intention to vote for a particular candidate was clear from the beginning, and the worker was Mau's representative. Moreover, since Mau did not raise the "secret ballot" issue, we decline to further comment on that issue at this time.

2. Terina Tuinei

Terina Tuinei arrived at her District No.6 polling place at 6:15 a.m. on election day. Despite A.S.C.A. § 6.0701 requiring open polls from 6:00 a.m. to 6:00 p.m., the ballots did not arrive at this polling place until about 7:20 a.m., more than an hour late. She had to leave the polling place to attend school, but returned at 6:20 p.m. and, after some discussion and an initial denial, she was permitted to vote due to the late arrival of the ballots. Her vote was sealed and marked "challenged" and was not counted until after the CEO's approval.

[6] A.S.C.A. § 6.0701 requires that the polls shall be kept open no later [27ASR2d50] than 6:00 p.m., referring to that time as the "prescribed hour" stating, "No qualified elector shall be permitted to enter or join the line after the prescribed hour for closing the polls." Accordingly, we are required to disqualify Tuinei's vote. Although this result is unfortunate, it is what the law demands. The statute does not permit interpretations and exceptions which are not explicitly provided. One exception is specifically provided when, because of overcrowding, qualified electors are standing in line outside the polling place at 6:00 p.m. Id. The Legislature could easily have included other exceptions if it had intended them. Since the one lawful exception does not apply to the facts at hand, Tuinei's vote is invalid, regardless of when the polls opened. This fourth discounted vote adds to the uncertainty of the election result.

3. Silivelio Iosefo

Silivelio Iosefo voted in District No. 6 and his vote was later challenged on the assertion that he did not reside in the district. A.S.C.A. § 6.0223 provides different requirements for challenging an elector's qualifications prior to election day, on election day, and after the elector casts his/her ballot. Although Mau alleges that Iosefo's attempt to vote was challenged at the polling place, the evidence does not support any such finding. By contrast, the CEO's letter of November 14, 1994, indicates that no challenge to Iosefo was entered at the polling place, but instead was entered on November 10, 1994, in Mau's letter to the CEO, two days following the election.

[7] When a challenge to an elector's qualifications is first entered after the elector has cast his/her ballot, A.S.C.A. § 6.0223(d)(3) provides:

It is a condition of any relief granted under this subsection that
the complaining party plead and prove, by a preponderance of
the evidence, that the facts alleged in support of the complaint
were not known to him, and could not with due diligence have
been discovered, prior to the challenged elector casting his ballot.

Mau admits that he had voter registration lists, in which Iosefo's name appeared as registered to vote in District No. 6 in 1994 and as having voted there in 1992, in his possession prior to the election. Conversely, we have no evidence before us which sustains Mau's burden to demonstrate that he had no way, by due diligence, of discovering the facts alleged in the complaint prior to the election. Since this burden is not sustained, the issue of Iosefo's eligibility is moot. [27ASR2d51]

4. Tauaitia Aiaiva

Prior to the election, Mau requested that the CEO mail an absentee ballot to Tauaitia Aiaiva, who was attending school in San Francisco. In his November 10 letter to the CEO, Mau questioned whether the ballot had been sent and received. We need not consider whether Aiaiva had the opportunity to vote as an absentee, since the voter rolls in evidence reflect that he was in the territory and cast his counted vote on election day.

5. Sifia Mataafa

Sifia Mataafa cast her ballot at the LBJ Tropical Medical Center on election day as a local absentee voter. Mau expressed concern in his November 10 letter to the CEO that Mataafa's vote was not properly delivered and counted. However, the election rolls indicate that Mataafa voted by local absentee ballot on election day. The ballot was later opened and counted.

6. Punipuao Tiati`u

Although Punipuao Tiati`u presented a 1992 voting list in her possession which contained her name and her passport, she was denied the opportunity to vote because her name did not appear on either the 1994 or 1992 voting lists in possession of the district election officials. In response to Mau's challenge to this decision, the CEO admits that Tiati`u's name is on the official roll of registered voters for 1992 and was inadvertently left off the 1994 list. The CEO offers no excuse, but indicates that if Tiati`u had come to the election office on election day, she would have been permitted to vote. Since she did not take this action, and in fact testified in this court that she had conceded not to vote, this court is not required to take any further action.

7. Iakopo Taamu

Mau challenged Iakopo Taamu's registration in District No. 6, based on his residence in Hawaii and his 1992 registration in District No. 12. However, in a decision dated November 5, 1994, the CEO had concluded that Taamu was not a bona fide resident of District No. 6, and officially denied him the right to vote there in the 1994 election. Although Taamu's ballot was received by the election office, it was disqualified and not counted, and is not part of the election result. We sustain the CEO's decision, but it does not alter the official vote count. [27ASR2d52]

8. Sina Felise

[8] Sina Felise is Talauega's niece. Mau challenges her votes because Talauega gave money to Felise prior to election day. Discounting of votes based on election fraud, however, requires proof that money or other consideration was given "to induce any qualified elector to vote . . . for any particular person." A.S.C.A. § 6.1203. In this case, Felise actually requested the money from Talauega, and Talauega provided her with money before and on this occasion to help her as a member of his family and not in an effort to solicit votes.

CONCLUSION

Four votes must be discounted, three cast by members of the Afono village council and the vote after 6:00 p.m. Discounting those four votes against a margin of three votes renders the election result uncertain. The petition must be granted, and the election is therefore invalidated.

A copy of the judgment entered in this matter shall be served upon the Governor, so that he may duly call a new election to be held no later December 8, 1994.

It is so ordered.

*********

Faumuina; Fiaui v.


TROY FIAUI, Plaintiff

v.

SANELE FAUMUINA, PITA TALIVA`A, and DOES I-X,
Defendants

High Court of American Samoa
Trial Division

CA No. 47-92

November 30, 1994

__________

[1] If multiple tortious acts concurrently cause a single indivisible injury, then those who committed the acts are liable as joint tortfeasors, and as joint tortfeasors, they are jointly and severally liable for compensatory damages.

[2] A participant in a tortious act is jointly and severally liable for harm resulting to a third person if the tortious act is done in concert with another, or if the participant knows that another's conduct constitutes a breach of duty and gives substantial assistance or encouragement, whether or not the participant's own conduct, separately considered, constitutes a breach of duty to the third person.

[3] The court may apportion damages among joint tortfeasors instead of applying joint and several liability, but only when it is feasible.

[4] Apportionment of damages among joint tortfeasors is feasible when the plaintiff has suffered factually separable or divisible harm that can be allocated among tortfeasors with reasonable certainty.

[5] Even if apportionment of damages among joint tortfeasors can be reasonably applied, joint and several liability remains the rule for intentional torts.

[6] Damages for intentional infliction of emotional distress are usually only awarded for mental suffering so extraordinary, vindictive, extreme, or outrageous as to give rise to a cause of action for intentional infliction of emotional distress.

[7] Punitive damages may be recovered whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy in order to punish the defendant and deter others from the commission of similar wrongs.

[8] Attorney's fees are not ordinarily recoverable by the prevailing party, but courts do have the power to award attorney's fees when an opposing party has acted in bad faith, wantonly, oppressively or when a statute dictates.

[9] If only one of several tortfeasors is a party to the litigation, then the court must assure that the plaintiff is compensated even if a single defendant must pay all of the damages.

[10] If only one of several tortfeasors is a party to the litigation, then the single defendant has a right of contribution against any absent tortfeasor. [27ASR2d37]

[11] Shifting the burden of recovery to the tortfeasors assures that the injured party is compensated.

[12] If only one of several tortfeasors is a party to the litigation, the amount of recovery should be diminished by the amount of settlements with absent tortfeasors and not by percentage of fault.

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

Counsel: For Plaintiff, Charles V. Ala`ilima
For Defendants, Afoa L. Su`esu`e Lutu

Opinion and Order:

Plaintiff Troy Fiaui ("Troy") brings this action to recover the cost of repairs to his 1989 Isuzu pickup, loss of its use, damages for intentional infliction of emotional distress, punitive damages, and attorney's fees and costs. Through counsel, Troy and defendant Sanele Faumuina ("Sanele") reached a settlement before trial. The trial as to defendant Pita Taliva`a ("Pita") took place on June 10 and 13, 1994.

STATEMENT OF FACTS

The underlying incident in this action occurred at Nam's store in the Village of Leloaloa in American Samoa at about 10:00 p.m. on Saturday, September 7, 1991. Around 5:00 p.m., Troy and three friends had purchased two cases of large-bottled beer and began consuming them in their Village of Auto, which is east of Leloaloa. Later that evening, Troy drove his friends in the pickup to the vicinity of the American Samoa Government's port facilities in the Village of Fagatogo, which is located west of Leloaloa, where they consumed more beer. On the return to their village they stopped at Nam's store to buy something to eat. Troy purchased a package of frozen mussels from the sales clerk and Sitoa Masoe ("Sitoa"), one of Troy's companions, took the mussels across the road to defrost them in Pago Pago Bay. Shortly thereafter, Troy decided to eat the mussels and found that they tasted and smelled bad.

Troy returned to Nam's store to exchange the package of mussels for a new one, but encountered resistance from the sales clerk. Nam Jun Gul, the store's owner, heard the dispute and came down from the second floor to the store below. Nam was reluctant to exchange the mussels because he had just procured the mussels the day before and Troy had already opened the package, but after further discussion, Nam detected a kerosene-[27ASR2d38]like smell to the mussels and agreed to the exchange.

While agreement on the exchange was being reached, Sitoa entered the store and in a loud voice called Nam a crook, cursed him, and demanded a case of beer. Troy sought to control Sitoa and ushered him outside. Nam immediately closed the store and boarded the front windows. His regular closing time was at hand, as the 10:00 p.m. village curfew hour began.

Some members of the village aumaga, or young men's organization, began assembling to patrol the village and enforce the 10:00 p.m. curfew when their attention focused on the commotion at Nam's store.

Meanwhile, someone had telephoned Faumuina Ione ("Faumuina"), the sa`o, or senior chief, of the Faumuina family who owns the land on which Nam's store is located. Ione also owns the store building and lives in the house immediately next to the store. At the time, Faumuina was in the Village of Aua, a short distance to the east, with his son, Sanele, and his son-in-law, Pita.

Sanele and Pita persuaded Faumuina to let them return to Nam's store and investigate the reported disturbance. When they arrived the aumaga were gathering near the front of Nam's store. Troy decided to leave when one aumaga member that he knew told him about the curfew, but as he attempted to drive away with his companions, Sanele parked his Ford sedan in a manner that temporarily blocked Troy from driving onto the main road. Sanele and Pita got out of the sedan and Sanele reached inside Troy's pickup, turned off the ignition, and removed the key.

The immediate instigator of the melee that next took place is disputed. Troy testified that Sanele ignored his inquiries about the taking the key and walked towards the rear of the pickup. At the same time Pita allegedly hit Sitoa, who was seated in the pickup bed, on the back of his head with a bottle. Next, as Sanele appeared to be approaching Sitoa, Troy threw a bottle at Sanele. The aumaga members then began the ensuing rock and bottle throwing contest between Troy's group and the aumaga, Sanele and Pita.

Pita denied striking Sitoa with or without any object. He claimed that Sitoa was standing in the pickup bed and that the melee began because Troy threw a bottle at Sanele. In another version, Filipo Tualo, a member of the aumaga present, testified that the onslaught commenced when Sitoa threw a bottle moments before Sanele and Pita arrived. [27ASR2d39]

We are persuaded that the following most likely occurred. First of all, the aumaga interpreted the situation as an intrusion to the sanctuary of their village and armed themselves with rocks in anticipation of possible open warfare. Further, as essentially simultaneous events, without one being the immediate cause of the other, Pita struck Sitoa with an object while he was in the back of the truck, and Troy threw a bottle at Sanele. Next, the aumaga jumped in, almost instantaneously, and escalated the physical hostilities between the two groups.

We cannot conclude from the evidence who threw what particular object and with what result, but certain events of some significance are evident. Pita removed the sedan to relative safety near Faumuina's house and went to the side of Nam's store where a principal source of the thrown rocks was located. Troy struck Sanele on the shoulder with a bottle as he was walking to Faumuina's house. A short time later Sanele was seen with a gun. Direct testimony was offered that, at a minimum Sanele fired the gun into the air, ostensibly to bring matters under control. Vastly outnumbered and fearing for their safety, Troy and his group retreated to a passing aiga bus to return to Aua. Later, Troy returned to the site of the incident and found his truck severely damaged.

Certainly, intoxication played a major part in the events at Nam's store. Of particular significance, Sitoa had consumed a substantial quantity of beer and reached the point of manifest inebriation when the episode at Nam's store began. His intoxicated behavior was a significant contributing factor to the confrontation that followed. Troy, a commissioned harbor patrol officer, testified to only drinking one to two beers. It is evident that he did not drink as much as Sitoa, but it appears that he consumed more beer than he admitted.

According to the evidence, Troy's other two companions also consumed their share of beer, but their precise role in the situation was not directly demonstrated by evidence. No one was permanently injured during the object-throwing fray, but Troy's pickup did not fare so well. Although it had already suffered minor damage before Troy and his companions retreated, by the time the aumaga was finished, the truck was destroyed. The front grille was removed; the windshield and rear window of the cab were smashed; the headlights and at least one taillight were broken; the body was dented and scratched in numerous locations; and many bullets were shot into the rear of the cab.

The pickup would have ended up in Pago Pago Bay had not Sala Uti, Leloaloa's pulenu`u, or mayor, intervened. He stopped the aumaga as [27ASR2d40] they attempted to navigate the pickup over a dirt embankment into the water and forced them to leave. Sanele and Pita were present when the pulenu`u arrived. Even though they assisted, the evidence of their role as leaders during the devastation of the pickup was not convincing.

DISCUSSION

I. Joint and Several Liability

The primary issue is whether Pita is at fault, and if so should he be liable for all of Troy's damages. In other words, even though Pita is not the lone tortfeasor, is he joint and severally liable for the harm caused to Troy?

[1] The general rule covering joint and several liability is that when two or more persons legally cause harm to another, each is liable for the entire harm. Gorelick v. Dept. of State Highways, 339 N.W.2d 635, 643 (Mich. Ct. App. 1983); Restatement (Second) Of Torts, § 433A (1965). If the tortious acts concurrently(1) cause a single indivisible injury, then those who committed the acts are liable as joint tortfeasors, Margain v. Maize and Blue Properties, Inc., 753 F.2d 47, 49 (6th Cir. 1985), and as joint tortfeasors, they are jointly and severally liable for compensatory damages. Clark v. Bunker, 453 F.2d 1006, 1011 (9th Cir. 1972).

[2] The principle behind concert of action is that the participants are not acting independently, but are jointly engaged in a common tortious endeavor that is the proximate cause of the plaintiff's injury. Ryan v. Eli Lilly & Co., 514 F. Supp. 1004, 1015 (D.S.C. 1981). A participant in a tortious act is jointly and severally liable for harm resulting to a third person if the tortious act is done in concert with another, or if the participant knows that another's conduct constitutes a breach of duty and gives substantial assistance or encouragement, whether or not the participant's own conduct, separately considered, constitutes a breach of [27ASR2d41] duty to the third person. Restatement (Second) Of Torts, § 876 (1979).

Concert of action has been found in group assault and battery, conversion, and trespass. Ryan, 514 F. Supp. at 1015. Pita, Sanele and the aumaga, acted in concert in damaging Troy's truck. They blocked the travel of Troy's truck and withheld the keys so he could not leave. Next, they jointly damaged the vehicle by striking it with stones, removing parts, and shooting at it a number of times with a gun. Pita substantially assisted and encouraged the group throughout these events. These actions resulted in an intentional tort that was the proximate cause of plaintiff's injury. But for the actions of Pita, Sanele and the aumaga, Troy would not have sustained any harm. Since they acted in concert to cause these damages, Pita is jointly and severally liable for Troy's compensatory damages.

[3-4] Many courts now apportion damages among joint tortfeasors instead of applying joint and several liability, but only when it is feasible. Apportionment is feasible when the plaintiff has suffered factually separable or divisible harm that can be allocated among tortfeasors with reasonable certainty. Margain v. Maize and Blue Properties, Inc., 753 F.2d 47, 49 (6th Cir. 1985). If apportionment is reasonable, then each tortfeasor is subject to liability only for the portion of the total harm that each has personally caused. U.S. v. Monsanto, 858 F.2d 160, 171 (4th Cir. 1988); Rauscher v. Halsted, 557 P.2d 1324, 1326 (Wash. Ct. App. 1976) (apportioned damages was feasible among tortfeasors who trespassed on plaintiff's land and cut down trees, because defendant only cut two of 32 trees and is ascertainably liable for one-sixteenth of the total damages).

In this case, the damages cannot be apportioned with reasonable certainty. It cannot be known who threw how many rocks or shot how many bullets at plaintiff's truck; only that defendant intentionally participated in the destruction of the vehicle. This was a single incident and due to the number participants that acted together and the surrounding events, the harm cannot be divided in a reasonable manner. Therefore, apportionment of damages is not feasible. (2)

[5] Moreover, even if apportionment could be reasonably applied, joint and several liability remains the rule for intentional torts. Haynes v. [27ASR2d42] Manning, 717 F. Supp. 730, 737 (D. Kan. 1989); Lynn v. Taylor, 642 P.2d 131, 135 (Kan. Ct. App. 1982) (no authority for including an intentional tort within the realm of comparative fault principles). We do not see any principle or other valid reason warranting any modification of the joint and several liability rule in this intentional tort situation.

II. Intentional Infliction of Emotional Distress

[6] Troy claims that Pita's actions placed him in great fear for his life and prays this court for $10,000 in damages resulting from intentional infliction of emotional distress. Damages for intentional infliction of emotional distress are usually only awarded for mental suffering so extraordinary, vindictive, extreme, or outrageous as to give rise to a cause of action for intentional infliction of emotional distress. Kajtazi v. Kajtazi, 488 F. Supp. 15, 20 (D.N.Y. 1978).

The conduct of Pita and the others was not beyond all bounds usually tolerated by decent society, or of a nature which causes mental distress of a very serious kind. Restatement (Second) Of Torts, § 46, cmt. g (1948). The aumaga was defending their village, and Troy and his companions participated in the escalation of the incident. We do not believe from the evidence that Pita or anyone else, intentionally inflicted emotional distress on Troy, or for that matter, that Troy actually suffered emotional distress from the event that would be recoverable by law.

III. Punitive Damages

[7] Troy also requests $10,000 in punitive damages. Punitive damages may be recovered whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy in order to punish the defendant and deter others from the commission of similar wrongs. Lynn v. Taylor, 642 P.2d at 136. Although this court wishes to deter intentional torts, it would be too extreme to hold Pita liable for punitive damages.

IV. Attorney's Fees and Costs

[8] Troy seeks attorney's fees and costs. Attorney's fees are not ordinarily recoverable by the prevailing party, but courts do have the power to award attorney's fees when an opposing party has acted in bad faith, wantonly, oppressively or when a statute dictates. F.D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129 (1973). We find no valid reason to award attorney's fees in this case. Troy is, of course, entitled to costs of suit in addition to his compensatory damages. T.C.R.C.P. [27ASR2d43] 54(d).

V. Compensatory Damages

[9-11] Troy has proven $7,774.65 in actual damages, $7,114.65 for the cost of repairing his truck and $600 for alternative transportation. Since Pita is joint and severally liable for these compensatory damages, we must now take into consideration Troy's settlement with Sanele, the absent joint tortfeasor, before trial. A primary purpose behind tort law is to compensate the injured party. If only one of several tortfeasors is a party to the litigation, then the court must assure that the plaintiff is compensated even if a single defendant must pay all of the damages. The single defendant has a right of contribution against any absent tortfeasor. Shifting the burden of recovery to the tortfeasors assures that the injured party is compensated. Hammond v. Kansas, O & G Ry. Co., 234 P. 731, 732 (1925).

When determining the amount of compensation to which a plaintiff is entitled to actually receive, the court is duty-bound to consider settlement payments previously received by the plaintiff. In re Jones, 804 F.2d 1133, 1143 (10th Cir. 1986) (amount of settlements received by plaintiff from two absent tortfeasors before trial was deducted from the final judgment awarded to plaintiff from remaining defendant).

T.C.R.Ev. § 408 states in part: "Evidence of . . . accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. . . ." This rule of evidence does not bar this court from reducing Troy's recovery from Pita by the amount Troy has already recovered in a good faith settlement with Sanele. In fact, if a civil jury trial was involved, our function would be to reduce the verdict by the amount received by the plaintiff from absent tortfeasors because of settlements. Cleere v. United Parcel Service, Inc., 669 P.2d 785, 789, 791 (Okla. Ct. App. 1983).

[12] The amount of recovery should be diminished by the amount of settlement with the absent tortfeasor and not by percentage of fault. This is consistent with the tort policies of 1) encouraging settlements and 2) assuring that a plaintiff is fully compensated for injuries sustained. Mayhew v. Berriren County Road Com'n., 326 N.W.2d 366, 371 (Mich. 1982). Troy has already been fully compensated for actual damages through the settlement with Sanele and would be unjustly enriched if we ordered Pita to in fact pay damages.

Accordingly, although we award judgment for Troy and against Pita in the amount of $7,774.65, we must reduce the amount payable by Pita to Troy by the $9,000 received in the settlement with Sanele. Troy is not entitled to receive any amount from Pita.

It is so ordered.

*********

1. Concurrent causation is where the acts of two defendants occur at about the same time and together produce harm, whereas, in successive causation, the acts of two defendants occur at distinct different times and together produce harm. In concurrent injury cases those who caused the harm should be joint and severally liable for the entire harm, whereas, in successive injury cases the damages should be apportioned between the defendants, if they are reasonably apportionable. McLeod v. American Motors Corp., 723 F.2d 830, 834 (11th Cir. 1984).

2. The holding to not apportion damages is limited to the specific facts and unique situation of this matter. This court has previously apportioned damages, such as in products liability actions, and may do so in the future depending on a case by case review.

Fa'aola v. Taumua,


POGAI FA`AOLA, Plaintiff

v.

TAVITA TAUMUA, and NATIONAL PACIFIC INSURANCE
CO., Defendants

High Court of American Samoa
Trial Division

CA No. 29-93

February 3, 1995

__________

[1] When a servant steps outside of his employment to do some act for himself, not connected with the master's business, the master is not vicariously liable if those acts cause tortious harm.

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

Counsel: For Plaintiff, Togiola T.A. Tulafono
For Defendants, Katopau T. Ainu`u

On or about November 27, 1991, plaintiff, Pogai Fa`aola (hereafter "Fa`aola"), was injured while crossing an access road behind the farmer's [27ASR2d116] market in Fagatogo. She claims that she was hit by a vehicle approaching from her left side. The vehicle, which belonged to the defendant National Pacific Insurance Co., (hereafter "NPI") was, at the time, driven by its employee, defendant Tavita Taumua (hereafter "Taumua"). Fa`aola seeks damages for personal injuries against Taumua, alleging negligence, and damages against NPI on a vicarious liability claim under the doctrine of respondeat superior.

Fa`aola testified that she was with a group of women who had traveled into town by bus and were dropped off at the sami side of the marketplace. After alighting the bus, she proceeded to cross the roadway toward the market after first ascertaining that there was no oncoming traffic. She further testified that while crossing the roadway, she was suddenly struck on her left side by Taumua's vehicle. As far as she knew, Taumua's vehicle came out of nowhere.

Taumua, on the other hand, claims that his vehicle was not even moving at the point of impact, and that Fa`aola had somehow fallen against his vehicle while it was stationary. He testified that he had taken the company vehicle out to get a haircut, and that downtown traffic at the time was rerouted through the marketplace due to some roadwork on the main highway. According to Taumua, traffic at the market was bumper to bumper, and his vehicle was actually stopped in traffic when he saw Fa`aola fall in front of, and attempt to grab at, his vehicle.

The driver's version of the events that day was corroborated by an independent eyewitness, Taimane Johnson (hereafter "Johnson"), who testified that she was at the market on the day of the accident selling her crops. She confirmed the driver's testimony that traffic was congested. She also testified that she was directly facing Fa`aola at the time, because she herself was intending to cross the road. Johnson testified that she saw Fa`aola suddenly go down as if she had stepped on the edge of her skirt or had tripped on something. This witness further averred that Taumua's vehicle was stopped at the time she saw Fa`aola fall, and that she felt compelled to intercede on the driver's behalf to explain to a group of people, who were menacing him, that Fa`aola was not in fact struck by Taumua's vehicle. Convinced that the driver had done no wrong, she offered at the scene that she was prepared to testify on his behalf.

After the accident, Fa`aola was transported to the LBJ Tropical Medical Center where X-rays revealed a lateral tibial plateau fracture as well as a fracture on the head of the smaller fibula bone. Dr. Vaiula Tuato`o, Chief of Surgery at the LBJ Tropical Medical Center, testified that he was one [27ASR2d117] of the surgical team that operated on Fa`aola's left knee on December 5, 1991. They found that the lateral aspect of Fa`aola's tibial plateau was not only fractured but also depressed; they further found torn cartilage at the knee joint. According to Dr. Tuato`o, the operation consisted of building up the depressed fractured plateau and restoring it to its normal position with the aid of four stainless steel pins (open reduction with internal fixation). At the same time, the torn cartilage was removed. The surgical team left alone the fractured fibula, however, as it had not been displaced.

Regarding causation, Dr. Tuato`o testified that the sort of fracture suffered by Fa`aola could only have resulted from a tremendous force; and that these fractures are either the result of direct trauma or a fall from a height such as would drive the femur bone down on the tibia breaking off one of its corners. In Fa`aola's case, it was the lateral or left side of the plateau that was broken and depressed. Dr. Tuato`o further related that, in his experience, these sorts of fractures have been automobile related, and that he could recall only one non-automobile case in which such an injury occurred. In that case, a basketball player, who had apparently jumped high and landed heavily on his foot, smashed the upper bone onto the lower resulting in a fracture similar to Fa`aola's injury.

DISCUSSION

A. Liability

1. Direct Liability Claim

Notwithstanding the corroborating eye witness account, the medical evidence suggests that Johnson was probably mistaken about the actual cause of Fa`aola's fall. Indeed, Johnson's attempt to explain Fa`aola's fall was conclusory, as she talked in terms of "as if" Fa`aola had tripped on something. Although she saw Fa`aola fall, she probably did not actually see what caused Fa`aola's fall. Significantly, the injuries that Fa`aola sustained and that x-rays revealed shortly after the accident cannot, on the medical evidence, be reconciled with the suggestion of a fall precipitated by tripping on something. Rather, Fa`aola's injuries are more consistent with those that result from a more severe impact with a moving vehicle--direct trauma to the left side of the knee, where Fa`aola's fractures were located. Furthermore, injury resulting from a fall forward after tripping is, according to Dr. Tuato`o, more likely to occur to the patella or knee cap area rather than to the lateral or outer side of the leg. In Fa`aola's case, there was no sign of injury to the patella or associated ligaments. [27ASR2d118]

On the evidence, we find that Fa`aola sustained injuries as a result of being struck on her left leg by Taumua's vehicle. We find the defense's suggestion that the Fa`aola's broken bones were the result of tripping, coupled with a preexisting arthritic condition, to be medically unsupported and highly unlikely.

Given the extent of Fa`aola's injuries, and the medical evidence on the sort of force required to cause a depressed tibial plateau fracture, Taumua's vehicle must have been either moving too fast or accelerating suddenly, without due regard to the conditions of the road, traffic, and other attending circumstances at time. See A.S.C.A. § 22.0701 (prohibiting "careless and imprudent driving without due regard for the width, grade, curves, corners, traffic, or other attending circumstances"); see also A.S.C.A. § 22.0406 (imposing a general duty on drivers to "exercise due care to avoid colliding with any pedestrian upon any roadway"). We find the circumstantial evidence corroborative of Fa`aola's version, which we credit more weight, to preponderate strongly in favor of the inference that Taumua had failed to operate his vehicle with due regard to the congested and busy conditions of traffic at the relatively confined marketplace.

Accordingly, we conclude that Taumua was negligent in the operation of his vehicle and that his negligence was the proximate cause of Fa`aola's injuries. He is therefore liable to Fa`aola in damages.

2. Vicarious Liability Claim

With regard to Fa`aola's claim against the NPI, we find insufficient evidence to hold this defendant liable on the basis of the respondeat superior principle. (1) All Taumua could prove was the existence of an employer/employee relationship between NPI and Taumua; she failed to introduce any evidence whatsoever showing or tending to show that [27ASR2d119] the tortious activity arose while the employee was going about in furtherance of the employer's business.

[1] In general, "[i]f the servant steps outside of his employment to do some act for himself, not connected with the master's business, there is no more responsibility for what he does than for the acts of any stranger." Prosser & Keeton On Torts, § 70 (5th ed. 1984). The record in the instant case contains a statement from the driver to the effect that he had taken the car out on a purely personal errand, to get a haircut, which is not in furtherance of the employer's business.

B. Damages

Fa`aola at the time of the accident was 65 years of age. Her injuries required hospitalization for period of 22 days, and after her knee operation, she wore a leg cast for an extended period of time. Although her fractures have healed very well, according to Dr. Tuato`o, she continues to live with considerable pain and is regularly prescribed with pain medication. Her situation is aggravated by her obese condition and advanced osteoarthritis. She has a well-documented history of arthritic pain with her right ankle. While Dr. Tuato`o alluded to a number of scenarios with the sort of complications that have occurred in the past and might occur in the future with this sort of knee injury--for instance, lock knee, and/or total knee replacement--he merely spoke generally and did not, in our view, purport to give, with any degree of medical certainty, a prognosis of this particular patient. Fa`aola, however, will continue to live with pain indefinitely at a crucial weight bearing joint. According to Dr. Tuato`o, Fa`aola's favoring of this joint will result in over use of the other leg, and this in turn will result in the eventual deterioration of that other limb as well. We assess plaintiff's damages in the sum of $25,000.

On the foregoing, judgment will enter in favor of plaintiff Pogai Fa`aola against defendant Tavita Taumua in the sum of $25,000.

It is so ordered.

*********

1. NPI as the owner of the vehicle nonetheless had a statutory duty to insure its permitted drivers, against third party claims, pursuant to the requirements of the Compulsory Insurance Statute, A.S.C.A. §§22.2001 et seq. NPI's failure to so procure insurance would render it liable to plaintiff in an amount not greater than would be covered by insurance, if the duty to insure was not breached. Foma`i v. Samana , 4 A.S.R.2d 102, 109 (1987). We do not, however, address these issues as the court was not told anything of third party liability insurance, nor of failure on the part of NPI to procure such insurance.

Election for Representative from District No. 3; In re the


LAVEA SEALIITU F. MAUGA, Plaintiff

v.

CHIEF ELECTION OFFICER and ELISARA T. TOGIA`I,
Defendants

_______

IN RE THE ELECTION FOR REPRESENTATIVE FROM
DISTRICT NO. 3, INCLUDING THE VILLAGES OF VATIA,
AOA, ALAO, TULA, and ONENOA, and CONCERNING
ELISARA TOGIA`I, OFFICIAL CANDIDATE.

High Court of American Samoa
Appellate Division

AP No. 17-94

November 25, 1994

__________

[1] Statutory provision stating that an election tie "shall be decided by lot" is a mandatory rather than optional mechanism for breaking the tie. A.S.C.A. § 6.0901.

[2] Statutory provision requiring election ties to be decided by lot does not invalidate any votes of the qualified electors, nor does it taint the requirement that representatives be elected by secret ballot, since the lot comes into play as a result of the balloting process. A.S.C.A. § 6.0901.

[3] Statutory provision requiring election ties to be decided by lot is not inconsistent with the Revised Constitution of American Samoa. A.S.C.A. § 6.0901.

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, VAIVAO, Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Plaintiff, Togiola T.A. Tulafono
For Chief Election Officer, Malaetasi M. Togafau, Attorney General, and Elvis R.P. Patea, Deputy Attorney General
For Elisara T. Togia`i, pro se

Order Denying Petition for a New Election:

Lavea Sealiitu F. Mauga (hereafter "Mauga") and Elisara T. Togia`i (hereafter "Togia`i") are candidates for the American Samoa House of Representatives, Vaifanua County, Voting District #3. The election for District #3, held November 8, 1994, resulted in a tie between Mauga and [27ASR2d29] Togia`i, each having polled 241 votes.

On November 14, 1994, Mauga and Togia`i filed separate complaints with the High Court praying for a new election to decide who should be seated in the House of Representatives, rather than submit to a decision by lot pursuant to A.S.C.A. § 6.0901. This enactment reads:

In the case of failure of an election by reason of the equality of
vote between 2 or more candidates, the tie shall be decided by
lot, under the supervision of the chief election officer. When an
election is decided by lot, the candidates may agree in a signed
statement to the use of the lot. If the candidates agree, they shall
be bound by the lot and shall not bring an election contest under
sections 6.0902 and 6.0903 after the drawing of the lot. Each
candidate shall be present at the drawing of the lot together with
2 witnesses to be selected by him. (Emphasis added.)

Mauga argues that the election should be declared invalid "because it cannot be determined that a clear majority or plurality of votes [was] cast in said election and the defendant, Chief Election Officer, cannot certify any candidate elected from District #3 after the November 8th election." Complaint para. 6. Togia`i seeks the same relief arguing that no candidate has been "elected" in his district in accordance with Article II, Section 3(c) of the Revised Constitution of American Samoa. (1) He also cites A.S.C.A. § 2.0302, which uses language outlining "the number of representatives to be elected therefrom," (emphasis added) to further assert that the use of a lot is in violation of the constitutional requirement that representatives be "elected."

[1] We have consolidated these matters for hearing and for reasons given we deny the relief sought. Contrary to Mauga's submission, the Legislature has expressly and unambiguously provided for a decision in a tie vote situation, by the drawing or casting of lots. A.S.C.A. § 6.0901 is couched in mandatory language. (2) We fail to see anything in the [27ASR2d30] American Samoa Electoral Reform Act of 1977, A.S.C.A. Title 6, which provides any basis to the suggestion that a new election is an available alternative to A.S.C.A. § 6.0901, to be invoked at the option of the candidates. We note that while A.S.C.A. § 6.0901 goes on to state that "candidates may agree in a signed statement to the use of lot," this does not mean that they may by stipulation excuse themselves from the mandated lot process, and, thereby, demand a new election. Under the terms of the statute, the candidates have the opportunity to stipulate to be bound by the result of the lot; i.e., they may agree that the result of the draw shall be final and unappealable. In contrast, the candidate who does not wish to be bound by the use of a lot will have merely reserved his access to judicial review in the normal course. Finally, Togia`i's argument, that a tie vote does not result in an "elected" representative, is unsupported. A candidate that wins an election by lot satisfies the "elected" requirement. Article II, § 4 of the Revised Constitution of American Samoa provides that "[r]epresentatives shall be chosen by secret ballot of the qualified electors of their representative districts." In this case, the candidate who prevails by lot, pursuant to A.S.C.A. § 6.0901, will have been placed in the position to prevail because he received 241 votes of valid electors. A provision that a tie vote shall be settled by drawing lot has been held not to be in conflict with a constitutional provision that elections shall be by ballot. See Johnston v. State, 27 N.E. 422 (Ind. 1891). The Indiana Supreme Court reasoned:

[A]ppellant's counsel ingeniously and plausibly argues [sic] that
the provision [requiring that the election be decided by lot in the
case of a tie] is invalid, for the reason that it is conflict with the
provision [in the state's constitution] that all elections shall be by
ballot. . . . Such a statute as the one before us does give the
electors an opportunity to vote by ballot, and affixes to each vote
the force it is possible to assign it. [27ASR2d31]

Id. at 423.

[2] The lot provision, A.S.C.A. § 6.0901, is merely a procedural mechanism devised to supplement the election process in case of the unlikely event of a tie result at the ballot boxes. The use of this procedure does not invalidate any votes of the qualified electors, nor does it taint the requirement that they be elected by secret ballot, since the lot comes into play as a result of the balloting process.

[3] We hold that A.S.C.A. § 6.0901 is not inconsistent with the provisions of the Revised Constitution of American Samoa and, therefore, deny the petitions for a new election. The matter is accordingly remanded to the Chief Election Officer for resolution of the tie election result in District #3 in accordance with A.S.C.A. § 6.0901.

It is so ordered.

*********

1. Article II, § 3 of the Revised Constitution of American Samoa states in relevant part, "[a] representative shall. . . have been a bona fide resident of the representative district from which he is elected for at least one year next preceding his election . . . ." (emphasis added).

2. Cf. Cal. Ann. Elec. Code § 20501, which also requires that a tie vote in California's elections be similarly broken, with the provision that the "Secretary of State shall...determine the tie by lot." (emphasis added). Hawaii, on the other hand, takes the position that the lot is an optional method of settling a tie with language which provides that a tie may be decided by lot." Hawaii Statutes Revised, § 11-157 (emphasis added). We note that American Samoa's statute uses the precise language of the Hawaii statute, except that the Fono has substituted the word "shall" in lieu of Hawaii's choice of the word "may." This indicates that the substitution is deliberate and that the statute intends to make the lot binding.

E.P.S., Inc.; Polynesian Airlines v.


POLYNESIAN AIRLINES, Plaintiff

v.

E.P.S., INC., dba CDI TRAVEL AND TOURS, and ELAINE
PRESCOTT SINGH, Defendants

High Court of American Samoa
Trial Division

CA No. 134-94

December 14, 1994

__________

[1] To determine that no material fact exists, the facts must be "beyond dispute," even though the non-moving party's factual assertions, supported by discovery material, are presumed to be true, and all inferences are construed in a light most favorable to the non-moving party. T.C.R.C.P. 56.

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

Counsel: For Plaintiff, Katopau Ainu`u
For Defendants, Afoa L. Su`esu`e Lutu

Order Denying Motion for Summary Judgment:

I. History

The motion by plaintiff Polynesian Airlines ("Polynesian") for summary judgment against defendants E.P.S., Inc., dba CDI Travel and Tours, and Elaine Prescott Singh (collectively "CDI") came regularly for hearing on December 7, 1994. Counsel for both parties were present.

CDI purchased several airline tickets from Polynesian, using CDI company checks. Five of these checks, in the aggregate amount of $8,632.73, were returned unpaid for insufficient funds. It is unclear whether Polynesian made demands for the payment of this debt prior to the filing of this complaint. Polynesian has been withholding CDI's commissions and applying them against the debt, and claims that the debt is presently $7,541.25.

CDI does not dispute the facts which gave rise to the debt, but claims that the $7,541.25 figure does not reflect the current amount of the obligation. [27ASR2d70] CDI argues that, since the filing of this claim, it has reached a verbal agreement with Polynesian, wherein CDI has forgiven Polynesian's debts in the amount of $3,743.19 or more, for unused ticket refunds owed to CDI, in exchange for a corresponding decrease in CDI's debt to Polynesian. CDI further claims that prior to the filing of the complaint, the parties entered into an agreement under which Polynesian would apply CDI's commissions against the amount of CDI's obligation to Polynesian. CDI claims that the amount of these commissions is in excess of $2,000.00.

II. Standard of Review

[1] Summary judgment is appropriate where there is no issue with respect to any material fact, and the moving party is entitled to judgment as a matter of law. T.C.R.C.P. 56. It may be invoked only when "no genuine issue as to any material fact" exists. Anderson v. Liberty Lobby, 477 U.S. 242, 247-250 (1986); Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). To determine that no material fact exists, the facts must be "beyond dispute," even though the non-moving party's factual assertions, supported by discovery material are presumed to be true, and that all inferences are construed in a light most favorable to the non-moving party. Ah Mai v. American Samoa Government, 11 A.S.R.2d 133, 136 (Trial Div. 1989); see Lokan v. Lokan, 6 A.S.R.2d 44, 46 (Trial Div. 1987); U.S. v. Diebold, 369 U.S. 654 (1962).

III. Discussion

The parties agree that they mutually assented to the arrangement whereby Polynesian applies CDI's commissions for the sale of airline tickets against the amount of CDI's debt to Polynesian. There is dispute as to the amount by which CDI's commissions have reduced its debt to Polynesian. CDI claims, by affidavit, that it has commissions in excess of $2,000.00. Polynesian, however, credits CDI with only $1,091.48 in debt reduction due to commissions retained by Polynesian.

CDI asserts that it entered into a verbal agreement (1) with Polynesian, which would credit at least $3,743.19 owed by Polynesian to CDI for unused [27ASR2d71] tickets, against the debt owed by CDI to Polynesian. The accumulated credits claimed by CDI against the original debt to Polynesian would bring that debt down to a figure of $2,889.54 at most, or a difference of at least $4,651.71 from Polynesian's claim that the debt is $7,541.25. We find that this difference arises out of the factual questions of: (1) whether Polynesian and CDI actually entered the verbal agreement offered by CDI, and (2) the proper amount of sales commissions credited against CDI's debt.

Taking CDI's rendition of the facts to be true, and construing them in a light most favorable to CDI, we are unable to grant Polynesian summary judgment in the amount of $7,541.25, as a matter of law. Accordingly, we deny Polynesian's motion.

It is so ordered.

*********

1. There may be an issue of whether the alleged agreement is enforceable in view of the statute of frauds. A.S.C.A. § 27.1530 et seq. Since this issue has not been raised by Polynesian, we express no opinion regarding it.

Development Bank of American Samoa v. Lagarejos,


DEVELOPMENT BANK OF AMERICAN SAMOA, Plaintiff

v.

CHRISTINE LAGAREJOS, Defendant

High Court of American Samoa
Trial Division

CA No. 30-94

January 18, 1995

__________

[1] Motion to intervene in an action after court has entered judgment is barred when movants possessed knowledge of the action prior to the entering of judgment. T.C.R.C.P. 24.

[2] Post-judgment intervention is generally allowed only upon a strong showing of entitlement by the applicant.

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

Counsel: For Plaintiff, Tate J. Eldridge
For Movants Carl & Starr Schuster, Arthur Ripley, Jr.

Order Denying Motion for Post-Judgment Intervention:

On August 22, 1994, this court entered judgment in favor of plaintiff mortgagee, Development Bank of American Samoa, against defendant mortgagor, Christine Lagarejos, awarding, among other things, plaintiff's petition to foreclose a certain leasehold mortgage which defendant had executed in favor of plaintiff as collateral for the repayment of her loan. The leasehold interest was created in favor of defendant by her parents, movants herein Carl and Starr Schuster, in order to facilitate her loan application with plaintiff. To this end, movants gave plaintiff an instrument styled "Lessor's Consent to Mortgage and Estoppel Certificate," which on its face sanctioned the mortgaging of defendant's leasehold interest to plaintiff. Defendant subsequently defaulted on the loan and plaintiff filed suit, which resulted in the judgment entered herein.

On October 11, 1994, movants filed their motion for post judgment intervention, claiming, among other things, intervention as of "right" under T.C.R.C.P. 24(a), in that they were not joined in the action and [27ASR2d92] hence their interest in the subject matter of the leasehold mortgage was not adequately represented. Alternatively, they claim intervention under T.C.R.C.P. 24(b) contending that the lease agreement and the lessor's-consent-to-mortgage instrument presented common questions of fact and law, relating to movants' intent with respect to their execution of these documents, which the court should consider.

DISCUSSION

[1] A motion to intervene whether under subdivision (a) or (b) of Rule 24 is subject to the requirement of "timeliness." NAACP v. New York, 413 U.S. 345, 365 (1973). We hold that the application before us is untimely since movants have had knowledge of this action for some time before it went to judgment, as counsel for the mortgagee had early appraised movants of these proceedings. To sanction movants' wait-and-see posture by reopening this matter would be to unduly prejudice plaintiff's rights and substantially interfere with the orderly processes of the court. See McDonald v. E.J. Lavino Corp., 430 F.2d 1065, 1072, (5th Cir. 1970); United States v. Blue Chip Stamp Co., 272 F. Supp. 432, 436 (C.D. Cal. 1967) ("The interest in expeditious administration of justice does not permit litigation interminably protracted through continuous reopening. A motion to intervene after entry of decree should therefore be denied in other than the most unusual circumstances.").

[2] At the same time, post judgment intervention is generally allowed only upon a "strong showing" of entitlement by the applicant. United States v. Associated Milk Producers, Inc., 534 F.2d 113, 116 (8th Cir. 1976), cert. denied, 429 U.S. 940 (1976). In this matter, movants cannot demonstrate any proprietary interest whatsoever in the subject matter of the action, namely, the leasehold estate and mortgage interest on the land. In contrast, movants' interest, a fee estate in the land, is not in any way affected by the judgment in this case. While that fee estate happens to be presently encumbered by leasehold and mortgage interests, these encumbrances, which movants now complain of, were not of the court's doing but that of movants' themselves, when they gave to the defendant and her assigns a leasehold estate on their land with the right to mortgage that leasehold estate to prospective lenders.

Furthermore, what movants essentially seek at this time is the opportunity to assail those encumbrances by going back on the language of the instruments which they have given. In other words, they seek the opportunity to present parol evidence to explain their real "intentions" with [27ASR2d93] respect to the Leasehold Agreement and Lessor's Consent to Mortgage and Estoppel Certification. This course of action is of dubious merit, and in terms of the "strong showing" requirement for post judgment intervention, movants can hardly be said to have met their burden.(1)

For reasons given, the motion for post-judgment intervention is denied.

It is so ordered.

*********

1. It is apparent from the supporting papers filed with the motion that this attempt to reopen the matter was prompted by the plaintiff mortgagee's unwillingness to accept movants' proposal for extended purchase terms to discharge the mortgage. Discharge of the mortgage and subsequent cancellation of the lease is still available to the movants, and, under the circumstances, is the more realistic course for relief.

CEO; Mulitauaopele v.




ALAMOANA S. MULITAUAOPELE, Petitioner



v.



CHIEF ELECTION OFFICER, MALEPEAI SETU, and

BOARD OF REGISTRATION, Respondents



High Court of American Samoa

Appellate Division



AP No. 20-94



December 5, 1994



[1] Under Samoan law, voters need only present identification upon request of a district official. A.S.C.A. § 6.0706.



[2] The Legislature has not enacted any statute, and the Chief Election Officer has not promulgated any administrative rule, requiring voters to mark their ballots in any particular manner.



[3] In the absence of prescribed marking standards, election officials cannot properly invalidate a ballot for peculiar markings when the voter's intention is unambiguously expressed.



[4] Under Samoan law, the residency of a person is that place in which his habitation is fixed, and to which, whenever he is absent, he has the intention to return. A.S.C.A. § 6.0212(a).



[5] Under Samoan law, a person does not gain or lose residency by reason of his presence or absence while employed in the service of the United States. A.S.C.A. § 6.0212(e).



[6] When determining an individual's residency for voting purposes, an individual's immediate choice of living arrangements does not overcome the individual's longstanding, permanent ties to a voting district.



[7] Under Samoan law, the situs of a person's primary matai obligations are a factor in determining district residency. However, matai obligations alone may not sustain a finding of district residency absent other evidence which, in connection with evidence of matai obligations, is sufficient to demonstrate intent to reside within a voting district. A.S.C.A. § 6.0212(f).



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



Counsel: For Petitioner, Asaua Fuimaono

For Respondents Chief Election Officer and Board of Registration, Malaetasi M. Togafau, Attorney General, and Elvis R.P. Patea, Assistant Attorney General

For Respondent Malepeai Setu, Charles V. Ala`ilima



Order Denying Petition for a New Election:



HISTORY



On November 8, 1994, respondent Malepeai Setu ("Malepeai") received more votes than petitioner Alamoana Mulitauaopele ("Alamoana"), in the election to represent District No. 5 in the American Samoa House of Representatives.



Prior to the election, Alamoana registered an objection, dated November 6, 1994, with respondent Chief Election Officer ("CEO"), challenging the qualifications of 19 individuals listed in the official roll of registered voters for District No. 5. On November 12, 1994, the CEO responded to Alamoana's objection by allowing 12 of the 19 challenged votes to be counted. The other seven challenged voters either did not vote or were declared ineligible and not counted. As to the 12 votes allowed, Alamoana maintained his objection to six voters in his appeal of the CEO's decision to respondent Board of Registration ("Board"), dated November 13, 1994. On November 14, 1994, the Board affirmed the CEO's decision pertaining to the six challenged voters and allowed all six votes to count.

The following day Alamoana petitioned this Court, pursuant to A.S.C.A. § 6.0902, naming the CEO, the Board, and Malepeai as respondents, claiming that the six challenged votes were improper. Additionally, Alamoana raised objections to four other votes because of issues arising on election day, and requested a new election. This Court has jurisdiction over this action under A.S.C.A. § 3.0208(c). The Court heard this matter on November 23 and 25, 1994, with all parties and their counsel present.



DISCUSSION

 

During the hearing, Alamoana withdrew his objections to the electoral qualifications of two challenged voters, leaving a total of eight challenged votes for our consideration. Further, the parties ultimately stipulated that the final vote count was 224 votes for Malepeai and 221 votes for Alamoana, subject to our decision regarding the eight remaining challenges. We will first consider the issues arising on election day concerning four votes, and then the four remaining challenges involving elector qualifications.



I. Issues Arising on Election Day



A. Presentation of Identification



[1] Tia Tanoa, the pulenu`u of Faga`itua, a village in District No. 5, voted on election day without presenting any identification. Alamoana's poll watcher objected. A.S.C.A. § 6.0706 states in relevant part that "[e]very person shall provide identification if so required by a district official." This language requires presentation of identification only upon request of a district official. If the district official is satisfied as to the voter's identity, the elector may vote without formal identification. This vote shall remain counted.



B. Irregularly Marked Ballots



Four irregularly marked ballots, three disallowed and one allowed by district election officials, are at issue. Alamoana has contested three of these ballots. Two ballots selecting Alamoana were invalidated because the voter's mark extended outside the appropriate box. The third ballot, cast for Malepeai, was marked inside the appropriate box, but Malepeai's name was written by the voter at the bottom of the ballot. Unlike the first two ballots, this vote for Malepeai was counted. The fourth ballot, which entered into evidence by the CEO, selected Malepeai by marking within the appropriate box and placing a line underneath that box. This ballot was also invalidated.



[2-3] The Legislature has not enacted any statute, and the CEO has not promulgated any administrative rule, requiring voters to mark their ballots in any particular manner. All four voters' intentions were absolutely clear from the markings on their ballots. Without specific laws or rules delimiting the proper way to mark a ballot, election officials can exercise unbridled discretion and, as they did here, effect arbitrary and inconsistent results. In the absence of prescribed marking standards, election officials cannot properly invalidate a ballot for peculiar markings when the voter's intention is unambiguously expressed. We find that the three disqualified ballots, two for Alamoana and one for Malepeai must be counted, which brings the running total to 225 votes for Malepeai to 223 votes for Alamoana.



II. Voter Qualification Challenges



We now consider Alamoana's four remaining elector qualification challenges. All four of these challenged votes are reflected in the present vote count. Since we do not know the four electors' choice of candidate, the election result will become uncertain if two or more of these challenges are sustained. We consider each of these challenges individually.



A. Naumati A. Felise



In 1994, Naumati A. Felise voted in person in District No. 5, as she had done in every regular election from 1980 to 1986. She voted by absentee ballot in 1988 and 1992, and did not vote in 1990. She was raised in Fagaitua, where her mother was born, and has matai obligations there. She continued to live in Fagaitua after marriage and currently resides there.



[4] A.S.C.A. § 6.0212(a) provides that "[t]he residency of a person is that place in which his habitation is fixed, and to which, whenever he is absent, he has the intention to return." Felise's permanent residency in Fagaitua was well established and was never lost by her presence in California at election time in 1988, 1990 and 1992. On the evidence before us, we find that Felise continuously intended to return to Fagaitua while she was outside the territory. Her vote counts.



B. Potumoe S. Sotoa



In 1994, Potumoe S. Sotoa voted in person in District No. 5. He voted by absentee ballot in every election from 1984 to 1990, but did not vote in 1992. Sotoa was raised in Fagaitua, his mother's birthplace, and performs matai services in this village. He was outside the territory for an extended period due to his service in the U.S. Navy. He was also recently seen at a funeral in San Diego. He returned to American Samoa in June 1994 and presently lives in his parents' home, now located in Faga`alu village, outside District No. 5.



[5-6] Sotoa's absence from the territory in the military service of the United States does not affect his residency. Under A.S.C.A. § 6.0212(e), "A person does not gain or lose residency by reason of his presence of absence while employed in the service of the United States . . . ." His attendance at an outside funeral and immediate choice of living arrangements do not overcome his longstanding, permanent ties to Fagaitua. He is a qualified elector in Fagaitua, and his vote will stand.



C. Daniel Stark



Daniel Stark, age 18 years, is a first-time voter, registered in District No. 5. He is from a broken home and has been living with a family in Faga`itua for the past three years. He graduated from Faga`itua High School in June 1994. Presently, he is helping his remarried father construct a house in Malaeimi, a village outside of District No. 5.



A.S.C.A. § 6.0212(a) also governs Stark's situation. We find that Stark established permanent ties to Faga`itua and intends to return there when his father's house is completed. His vote shall remain counted.



D. Tui Fata, Jr.



Tui Fata, Jr., also age 18 years, is another first-time voter, registered in District No. 5. He has lived with Malepeai in Ili`ili, a village outside of District No. 5, for the last three years, because of his matai obligations to Malepeai and not because of permanent intent to remain there. Malepeai, whose residency status is not at issue, is also registered in District No. 5 and is a Faga`itua matai.



[7] A.S.C.A. § 6.0212(f) states:



The situs of a person's primary matai obligations are a factor in determining district residency. However, matai obligations alone may not sustain a finding of district residency absent other evidence which, in connection with evidence of matai obligations, is sufficient to sustain the intent of this section.



Fata was raised in Faga`itua, his father's birthplace, and his parents own a home there. With these additional factors, we find that Fata is a qualified elector in Faga`itua. His vote counts.



CONCLUSION



With respect to issues arising on election day, we allow three previously uncounted votes to be counted, leaving Malepeai with a two-vote winning margin. Since we affirm the decision of the CEO and the Board and conclude that all four challenged voters are qualified electors of District No. 5, their votes remain effective. Thus, the final vote count stays at 225 votes for Malepeai to 223 votes for Alamoana. The result in District No. 5 is therefore certain in Malepeai's favor. The petition is denied.



A copy of the judgment entered in this matter shall be served upon the CEO with the instruction that he certify the result of the election in District No. 5.



It is so ordered.









*********

American Samoa Gov’t v. Bryce,


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American Samoa Gov’t v. Leiataua,


AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

FANUAEA THERESA GURR LEIATAUA, Defendant

High Court of American Samoa
Trial Division

CR No. 44-94

November 7, 1994

__________

[1] Federal financial privacy laws contained in 12 U.S.C. §§ 3401 et seq., apply only to agencies and officials of the United States Government.

[2] The American Samoa Government is not a federal agency.

[3] The High Court of American Samoa is not a federal court. [27ASR2d27]

Before RICHMOND, Associate Justice.

Counsel: For Plaintiff, Henry W. Kappel, Assistant Attorney General
For Defendant, Afoa L. Su`esu`e Lutu

Order Granting Motion for Early Production of Subpoenaed Documents:

Plaintiff American Samoa Government ("ASG") caused service of a subpoena duces tecum on the Amerika Samoa Bank ("ASB") and, pursuant to T.C.R.Cr.P. 17(c), moved to require early production of the documents to the court. The motion was heard on November 4, 1994, with counsel for both parties present. Through counsel, defendant Fanuaea Theresa Gurr Leiataua waived her right to be present. At the hearing, ASB questioned the applicability of the federal financial privacy laws, 12 U.S.C. §§ 3401 et seq., in particular 12 U.S.C. § 3407, setting forth several requirements, including notice to the account holder, when bank-possessed documents are subpoenaed.

[1-3] 12 U.S.C. §§ 3401 et seq. apply only to agencies and officials of the United States Government. In this context, ASG is not a federal agency. The High Court of American Samoa is not a federal court. High Court justices and judges are not federal officials when performing their judicial functions. In short, 12 U.S.C. §§ 3401 et seq. are not applicable to and do not restrict the judicial processes of this court.

The court grants ASG's motion for early production of the subpoenaed documents. ASB shall deliver those documents in its possession to the clerk of this court no later than 4:00 p.m. on November 8, 1994.

It is so ordered. ASB is advised that if it fails without good cause to comply with this order, it is guilty of contempt of court and may be punished therefor.

*********

Ale; Lutu v.


AFOA L. SU`ESU`E LUTU, Petitioner

v.

TALAVOU SAVALI ALE, Speaker of the House of
Representatives, and SAVALI SAVALI, JR., Legislative Financial
Officer, Respondents

High Court of American Samoa
Trial Division

CA No. 25-95

March 1, 1995

__________

[1] A writ of mandamus is appropriate only if the claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt.

Before KRUSE, Chief Justice.

Counsel: For Petitioner, Afoa L.S. Lutu, pro se [27ASR2d139]

Order of Continuance on Petition for Writ of Mandamus:

Petitioner seeks a writ of mandamus directed to the Speaker of the House of Representatives and the Legislative Financial Officer to disclose records of expenditures and overruns of the House of Representatives for Fiscal Year 1994.

[1] We direct counsel's attention to Rule 89(a), requiring a memorandum of points and authorities. This rule must be read in conjunction with the requirement of T.C.R.C.P. 90(g) for "reasons why the court should grant the petition." As this court recently stated in Mulitauaopele v. Maiava , 24 A.S.R.2d 97 (Trial Div. 1993),

[T]he party seeking mandamus bears the burden of showing that [his] right to issuance of the writ is clear and indisputable. Thus, mandamus is appropriate only if the claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt.

Id. at 99 (citations omitted). Although petitioner has labeled his filing a "memorandum of points and authorities", he has, among other things, cited no authority for his assertion that the information he desires is a public record. Furthermore, petitioner has offered no recitation of the applicable legal standard by which this court should measure a petition for a writ of mandamus; nor has petitioner given us sufficient factual information to conclude that he has no other adequate remedy as required by T.C.R.C.P. 90(e). The total authority that petitioner has cited is composed of a single cursory citation of 15 rules of civil procedure, and two statutory citations which are unaccompanied by analysis or case law. The meaning and application of the cited statutory language is not obvious in the context of this petition, and could have been explained and fortified by case law.

We will continue this matter for seven (7) days from the entry of this order and invite petitioner to supplement his memorandum of points and authorities. If he elects not to do so, we will consider the petition on its merits.

It is so ordered.

*********

27ASR2dTOC


TABLE OF CONTENTS



American Samoa Government v. Bryce . . . . . . . . . . . . . . . . . 1

American Samoa Government v. Leiataua . . . . . . . . . . . . . . . 26

American Samoa Government v. Solaita . . . . . . . . . . . . . . . . 9

American Samoa Government v. Talamoni . . . . . . . . . . . . . . 123

Aumavae v. Aumavae . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

Development Bank of American Samoa v. Lagarejos . . . . . . . . 91

Fa'aola v. Taumua . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

Fiaui v. Faumuina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

In re the Election for Representative from District No. 3 . . . . . 28

In re a Minor Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

In re a Minor Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

In re a Minor Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

In re the Matai Title "Aoelua" of the village of Afono . . . . . . . . 17

In re the Matai Title "Niumatalolo" of the village of Aua . . . . . . 24

In re the Matai Title "Olomua" of the village of Aoa . . . . . . . . 20

In re the Matai Title "Tuaolo" . . . . . . . . . . . . . . . . . . . . . . . 97

Interocean Ships, Inc. v. Samoa Gases . . . . . . . . . . . . . . . . . 5

Kent Samoa Inc. v. Shimasaki . . . . . . . . . . . . . . . . . . . . . . 140

Korea Deep Sea Fisheries Assn. v. M/V Corona #1 . . . . . . . . . 53

Korea Deep Sea Fisheries Assn. v. M/V Corona #1 . . . . . . . . . 120

Korea Deep Sea Fisheries Assn. v. M/V Corona #1 . . . . . . . . . 155

Leomiti v. Pu'efua . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

Lutali v. Pedro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Lutali v. Pedro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

Lutu v. Ale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

Maifea v. National Pacific Insurance Co. . . . . . . . . . . . . . . . 104

Mau v. Fuimaono . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

McKenzie v. Le'iato . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

McMoore v. National Pacific Insurance Ltd. . . . . . . . . . . . . . 31

Mobile Marine Ltd. v. Ninna Marianne . . . . . . . . . . . . . . . . 143

Mulitauaopele v. CEO . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Nunu v. Nunu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

Pago Petroleum Products, Inc. v. Ye Ahn Moolsoan, Ltd. . . . . . 94

Pasesa v. Laumatia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Patau v. Hildre . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Patau v. Hildre . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

Polynesian Airlines v. E.P.S., Inc. . . . . . . . . . . . . . . . . . . . 69

Richmond Wholesale Meat Co. v. J.M. Gebauer, Inc. . . . . . . . 61

Taianamu v. Tainamu . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Taufete'e v. American Samoa Government . . . . . . . . . . . . . . 80

The Senate v. Lutali . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

The Senate v. Lutali . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

Vance Intl. v. Penn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

27ASR2d103


CHRISTINA MAIFEA, and POSIULAI MAIFEA, a Minor, by
SAM MAIFEA, Her Guardian ad Litem, Plaintiff

v.

NATIONAL PACIFIC INSURANCE CO., EDWARD CRICHTON
& CO., and POTLATCH CRICHTON, Defendants

High Court of American Samoa
Trial Division

CA No. 7-93
CA No. 8-93

January 31, 1995

__________

[1] People are under a duty to drive their respective motor vehicles with ordinary or reasonable care, which persons of ordinary prudence would use under the circumstances shown by the evidence, in order to avoid injury to themselves or others.

[2] Failure to use ordinary or reasonable care is negligence.

[3] Injured persons are entitled to compensation when a defendant's negligence is the proximate cause of the injury.

[4] An act which constitutes careless driving in violation of A.S.C.A. § 22.0701, prohibited overtaking in violation of A.S.C.A. § 22.0209, and hazardous passing in violation of A.S.C.A. § 22.0307(e)(1), is, for any or all of these reasons, negligence per se.

[5] When injured persons would not have been injured but for defendant's negligence, defendant's conduct is the proximate cause of the injuries.

[6] Where two parties' conduct contributed concurrently as proximate causes of injuries, one party cannot be relieved of responsibility simply because the other party was not joined as a defendant in the action.

[7] Where injured persons substantially contribute to their injuries by engaging in hazardous conduct, their comparative negligence will not bar recovery, but may limit recovery. A.S.C.A. § 43.5101.

[8] A vehicle owner's policy of liability insurance must insure the person named therein and any other person who uses the vehicle or vehicles with the express or implied permission of the named insured. A.S.C.A. § 22.2003. [27ASR2d105]

[9] Where company policy gives only three persons permission to drive a company vehicle, and defendant is not one of those persons, defendant does not have "express" permission to drive the vehicle.

[10] Permission to drive a vehicle may be implied from a failure to take precautions to prevent an individual from driving a vehicle in circumstances where it is reasonably foreseeable that the person might do so.

[11] Where defendant openly participated in relocating a company, and the company vehicle is entrusted to defendant's group, it is reasonably foreseeable that defendant would drive the company vehicle.

[12] Under the family purpose doctrine, when the head of a family owns, furnishes and maintains a vehicle for the general use, pleasure and convenience of a family, he is liable for the negligence of a member of the family having general authority to drive it while the vehicle is so being used.

[13] Even though owner of a vehicle is a corporation, family purpose doctrine applies where the driver of the vehicle was motivated by his allegiance to his family and not out of employment obligations to the corporation.

[14] The fact that the vehicle is owned by the family business or is at times used for business purposes does not preclude the application of the family purpose doctrine.

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

Counsel: For Plaintiffs, Gata E. Gurr
For Defendant National Pacific Insurance, Ltd., Roy J.D. Hall, Jr.
For Defendants, Edward Crichton & Co. and Potlatch Crichton, Roy J.D. Hall, Jr. and Asaua Fuimaono

Opinion and Order:

This is case arises from an unfortunate motor vehicle accident in which two individuals were ejected from the bed of a pickup truck and injured. Their separate actions for damages from personal injuries were consolidated and came regularly for trial on July 14 and August 18 and 19, 1994. All parties appeared by their counsel. Plaintiff Christina Maifea ("Christina") was personally present throughout the trial. Plaintiff Posiulai Maifea ("Posiulai") and Defendant Potlatch Crichton ("Potlatch") were personally present on July 14.

I. LIABILITY

A. Findings of Fact

On Sunday, May 31, 1992, at about 5:00 p.m., Potlatch was driving a blue [27ASR2d106] Toyota pickup and Brian Maifea ("Brian") was driving a white Nissan pickup, both traveling westward on the main public road in Nuuuli, American Samoa. The accident occurred in the immediate vicinity of the Pacific Resources Industry's Gas Express station, west of the three-corner intersection with the road to Lions Park. The Toyota was owned by defendant Edward Crichton & Co. ("ECC") and insured by defendant National Pacific Insurance Co. ("NPI").

Earlier that afternoon, Potlatch, his sisters Wendy Crichton ("Wendy") and Lorita Crichton ("Lorita"), and others were moving the ECC office from Fagatogo, American Samoa to a new location. Edward Crichton, the Crichton children's father, Wendy, and Lorita were the only authorized drivers of the Toyota under ECC's company policy. However, Potlatch, who was then age 21 years, took over the wheel for the last two relocation trips. Shortly before 5:00 p.m., they ceased working to return to their home in Leone (Lepuapua), American Samoa, to prepare for their evening church service. Potlatch remained the driver of the vehicle for the trip home. Besides Potlatch, five other young persons were in the Toyota on the trip home. Lorita's son was seated in the cab beside Potlatch. Seated in the bed of the pickup were Wendy, located at the left rear, a female identified as Julie, at the right rear, both facing the cab, John Atofau Tuitele ("John"), at the forward right side, and a male identified as Sililo, at the forward left side, both facing the rear of the pickup.

Brian and his sisters Christina and Posiulai attended church in the portion of Nuuuli located on the Coconut Point peninsula. After the service was over, they left for home in Nuuuli, across the main road from Pete's Hut a short distance west of the turnoff road to Pago Pago International Airport. Brian, then age 17 years, drove the Nissan, and was seated alone in the cab. Christina, then age 21 years, and Posiulai, also age 17 years, were standing in the forward end of the bed, respectively at the left and right. The girls were holding onto the open sunroof with one or both hands throughout the journey homeward.

Upon reaching the main road in the Nissan, Brian waited while four or five vehicles passed heading west before making a left turn onto the road. From that point to the accident scene, Potlatch was driving the Toyota to the rear of the Nissan, driven by Brian. Traffic was also moving eastbound. Light rain or drizzle had been falling but had ceased.

Occupants of the two vehicles diversely described events as they headed to the collision point. Taken as a whole, the Nissan group portrayed Brian driving at a lawful speed behind four or five vehicles, while Potlatch drove [27ASR2d107] the Toyota immediately behind the Nissan, closely at times, and attempted several passes, varying somewhat in number and location, only to be thwarted by oncoming vehicles. Essentially, they denied any interplay between the vehicles' drivers and passengers.

On the other hand, the Toyota group, while confirming the several passing attempts, maintained that on each occasion, Brian moved the Nissan to the left, or sped up, to prevent the passing. They also claimed that Christina and Posiulai were waving and smiling at them.

Without pinpointing or resolving the precise details of these pre-accident events on the main road, we are persuaded that both Potlatch and Brian were displaying the immature judgment all too often seen when youthful peers take the wheel, egged on by at least some of their equally youthful passengers. In short, Potlatch and Brian were mutually joyriding and headed toward the impending disaster.

Approaching the collision point, Potlatch again attempted to drive the Toyota past the Nissan. With no approaching vehicle immediately ahead, he crossed double yellow lines and was driving in the oncoming traffic lane at 35 to 40 mph. Traveling westward, the road in this area first goes uphill perceptively and then, quite gradually, curves left. Commercial facilities are plentiful along the bend, with two gas stations and at least two stores open on Sundays at that time.

Brian neither slowed the Nissan down nor moved it to the right. Rather, he moved the Nissan to the left, towards the overtaking Toyota, and the protruding oversized, left rear tire on the Nissan collided with the right side of the Toyota. This contact occurred near the crest of the hill where the slightly bending road begins to traverse through the commercial area.

Potlatch lost control of the Toyota, and it veered to the left before coming to a stop at the westward curb of the bus stop on the seaward side of the road, across from the Gas Express station. Julie and Sililo were thrown out of the Toyota bed by the impact with the curb onto the paved bus stop. Wendy was almost thrown off. All three received minor injuries. John remained within the bed and was not injured.

Brian also lost control, momentarily. As he corrected the Nissan, Posiulai was ejected from the bed onto the paved road and was seriously injured. Next, as Brian increased the Nissan's speed, Christina was dislodged out of the bed onto the road and was also seriously injured. [27ASR2d108]

Apparently, Brian was not immediately aware of his sisters' plight and drove from the scene, at least as far as the store buildings just before or beyond the Aiga Basket grocery. By the time he returned and parked on the roadside near the Gas Express station, a pickup moving eastward, had stopped, and several persons were placing Posiulai and Christina into the bed of this vehicle, which took both girls, followed by Brian in the Nissan, to the American Samoa Government's LBJ Tropical Medical Center at Faga`alu, American Samoa, for medical treatment.

B. Discussion

[1-3] Both Potlatch and Brian were under the duty to drive their respective motor vehicles with ordinary or reasonable care, which persons of ordinary prudence would use under the circumstances, in order to avoid injury to themselves or others. Failure to use ordinary or reasonable care is negligence. Injured persons are entitled to compensation when a defendant's negligence is the proximate cause of the injury.

Potlatch attempted to drive his Toyota past the left side of Brian's Nissan and at least one other vehicle ahead of the Nissan. He crossed a double yellow line, an official traffic-control marking designating a no-passing zone. This no-passing zone reduces hazards in an area where the road's character is uphill and gradually curving through an area with substantial commercial activity, even on Sundays. Significant traffic was moving in both directions. He proceeded in the lane against oncoming vehicles at speeds 10 to 15 mph in excess of the authorized 25-mph speed limit in this area.

[4-5] Potlatch was not using ordinary or reasonable care under these circumstances and was negligent. In fact, his driving constituted careless driving in violation of A.S.C.A. § 22.0701, (1) prohibited overtaking in violation of A.S.C.A. § 22.0209, and hazardous passing in violation of A.S.C.A. § 22.0307(e)(1), and, thus, for any or all of these reasons, he was negligent per se. Neither Christina nor Posiulai would have been injured but for Potlatch's negligence. Thus, Potlatch proximately caused these injuries.

Brian failed to take reasonable precautions when he neither slowed down [27ASR2d109] nor moved away from the Toyota during the final attempted passing. He was abundantly aware of Potlatch's several, earlier overtaking efforts. Instead, whether deliberately or carelessly, he essentially impeded the passing Nissan. He, too, was negligent, and neither Christina nor Posiulai would have been injured but for his negligence. Thus, Brian also proximately caused these injuries.

[6] Potlatch's and Brian's negligent conduct operatively acted and produced Christina's and Posiulai's injuries. Their conduct contributed concurrently as proximate causes of these injuries, but Potlatch cannot be relieved of responsibility simply because Brian was not joined as a defendant in this action. Each of them is jointly and severally liable to compensate Christina and Posiulai.

[7] However, Christina and Posiulai also cannot be excused from responsibility for causing their own injuries. This case demonstrates the clear and present danger of riding in pickup beds, and the greatly increased hazards of standing in the bed compared to sitting in the bed. The four persons in the Toyota bed causally contributed to their injuries from the accident, but the minor nature of their injuries, at least on this occasion, points out the relative safety of sitting opposed to standing in the bed. Christina and Posiulai were seriously injured due in substantial part to the extreme hazard of standing. On a comparative basis, as required under A.S.C.A. § 43.5101, while their contributory negligence does not preclude recovery, we assess their fault at three-fourths in factoring the proximate causes of their injuries.

C. Insurer's Liability

[8] A.S.C.A. § 22.2003 states, in relevant part:

An owner's policy of liability insurance:

. . . (2) shall insure the person named therein and any other
person who uses the vehicle or vehicles with the express or
implied permission of the named insured . . .

[9] NPI is the insurer of the subject vehicle for ECC, the "named insured." The sole question for NPI is whether Potlatch drove the vehicle with ECC's "express or implied permission." Evidence plainly indicates that there are only three drivers authorized to drive the vehicle under ECC's company policy. Potlatch is not among the authorized drivers. For this reason, we find that Potlatch had no "express" permission to drive the vehicle. [27ASR2d110] Although Potlatch received express permission to drive from Wendy, an authorized driver, we have no evidence that the owner had provided Wendy with express authority to transfer her driving privileges to others.

In this case, however, the lack of authorization to drive a vehicle under ECC company policy cannot be construed as a denial of permission for Potlatch to drive. Potlatch was not a regular ECC employee and, therefore, had no regular need to be listed as an authorized driver. This raises the question of whether Potlatch had "implied permission" to drive the vehicle. Since "implied permission" is not defined by statute in American Samoa, we look to case law for its meaning.

[10] Permission to drive a vehicle may be implied from a failure to take precautions to prevent an individual from driving a vehicle in circumstances where it is reasonably foreseeable that the person might do so. See Sataua v. Himphill , 5 A.S.R.2d 61, 68 (Trial Div. 1987). In the absence of evidence that the family did anything to prevent Potlatch from driving, the sole factual issue is whether it was reasonably foreseeable that Potlatch might drive the company vehicle during the relocation of the family business.

In Himphill, this court held that the owner of a vehicle had not given implied permission for a repairman to take the vehicle joyriding, because the nature of the authorized work on the vehicle did not require that the vehicle be driven. 5 A.S.R.2d at 67-68. In dicta, the Himphill court distinguished its result from cases in which consent to drive was implied from parents' "leaving the car keys lying around and accessible to errant children," or where an owner left his keys in the ignition, and the vehicle was stolen. Id. at 68 (distinguishing Minute v. Hartford Fire Insurance, CA No. 3260-75, slip op. (1976), Te`o v. Continental Insurance, AP No. 16-84, slip op. (1985), and Hoskin v. Robles, 159 Cal. Rptr. 369 (1979)).

[11] We must determine whether this case is closer to the facts of Himphill in which permission was not implied, or to the dicta in which permission was implied. We find that our case is closer to the dicta. Although Potlatch was driving irresponsibly, he was engaged in the activity for which the vehicle had been entrusted to his group. Further, we find that Potlatch's open participation in moving the business made his driving of the vehicle even more foreseeable than either of the above situations where keys were taken from an unknowing owner. In giving express permission to assist in the relocation of the family business, ECC implicitly gave permission for Potlatch to take action reasonably necessary to complete the [27ASR2d111] move, which included driving the ECC vehicle due to the illness of the authorized driver.(2)

We find it reasonably foreseeable that any person in a group relocating a business may be called upon by an authorized driver to drive in the event of an illness affecting the authorized driver, or some other condition making it inconvenient for the authorized driver to take the wheel at a given moment. The aims of the statute would be frustrated if a business or its insurer could escape liability for the accidents caused by non-authorized drivers while they are in the act of voluntarily benefitting the business. In dicta, this court approved a New York case which found "implied consent where the nature of the work requested is such as to suggest or indicate to a reasonably prudent person that the car must be or will be driven to accomplish the work or repair." Himphill, 5 A.S.R.2d at 67-68 (quoting Zuckerman v. Parton, 184 N.E. 49 (N.Y. App. 1933)). In this case, it was reasonable to expect contingencies in the course of the relocation of the business that would require a driver other than Wendy to operate the vehicle. (3)

D. Owner's Liability

The determinative issue concerning ECC's liability is whether or not the family purpose (or family car) doctrine applies to ECC, as a corporation, for allowing Potlatch to drive its vehicle. [27ASR2d112]

[12] Liability based upon the family purpose doctrine was adopted in Gibson v. Mulitauaopele, CA No. 19-92, slip op. (1993), where this court stated that when "the head of a family owns, furnishes and maintains a vehicle for the general use, pleasure and convenience of a family, he is liable for the negligence of a member of the family having general authority to drive it while the vehicle is so being used." Id., slip op. at 2 (citations omitted). The doctrine was created to permit an injured person to recover damages from a vehicle's owner if the driver is "financially irresponsible." Id. (citations omitted).

[13-14] Even though it is a corporation, we find that ECC is liable under the principles of the family purpose doctrine. Although Potlatch was not an ECC employee, evidence shows that he was driving at the time of the accident to assist the family business in its relocation. He was motivated by his allegiance to his family and not out of employment obligations to ECC. Evidence further shows that ECC owned the vehicle and that Edward Crichton, ECC's president, allowed the vehicle to be used by his household for personal matters. Moreover, as indicated above, Potlatch was driving the vehicle with ECC's implied permission at the time of the accident. The fact that the vehicle is owned by the family business or is at times used for business purposes does not matter or preclude the application of the family purpose doctrine. Durso v. A.D. Cozzolino, 20 A.2d 392, 394 (Conn. 1941) (father held liable under the family purpose doctrine for his daughter's negligence, when she was driving her father's permission, and where the vehicle was owned by the family corporation and used for both business and personal matters). In applying the family purpose doctrine to a corporation, the Dursocourt reasoned:

[I]f a car is maintained for the general use of a family, we see
no valid distinction between a situation where it is owned and
maintained by a member of the family, and one where it is
owned and maintained by a family corporation for the use of the
family of its managing head and one of its principal stockholders.
In such a situation the controlling element is the scope of the
intended use rather than the mere fact that it is owned and
maintained by the corporation . . . . Indeed, to hold otherwise,
would make it possible, in the case of a family corporation such
as the one before us, to avoid liability under the family purpose
doctrine by having automobiles for the use of the families of its
officers owned and maintained by the corporation.

Id. at 394. In finding that Potlatch was driving ECC's vehicle, with ECC's implied permission, and in furtherance of assisting the family [27ASR2d113] business, we hold that ECC is liable under the principles of the family purpose doctrine.

II. DAMAGES

A. Posiulai

Posiulai lost consciousness when she landed on the pavement and did not, at least fully, regain it for some 24 hours. In addition to the cerebral concussion, she sustained a scalp laceration, requiring sutures, multiple abrasions and contusions to her lower back and both knees. She was hospitalized until June 4, 1992, and examined again on June 15 and July 15 and 30, 1992.

During these later examinations, Posiulai complained for the first time of right ankle pain and difficulty in walking. Dr. Ronald V. Vineyard found no X-ray or physical evidence of structural or functional abnormality, noted normal gait and lack of any complaint upon admission, and concluded that the complaints of ankle pain were subjective in nature. On the other hand, based on his review of the medical records and examination on July 6, 1994, Dr. Vaiula Tuato`o concluded that Posiulai did suffer a deep fracture of the ankle bone, which resulted in continuing pain and swelling to the present time and 16% disability of the right leg due to impaired ankle movements.

Posiulai has a disfiguring scar from her healed head laceration and still suffers from severe headaches, at times as frequently as several times a day. Dr. Tuato`o is of the view that Posiulai should undergo plastic surgery to improve the appearance of the scar area and a brain scan to diagnose the continuing headaches.

Without any specific evidence before us of Posiulai's actual damages resulting from either past or prospective medical expenses, we are limited to awarding damages for pain and suffering, inclusive of actual damages. Doubtlessly, Posiulai experienced and still experiences substantial pain and suffering. We assess these damages at $20,000 and, after applying our finding on comparative negligence, award Posiulai $5,000.

B. Christina

Christina did not entirely lose consciousness upon striking the pavement, but she apparently has little, if any, memory of events until the following day. She, too, suffered a cerebral concussion, scalp laceration, and [27ASR2d114] multiple abrasions, affecting the left shoulder, knee and ankle, and on the right little finger, pelvis, thigh, knee and ankle. She lost the nail of the left great toe and received contusions of the neck and abdomen. X-rays of her left clavicle and shoulder, however, were normal.

Christina was also discharged on June 4, 1992, and was seen at follow up examinations on June 15 and July 15 and 25, 1992. At these examinations, she complained of continuing blurred vision and dizziness, and various testing was conducted with negative results. The ophthalmological examination revealed no eye pathology. Abnormalities were not found during orthopedic and neurological evaluations. The audiogram indicated normal hearing.

However, Christina reported occasional headaches and fainting spells at examinations on October 15, 1992, and February 3, 1993, and has experienced repeated episodes to the present time. Dr. Tuato`o recommends off-island investigation and treatment, especially a brain scan, to determine the possible presence of brain contusions as causes of the headaches and blurred vision. Christina's wounds healed with scarring, but corrective surgery was not suggested.

As with Posiulai, we have not been presented with any concrete evidence of Christina's actual damages, past or future, and therefore, limit the award to damages for pain and suffering, inclusive of medical expenses. In Christina's case, we assess these damages at $12,000 and due to her negligence, reduce the amount to $3,000.

III. CONCLUSIONS

The foregoing findings lead us to the following conclusions of law:

1. Posiulai and Christina were injured as the proximate result of the negligent operation of motor vehicles by Potlatch and Brian. Notwithstanding Brian's non-party status, he and Potlatch are jointly and severally liable for the damages suffered by Posiulai and Christina.

2. Posiulai and Christina were injured also as the proximate result of their own negligent conduct. On a comparative basis, each of them must take the blame for three-fourths of their own respective injuries.

3. The responsibility shared by Potlatch and Brian jointly and severally for Posiulai's total damages in the amount of $20,000 must be reduced to $5,000. [27ASR2d115]

4. The responsibility shared by Potlatch and Brian jointly and severally for Christina's total damages in the amount of $12,000 must be reduced to $3,000.

5. NPI, as the insurer of ECC's vehicle, is liable for all damages attributed to Potlatch, subject to the legal limitations of the insurance policy.

6. ECC, as owner of the vehicle, is liable for all damages attributed to Potlatch, in light of the family purpose doctrine. Judgment shall enter accordingly.

It is so ordered.

*********

1. He was cited for violating this statute, as a Class B misdemeanor involving bodily injury to any person, and his plea of guilty to this offense is properly considered an admission of negligence in this action.

2. A vehicle owner cannot restrict his consent to a particular manner of driving in order to escape liability under the automobile consent statutes. Himphill, 5 A.S.R.2d at 66. Although ECC did not consent to the negligent driving of Potlatch as a necessary act to complete the move, the law is well settled in American Samoa that an insurer of an employer remains liable for the tortious driving of a servant. Tung Ton v. Siauni Ah Sam , 4 A.S.R. 764, 772 (Trial Div. 1971).

3. We acknowledge that Potlatch was not a licensed driver, and should not have been driving. The issue in this case, however, is whether ECC should have foreseen that Potlatch might elect to drive the company vehicle notwithstanding his lack of legal authority. There is no evidence that ECC had notice that Potlatch was unlicensed, and even if such evidence were before us, ECC, a family business, should have known that Potlatch was prone to drive without a license, because he had driven the company vehicle on previous occasions.

27ASR2d31


RAY and PURINISESE McMOORE, Plaintiffs

v.

NATIONAL PACIFIC INSURANCE LTD., Defendant

High Court of American Samoa
Trial Division

CA No. 31-93

November 29, 1994

__________

Before KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, and ATIULAGI, Associate Judge.

Counsel: For Plaintiffs, Togiola T.A. Tulafono
For Defendant, Roy J. D. Hall, Jr.

INTRODUCTION

Plaintiffs are husband and wife and are residents of Iliili, American [27ASR2d32] Samoa. Defendant, National Pacific Insurance Ltd., is an insurance company duly licensed to sell various forms of insurance in the territory. At all relevant times, plaintiffs' home, a two-story concrete frame structure with the first floor largely unenclosed, was insured by defendant against fire and cyclone damage for the sum of $100,000. In December 1991, the home suffered considerable damage as a result of Hurricane Val. On March 18, 1993, plaintiffs filed suit for the full amount of the policy, contending "total loss" to their home which they claim was rendered structurally unsound by the hurricane. Their complaint further prays for interest and attorneys fees. (1)

Defendant, on the other hand, claims that plaintiffs' home was structurally defective even before the hurricane because it was inadequately designed and poorly constructed. In the way of a settlement offer, defendant tendered with the Clerk of Courts on April 1, 1993, payment in the sum of $17,597.00.

Following the storm, defendant employed Mr. Hamish Thew, an off-island loss adjustor, to examine its hurricane Val claims exposure, including plaintiffs' loss. Mr. Thew testified that he was trained and qualified in the United Kingdom as a "surveyor," and that he became a member of the [27ASR2d33] Royal Chartered Institute of Surveyors. He further explained that as a surveyor, he is involved in the building industry in the estimation of both quantity and cost of material needed for any given building project. With regard to plaintiffs' loss, Mr. Thew testified that he had undertaken a "measured" estimate of what he perceived as storm-related damage and calculated plaintiffs' repair costs to be $19,552. He further testified that his figures reflected his own assessment of needed labor costs, as well as his estimation of material costs based on price lists that he had obtained from one of the local builder's suppliers.

Plaintiffs, on the other hand, engaged architect Joe N. Weilenman, formerly head of the Architectural and Engineering Division of the Department of Public Works but presently in private practice, to assess their storm damage. Mr. Weilenman appraised plaintiffs' repair costs at $49,640.00, using a "percentage evaluation" of damage method (versus a "detailed quantity take off of items damaged") because of what he viewed as extensive damage to the roof and second floor area. He found the house to be 45 percent damaged and arrived at his repair estimate figure using $30.00 per square foot on overall basis, the local building industry's considered norm at the time.

Additionally, Mr. Weilenman noted, in his initial report dated December 24, 1991, that some of the concrete beams supporting the second floor were cracked above the columns. He speculated that the cracks could have been the result of "excessive deflection" caused by the storm, but he could not positively say so since he also found that "the beams [were] not cracked at mid-span," where, according to his testimony at trial, cracking is prone to occur with deflection. His report further stated that if "the cracks . . . are definately [sic] attritable [sic] to this disaster and are deemed to have significantly weakened the structure, the percentage of damage would be higher."

One year later, Mr. Weilenman was asked to look at the beams again. This time, he found two cracks "at mid-span," along with those he had previously located above the columns. In his second report, dated February 4, 1992, he stressed that the "immediate structural effects have not been investigated," and concluded that a definitive answer to the question as to whether the cracks were storm-related or not could only be resolved with extensive investigation and testing of the structure.

DISCUSSION

The issue here is whether the structural unsoundness of plaintiffs' home was [27ASR2d34] storm-related or not. Nothing restorative has been done to the structure since the storm, and as it stands today, it is unsafe for rebuilding. The defendant concedes that it is liable for storm damage; however, it contests liability for pre-storm damage which it claims was gravity-related due to poor design and construction.

Plaintiff Ray McMoore testified that there were no cracks in the beams prior to hurricane Val. He stated that he used to spend a lot of time sitting on the ground floor and that he had never noticed any cracks at all on the beams until after the storm. He further testified that he was in the house during hurricane Val as well as the previous hurricane Ofa, and that hurricane Val appeared to him to be the worse experience. He alluded to "pop[ping]" sounds to the structure as hurricane Val's winds changed direction.

Mr. Weilenman theorized in his second report that if the cracks to the beams were indeed caused by the storm, they could have arisen if the storm had momentarily shifted the weight of the second floor slightly from the supporting concrete frame, and then upon release, could have resulted in deflection causing the beams to crack. At the same time, however, Mr. Weilenman also opined that since the cracks were quite small, some could have been pre-storm and not noticed before.

We find the evidence to preponderate in favor of the conclusion that the cracks above the columns, discovered by Mr. Weilenman during his first inspection, preexisted the storm. First, Mr. Weilenman testified that the structure appeared to him to be ill-designed and poorly constructed; the beams, for example, were found to be sagging at the mid-span. Mr. Thew also made averments regarding the substandard quality of the construction. Second, Mr. Weilenman opined that cracks resulting from excessive deflection are more likely to appear at mid-beam. In this regard, we find it significant that Mr. Weilenman had failed to see any sign of mid-beam cracking during his first inspection immediately after the storm. This seems to suggest that the two mid-beam cracks that Mr. Weilenman located one year after the storm were more likely the result of subsequent deterioration. As Mr. Weilenman noted in his second report, "[c]racks in concrete beams in this environment do accelerate the deterioration of the steel over a period of time." Thus the structure's extended post-storm exposure to the elements and its consequent deterioration would have further aggravated the structural unsoundness of the concrete frame, which both Mr. Weilenman and Mr. Thew agree cannot be safely rebuilt upon as it stands today. [27ASR2d35]

Third, the evidence also disclosed "creeping" in the beams, causing them to bend in toward the middle. While this is usually attributed to gravity because of ill-design, Mr. Weilenman did also suggest that sagging form-work could possibly explain creeping in an otherwise properly designed structure. As to this possibility, however, Mr. Weilenman was careful to add that he had no comment as to adequacy of the structure's design, as he was not a party to the design work nor was he present during the building of the structure. We parenthetically add that while the law requires that all design work be submitted for approval by the Public Works Department's Engineering Division--previously headed by Mr. Weilenman--we were not told why the plans for plaintiffs' home were not, or could not have been, produced for appropriate review in anticipation of trial.

Finally, although Mr. Ray McMoore may not have noticed any cracks in the beams prior to hurricane Val, this does not necessarily mean, as Mr. Weilenman conceded, that there were no pre-storm cracks. As the latter further attested, the cracks found were "small to hairline" and he had to look closely to see them.

On the issue of damages, we are required to compare the diverging opinions of two trained professionals, which is a difficult, but necessary part of our task as factfinders. We find that plaintiffs' storm related damages are more likely in the vicinity of Mr. Weilenman's assessment, as opposed to defendant's calculation of $19,552. In our view, the damage sustained was extensive and Mr. Weilenman's assessment, using the local building industry's cost per square foot yardstick, better takes into account the vagaries of the available local labor market skills at the time of loss, as well as the sort of latent damage which necessarily accrues with extensive water damage--a thoroughly soaked second floor, the need to check all electrical wiring and connections, expected warping, delamination, rusting of fasteners, as well as general deterioration. We accordingly fix plaintiffs' storm-related damages at $50,000.

Judgment will enter in favor of plaintiffs Ray and Purinisese McMoore against the defendant National Pacific Insurance Ltd. in the amount of $50,000.

It is so ordered.

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1. Although plaintiffs' complaint contains a prayer for relief to this end, these claims were not addressed at trial. We express no opinion on these matters save to note A.S.C.A. § 29.1577, which provides in pertinent part:

In all cases where loss occurs and the insurer liable therefor fails
to pay the same within the time specified in the policy, after demand
[is] made therefor, the insurer is liable to pay the holder on the policy,
in addition to the amount of such loss, 12% damages on the amount
of loss, together with all reasonable attorney's fees for the prosecution
and collection of the loss, the attorney's fees to be taxed by the court
. . . as part of costs . . .

The statute seems to be punitive, rather than compensatory, in design. It seems to require a showing as to when the policy becomes due and payable under its terms, and that a "demand" has been made. Furthermore, the enactment talks about attorney's fees being "reasonable." On the premise that the statute is punitive in nature, some showing of fault or bad faith on the part of insurer would seem to be envisaged.