30ASR2d

30ASR2d

National Pacific Ins.; Paisano's Corp. v.


 

[30ASR2d139]

 

PAISANO'S CORPORATION & JAMES STEPHENS, Plaintiffs

 

v.

 

NATIONAL PACIFIC INSURANCE, Defendant

 

High Court of American Samoa

Trial Division

 

CA. No. 76‑96

 

August 9, 1996

 

[1]  There exists at common law a tort for bad faith delay in paying legitimate insurance claims.

 

[2]  The tort of bad faith delay in paying legitimate insurance claims is not preempted by A.S.C.A. § 29.1577 because the statute penalizing delay in paying insurance claims does not rest upon a showing of bad faith.

 

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

 

Counsel:              For Plaintiff, Jennifer L. Joneson

For Defendant, Ellen A. Ryan

 

Order Denying Motion to Dismiss Count III:

 

The question before us is whether a tort exists in American Samoa for bad faith delay in paying insurance claims, notwithstanding a statute imposing [30ASR2d140] penalties for delay.

 

From the pleadings, we glean the following:  On September 24, 1995, Paisano's Restaurant, owned by Paisano's Corporation ("Paisano's") suffered a fire, which caused significant property damage.  Paisano's tendered an insurance claim to National Pacific Insurance ("NPI"), which has not, at present, made payment on the claim.  On May 24, 1995, Paisano’s filed this lawsuit, claiming, among other things, damages in tort for bad faith delay on the part of NPI in failing to settle Paisano's loss.  NPI argues that the bad faith tort does not apply in American Samoa because a legislative enactment has replaced it.  We were provided the benefit of well‑written and well‑researched memoranda by counsel.

                                                             

DISCUSSION

 

[1]  There exists at common law a tort for bad faith delay in paying legitimate insurance claims.  Spencer v. Aetna Life & Casualty Ins., 611 P.2d 149, 151‑53 (Kan. 1980); Aetna Casualty & Surety v. Broadway Arms, 664 S.W.2d 463, 465 (Ark. 1984); Gruenberg v. Aetna Ins., 510 P.2d 1032, 1037‑38 (Cal. 1973); Communale v. Traders & General Ins., 328 P.2d 198, 203 (Cal. 1958).  Several courts, however, have held that the bad faith tort has been preempted by statutes that have the same object.  Kush v. American States Ins., 853 F.2d 1380, 1384‑86 (7th Cir. 1988); Spencer, 611 P.2d at 158; Debolt v. Mutual of Omaha, 371 N.E.2d 373, 377 (Ill. 1978); Kinney v. St. Paul Mercury Ins., 458 N.E.2d 79, 82‑83 (Ill. 1983) Leonard v. Fireman’s Ins., 111 S.E.2d 773, 775 (Ga. App. 1959); Tate v. Aetna Casualty & Surety, 253 S.E.2d 775, 777 (Ga. 1979); Duncan v. Andrew County Mutual Ins., 665 S.W.2d 13, 18‑20 (Mo. 1983).  As nearly as we can tell, the bad faith statutes referred to in these cases have four elements in common: (1) the object of punishing delay; (2) setting the penalty as a percentage of the total insured loss; (3) permitting recovery of attorney's fees and costs by the insured; and (4) a required showing by the insured of bad faith on the part of the insurer.  See Kush, supra at 1384 n.2; Duncan, 665 S.W.2d at 19 n.3; Kinney,458 N.E.2d at 81; Debolt, 371 N.E.2d at 377; Leonard, 111 S.E.2d at 775.  American Samoa's statute includes all of these elements except the requirement that the insured demonstrate the insurer's bad faith.  A.S.C.A. § 29.1577 reads:

 

In all cases where loss occurs and the insurer liable therefore fails to pay the same within the time specified in the policy, after demand made therefore, the insurer is liable to pay the holder of the policy, in addition to the amount of such loss, 12% damages upon the amount of the loss, together with all reasonable attorney's fees for the prosecution and collection of the loss . . . .[30ASR2d141]

 

The enactment provides liquidates damages at 12% of the total insured loss, plus attorney's fees, for delay in paying a legitimate insurance claim.  Furthermore, it imposes strict liability for delay, so a demonstration of bad faith on the part of the insurer is not necessary to trigger the 12% penalty.  NPI essentially argues that the statutory penalty for delay has preempted any common law remedy, while Paisano's argues that  the bad faith tort survives and may be imposed in addition to the statutory remedy, since the statute does not require a showing of bad faith for the imposition of the penalty.

 

[2]   The Supreme Court of Arkansas addressed the same legal question, and concluded:

 

Appellant argues that the . . . penalty and fees statute . . . pre‑empt[s] the area upon which the tort of bad faith is founded.  We do not agree with this argument.  . . . The penalty and fees statute is the primary remedy an insured has against an insurer who fails or refuses to pay a claim when there is no bad faith.  . . . [This remedy does not deal] with the area of bad faith much less pre‑empts it.

 

Broadway Arms, 664 S.W.2d at 465 (emphasis added; citations omitted).  In other words, when the statute penalizing delay in paying insurance claims does not rest upon a showing of bad faith, the bad faith tort may provide an additional penalty.  We are disposed to follow this construction and read local statute accordingly.  By employing language in A.S.C.A § 29.1577 that speaks of all cases, the Fono did not limit the enactment's reach only to cases of bad faith.1  The legislature has clearly seen fit to afford a higher punishment for the bad faith of the insurer, in addition to the fixed level of compensation provided for the insured in the case of any delay regardless of bad faith.  While it is of course open to the Fono to include language in the statute eliminating the bad faith tort, we hold that the present language § 29.1577 does not do so.

 

The motion to dismiss Count III is denied.

 

It is so ordered.

 

 

 

 

*********

 



  1  NPI cited to McMoore v. National Pacific Insurance, CA No. 31-93, slip op. at 1 n.1 (Trial Div. November 29, 1994), in which this court suggested in dicta that the relevant statute was perhaps punitive rather than compensatory in nature, and that some sort of showing of fault or bad faith on the part of the insurer was envisaged.  Since attorney's fees and costs were not addressed by the claimant in that case, this argument was not essential to the opinion.  On further reflection, however, and actually confronted here with the issue, we are unable to reconcile this contradictory dicta with the plain language of the statute.  The statute is applicable "[i]n all cases where loss occurs and the insurer liable therefore fails to pay the same within the time specified in the policy, after demand made therefore . . . ."  A.S.C.A. § 29.1577 (emphasis added).  The statutory language simply does not leave any room to prevent recovery for a failure to demonstrate bad faith on the part of the insurer.[30ASR2d142]

Pen v. Pen;


[30ASR2d119]

 

CHRISTINA FUNG CHEN PEN, Plaintiff

 

v.

 

IOELU FUNG CHEN PEN, Defendant

 

High Court of American Samoa

Trial Division

 

CA No. 22-93

 

July 23, 1996

 

[1]   The surviving spouse is entitled in priority to letters of administration with regard to his or her deceased spouse’s estate. 

 

[2]   A divorce decree prevails over a separation agreement as the final word on the issue of ownership of marital property.

 

[3]  Inclusion of one’s name on an automobile’s registration is not[30ASR2d120] conclusive evidence of ownership of the vehicle.

 

[4]   A surety holds a legal but not a beneficial interest in property.

 

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

 

Counsel:    For Plaintiff, Charles V. Ala`ilima

                             For Defendant, Togiola T.A. Tulafono

 

Decision and Order:

 

[1]   Plaintiff is the surviving spouse of Togitogi Fung Chen Pen, lately of Nu`uuli (hereinafter the "decedent").  She is entitled in priority to letters of administration with regard to the decedent's estate.  See A.S.C.A. § 40.0305(a)(1).  Letters did in fact issue out of this court to plaintiff on February 23, 1993.  See In re the Estate of Togitogi Fung Chen Pen, PR No. 1-93.  Defendant, on the other hand, is a son of the decedent by a former marriage; after his father died, he took it upon himself to assume the management and/or disposition of certain real and personal property which plaintiff claims were assets of the decedent, and now property of his estate.  The defendant even set up a bank account with the Amerika Samoa Bank to deposit certain rental income his father had access to during his lifetime.  Consequently, this lawsuit arose.

 

At issue is whether or not certain property belongs to the decedent's estate.  After stipulation to certain personalty being a part of the estate, the remaining issues for resolution here are whether the following are estate assets: 1) the family home, leased in part to third parties; and 2) a 1991 Toyota Van.  Plaintiff claims that they are part of the estate.  The defendant, on the other hand, claims that both of these items are not part of his father's estate.  He claims that the family home did not belong to his father, but to his mother Sianea Togitogi (hereafter "Sianea"); and that the automobile belonged to both he and his father in joint tenancy, with right to survivorship.

 

[2]  After considering all the evidence, we find that both are assets of the decedent's estate.  The family home was initially built by the decedent and his then wife Sianea.  The home is situated on Lavata`i communal land but separated from the situs by a separation agreement entered into on December 15, 1967, between Lavata`i, as landowner, and Sianea, as homeowner.  It is this separation agreement that the defendant principally relies on to establish his mother's exclusive entitlement to the family home.  This reliance is misplaced.  In Togitogi Fung Chen Piu v. Sianea Fung Chen Piu, CA No. 2521, slip op. (Trial Div. 1974), the decedent was granted a decree of divorce on June 11, 1974, dissolving his marriage to Sianea on the [30ASR2d121] grounds of desertion.  The decedent was also awarded custody of their minor children.  With regard to marital property disposition, paragraph four of the decree sets out the following:  “That Plaintiff [Togitogi] be hereby granted custody and ownership of their house located at Nu`uuli on the lands of Chief Lavata`i; that such house be awarded to Plaintiff in order that the minor children may receive proper care and maintenance therein.” (emphasis added).  It goes without saying that as between the referenced separation agreement and the divorce decree, the latter prevails as the final word on the issue of ownership as between the decedent and Sianea.  We see no merit to defendant's contention that the decree of divorce merely awarded a life estate to the decedent.  Contrary to his suggestion, we do not see the divorce court's reference to "proper care and maintenance of the minor children" as being words of limitation, delimiting a life estate to the decedent.  Rather, we view this reference as being merely explanatory of the court's assessment of what is "fair and proper," in terms of property division, as required by A.S.C.A. § 42.0210.  We similarly see no merit whatsoever in defendant's attempt to collaterally attack the decree of divorce, a 22-year-old final judgment of this court.

 

[3]  With regard to the automobile, we are satisfied on the evidence that the vehicle was in actuality the decedent's vehicle, notwithstanding the fact that the Office of Motor Vehicles had registered the vehicle in both the names of the decedent and the defendant.  The evidence quite clearly reveals that the only reason why the defendant's name was included in the registration of the vehicle was that he co-signed the bank loan that financed the purchase of the vehicle.  The evidence was also clear that the purpose of the loan was to purchase the decedent a vehicle, and the decedent would not have obtained the loan without the defendant's filial undertaking to co-sign the loan.  Payment of the loan was undertaken by Togitogi until he died.  When the plaintiff could not further meet the loan payments, the defendant utilized estate assets--rental income from the family home--to pay off the balance of the automobile loan.

 

[4]  In these circumstances, we conclude that the defendant was nothing more than a surety.  As a surety, the defendant may have co-held with his father a legal interest in the vehicle, subject to the bank's security interest; however, he did not, as surety, hold a beneficial interest in the vehicle, which was exclusively the decedent's.  See 72 C.J.S. Principal & Surety § 3 (stating that the principal, and not the surety, enjoys the benefit for which the debt was undertaken).

 

On the foregoing, judgment will enter to the effect that the family home in Nu`uuli and vehicle in dispute are assets of the decedent's estate, and shall be managed and/or disposed of accordingly.

 

It is so ordered.

 

 

 

 

*********

 

 

Pal Air Int’l Incorporated v. Porter;


[30ASR2d104]

 

 

PAL AIR INTERNATIONAL, INC., Plaintiff

 

v.

 

JAMES PORTER, CONSTANCE PORTER, and SAMOA AVIATION, INC., Defendants

 

High Court of American Samoa

Trial Division

 

CA No. 70-95

 

July 16, 1996

 

[1]  In a conflict of law situation, the law of the forum with the most significant relationship to the transaction and the parties will be applied in contract situations.

 

[2]  In determining which forum has the most significant relationship to a transaction and the parties for determination of what law to apply in a contract action, five factors are of primary consideration:  (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties.

 

[3]  In the absence of evidence to the contrary, the place of performance of a contract is considered to be the place of contracting.

 

[4]  When the ultimate object in a contract is the payment of money, the place of performance is considered to be the place where the payment is received.

 

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

 

Counsel:              For Plaintiff, Togiola Tulafono, Edward A. McConwell, pro hac vice, and James W. Hardesty, pro hac vice

For Defendants, Marshall Ashley

 

Order Denying Motion for Summary Judgment:

 

Plaintiff  Pal Air International, Inc. ("Pal Air") has moved for summary judgment on the issue of its ownership of stock in defendant Samoa Aviation, Inc. ("Samoa Air").  The motion was argued during a telephonic conference in chambers on June 24, 1996.  Counsel Ashley and Togiola [30ASR2d105] were present, and counsel Hardesty participated from Reno, Nevada. 

 

I.  Standard of Review

 

Pal Air made a compelling argument and presented one of the best-written and most thoroughly supported motions for summary judgment that we have seen in some time.  Nevertheless, we remind ourselves that well-written briefs, while they are pleasant to read and do much to carry forth a party's arguments, do not of themselves win a motion.  Pal Air carries a substantial burden to receive summary judgment.  A strongly made argument, even one that may be sufficient to prevail at trial, will not necessarily earn a favorable ruling on a motion for summary judgment. 

 

To prevail on a motion for summary judgment, the moving party must show that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."  T.C.R.C.P. 56(c); Amerika Samoa Bank v. Pacific Reliant Indus., 20 A.S.R.2d 102, 107 (App. Div. 1992); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Poller v. Columbia Broadcast System, 368 U.S. 464, 467 (1962). 

 

"In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor."  Clark v. Kizer, 758 F. Supp. 572, 574 (E.D. Cal. 1990).  It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."  First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 290 (1968). 

 

In deciding a motion for summary judgment, the court must assume the truth of the evidence presented by the non-moving party and draw from the evidence the inferences most favorable to the non-moving party.  ASPA v. National Pacific Ins., 23 A.S.R.2d 100, 101 (Trial Div. 1993); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).

 

II.  Discussion

 

Pal Air claims that it was an original owner of 25,000 shares of stock in Samoa Air.  This is undisputed.  Pal Air further claims that it still holds these shares, and that it can assert its rights as a shareholder.  Defendants James Porter and Constance Porter (collectively "the Porters"), on the other hand, argue that they have purchased all 25,000 shares of stock from Pal Air, and that it is, therefore, no longer a shareholder in Samoa Air.  The Porters' allegation raises a genuine issue of material fact as to whether Pal Air continues to hold stock in Samoa Air, unless Pal Air can prove that it still owns stock as a matter of law, that is, that the sale alleged by the [30ASR2d106] Porters is legally unenforceable.  Pal Air asserts several arguments for this proposition, but before turning to those arguments, we must first determine the question of applicable law.

 

A.  Applicable Law

 

[1]  Pal Air argues that Nevada law should apply while the Porters argue that American Samoa law is better applied.  Both parties agree that we should follow the "modern rule" for deciding the question of applicable law in this case.  The modern rule provides for the application of the law of the forum with the most significant relationship to the transaction and the parties.  See generally 16 Am. Jur. 2d Conflict of Laws § 83, at 139-43 (1979).  We believe this is the appropriate rule to apply to conflict of law questions regarding contracts.

 

[2]     In determining which forum has the most significant relationship to a transaction and the parties, five factors are of primary consideration:  "(a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties."  Restatement (Second) of Conflict of Laws § 188(2) (1971).  In applying the modern rule, the court does not count contacts, but rather considers which contacts are the most significant and determines where those contacts are located.  Smith v. Hughes Aircraft Co., 783 F. Supp. 1222, 1228 (D. Ariz. 1991); 16 Am. Jur. 2d Conflict of Laws § 84, at 1245.

 

Leiataua was not remanded to the correctional facility immediately upon her return on June 19, 1996, but was permitted to remain in a release status in order to participate in the funeral and related activities for her mother on June 20-23, 1996.  On June 24, 1996, she was remanded to custody as of 9:00 a.m. on June 25, 1996 Leiataua was not remanded to the correctional facility immediately upon her return on June 19, 1996, but was permitted to remain in a release status in order to participate in the funeral and related activities for her mother on June 20-23, 1996.  On June 24, 1996, she was remanded to custody as of 9:00 a.m. on June 25, 1996.  The place of contracting, as well as the site of all negotiations, is Reno, Nevada.  Although the Porters state in their brief that negotiations took place in American Samoa, James Porter's affidavit--the only affidavit upon which the Porters rely--states only that negotiations took place in Nevada.  Cf. Resp. to Pl.'s Motion for Summ. J. at 2 [hereinafter Resp.] with Aff. of James A. Porter at 1.  Thus, the first two factors weigh in favor of the application of Nevada law. 

 

[3-4]  The place of performance is contested.  Pal Air claims that the place [30ASR2d107] of performance was to be Nevada.[1]  The Porters argue that performance was to be partially in Nevada, where payment was to be made, and partially in Samoa, where they claimed the stock was to be delivered.  However, nothing in any affidavit supports the Porters' contention.  In the absence of evidence to the contrary, the place of performance is considered to be the place of contracting, Mutual Life Ins. Co. v. Cohen, 179 U.S. 262 (1900), which was Nevada.  When the ultimate object is the payment of money, the place of performance is considered to be the place where the payment is received, Reighley v. Continental Illinois Nat'l Bank & Trust Co., 61 N.E.2d 29 (1945), which also was Nevada.  This factor seems to weigh in favor of the application of Nevada law.  But even accepting the Porters' argument, this factor, at best, would be neutral, weighing equally in favor of the application of Nevada and Samoa law.

 

The location of the subject matter of the contract, Pal Air's shares in Samoa Air, is also contested.  Pal Air places the stock in Nevada.  The Porters contend that the shares "may have been located in Illinois[, having been] . . . pledged by Pace to the DuQuoin State Bank."  Resp. at 2 (emphasis omitted).  However, the Porters have attached essentially illegible exhibits to their response and have provided no explanation as to what the exhibits are supposed to show.  Even taking the assertion in the response, that the shares were "pledged" to an Illinois Bank, at face value, there is no indication that this resulted in the delivery of shares to Illinois or any other change in the location of the shares from Nevada.  Furthermore, even if we provide the Porters with every benefit of the doubt, inferring facts that are entirely absent from their affidavit and exhibits, placing the location of the shares in Illinois does nothing to help advance their argument for the application of Samoan law.  Based upon the facts we are given, this factor probably weighs in favor of the application of Nevada law, and, at most, is neutral.

 

Finally, all parties have agreed that the last factor is split between Nevada and American Samoa, and, therefore, favors neither.  As a group, the factors favor the application of Nevada law.  In fact, no factor favors the application of American Samoa law.  There is no overriding policy reason for us to apply American Samoa law instead of Nevada law.  Thus, we will apply Nevada law to determine the existence and effect of a contract, which application will carry over to trial.

 

B.  Oral Contract[30ASR2d108]

 

The Porters first allege that they made an oral contract with Bendall to buy all of the shares of Samoa Air stock from Pal Air, through Pace Aviation.  Pal Air denies the contract and argues that even if such a contract existed, it would be unenforceable under Nevada's Statute of Frauds, which states that any "contract for the sale of securities is not enforceable . . . unless . . . [t]here is some writing signed by the party against whom enforcement is sought."  Nev. Rev. Stat. § 104.8319(1).  However, the statute continues by stating that a contract for the sale of securities can be enforced where "payment has been made."  Id. at § 104.8319(2).

 

The Porters claim that $25,000 was wired to Pace Aviation, which was supposed to fulfill their end of a complicated, and as yet not fully clear, exchange of assets between Pal Air, Sandy Cox ("Cox"), Pace Aviation, Ltd. ("Pace Aviation"), a defendant in the companion case, CA No. 50-95, and the Porters, which would have resulted in the Porters owning 25,000 shares of Samoa Air stock formerly owned by Cox and Pal Air.  Pal Air, in opposition, claims that the $25,000 was wired in payment for an airplane engine purchased from Pace Aviation by Samoa Air.  While the details of this contract are unclear, and the documentary evidence appears to favor Pal Air's version of the facts, we must view the evidence in the light most favorable to the Porters.  James Porter claims that the $25,000 was payment for stock and that Robert G. Bendall ("Bendall"), another defendant in CA No. 50-95, knew this.  Whether an oral contract exists, what its terms were, and whether payment was made to overcome the Statute of Frauds are all genuine issues of material fact that must be determined at trial and preclude summary judgment on this issue.

 

C.  Written Contract

 

The Porters also claim that they had a written contract between themselves, Pace Aviation, and Cox, which also involved Pal Air and Sierra Aviation Group, Inc., for the transfer of the same 25,000 shares of stock in Samoa Air from Pal Air and Cox to the Porters.  Pal Air again denies the contract and asserts that any contract would have been unenforceable under the Statute of Frauds.  Although the Porter's argument for a written contract appears even more specious than their argument for an oral contract, the same genuine issues of material fact nevertheless arise:  does a contract exist, what are its terms, and does it satisfy the Statute of Frauds.  These issues must be decided at trial, not in a motion for summary judgment.

 

D.  Number of Shares Sold

 

Finally, Pal Air asserts that even if one of the above contracts existed, Pal Air was only obligated to sell 12,500 shares of stock, a like number to be sold to the Porters by Cox.  Pal Air argues that this would still leave it holding 12,500 shares of Samoa Air stock.  As artfully drawn as this [30ASR2d109] argument is, it does not eliminate all genuine issues of material fact.  Assuming a contract exists, we do not know the terms of that contract.  The Porters claim that, when Cox did not deliver his 12,500 shares to Bendall, Bendall was obliged to cover the missing shares with 12,500 additional shares of his own.  Aff. of James A. Porter at 3.  While we are highly doubtful that these were the terms of the contract, and though the Porters acted in a way that negatived this situation, this remains an outstanding question of fact, which is properly resolved at trial. 

 

III.  Conclusion

 

Thus, viewing the evidence in the light most favorable to the Porters, as we must, we cannot grant summary judgment in Pal Air's favor.  The motion for summary judgment is denied.  The  questions of whether Pal Air and the Porters contracted for the sale of Pal Air's stock in Samoa Air, what the terms of that contract were, whether that contract was executed, and whether the contract satisfied the Statute of Frauds will be examined at trial, and Nevada law will be applied to these issues.

 

We schedule the trial on August 29, 1996, at 9:00 a.m.

 

It is so ordered.

 

 

 

 

********

 

 



  [1]  Pal Air denies the existence of a contract.  See infra.  However, for purposes of the conflict of law factors, we assume arguendo that a contract exists.

Rizzo v. M/V Fotu o Samoa;


[30ASR2d131]

 

WILLIAM RIZZO and NISHA RIZZO, Plaintiffs

 

v.

 

M/V FOTU O SAMOA, ITS CARGO, GEAR, TACKLE, AND APPURTENANCES, and WESTERN SAMOA SHIPPING CORPORATION, Defendants

 

High Court of American Samoa

Trial Division

 

CA No. 24-95

 

August 7, 1996

 

[1]  When a moving vessel strikes an anchored vessel, a presumption of negligence on the part of the moving vessel arises.  This presumption is even stronger where the moving vessel lurches onto the shore and strikes a dry-docked vessel.

 

[2]  Persons engaged in the business of navigation are bound to see that the vessel is seaworthy, well manned, and equipped for the business in which it is engaged, and whenever a collision ensues from the defective condition or unfitness of the colliding vessel for the voyage, the vessel and the owner are liable.

 

[3]  Where a company is aware that fraying is going to occur in a vessel’s throttle cables, resulting in navigational difficulties and possible collisions, the failure to take steps to prevent such an occurrence may be grossly negligent, reckless or willful.  However, in order to so find, the court requires evidence of the standard of care in the industry, the number of accidents that occur in the same type of situation, the cost of replacement of faulty parts, etc.

 

[4]  Damages in vessel collision cases are estimated in the same manner as in other suits of like nature for injuries to personal property.  The award should include all losses proximately resulting from the collision, the general rule being that the owner of the vessel is to be placed in the same position he would have occupied had the disaster not occurred.  Although the injured party may be entitled to full indemnity, the respondents are not, as a rule, liable for such damages as might have been reasonably avoided by the exercise of ordinary skill and diligence, after the collision on the part of those in charge of the injured ship.

 

[5]  Where repairs are practicable, the measure of damages is the cost of restoring the injured vessel to the condition in which it was at the time of the collision.

 

[6]  The court is not required to assess damages with mathematical precision, though it must strive to be as accurate as possible. 

[7]  The court must sometimes make damage determinations in areas that require more than layman’s skill.  In doing so, the court may make judgments on the veracity of experts’ statements, such as whether the expert inflated figures.

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

 

Counsel:    For Plaintiffs, Charles V. Ala`ilima

For Defendants, Ellen A. Ryan

 

Opinion and Order:[30ASR2d132]

 

This case is relatively straightforward, both as to the facts and the law.  On February 13, 1995, at approximately 6:00 a.m., the defendant vessel M/V Fotu o Samoa, owned by defendant Western Samoa Shipping, was docking in Pago PagoHarbor.  As the ship was backing down, one of the engines continued forward, causing the ship to lose control.  The cause of the accident was a frayed throttle cable for the starboard engine, which became stuck in the sheathing through which it passed.  The Fotu o Samoa struck the Curved Air, a sailing vessel owned by plaintiffs William and Nisha Rizzo, which had been dry-docked for repairs.  The Curved Air was knocked from its cinder-block supports and pushed along the shore.  The port float of the Curved Air punctured the hull of the Fotu o Samoa.  The Curved Air, along with personal property belonging to the Rizzos, was damaged.

 

Liability in this case is not really an issue.  The Fotu o Samoa struck a dry-docked vessel when the throttle on its starboard engine malfunctioned due to disrepair.  The agent for Western Samoa Shipping, Raymond Bancroft, effectively admitted that the throttle cables for the engines were, as a matter of course, never inspected and that they were never replaced until they had frayed so badly that they caused a malfunction, as happened here.  Mr. Bancroft attempted to justify his company's policy of non-inspection or replacement by stating that it was impossible to view the cables where they passed through the sheathing.  This argument is not convincing.

 

[1-3]  When a moving vessel strikes an anchored vessel, a presumption of negligence on the part of the moving vessel arises.  70 Am. Jur. 2d Shipping § 654 (1987).  This presumption is even stronger where the moving vessel lurches onto the shore and strikes a dry-docked vessel.  Furthermore,

 

[p]ersons engaged in the business of navigation are bound to see that the vessel is seaworthy, well manned, and equipped for the business in which it is engaged, and whenever a collision ensues from the defective condition or unfitness of the colliding vessel for the voyage, . . . the vessel and the owner are liable.

 

Id.§ 616 (footnote omitted).  Failing to inspect or regularly replace a cable prone to fraying which results in navigational difficulties to a ship is negligent.  In fact, such action may constitute gross negligence or willfulness, but the Rizzos have failed to prove such in this case.1  It is no [30ASR2d133] defense to say that the company normally waits until such a malfunction occurs before replacing equipment that is known to periodically fail.

 

[4-5]  Having disposed of the question of negligence, the primary debate in this case centered around the measure of damages:

 

Damages in collision cases are estimated in the same manner as in other suits of like nature for injuries to personal property.  The award should include all losses proximately resulting from the collision, the general rule being that the owner of the vessel is to be placed in the same position he would have occupied had the disaster not occurred.  Although the injured party may be entitled to full indemnity, the respondents are not, as a rule, liable for such damages as might have been reasonably avoided by the exercise of ordinary skill and diligence, after the collision on the part of those in charge of the injured ship.

 

Where repairs are practicable, the measure of damages is the cost of restoring the injured vessel to the condition in which it was at the time of the collision . . . .

 

Id. § 656, at 871.  The Curved Air is a high-tech trimaran sailing vessel.  It uses numerous high-tech composite materials in place of more standard materials.  These materials are lightweight and extremely strong.  They are also far more expensive than standard materials, both in terms of material cost and in terms of the increased skilled labor required to build with them.

 

We have a plethora of estimates for the repair of the boat and other damages before us.  First, we have the preliminary claim sent by Mr. Rizzo to Western Samoa Shipping about two weeks after the accident.  The total estimate is $45,985, broken down as follows:

 

Materials to repair boat:        $ 9,935

Labor to repair boat:              $ 30,250 (605 hours at $ 50/ hour)2

Labor & crane to relocate boat:      $ 800

Shelter:                                   $ 5,000

Other personal property:        n/a

 

Second, we have a damage assessment prepared by Mr. Rizzo, apparently around November or December 1995.  This report is structured much the same as the first Rizzo report, but does not list all of the materials listed in the first report.  Some of the prices have also been changed, mostly lowered.  The labor estimates are all greatly reduced.  The total estimate equals $39,642.  This report gives the following figures:

 

Materials to repair boat:        $ 5,782

Labor to repair boat:              $ 19,750  (395 hours at $ 50/ hour)

Labor & crane rental to relocate boat:     $ 800

New shelter:                           $ 2,500

Other personal property:        $ 10,810

 

Mr. Rizzo appears to know more about composite materials and composite construction than any other witness.  Unfortunately, he is an interested party, and his ability to function as an expert witness is questionable.  We assume that the first estimate is higher than the second because it constituted an "offer" to the defendants to settle the case.3

 

Third, we have an estimate prepared at the request of the Rizzos by Lewis Tung and Lawrence Goodson.  Mr. Tung, who testified at trial, has extensive experience with composite materials and construction.  Unfortunately, he has limited experience with marine surveying and is not a licensed surveyor.  The Tung/Goodson report's material estimates match the first Rizzo report almost exactly.  Their labor estimates are even higher than that of the first Rizzo report.  The Tung/Goodson’s report provides a total damage estimate of $61,585:

 

Materials to repair boat:        $ 9,9254

Labor to repair boat:              $ 37,500 (750  hours at $ 50/ hour)

Labor & crane rental to relocate boat:     n/a

New shelter:                           n/a

Other personal property:        $ 14,160

 

This report seems to be largely a copy of the first Rizzo report, which is of questionable value, as discussed above.

 

Fourth, we have a report prepared by Michael Spencer of Westside Shipping at the Rizzo's request.  This report is very brief, and is not broken down into components like the others.  We have numerous problems with this report, and question its impartiality.  Among other things, the report is of hearsay value and there is a possible conflict of interest for Westside Shipping.  This report makes no mention of composite materials or construction.  The total estimate is $12,895.  It contains the following partial estimates:

 

Materials to repair boat:        $ 2,725

Labor to repair boat:              $ 9,520 (272 hours at $ 35/ hour)

Labor & crane rental to relocate boat:     n/a

New shelter:                           n/a

Other personal property:        n/a

Outside labor:                        $ 750

 

Fifth, we have a report prepared by Wickham Marine at the request of the defendants.  Mr. Wickham has a great deal of experience in marine surveying, but very little experience with composite materials.  His report contradicts the other reports by stating that there is little or no composite construction and that the boat contains foam, which it does not.  His labor factor does not reflect the local market and he does not include estimates for composite materials.  For these reasons, we attribute little value to his report.  He gives a total estimate range of $7,304.37 to $8,612.  The higher amount is broken down as follows:

 

Materials to repair boat:  $3,482

Labor to repair boat:  $5,940 (270 hours at $22/hour)

Labor & crane rental to relocate boat:  $400

New shelter:  n/a

Other personal property:  n/a

 

Sixth, we have a report prepared by Maselino Ioane at the request of the defendants.  Ioane is a shipbuilder currently residing in American Samoa with considerable boat building experience.  However, his experience with composites seemed to be very limited, and the epoxies listed in his report do not seem to be suitable matches for the composites he listed.  According to his own testimony, he spent a very short time examining the boat.  Ioane [30ASR2d137] was not a convincing expert witness.  Of considerable note to us, however, is the fact that Ioane lists his labor rate at $50/hour, the same as Rizzo's.  Ioane's total estimated price is $8,550, parsed as follows:

 

Materials to repair boat:  $4,100

Labor to repair boat:  $4,750  (95 hours at $50/hour)

Labor & crane rental to relocate boat:  n/a

New shelter:  n/a

Other personal property:  n/a

 

Thus we have six estimates supposedly prepared by six expert witnesses.5  Of these six, the most experienced expert in the type of composite construction with which we are dealing is Mr. Rizzo.  He is, however, a party to this action and his testimony is, therefore, troublesome.6  The second most competent witness in the field of composite construction, Mr. Tung, is not a certified surveyor, and seems to have primarily parroted one of Rizzo's reports.7  The Ioane, Wickham, and Spencer reports are simply inapplicable--they deal with the wrong materials and construction techniques for this boat, and thus are of little help in assessing damages.

 

[6]  We are not required to assess damages with mathematical precision, though we strive to be as accurate as possible.  See Cunningham v. City of Overland, 804 F.2d 1066, 1070 (8th Cir. 1986).  In striving to come to an accurate determination of damages to the boat, we feel we must also discuss the damage estimates for the personal property.[30ASR2d138]

 

The Rizzos have submitted a list of 21 personal property items for which they are seeking compensation.8   The prices on this list seem highly inflated to us.  For instance, they have valued their 1972 Ford van at $2,500.  There was extensive testimony, however, as to the dilapidated condition of this van.  It is questionable whether it even ran before the accident.  From our examination of the photographic exhibits and testimony, we believe its value to be closer to $200 - $300.  They value a damaged container at $1,000, the price that they paid for it.  From our assessment of the evidence, there is little or no damage to this container.  Furniture damage was estimated at $1,500, a price that we find far too high.  In all, we believe that the nearly $11,000 personal property claim made by the Rizzos is probably worth about $2,000 - $3,000.

[7]  We have more skill, as laymen, in assessing the value of the Rizzos' personal property than we do in assessing the damage to a high-tech sailing vessel.  While Mr. Rizzo was the most convincing expert regarding this type of construction, we are left with doubt about his veracity in making estimates for the boat's repair.  While we do not think that he inflated the boat repair estimates as much as those for the personal property, we are convinced that there was some inflation.  Troubling to us is the fact that the Rizzos submitted no supporting receipts whatsoever.  According to Mr. Rizzo's testimony, the damage suffered by the Curved Air in the collision is very similar to damage suffered by the boat during Hurricane Ofa.  He has been repairing that damage for the past few years, yet he produced no receipts for the materials he purchased, and no estimates of the time he spent in making these repairs.  He did not even produce a receipt for the crane, which he has already rented to relocate the vessel. 

 

Additionally, Mr. Rizzo has consistently priced all labor at the rate he charges for shipbuilding and repair--$50 per hour.  This price was confirmed by Ioane as a fair price for shipbuilding by someone of Mr. Rizzo's experience.  However, this does not make it a fair rate for such things as clean up or relocating a ship.  Even if Mr. Rizzo does this work himself, and even if he could prove, which he has not, that he is missing time from shipbuilding that would otherwise be compensated, he does not receive a shipbuilder's salary for work that is not shipbuilding.

 

Having said all of this, we believe the most accurate basis for estimating damages to be Mr. Rizzo's second report, estimating ship repair costs at $5,782 for materials, $19,750 for labor, and $800 for relocation--a total of [30ASR2d139] $26,332.  For the reasons listed above, we believe this estimate is inflated, and thus award $22,000 in total for ship repair.  We award an additional $3,000 for other property damage including the claimed damage to the shelter.

 

Judgment will accordingly enter in favor of the plaintiffs and against the defendants in the amount of $25,000.

 

It is so ordered.

 

 

 

 

*********

 



  1  Where a company is aware that fraying such as this is going to occur, resulting in navigational difficulties and possible collisions, the failure to take steps to prevent such an occurrence seems to us to be grossly negligent, reckless or willful.  However, in order to so find, we require evidence of the standard of care in the industry, the number of accidents which occur from throttle cables fraying, the cost of replacement, etc.  The Rizzos have presented no such evidence, and thus we cannot find gross negligence or more.[30ASR2d135]

  2  This report only includes labor times, without an hourly rate.  We have assumed a $50 per hour rate for Mr. Rizzo's labor.

  3  We are aware that parties to a lawsuit often inflate estimates when communicating to achieve a better "bargaining position."[30ASR2d136]

  4  We have not corrected the mathematical errors in this report, but have simply totaled the material subtotals provided.

  5  Two of the reports were prepared by Mr. Rizzo, while one was prepared by two people--Tung and Goodson.

  6  We have further reason to believe that the Rizzos may have inflated the estimate for the boat repair because their other estimate for personal property damage is substantially inflated.  See infra.

  7  The defendants went to great length at trial to show how the Tung/Goodson report was similar to the preliminary report sent by Rizzo to Western Samoa Shipping.  We note that the two reports are not identical, but are similar.  This does not, however, mean either that there was collusion or that the reports have no value.  It is quite likely that Tung and Goodson, the only experts besides Rizzo who seem competent to assess damages to composite construction, could have substantially agreed with Mr. Rizzo's assessment and provided the same or similar numbers.  This is particularly true where we are dealing with materials which only have one or a very few suppliers, and where there is only one competent builder in the territory, meaning that prices are fixed.

  8  Calling this list "personal property" is not wholly accurate, since it also includes labor for clean up.

Stephens v. Stephens,


[30ASR2d55]

 

JAMES STEPHENS as Guardian ad Litem for ARDRIENNE STEPHENS, JASON

 STEPHENS, NICHOLAS STEPHENS, and ADELITA STEPHENS, minor children, Petitioners

 

v.

 

CECILIA M. STEPHENS, Respondent

 

High Court of American Samoa

Land and Titles Division

 

LT No. 37-95

 

June 3, 1996

 

[1]  A confidential or fiduciary relationship will not of itself trigger a constructive trust, but is a notable prelude to imposition of this remedy.

 

[2]  The very existence of close family connections creates, or at least most often creates, a confidential or fiduciary relationship for purposes of imposing a constructive trust.

[3]  The holder of legal title to property is the presumed owner of full beneficial title, rebuttable only by clear and convincing evidence of inequity warranting a trust remedy.

 

[4]  Generally, while it is a factor to consider, the parties need not have entered any agreement as a prerequisite to the imposition of a constructive trust as an equitable remedy. 

[5]  While generally land titles may not rest on parol evidence, constructive trusts are excepted from the requisite of written evidence under the statute of frauds.

 

[6]  In considering the imposition of a contructive trust, what is important in a confidential family situation is the breach of reposed trust.  In order to for a constructive trust to be justified, the legal titleholder of property must [30ASR2d56] commit some wrong rendering his or her acquisition or retention of the property unconscionable.

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

 

Counsel:    For Petitioners, Barry I. Rose

For Respondent, Afoa L. Su`esu`e Lutu

 

Opinion and Order:

 

Plaintiffs Adrienne Stephens, Jason Stephens, Nicholas Stephens, and Adelita Stephens (collectively "the Stephens children"), through their guardian and father James Stephens ("James"), initiated this action against defendant and their mother Cecilia M. Stephens ("Cecilia") to impose a constructive trust on certain land and improvements for the benefit of the Stephens children, and to permanently enjoin Cecilia from selling or otherwise disposing of this property without the court's approval.1

 

We prevented the sale or other disposition of the property, or the disposition of proceeds of any sale, by temporary restraining order entered on October 6, 1995, and preliminary injunction pendente lite entered on November 16, 1995.  The case was tried on March 25, 1996, with both counsel present and under notice that we were invoking the directive of T.C.R.C.P 65(a)(2) that the admissible evidence at the hearing on the preliminary injunction application was part of the record in the trial and need not be repeated.

 

FINDINGS OF FACT

 

At issue are two adjacent parcels of individually owned land in the Village of Tafuna, American Samoa, purchased while James and Cecilia were married, and the house on one parcel, constructed after they were divorced.  The first parcel is about 0.252 acres ("the smaller parcel"), has a boundary along a public road, and was purchased for $25,000 in February 1987.  The second parcel is about 0.5 acres ("the larger parcel"), lies inland of the first parcel, and was purchased for $50,000 in December 1987.  Since James is a non-Samoan and cannot take title to individually owned land, and Cecilia is Samoan and can own such land, both parcels were conveyed to Cecilia.  However, James paid the consideration.[30ASR2d57]

 

James and Cecilia were divorced in 1990.  They stipulated that both the smaller parcel and the larger parcel would be awarded to Cecilia, as part of their property division settlement, and the court did so in the decree.  At that time, the land was still undeveloped, and Cecilia and the Stephens children were living in rental housing.  Also by stipulation, the court required James to pay Cecilia's $350 monthly rent plus reasonable utility charges and various other items and obligations, supplementing $1,000 monthly spousal support directly to Cecilia through August 1994.  Cecilia was given legal custody of the Stephens children, subject to James' reasonable visitation rights.  James was ordered to pay educational and medical expenses for the Stephens children until majority, but not separate and distinct child support payable to Cecilia.

In late 1990, Cecilia's rental housing was destroyed by fire.  She and the Stephens children moved into premises on her family's land in the Village of Pago Pago, apparently rent free, and James improved this housing at his expense.  At various times before and after the divorce, and before and after the fire, James urged Cecilia to construct a house ("the house") on the larger parcel.  Several months after the fire, she finally agreed orally to this proposal.

 

Each, however, characterized the purpose of the house differently.  James claimed that both he and Cecilia were chiefly motivated to provide both the smaller parcel and the larger parcel and the house in a trust arrangement for the present and long-term benefit of the Stephens children.  On the other hand, Cecilia asserted that James mainly desired to end unproductive rent payments, and he was willing to provide her with the house where she and the Stephens children would permanently reside to achieve this goal.

 

In due course, the house was constructed on the larger parcel. Construction began in 1991.  Although some construction is still required, the house was substantially completed for occupancy.  Cecilia lived there for a while, but then rented it to another family for a year to have income after James stopped paying spousal support for a time.  She was living there again when she was advised by a government prosecutor to move out after an incident in June 1995, which resulted in still pending assault charges against James.

 

The Stephens children, as well as Cecilia's two children born of a previous marriage and two children born after the divorce, also lived in the house.  However, beginning in November 1994, and for most of the time since, the Stephens children and the two older children have been living with James.[30ASR2d58]

 

The house is large, at some 3600 square feet, with five bedrooms, four baths, and a three-car garage, and was constructed for about $225,000.  Using the smaller parcel, the larger parcel, and the house as collateral, James and Cecilia borrowed $150,000 of this amount from the Amerika Samoa Bank for the project.  They both executed the promissory note.  Cecilia executed the mortgage.  James paid the cost of furnishings.  He later applied about $50,000 from a certificate of deposit to reduce the outstanding principal and the loan payments from more than $1,700 to $1,242 per month.  Cecilia also put some funds into the house from the rent she received.  She claimed to have used $600 of the $1,600 monthly rent for this purpose.

 

James made the loan payments, mostly from funds held by Stephens Distributorship, which was an asset awarded to both James and Cecilia in the divorce proceedings but without delineation either then or as yet on their respective shares.  He stopped making payments in May 1995.  Amerika Samoa Bank declared the loan in default and set in motion the foreclosure sale process.  James  declares that he never intended to allow the foreclosure sale and possessed a letter from the bank's attorney assuring him he could forestall the sale by bringing the loan current as late as 24 hours before the sale.  The foreclosure sale was scheduled to take place on or about October 16, 1995.

 

Cecilia, however, feared the looming loss of the house and lacked immediate funds for her support.  She claimed that in September 1995, she obtained the bank's permission to sell the smaller parcel free of the mortgage.  No written release was produced in evidence.  In any event, she then struck a deal to sell the smaller parcel for $30,000, reduced to $28,000 to retain a right of way to the inland parcel where the house is located.  The buyer paid Cecilia $15,000 cash, but a written sales contract and other legal steps have not yet been finalized.  Immediately, she paid the bank $9,296.73 to bring the loan current.  The court holds the bank's cashier check No. 098377, payable to Cecilia in the sum of $3,396.27, representing the unspent balance of the $15,000 payment.  James was prompted to commence this action by this sales transaction.

 

THE CONSTRUCTIVE TRUST REMEDY

 

Courts will construct a remedial trust when a person may not in good conscience retain, under the circumstances, the beneficial interest of his or her legal title to property.  Sipili v. Fania, 17 A.S.R.2d 96, 99 n.1 (App. Div. [30ASR2d59] 1990) (note and accompanying text); Jennings v. Jennings, 21 A.S.R.2d 40, 47 (Trial Div. 1992); 76 Am. Jur. 2d Trusts § 200 (1992).  Courts recognize diverse factors, case-by-case, in deciding upon imposing a constructive trust to resolve a controversy.  76 Am. Jur. 2d Trusts § 201 (1992).  We will assess the considerations appropriate to this case.

 

A.      Confidential or Fiduciary Relationship

 

[1]  A confidential or fiduciary relationship will not of itself trigger a constructive trust.  76 Am. Jur. 2d § 208 (1992); see Jennings, 21 A.S.R.2d at 47.  However, the presence of a relationship of this nature is a notable prelude to imposition of this remedy.  Id.; Carrol v. Daigle, 463 A.2d 885, 888 (N.H. 1983).

 

James and Cecilia are divorced and have a relationship, at least at face value, at arm's length with one another.  They did, however, reach an oral agreement for construction of the house for the benefit of the Stephens children, which might be construed to create a renewed confidential relationship between them.  Both James and Cecilia have gone to considerable lengths to discredit each other, perhaps in deference to the equitable maxim that he who seeks equity must do equity.  While this evidence amplifies the disintegration of their marriage, it misses the mark.

 

[2]  The relationship between Cecilia and the Stephens children is the immediately important consideration.  Some jurisdictions, including American Samoa, view the very existence of close family connections as creating, or at least most often creating, a confidential or fiduciary relationship for purposes of imposing a constructive trust.  Jennings, 21 A.S.R.2d at 47; Carrol, 463 A.2d at 888-89.  Others consider the mere existence of a close family relationship as inconclusive on the issue of a confidential or fiduciary relationship for this purpose without additional facts to cement this finding.  76 Am. Jur. 2d Trusts § 209 (1992).  As their mother, coupled with her agreement to construct the house for their benefit, Cecilia had, and still has, a confidential and fiduciary relationship with the Stephens children.

 

B.      Unjust Enrichment.

 

[3]  Cecilia has held legal title to the smaller parcel and the larger parcel ever since she and James purchased these properties. When James and Cecilia were divorced, she retained that title by virtue of their property settlement agreement and this court's approval, unfettered by any moral [30ASR2d60] obligation respecting that title she may have sensed as owing to James during the marriage.  We must, and do, recognize as law in American Samoa that at common law, the holder of legal title to property is the presumed owner of full beneficial title, rebuttable only by clear and convincing evidence of inequity warranting a trust remedy.  See B. Witkin, 11 Summary of Cal. Law § 310 at 1146 (9th ed. 1990); A.S.C.A. § 1.0201(4). 

 

[4-5]  Generally, while a factor to consider, the parties need not have entered any agreement as a prerequisite to the imposition of a constructive trust as an equitable remedy.  Adams v. Jankouskas, 452 A.2d 148 (Del. 1982).  Here, we have an agreement in fact:  James promised to construct and pay for the house on Cecilia's land for the immediate and long-term benefit of the Stephens children, and Cecilia promised to dedicate the house for this purpose.  We have no evidence that James and Cecilia had in mind any formal trust arrangement when they agreed to build the house.  However, parties do not need to signify intent to create a trust, either expressly or implicitly, as a prerequisite to imposing a constructive trust.  Adams, 452 A.2d 148.  The agreement between James and Cecilia for the Stephens children's beneficial use of the house was not in writing.  However, while generally land titles may not rest on parol evidence, constructive trusts are excepted from the requisite of written evidence under the statute of frauds.  In re Estate of Hock, 655 P.2d 1111, 1114 (Utah 1982).

 

[6]  What is important in a confidential family situation is the breach of reposed trust.  The legal titleholder of property must commit some wrong rendering his or her acquisition or retention of the property unconscionable.  CFTC v. Heritage Capital Advisory Services, 823 F.2d 171 (7th Cir. 1987); see Jennings, 21 A.S.R.2d 40; Easterling v. Ferris, 61 P.2d 677, 680-81 (Okla. 1982).  Permanent improvements such as buildings become part of the realty.  W. Burby, Real Property § 11 (3rd ed. 1973).  Thus, Cecilia gained title to the house when it was constructed on the larger parcel.  She was in a superior position to defeat the oral agreement to construct the house for the benefit of the Stephens children.  She could effectively divert James' substantial amount of funds already and yet to be expended with the intent to benefit the Stephens children from the planned use of these funds.  Amerika Samoa Bank's mortgage interests in the smaller parcel, larger parcel, and the house became her only formidable legal obstacle to dealing with this property to gratify her own interests.  When Cecilia entered the pending oral agreement to sell the smaller parcel, she amply demonstrated[30ASR2d61] that with opportunity, she is ready and willing to override the Stephens children's best interests.

 

Under the circumstances, we will impose a constructive trust on the larger parcel and the house, and a suitable portion of the smaller parcel to enter and depart the larger parcel, and issue several related directives to protect the interests of the Stephens children.  The remainder of smaller parcel is not needed to serve those interests and will be excluded from the constructive trust.

 

ORDER

 

1.  A constructive trust is imposed on the larger parcel and the house, and a 24-foot wide strip along the southern boundary of the smaller parcel from the public road to the larger parcel, with Cecilia as the constructive trustee and the Stephens children as the beneficiaries.

 

2.  Cecilia as the constructive trustee shall transfer the legal title to the larger parcel and the house, and the 24-foot wide strip in the smaller parcel, to herself and the Stephens children as tenants in common, subject to the existing mortgage interests of the Amerika Samoa Bank.  She shall execute a deed of conveyance and any other necessary or appropriate documents to carry out this transfer of title.  She shall have the deed, along with this order and any other documents as may be necessary or appropriate for the record, recorded with the Territorial Registrar of American Samoa.  Cecilia shall submit all proposed documents intended to comply with this order to this court for approval before the documents are executed and recorded no later than 90 days after the date of entry of this order.  James shall pay for the resurvey needed to divide the smaller parcel.

 

3.  Cecilia is appointed as guardian of the estates of the Stephens children.  She shall serve in this capacity without bond at this time.  However, Cecilia, her officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with her, are permanently enjoined from selling, leasing, encumbering, except for the existing mortgage interests of the Amerika Samoa Bank, or otherwise disposing the larger parcel, the house, or the 24-foot wide strip in the smaller parcel, without the prior order of this court.

 

4.  The remainder of the smaller parcel is not subject to the constructive trust.  Cecilia may sell, lease, encumber, or otherwise dispose of this part of the smaller parcel.  Any such transaction shall be (a) evidenced by written [30ASR2d62] documents, and (b)  subject to the mortgage interests of the Amerika Samoa Bank and  free of those interests only with the bank's prior written consent.  We will continue to hold the bank's $3,296.73 cashier's check until we are advised of the proposed disposition of the present agreement to sell the smaller parcel.        

 

5.  James shall make each and every payment, in a timely manner, to the Amerika Samoa Bank on the loan for the construction of the house until the loan is paid in full, and shall hold Cecilia harmless from this loan.

 

6.  Cecilia shall maintain the larger parcel and the house, and the 24-foot wide strip in the smaller parcel, in attractive and suitable condition, keep the house in good order and repair, and pay for this maintenance, upkeep and repair.

 

7.  The clerk of the court shall have certified copies of this order delivered to on the Amerika Samoa Bank and the Territorial Registrar of American Samoa.

 

It is so ordered.

 

 



  1 James individually was also a plaintiff when this action was filed.  He voluntarily dismissed his cause, in accordance with T.C.R.C.P. 41(a)(1)(i).

Safety Systems of Hawaii v. Pili;


[30ASR2d35]

 

SAFETY SYSTEMS OF HAWAII, INC., Plaintiff

 

v.

 

PURSONNA PILI, VICKIE J. PILI, and FALEMA’O PILI, all dba MARKING SYSTEMS, and SHOE PALACE, Defendants

________________________

 

DEVELOPMENT BANK OF AMERICAN SAMOA, Garnishee

 

High Court of American Samoa

Trial Division

 

CA No. 124-93

 

May 6, 1996

 

[1]  A public corporation is an instrumentality of the state, founded and owned in the public interest, supported by public funds and governed by those deriving their authority from the state.

 

[2]  Public corporations are not subject to the garnishment process in the absence of statutory provisions making them liable thereto.

 

[3]  DBAS is a public body or agency exempt from garnishment without the prior approval of the Governor.  A.S.C.A. § 48.1803(b).

 

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

 

Counsel:    For Plaintiffs, Marshall Ashley

For Defendants, Charles V. Ala’ilima

For Garnishee, Katopau T. Ainu’u

 

Order Granting Motion to Quash Writ of Garnishment:

 

INTRODUCTION

 

On January 24, 1994, plaintiff Safety Systems of Hawaii, Inc., was awarded judgment against defendants for the total amount of $9,720.03, plus post-judgment interest to accumulate at a rate of 6% from May 15, 1992.  As of February 15, 1996, a balance of $6,545.19 plus interest remained outstanding.  In order to secure payment of this outstanding judgment, inter alia,  the Development Bank of American Samoa ("DBAS") was garnished.  DBAS has moved to quash the garnishment order.  The motion came[30ASR2d36] regularly for hearing on April 12, 1996, with all counsel present.

 

DISCUSSION

 

[1]  DBAS is a public corporation.  "A public corporation is an instrumentality of the state, founded and owned in the public interest, supported by public funds and governed by those deriving their authority from the state."  Black's Law Dictionary 1106 (5th ed. 1979) (quoting York County Fair Ass’n v. South Carolina Tax Comm'n, 154 S.E.2d 361, 362 (S.C. 1967).  DBAS is an instrumentality of the state.  See generally A.S.C.A. Tit. 28, ch. 1 (establishing DBAS and setting forth its governing principles); see also A.S.C.A. § 28.0107 (requiring DBAS to account annually to the Governor and Legislature).  It was founded and is owned in the public interest.  See A.S.C.A. § 28.0106 (“The bank exists and operates solely for the benefit of the public . . . .”); see also A.S.C.A. § 28.0101 (setting forth purposes of DBAS).  It is run by those deriving their authority from the state.  See A.S.C.A. § 28.0103 (requiring that the board of directors for DBAS be appointed by the Governor with the advice and consent of the Senate).  Therefore, DBAS is a public corporation.

 

[2]  "[P]ublic corporations are not subject to the garnishment process in the absence of statutory provisions making them liable thereto."  6 Am. Jur. 2d Attachment & Garnishment § 84, at 619 (1963).  A general statutory provision making corporations subject to garnishment does not include public corporations.  Id.  There is no statute specifically making DBAS subject to garnishment.

 

[3]  DBAS falls under the provisions of A.S.C.A. § 48.1803(b) exempting "public bodies or agencies" from garnishment without the prior approval of the Governor.  The term "public body" has been held by other jurisdictions to include milk commissions, see Connerly v. Dyer, 8 S.2d 681, 682, state highway commissions, see Warnick v. Louisiana Highway Comm’n, 4 S.2d 607, 612 (La. 1942), public utility commissions, see Department of Pub. Utils. v. Trustee of Properties of N.Y., 24 N.E.2d 647, 650 (Mass. 1939), and county boards of education, see Carroll County Educ. Ass’n v. Board of Educ. of Carroll County, 448 A.2d 345, 351 (Md. 1982), among others.  The phrase would seem to encompass all public corporations, including DBAS.  Thus, DBAS is a public body exempt from garnishment without prior approval by the Governor.

 

The Governor has not given prior approval for the garnishments presently before the court.  Although the Governor has approved garnishment of wage checks for employees of the American Samoa Government in the past, we are not aware that this approval has been extended to DBAS.  We will not assume that such approval has been given.[30ASR2d36]

 

Therefore, as a public body under A.S.C.A. § 43.1803(b), DBAS is not subject to garnishment without the prior approval of the Governor.  The Motion to Quash the Writ of Garnishment is granted.

 

It is so ordered.

 

 

 

*********

 

Talaka; Newton v.


[30ASR2d86]

 

JOHN NEWTON, Administrator of the Estate of DANIEL KINGZETT, Plaintiff

                                

v.

 

JACK TALEKA, Defendant

 

High Court of American Samoa

Trial Division

 

CA No. 119-95

 

July 3, 1996

 

[1]  A right of action for personal injuries survives both the tortfeasor's and the injured person's death.  A.S.C.A. §§ 43.5001 and 43.5002.

 

[2]   Award of punitive damages for wrongful death is a statutory creature, and American Samoa law does not allow punitive damages for wrongful death.

 

[3]   A cause of action for pain and suffering accrues if a party lives, even for a few moments, after sustaining a fatal injury.

 

[4]  Punitive damages are appropriate when a person suffers actual harm, or injury, as a result of another person's malicious conduct, regardless of whether actual damages are awarded.[30ASR2d87]

[5]  "Malice" includes conduct that is intended to cause injury; or which is despicable by nature, that is, blatantly vile or loathsome to ordinary decent people, and carried on with willful and conscious disregard for the rights or safety of others.

 

[6]  Punitive damages are principally awarded for the sake of example and by way of punishment.

 

[7]  A punitive damage award in addition to criminal conviction is not unreasonable double punishment, but criminal punishment may be properly considered in mitigation of punitive damages.

 

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

 

Counsel:    For Plaintiff, William H. Reardon

 

Order Granting Motion for Default Judgment and Awarding Punitive Damages:

 

Plaintiff John Newton ("Newton"), as the administrator of the estate of Daniel Kingzett ("Kingzett" as an individual), brought this action for damages against defendant Jack Taleka ("Taleka") following Taleka's conviction of murder in the second degree for killing Kingzett.

 

Taleka is serving concurrent sentences of imprisonment of 23 years on the homicide conviction and lesser terms of imprisonment on five other convictions of related offenses at the American Samoa Government's correctional facility.  After he was served with process in this action, he failed to answer or otherwise legally appear, and the clerk of courts entered his default.  The court heard the motion for a default judgment on May 10, 1996, Taleka having been timely served with the notice of the hearing.

 

At the hearing, Newton advised the court that he was seeking punitive damages only and submitted the motion on his pleadings for the court's decision.  The court took the motion under advisement.

 

DISCUSSION

 

[1]  A right of action for personal injuries did not survive either the tortfeasor's or injured person's death at common law, and thus a civil action was not recognized in wrongful death situations.  In 1846, Lord Campbell's [30ASR2d88] Act changed this status of the law, and all American jurisdictions now permit such actions.  B.E. Witkin, 6 Summary of California Law, Torts § 1196 at 632 (9th ed. l988).

 

American Samoa is no exception.  A.S.C.A. §§ 43.5001 & 43.5002; Fa`avae v. American Samoa Power Authority, 5 A.S.R.2d 53, 58 (Trial Div. 1987).  Pertinent to this action, A.S.C.A. § 43.5002 provides:

 

An action or cause of action . . . shall not abate by death . . . of a party . . . but shall in all cases, where a cause of action . . . arose in favor of such party prior to his death . . . survive, and be maintained by his representatives . . . and in case such action has not been begun . . . the action may be begun . . . in the name of his representatives . . . .

 

[2]  Award of punitive damages for wrongful death is a statutory creature.  See Doak v. Superior Court,65Cal. Rptr. 193, 199-201 (1968).  American Samoa has not enacted any statute authorizing punitive damages arising out of a homicide causing instant death, unlike California, for example.  See Cal. Civil Code § 3294(d).  Thus, we must find that Kingzett survived for some duration to give rise to a cause of action.  Fa`avae, 5 A.S.R.2d at 58.

 

[3]  The death certificate states that Kingzett was dead on arrival at the LBJTropicalMedicalCenter.  It also shows that the death was caused by "hypovolemic shock" and "profuse bleeding" from "multiple traumatic wounds."  Taking judicial notice of Taleka's criminal prosecution, Kingzett was initially immobilized by a stab wound to the head.  ASG v. Taleka, CR No. 15-94 (Trial Div. 1994).  We find from these facts that while Kingzett died only moments after he was attacked, he was not instantly killed, and a cause of action for pain and suffering damages from his personal injuries did accrue before his death.

 

[4]  Punitive damages are normally awarded only when the injured person sustains actual damages.  See Letuli v. Lei, 22 A.S.R.2d 77, 85-86 (Trial Div. 1992), aff'd. Lei v. Letuli, AP No. 20-92, slip op. (App. Div. Nov 15, 1993) (modified on other grounds).  Newton has waived any award of actual damages.  However, Taleka attacked and killed Kingzett, and the fact of actual harm, not the monetary award, is controlling.  See Esparza v. Specht, 127 Cal. Rptr. 493, 495-96 (Cal. 1976). 

 

[5]  Punitive damages are appropriate when a person suffers actual injury as a result of another person's malicious conduct.  Letuli, 22 A.S.R.2d at 86; [30ASR2d89] Scott v. Donald, 165 U.S. 58, 88-90 (1897); Nappe v. Anschelewitz, Barr, Aseu, & Bonello, 447 A.2d 1224, 1230-32 (N.J. 1984); Feld v. Merriam, 485 A.2d 742, 747-48 (Pa. 1984).  "Malice" includes conduct which is intended to cause injury; or which is despicable by nature, that is, blatantly vile or loathsome to ordinary decent people, and carried on with willful and conscious disregard for the rights or safety of others.  See Cal. Jury Inst., Civil, BAJI 14.71 & 14.72.1 (8th ed. 1994).  Taleka acted maliciously when he struck Kingzett in the head with a blunt object and repeatedly stabbed Kingzett with a knife, resulting in Taleka's homicide conviction.

 

[6-7]  Punitive damages are not easily quantified in wrongful death actions.  Life is precious and not readily susceptible of monetary evaluation. Kingzett unquestionably suffered a painful death, however brief his pain may have been endured.  However, punitive damages are principally awarded for the sake of example and by way of punishment.  Letuli, 22 A.S.R.2d at 86.  Viewed from this perspective when a defendant has already been criminally prosecuted and sentenced, punitive damages are not unreasonable double punishment.  See Roshak v. Leathers, 560 P.2d 275, 861-865 (Or. 1977) (also published, with annotation, at 98 A.L.R.3d 858).  Still, criminal punishment may be properly considered in mitigation of punitive damages.  See Brownand v. Scott Lumber Co., 269 P.2d 891 (Cal. 1954).

 

ORDER

 

1.    Newton is granted a default judgment against Taleka.

 

2.  Taking into account the factors discussed above, we award $50,000 in punitive damages against Taleka.

 

3.  This award is the property of Kingzett's estate and shall be distributed under the law applicable to the pending probate proceedings, Estate of Kingzett, PR No. 28-95.

 

Judgment shall enter accordingly.  It is so ordered.     

              

 

 

 

********

 

Lutu; Schuster v.


[30ASR2d51]

 

STARR SCHUSTER, Plaintiff

 

v.

 

AFOA M. LUTU, AUGUSTINE & PATRICIA GREY, Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 19-93

 

May 29, 1996

 

[1]  In determining whether land is communally or individually owned, the court will consider whether the land has been considered and used as communal or individual land over time.

 

[2]  Samoan realities of the time are considered in determining whether a deed is an interfamily conveyance.

 

[3]  Despite language in a deed that contains stock conveyancing language to an individual, the court will interpret the deed as conveying land to a family as communal land if that was the intention of the original parties.

 

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

 

Counsel:    For Plaintiff, Gata E. Gurr

                             For Defendant, Charles V. Ala`ilima

 

Decision and Order:

 

This dispute involves a certain parcel of land located in Faga`alu known as "Utulau-Masa" (hereinafter the "land").  Plaintiff Starr Schuster (hereinafter "Schuster") claims that the land is rightfully the individually owned land of the estate of her late grandfather, Afoa Fa`asuka Lutu (hereinafter "Fa`asuka").  The defendants, on the other hand, claim that the land is the communal property of the Afoafouvale family.

 

Defendant Afoa M. Lutu (hereinafter "Afoa") is the senior matai of the Afoafouvale family of Utulei and Fagatogo; he attempted to lease a part of land to the defendants Augustine and Patricia Grey (hereinafter the "Greys") for a residential site.  The Greys are members of the Afoafouvale family, as [30ASR2d52] is Schuster.  This matter arose upon Schuster's application to enjoin the Greys from building on the land.  Schuster contends that Afoa, not being a descendant of Fa`asuka, has no say or pule with respect to the land.

 

Initially, an evidentiary hearing was held on May 3, 1993, upon plaintiff's application for a preliminary injunction to enjoin Afoa from any further dealings with the land.1  We denied the application.  Following that hearing, the parties made the requisite appearances before the Office of Samoan Affairs, in accordance with the requirements of A.S.C.A. § 43.0302.  The Secretary of Samoan Affairs subsequently certified an irreconcilable dispute between the parties to the Land and Titles division, and, hence, the matter is now before us.

 

DISCUSSION

 

Schuster's position is principally grounded on her construction of a certain deed that she recently discovered at the Territorial Registrar's Office, where she is employed.  The deed, which bears an execution date of August 18, 1924, declares the conveyance of a certain plot of land in Faga`alu by "Savea of Matu`u" to "Afoa of Fagatogo," for the recited consideration of $10.  The instrument contains stock conveyancing language, including the following: "To have and to hold the granted premises . . . to the said Afoa, his heirs and assigns, to his and their own use and behoof forever."  On the basis of this language, Schuster claims individual ownership of the land, to the exclusion of the rest of the Afoa communal family.  She contends that the grant is limited to the grantee Afoa personally and the heirs of his body and that the Afoa titleholder at the time was Fa`asuka, her grandfather.

 

Schuster's construction, however, is not borne out by the facts.  The land has never been occupied by any of Fa`asuka's descendants; rather, the land has been exclusively occupied by the descendants of Fa`asuka's half-sister, Ana Afoa (hereinafter "Ana"), the Grey's ancestor.  Family history as related by Afoa is that even before the deed had ever come into being, and even before Fa`asuka had become their family's titleholder, the land had been customarily acquired by a previous Afoa titleholder, Afoa Molio`o, from his kin Savea, for the use of his daughter Ana's children.  Afoa further testified that Ana's son Aukuso Coen (the Greys' maternal grandfather) had actually settled the land after acquisition, around the turn of the century.[30ASR2d53]

 

[1]  We accept the family history according to Afoa as accurate, and so find.  For one thing, the resulting assignment, or traditional appointment, of the land by Afoa Molio`o to Ana's descendants has been conspicuously demonstrated not only by the exclusive use of the land by Ana's descendants, but also by the very apparent deference that such exclusive use has been accorded from the rest of the Afoa family, including Fa`asuka's descendants, over several generations.  Additionally, we are satisfied on the evidence that following Fa`asuka's subsequent succession to the matai title Lutu, attached to the village of Fagatogo, Fa`asuka lived in Fagatogo and left the land entirely to Aukuso Coen's use.  Furthermore, the evidence reveals that Afoa's immediate predecessor-in-title, Afoa Atapuai, quite obviously viewed the entitlement of Ana's descendant's as exclusive by directing them to sign their own separation agreements and building permits pertaining to the various homes they erected on the land.  The evidence regarding the use and occupation of the land is very plainly antithetical to plaintiff's, somewhat singularly held, claim to individual ownership.

 

[2-3]  In light of the foregoing, we construe the deed as a conveyance between two Samoan families through their respective matai.  The deed was entered into between "Savea" of Matu`u and "Afoa" of Fagatogo, not between the Savea family on the one part, and Fa`asuka the individual on the other.2  Given the Samoan realities of the time, the most plausible reading of the deed is that it was an inter-family conveyance.  In 1924, the year of the deed, that which we know today as individually owned land was but a notion in the interstices, as yet to be developed by case law.3  We doubt that the concept of individual ownership could even have been in the contemplation of the parties at the time.  We find it more consistent with the realities of the day that the parties to the conveyance intended no more than the achievement of a formal memorialization of a pre-existing customary designation of communal family land for the use of a particular branch of the Afoa family, rather than an outright grant to Fa`asuka in individual ownership.  We find further support for this conclusion by looking to the Samoan version of the public notices posted by the Territorial Registrar of Titles in anticipation of recording a conveyancing instrument.  The Samoan [30ASR2d54] version of these notices to the community at that time allude to a transfer of land in Faga`alu between "Savea ma lona aiga i Faga`alu . . . [ma] Afoa [sic] Fagatogo ma lona aiga."  Emphasis added.  These public notices ostensibly advised the non-English speaking members of the community about a grant between Savea and his family one the part, and Afoa and his family, on the other part.  We view the Samoan version of these public notices as being more in tune with, and hence a testament to, the Samoan realties that then endured.

 

CONCLUSION & ORDER

 

We accordingly construe the 1924 deed as a grant from the Savea family to the Afoafouvale family, reading the deed's reference to "Afoa" as reference to the Afoafouvale family's senior matai at the time, who, as matai, held family land in trust for his communal family.  Conversely, we reject Schuster's contention that the deed's reference to "Afoa" refers to Fa`asuka the individual, finding no basis to sustain her claim.  We further construe the succeeding word "heirs" as appearing in the 1924 deed as meaning "heirs-in-title" to the matai title Afoafouvale.

 

We conclude, and so hold, that the land Utulau-Masa is the communal property of the Afoafouvale family that was assigned by Afoa Molio`o for the use and benefit of the descendants of Ana Afoafouvale; subject, however, to the pule of the senior matai of the Afoafouvale family,4 and further subject to traditional obligations of tautua.5

 

Schuster's application for injunctive relief is, therefore, denied.  Judgment shall accordingly enter in favor of the defendants.

 

It is so ordered.

 

 

 

 

*********



1  Pursuant to T.C.R.C.P. 65, incorporated by T.C.R.L.T. 5, the evidence earlier received becomes part of the record upon trial on the merits.

  2  It is trite law that a matai holds family lands as trustee for the benefit of the family.

  3  For an interesting historical sketch on the development of individually owned land in American Samoa, see Leuma v. Willis, 1 A.S.R.2d 48 (Land & Titles Div. 1980).  

   4  Although the matai may assign and parcel out family land, his pule over such assigned property is not thereby terminated.  Pisa v. Solaita, 1 A.S.R. 520 (1935); Mailo v. Fuamaila 1 A.S.R. 449 (1931); Levu v. Maluia, 1 A.S.R. 197 (1909); Toleafoa v. Tiapula, 7 A.S.R.2d 117 (Land & Titles Div. 1988), aff'd 12 A.S.R.2d 56 (Appellate Div. 1989).

  5  See Toleafoa v. Tiapula, 7 A.S.R.2d 117 (Trial Div. 1988), aff'd 12 A.S.R.2d 56 (1989).

Lutali ; Peni v.


[30ASR2d90]

 

 

FALEAFAGA PENI, Plaintiff/Counterdefendant

 

and

 

PAOLO SIVIA, Intervenor/Counterdefendant

 

v.

 

GOVERNOR A. P. LUTALI, AMERICAN SAMOA GOVERNMENT, AMERICAN SAMOA HOSPITAL AUTHORITY, and UNITED CONSTRUCTOR, INC., Defendants/Counterclaimants

_______________________________

 

GOVERNOR A. P. LUTALI, AMERICAN SAMOA GOVERNMENT, AMERICAN SAMOA HOSPITAL AUTHORITY, and UNITED CONSTRUCTOR, INC., Third Party Plaintiffs

 

v.

 

FALEAFAGA FAMILY, ALAMOANA S. MULITAUAOPELE, and JOHN DOES 1-20,

Third Party Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 8-96

 

July 11, 1996

                                                             

[1]  Although a matai has no inherent legal authority to convey another family’s communal land, the court will enforce a conveyance when ASG, under the former U.S. Navy administration, dealt with a leading matai of a village when acquiring land for public use.

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

 

Counsel:                For Plaintiff/Counterdefendant and Third Party Defendants, Tautai A.F. Fa`alevao [30ASR2d91]

For Intervenor/Counterdefendant, Tuana`itau F. Tuia

For Defendants/Counterclaimants/Third Party Plaintiffs, Cherie Shelton Norman, Assistant Attorney General

 

Order Denying Motion for Reconsideration or New Trial:

 

On June 24, 1996, plaintiff Faleafaga Peni ("Faleafaga") moved for reconsideration of the court's opinion and order, entered on June 20, 1996.  Hearing on the motion was set on July 11, 1996.  On July 2, 1996, Faleafaga moved ex parte to stay construction of the proposed new dispensary by defendant American Samoa Government ("ASG") and the other defendants on the land at issue in Amouli, American Samoa, scheduled to commence on July 3, 1996, pending the reconsideration hearing, and to expedite the hearing.  The court denied the motion to stay but granted the motion to expedite the hearing, and reset the hearing on July 3, 1996.


 

On July 3, 1996, the court heard the motion, as a motion for reconsideration or new trial, pursuant to A.S.C.A. § 43.0802 and T.C.R.C.P. 59.  Counsel were present, except counsel for intervenor Paolo Sivia ("Paolo"), who did not file a motion for reconsideration or new trial. 

 

DISCUSSION

 

Contrary to Faleafaga's assertions, substantial evidence supports the reasonable inference found by the court that Utu represented the Faleafaga and Paolo families when he signed the 1923 deed conveying a defeasible fee interest in the communal lands of those families to ASG for the Amouli dispensary site.  Since we did not marshall this evidence in a separate discussion in the opinion and order, we will set forth several salient facts.

 

The deed itself sets the tone for our findings.  It specifically recites the participation of the village chiefs in the survey process.  The witnesses from Amouli, except for one from the Utu family, unequivocally testified that the dispensary site was comprised, when the survey was made and ever since, of separate communal lands of the Faleafaga and Paolo families.  They also acknowledged that ASG's interest in the land is well accepted in the village. 

Faleafaga's witness Gogo Suli, sa`o of his Amouli family, was present during the 1923 proceedings.  In essence, Chief Gogo confirmed the underlying communal status of the site and the participation of the Faleafaga and Paolo families in the land transaction.  He went on to state [30ASR2d92] that the U.S. Navy informed Amouli of ASG's need for a dispensary site, that Utu Suaese as the leading matai called the village matai together to discuss this requirement, and that Faleafaga offered his family's communal land for this purpose.  Apparently, the Paolo family's communal land was not specifically discussed at the meeting, as construction of the nurses' quarters was not then under consideration.  In our view, Chief Gogo explained that Utu and the Navy dealt with each other only to facilitate the negotiations and deed signing.

 

Faleafaga's witness Fuata Pepa, sa`o of his Amouli family, was also present during the 1923 proceedings.  In essence, Chief Fuata likewise verified the underlying communal status of the site and the participation of the Faleafaga and Paolo families in the land transaction.  He further stated that the deed was properly made in the manner of the era as a transfer of "Amouli" land for public use.

 

We also repeat that ASG's title interest in the land was well established.  The deed is not flawed by irregular formalities, including lack of notice.  Faleafaga claims that because the Amouli matai were so unsophisticated in those days, they in general, and the Faleafaga and Paolo titleholders in particular, could not have understood the legal aspects of land documents.  We find that this plea, repetitiously declared during the trial and still by this motion, is almost totally speculative under the evidence, and is certainly unconvincing.  We have no doubt that even if they were unfamiliar with deed technicalities, the matai knew the purpose of the land transaction and understood the nature of the proceedings. 

 

[1]  We also take issue with Faleafaga's misplaced charge that we are setting dangerous precedent.  We did not in any way suggest that a matai has any inherent legal authority to convey another family's communal land.  Surely, our decision does not erode a sa`o's exclusive authority to convey his own family's communal lands.  The present case is strictly limited to the unique circumstances surrounding this particular transaction in 1923, and is only precedent for like situations in the same era in which the evidence shows that ASG, under the former U.S. Navy administration, dealt with a leading matai of a village when acquiring land for public use. 

 

Under the evidence in this case, we could have found that the Utu family is the communal landowner of the reversionary interest in the dispensary site.  However, we were convincingly persuaded that the Faleafaga and Paolo families own this interest.  Faleafaga and Paolo would better expend resources perfecting their families' communal land interests.  We gave them the opportunity by our decision, but we cannot close out any contrary claim by the Utu family, which was not a party to this action.  Now that ASG is under a court order to recognize their communal land interests, Faleafaga and Paolo could, after reciting their communal land titles, convey anew a defeasible fee interest to ASG in the dispensary site.  They could also offer the lands for title registration as their respective communal lands, if they want to seek a definitive resolution against any claim the Utu family may still want to assert over these lands.

 

ORDER

 

The motion for reconsideration or new trial is denied. 

 

It is so ordered.

 

 

 

********

 

Lutali; Peni v.


[30ASR2d68]

 

 

FALEAFAGA PENI, Plaintiff/Counterdefendant

 

and

 

PAOLO SIVIA, Intervenor/Counterdefendant

 

v.

 

GOVERNOR A. P. LUTALI, AMERICAN SAMOA GOVERNMENT, AMERICAN SAMOA HOSPITAL AUTHORITY, and UNITED CONSTRUCTOR, INC., Defendants/Counterclaimants

_______________________________

 

GOVERNOR A. P. LUTALI, AMERICAN SAMOA GOVERNMENT, AMERICAN SAMOA HOSPITAL AUTHORITY, and UNITED CONSTRUCTOR, INC., Third Party Plaintiffs

 

v.

 

FALEAFAGA FAMILY, ALAMOANA S. MULITAUAOPELE, and JOHN DOES 1-20,

Third Party Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 8-96

 

June 20, 1996

 

[1]  Registration of matai names was first decreed in 1906 by Regulation No. 8.1906, but the regulation did not contain a prohibition against using an unregistered matai name.  Section 79.8 of the 1937 Code, which prohibited the use of an unregistered matai name, only provided criminal sanctions. 

 

[2]  While judicially ordered consequences might be in order in some situations, it would be inappropriate to vitiate 73 years later a legal document executed by parties who, in the absence of contrary evidence, apparently acted in good-faith belief in each other's authority.[30ASR2d69]

 

[3]  Land acquisition for public purposes was expressly covered in detail under Regulation No. 2-1901.  1937 Code § 72.  When transfer agreements were entered into with land owners, the land was deeded to the governor as the governmental representative, without any separate notice requirement.  1937 Code § 72.2.  If no agreement was reached, a condemnation-type procedure, including notice requirements, was spelled out for land acquisitions.  1937 Code §§ 72.3-72.17.  When an agreement was reached, no special notice requirements applied.

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

 

Counsel:    For Plaintiff/Counterdefendant and Third Party Defendants, Tautai A.F. Fa`alevao

For Intervenor/Counterdefendant, Tuana`itau F. Tuia

For Defendants/Counterclaimants/Third Party Plaintiffs, Cherie Shelton Norman

 

Opinion and Order:

 

This action concerns the status of the dispensary site in the Village of Amouli, American Samoa.  

 


On May 20, 1996, plaintiff Faleafaga Peni ("Faleafaga"), who is the sa`o, the senior matai or chief, of the Faleafaga family, brought this action to declare the dispensary site to be his family's communal land and to permanently enjoin defendant American Samoa Government ("ASG") and the other defendants from using the dispensary site without his or successor sa`o's permission.  The court issued a temporary restraining order preventing defendants from proceeding with the imminent ground breaking ceremony and construction of a new building on the dispensary site until further order of the court.


 

The order to show cause for a preliminary injunction came regularly for hearing on May 31, 1996.  The immediate issues were then joined by defendants' answer, counterclaim, and third party complaint, and by intervenor's appearance without objection.  After the hearing commenced, the court invoked T.C.R.C.P. Rule 65(a) to consolidate the trial on the merits with the preliminary injunction hearing.  Evidence was received on May 31 and June 4, 10, 11 and 12, 1996.  All counsel were present throughout the proceedings.[30ASR2d70]

 

Since this action relates to a controversy over claimed communal land, the court also raised the jurisdictional absence of the certificate of irreconcilable dispute, issued by the Secretary of Samoan Affairs, under the mandate of A.S.C.A. § 43.0302.  At the conclusion of the evidence, all parties stipulated to waive this requirement.  Because the parties are neither contesting the communal nature nor competing for ownership of the reversionary interest in the dispensary site, the court accepts the stipulation and will decide the issues on their merits.      

                                                             

DISCUSSION

 

In February 1990, Hurricane Ofa struck American Samoa and essentially obliterated ASG's dispensary on a one-quarter acre site in Amouli, among the extensive damage the hurricane caused.  Pursuant to a deed of the site, ASG had operated the dispensary there beginning no later than April 1923. ASG added nurses' quarters to the site some time later.  However, this building was extensively damaged in the hurricane of 1966 and has remained unoccupied by the dispensary staff, at least as living quarters, from then until the present time.  Members of the Faleafaga and Paolo families of Amouli also continued to use the cultivated products of the land, respectively east and west of a hedge across the middle, as they had done in pre-dispensary times.  No others made use of the site after the dispensary became operational. 

 

After Hurricane Ofa, ASG resolved to replace the dispensary facilities.  The U.S. Government earmarked federal grant funds for this project, totaling about $560,000, partially in 1993 and the balance in 1995.  ASG has completed the design work for the new facilities, enlarged to replace both old dispensary structure and nurses' living quarters and occupy the entire dispensary site.  Defendant United Constructor, Inc. has been, or is about to be, contracted to construct the new facilities at a price of about $470,000.

 

In April 1993, ASG representatives met with Faleafaga and other Amouli villagers to discuss the dispensary reconstruction program.  Faleafaga then first learned that the 1923 deed of the dispensary site to ASG was signed by Utu, without using any given name, and not by his sa`o predecessor, and that ASG held the view that the dispensary site was now ASG land and was originally owned as communal land by the Utu family of Amouli.

 

Faleafaga embarked on a campaign to attain recognition of the east side of the dispensary site as the Faleafaga family's communal land.  When his discussions with ASG representatives failed, and since he was physically[30ASR2d71] incapacitated, he designated third party defendant Alamoana Mulitauaopele ("Alamoana"), a family member, as his attorney in fact to deal with the matter.  Alamoana, on Faleafaga's behalf, obtained a survey of the Faleafaga part of the site and offered to register the surveyed area, pursuant to the title registration laws, A.S.C.A. §§ 37.0101-37.0120.  The Territorial Registrar issued a certificate of registration of the title to this area as the Faleafaga family's communal land on May 19, 1994.  The stage was thus set for this action, precipitated by ASG's announced construction date.

 

Unfortunately for Faleafaga, the title registration of the east side of the dispensary site is invalid.  "Only the senior matai of a Samoan family has the authority to request a survey of communal property of that family."  A.S.C.A. § 37.0102(d).  This language is unconditional and unequivocal; no exceptions.  Faleafine v. Suapilimai, 7 A.S.R.2d 108, 113 (Land & Titles Div. 1988).  The sa`o cannot delegate this authority.  Poumele v. Ma`ae, 2 A.S.R.2d 4, 5 (App. Div. 1984).  This legal result, however, does not settle the issue of communal land ownership in this action. 

 

Although the sa`o title Utu was vacant during the period of Faleafaga's efforts, and still is, no member of the Utu family objected to Alamoana's purported title registration on Faleafaga's behalf, and no member has intervened in this action to claim the dispensary site as the Utu family's communal land.  A member did testify that the entire dispensary site is the Utu family's communal land.  He essentially based this testimony on the premise that because Utu is the highest ranking matai in Amouli, and because both Faleafaga and Paolo, as well as members of several other Amouli families, are blood-related to the Utu family, most, if not all, lands in Amouli, including the dispensary site, are the Utu family's communal lands.  Faleafaga and Paolo's son disputed this conclusion and asserted that despite the blood connection, their and the other Amouli families and their sa`o titles are distinct from the Utu family and own separate communal lands.1  Decisions of this court support the Faleafaga and Paolo viewpoint.  See Faleafaga v. Utu, LT No. 23-84, slip op. (Land & Titles Div. May 9, 1984), aff'd Utu v. Faleafaga, AP No. 23-84 (App. Div. April 4, 1985) (remanded to memorialize a survey); Utu v. Paolo, 23 A.S.R.2d 22 (Land & Titles Div. 1992), aff'd Paolo v. Utu, AP No. 26-92, slip op. at 1 (April 5, 1994).[30ASR2d72]

 

Based on the evidence as whole, including but not limited to the Utu family's inaction in the attempted title registration and this proceeding and unconvincing testimony by the Utu family member, we find that the dispensary site encompassed communal lands of the Faleafaga and Paolo families in 1923 and at all times since then.  

 

In 1923, ASG was administered by the U.S. Navy.  Prior to April 2, 1923, ASG and the village matai agreed upon locating a branch dispensary of the Samoan Hospital in Amouli.  The matai were led by Utu Suaese, as the highest ranking chief in Amouli.  The matai included Faleafaga Siai and Paolo, perhaps Paolo Leuila, although his title registration goes back to 1906.  The matai selected the dispensary site on and split between the communal lands of the Faleafaga family, currently named Mata`ili`ili, and of the Paolo family, now called Amoamoniu.  The dispensary building was constructed, mostly on the Faleafaga family's portion of the site.  The nurses' quarters added later was located on the Paolo family's side.  The hedge delineates the boundary between the two families' properties.

 

On March 22, 1923, the village matai personally positioned pins at the corners or points of the dispensary site, and the ASG surveyor determined the metes and bounds of the legal description.  The Faleafaga and Paolo sa`o, or family members representing them, participated in this exercise.  On April 2, 1923, the deed was executed to transfer title to the site.  Utu Suaese, using only his matai title Utu, as grantor, and Governor Edwin T. Pollock and his successors in office, as grantees, representing ASG, signed the deed.  The deed was recorded with the Registrar of Titles (now the Territorial Registrar) the same day.

 

By the deed, Utu Suaese, representing the matai and families of Amouli, including Faleafaga and Paolo, in consideration of one ($1.00) dollar, conveyed a fee interest in land to ASG to be "used for the purpose of maintaining thereon a branch dispensary of the Samoan Hospital."  A handwritten page in the Registrar's file includes the statement "Land to revert on giving up of dispensary."  Clearly, the parties intended to transfer title to the land to ASG, provided that ASG operated a dispensary on the site and did not abandon that operation.  We also find that Utu Suaese represented the Faleafaga and Paolo families under the deed provision retaining the use of cultivated products.

 

Faleafaga and Paolo questioned certain formalities in the deed execution in their present effort to void the deed and require ASG to enter a new [30ASR2d73] agreement with consideration at current market values for any further use of the dispensary site.

 

First, they noted the absence of Utu's given name, but in the era when the deed was executed, matai commonly used only their matai name when signing legal documents.  The Cession of Tutuila and Aunuu in 1900 and the Cession of the Manu`a Islands in 1904 are prime examples.  Next, they pointed out the lack of any name of the land in the deed, but again this omission was commonplace during the era involved.

 

[1-2]  They sought to cast doubt on Utu Suaese's authority because he registered his matai title in 1924, and § 79.8 of the Code of Regulations and Orders for the Government of American Samoa (1937) ("1937 Code") prohibited the use of an unregistered matai name.  The same complaint could be made of Faleafaga Siai, who did not register his matai title until 1925.  If Paolo Leuila, who registered his matai title in 1906, was no longer in office in 1923, the next registered Paolo was Paolo Faaoli in 1943.  It is unclear, however, when the prohibited use of an unregistered matai name was enacted.  Registration of matai names was first decreed in 1906 by Regulation No. 8.1906, but the Regulation did not contain the prohibition.  In any event, as important as formal matai registration is to the overall integrity of the matai system, § 79.8 only provided criminal sanctions.  While judicially ordered consequences might be in order in some other situations, it would be inappropriate to vitiate 73 years later a legal document executed by parties who, in the absence of contrary evidence, apparently acted in good-faith belief in each other's authority.

 

[3]  Lastly, noting the survey on March 22 and deed execution only 11 days later on April 2, Faleafaga and Paolo alleged failure to comply with notice prerequisites before the deed was signed.  In the first place, while alienation of communal land was prohibited in 1900 by Regulation No. 4-1906 and was still severely restricted by amendment to this Regulation in 1921, conveyances to the U.S. Government or ASG for governmental purposes were excepted.  1937 Code § 71.2.  In 1901, land acquisition for public purposes was expressly covered in detail under Regulation No. 2-1901.  1937 Code § 72.  When transfer agreements were entered into with land owners, the land was deeded to the Governor as the governmental representative, without any separate notice requirement.  1937 Code § 72.2.  When no agreement was reached, a condemnation-type procedure, including notice requirements, was spelled out for land acquisitions.  1937 Code §§ 72.3-72.17.  Thus, since an agreement was reached, no special [30ASR2d74] notice requirements applied.  Moreover, the participating village matai had actual knowledge of the transaction. 

 

The evidence does not indicate any legal impediment to the creation and continuing existence of ASG's title interest.  Thus, ASG acquired, and still owns, a valid fee estate in the dispensary site, subject to termination upon a condition subsequent.  Further, as between the parties to this action, the Faleafaga and Paolo families own the reversionary interest in the dispensary site as their communal land, respectively the east and west side of the hedge within the site, should ASG abandon the dispensary operation. 

 

Although Paolo did not object to Alamoana's attempted title registration of the east portion of the site on Faleafaga's behalf, we observe that the surveyed boundary between the east and west sides of the site in the Faleafaga registration survey does not coincide with the hedge.  However, the boundary between the Faleafaga and Paolo portions of the site was not joined as an issue in this action.  Thus, while perhaps persuasive, our findings related to the hedge do not foreclose later resolution of any differences that may arise between the Faleafaga and Paolo families about the boundary between their portions of the site.  Likewise, since the Utu family is not a party to this action by joinder or intervention, our findings on ownership of the reversion, however persuasive, do not preclude future litigation on the ownership of the dispensary site as between the Faleafaga, Paolo, and Utu families.

 

Finally, as between the parties to this action, the correct survey of the dispensary site is shown in the Amendment Survey of Amouli Dispensary, Drawing No. 2273, approved by ASG's Land and Survey Division on May 13, 1994, which was admitted in evidence as Exhibit No. 24.  

 

 

 

 

ORDER

 

1.  The 1923 deed is valid.  ASG owns the fee estate in the dispensary site in Amouli, subject to termination upon the condition subsequent of ASG's abandonment of the dispensary operation on the site.

 

2.  The Faleafaga title registration is invalid, and the Certificate of Registration is voided.  As between Faleafaga and Paolo on one hand and ASG and the other defendants on the other hand, however, the Faleafaga [30ASR2d75] and Paolo families own the reversion in the dispensary site as communal land.  The Faleafaga family owns the east portion and the Paolo family owns the west portion of the site.  For present purposes, the north-south hedge through the site marks the boundary between the Faleafaga and Paolo properties.  Faleafaga and Paolo may offer to register the title to their portions.

 

3.  Faleafaga and Paolo are not entitled to any permanent injunction against ASG and the other defendants.  The application for a preliminary injunction is denied.  The temporary restraining order is set aside.

 

4.  ASG and the other defendants may immediately proceed with construction of the new dispensary facilities on the site.

 

5.  No monetary damages will be presently awarded.

 

6.  The parties shall pay their own respective attorney's fees and costs.

 

7.  The Territorial Registrar shall register the judgment and the Amendment Survey to Amouli Dispensary, Drawing No. 2273, of May 13, 1994.  The Clerk of Courts shall transmit a certified copy of the judgment and survey to the Territorial Registrar for this purpose.   

 

Judgment shall enter accordingly. 

 

It is so ordered.

 

 

 

********

 


 



  1  Faleafaga, Paolo, and the Utu family witness are candidates for the vacant Utu matai title.  Presently, Paolo is off-island for medical treatment.

Lolesio; American Samoa Gov’t v.


 

[30ASR2d24]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

      

PETELO LOLESIO, Defendant

 

High Court of American Samoa

Trial Division

 

CR No. 17-96

 

April 26, 1996

 

[1]  T.C.R.C.P. 5(a) and A.S.C.A. § 46.0807(b) serve different purposes, and are not inconsistent.  Rule 5(a) is meant to apply when a person is arrested and it is contemplated that he will be charged with a crime.  Section 46.0807(b), on the other hand, contemplates the situation where a person is arrested and needs to be held for some period of time for his own safety or to protect the public safety, but will not be charged with a crime.

 

[2]  A.S.C.A. § 46.0807(b) is reasonable and does not violate a person's due process rights.  It is reasonable to believe that a person lawfully arrested may need to be held up to the full 24 hours without formal prosecution, because he is endangered or poses a threat to public safety, even if the district court sits before then.  There is no point in bringing a person before the district court who will not be charged.  Nor is there any logic in releasing a person prior to 24 hours when he is still legitimately held for safety reasons, simply because the district court has sat within a shorter time frame. 

 

[3]  If an arrestee is held for longer than 24 hours without being brought before the district court and charged, and if he can show that police personnel never intended to prosecute him, he has remedies for a violation of his due process rights.  Contempt proceedings might also be appropriate in this situation.  A.S.C.A. § 46.0807(b).[30ASR2d25]

 

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

Counsel:              For Plaintiff, Frederick J. O'Brien, Assistant Attorney General

For Defendant, Reginald E. Gates, Public Defender

 

Order Dismissing Contempt Citation:

 

We will use the opportunity of this case to clarify the interplay between two directives on arrest procedures.

 

On March 22, 1996, at 2:00 p.m., at the public defender's request, the court issued an order requiring the commissioner of public safety and warden of the correctional facility to show cause why they should not be held in contempt of court for the failure of police or correctional personnel to bring Petelo Lolesio before the next sitting of the district court following his warrantless arrest, as prescribed by T.C.R.Cr.P. 5(c).

 

Facts

 

Lolesio was arrested without warrant on the night of March 21, 1996, a Thursday, and taken to the correctional facility.  The district court sat Friday morning, March 22, but Lolesio was not there.  Authorities at the correctional facility refused the public defender's demand that he be brought before the district court that day.  He was not formally charged with any criminal offense and was released from the correctional facility about 3:15 p.m. Friday, some 17 hours after his arrest.

 

Since neither issue was raised, we assume for our discussion that Lolesio was lawfully arrested and held for his own or the public's safety.

 

Discussion


 

T.C.R.Cr.P. 5(a) requires that "any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the next sitting of the district court."  Lolesio claims that the commissioner and warden are guilty of contempt of court for the failure of the department of public safety personnel to comply with this rule.  In turn, the commissioner and warden point out that A.S.C.A. § 46.0807(b), dealing with arrest without a warrant, states that "Nothing in this section may be so construed as to prevent the detention for not to exceed 24 hours of any person lawfully arrested by a police officer when the arresting officer deems the same necessary for the safety of the person arrested or the public."[30ASR2d26]

 

[1]  Court rules are subservient to statutes, and in case of conflict the statute . . . prevails . . . ."  21 C.J.S. § 170, at 263 (1940 & Supp. 1985); ASG v. Falefatu, 17 A.S.R.2d 114, 119-21 (Trial Div. 1990), aff'd 20 A.S.R.2d 127 (App. Div. 1992).  However, we read the two procedural directives in question, Rule 5(a) and § 46.0807(b), as serving different purposes.  Rule 5(a) is meant to apply when a person is arrested and it is contemplated that he will be charged with a crime.  Section 46.0807(b), on the other hand, contemplates the situation where a person is arrested and needs to be held for some period of time for his own safety or to protect the public safety, but will not be charged with a crime.  Because the rules are not inconsistent, we interpret them according to the explicit language of each.

 

If a person is arrested and held to protect his safety or the public safety, he cannot be held longer than 24 hours, regardless of whether that time period expires on a weekday, weekend, or holiday.  If a person is arrested and is going to be charged, the terms of Rule 5(a) make clear that the person may be held for longer than 24 hours if the next sitting of the district court is not within 24 hours.  This would occur, for example, if a person is arrested Friday night and the court does not sit again until Monday.

 

[2]  Each rule, standing alone, is reasonable and does not violate a person's due process rights.  It is reasonable to believe that a person lawfully arrested may need to be held up to the full 24 hours without formal prosecution, because he is endangered or poses a threat to public safety, even if the district court sits before then.  There is no point in bringing a person before the district court who will not be charged.  Nor is there any logic in releasing a person prior to 24 hours when he is still legitimately held for safety reasons, simply because the district court has sat within a shorter time frame. 

 

[3]  However, if an arrestee is held for longer than 24 hours without being brought before the district court and charged, and if he can show that police personnel never intended to prosecute him, he has remedies for a violation of his due process rights.  Contempt proceedings might also be appropriate in this situation. Otherwise, they are not.

 

The commissioner is, of course, ultimately responsible for compliance with § 46.0807(b) by police personnel.  He can make a material difference with effective procedures for daily review and evaluation by higher authority of arresting officers' decisions and any continuing safety necessity to hold detainees under the 24-hour edict.   

 

Order[30ASR2d27]

 

Because Lolesio has neither alleged nor established any violation of the arrest, safety and time-limit criteria allowing him to be held in custody under § 46.0807(b), and Rule 5(a) is inapplicable to the present situation, the contempt citation is dismissed.[1]

 

It is so ordered.

 

 



  [1]  We could also dismiss these proceedings for the lack of an affidavit in support of the order to show cause, as required by H.C.R. 114.  In fact, we probably should not have issued the order in the first place for that reason.  However, we chose to overlook this deficiency in view of the possible exigent situation when this proceeding was commenced and in the interests of providing the public defender and other criminal defense counsel, along with law enforcement authorities, definitive reference on the construction of Rule 5(a) and § 46.0807(b).  We will not treat this basic oversight so leniently in the future. [30ASR2d28]

Lolagi v. Maluia,


[30ASR2d159]

 

FALETUI & ELETISE LOLAGI, Plaintiffs

 

v.

 

TALI & UELE MALUIA, Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 13-93

 

September 4, 1996

 

[1]  A valid lease agreement duly executed by the matai, assented to by the Governor, and recorded with the Territorial Register will be enforced even when the family that owns the communal land no longer wants the lessee to remain on the land.[30ASR2d160]

 

[2]  A party with a valid lease is entitled to a permanent injunction securing his or her right to quiet enjoyment.

 

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

 

Counsel:    For Plaintiff, Asaua Fuimaono

                             For Defendant, Togiola T.A. Tulafono

 

Decision and Order:

 

This outstanding matter has been slow in getting to trial owing to the many, but unfortunately unsuccessful, attempts by the parties to resolve their dispute extra-judicially.  Trial herein concluded on July 9, 1996, and counsel were ordered to submit post-trial briefs to be filed by plaintiff on or before August 9, 1996, and by defendants on or before September 6, 1996.  Neither party has filed a brief to date.  Accordingly, no briefs will be entertained at this time and the parties are deemed to have submitted the matter on the record.

 

FACTS

 

The facts in this matter are rather straightforward.  Defendants are members of the Maluia family of Nu`uuli, occupying a part of Maluia communal land known as "Asofitu," located in Nu`uuli.

 


The plaintiffs are not members of the Maluia family.  However, they are also occupying a part of Asofitu pursuant to a lease agreement concluded with the Maluia family's senior matai, Maluia Laumua, and duly approved by the Governor on October 29, 1990, in accordance with the requirements of A.S.C.A. § 37.0222.  They have built a house on Asofitu.  The plaintiffs originally came upon Asofitu at the invitation of the defendants and for many years, the parties lived harmoniously together in a typically Samoan household fashion.  In this quasi-family setting, plaintiffs contributed not only to the defendants in the latter's traditional obligations of tautua, but they also contributed directly to the Maluia family's senior matai.  Eventually, it was decided that plaintiffs should have their own house.  In furtherance of this purpose, and to accommodate the American Samoa Development Bank's home-lending requirements, the parties procured, in plaintiffs' name, a separation agreement and a long-term lease from the senior matai to provide the requisite security to the bank for a loan to plaintiffs.  Thereafter, plaintiffs built their home, a 50' x 30' three bedroom house, utilizing not only loan proceeds but also personal savings that they and their older children had accumulated.

 

For a time, the parties continued living together as a congenial family unit[30ASR2d161] until plaintiffs decided that defendants' familial demands had become too excessive and onerous.  According to plaintiffs, the straw that apparently broke the camel's back was plaintiffs recurringly costly monthly telephone bill, which was largely due to the defendants' overseas calls, but apparently left to be paid by plaintiffs.  Plaintiffs subsequently took the tactful remedial measure of cutting their telephone, and from that point on the harmonious family setting began to deteriorate, escalating at times to physical altercation.  Defendants attempted to oust plaintiffs, but the latter stood their ground.  Eventually this lawsuit arose.

 

Plaintiffs sued to enjoin defendants from interfering with their quiet enjoyment of the leasehold.  They pray in the alternative not only for equitable restitution for the value of improvements, but market value of the lease, if they are forcibly dispossessed of Asofitu.  They have indicated a willingness to leave Asofitu if they could be justly compensated.  The defendants, on the other hand, essentially argue that since the plaintiffs, being non-members of the Maluia family, were brought onto Asofitu at their instance; that since plaintiffs are no longer welcomed, they are no longer entitled to be on Asofitu.  Additionally, the defendants take the unyielding stance that plaintiffs should not only be made to leave their family's land, but that they can take their house with them.

 

DISCUSSION

 

[1]  Plaintiffs' have a valid lease agreement duly executed by the matai, assented to by the Governor, and recorded with the Territorial Registrar.  They have a leasehold estate in Asofitu, to the extent provided by the lease including the right to quiet enjoyment under Article 2.  Defendants' unsupported arguments, confusing customary entitlement to communal land and a leasehold entitlement to that land, are for naught.  At the same time, we are not impressed with the senior matai's attempts to go back on the separation and lease agreements, citing lack of understanding as to what was entailed by the instruments he had signed. In an earlier interlocutory hearing, the senior matai testified that he had given the lease and separation agreement to the non-family plaintiffs because he was persuaded by defendants.  His apparent change of heart is unconvincing.

 

CONCLUSION

 

[2]  Plaintiffs are clearly entitled to the permanent injunction they seek against the defendants in order to secure their right to quiet enjoyment contained in Article 2.  Accordingly, the defendants, their aiga, agents, servants, attorneys and all those in active concert with them are hereby enjoined and restrained from any further interference with plaintiffs quiet enjoyment of their leasehold estate, as more particularly defined in that [30ASR2d162] lease agreement between entered into between Maluia Laumua and plaintiffs, recorded with the Territorial Registrar in Lease Agreement, Volume LA-90, at page 192.

 

It is so ordered.

 

 

 

 

*********

 

Logovi`i; American Samoa Gov’t v.,


[30ASR2d143]

 

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

TA`ATA`AI LOGOVI`I, Defendant

 

High Court of American Samoa

Trial Division

 

CR No. 44‑96

 

August 12, 1996

 

[1]  A demonstration of actual prejudice is a necessary but not sufficient element of a due process claim arising from pre‑accusatory delay.   The court must also consider the reasons for the delay as well as the prejudice to the accused.

 

[2]  In considering the reasons for pre‑accusatory delay, broad leeway is given for prosecutorial discretion and legitimate investigative purposes.  Conversely, a delay that is imposed for purely tactical reasons is probably violative of due process. 

 

[3]  When a pre‑accusatory delay is caused by prosecutorial neglect rather than by intentional tactical delay, the evidence of actual prejudice to the defendant must be compelling to sustain a dismissal based on due process. 

 

[4]  The unavailability of witnesses resulting from an extended delay is not enough by itself to demonstrate that the defendant cannot receive a fair trial.  The defendant must show how the testimony of the missing witnesses would have been exculpatory.

 

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

 

Counsel:    For Plaintiff, Frederick J. O'Brien, Assistant Attorney General

For Defendant, David Vargas

 

Order Denying Motion to Dismiss:

 

The defendant moves to dismiss, arguing that the prosecution's delay in filing the charges against him violates his rights to due process.  The issue before us is whether a delay in accusing the defendant, resulting from neglect of the case by a prosecutor, constitutes a violation of due process of [30ASR2d144] law.

 

The charges against defendant Ta`ata`ai Logovi`i ("Logovi`i") arose from a fight that allegedly took place on September 16, 1995, and that allegedly commenced at the Pago Bar.  An investigation of the incident was completed in early October of 1995, but charges were not filed against Logovi`i until June 7, 1996, approximately eight months following completion of the investigation.  According to Logovi`i, six witnesses are absent from the territory and are therefore no longer available. 

 

The Government alleges that the delay resulted from the case being misfiled among closed cases under the supervision of former Assistant Attorney General John Wilks.

 

DISCUSSION

 

[1]  A demonstration of actual prejudice is a necessary but not sufficient element of a due process claim arising from pre‑ accusatory delay.  United States v.Lovasco, 431 U.S. 783, 790 (1977).  The court must also consider the "reasons for the delay as well as the prejudice to the accused."  Id.  Considering both the amount of prejudice to the defendant and the reasons for the delay is a fact intensive process, and courts cannot articulate a bright line test that will serve the ends of due process in every situation.  United States v. Marion, 404 U.S. 307, 324‑25 (1971).

 

[2-3]  In considering the reasons for delay, broad leeway is given for prosecutorial discretion and legitimate investigative purposes. Lovasco431 U.S. at 790‑96.  Conversely, a delay that is imposed for purely tactical reasons is probably violative of due process.  Id. at 795.  The present case is somewhere between these two extremes, since there is no indication of intentional delay by prosecutors for tactical advantage, but there is also no indication that any investigative purpose was being served during the delay.  We believe it logical to extend the U.S. Supreme Court's analysis and hold that where a pre‑accusatory delay is caused by prosecutorial neglect (rather than by intentional tactical delay), the evidence of actual prejudice to the defendant must be compelling to sustain a dismissal based on due process.  See id. at 795 n.17.

 

[4]  The present motion utterly fails to demonstrate the requisite "actual prejudice" to the defendant.  Possibilities such as the unavailability of witnesses and other problems inherent in any extended delay are not enough by themselves to demonstrate that the defendant cannot receive a fair trial.  Marion, 404 U.S. at 325‑36.  If no proffer is made of how missing testimony would help the defendant's claims, the allegation of prejudice is speculative, and actual prejudice has not been demonstrated.  United States [30ASR2d145] v. Gonzalez‑Sandoval894 F.2d 1043, 1050‑51 (9th Cir. 1990).  In the present case, we have no indication that the testimony of the missing witnesses would have been exculpatory, and the mere possibility that it might be is insufficient to show actual prejudice.  See also American Samoa Government v. Solaita, 27 A.S.R.2d 9 (Trial Div. 1994).  Logovi`i's motion to dismiss is, therefore, denied.

 

It is so ordered.

Liu; Tinitali v.


[30ASR2d40]

 

SOA TINITALI AND TUIMAUALUGA UFUTI for and on behalf of the PATEA

 FAMILY of Vaitogi, Plaintiffs

 

v.

 

AILEPATA LIU, SIMENI LIU, ROSALIA LIU and members of the LIU FAMILY

 of Vaitogi, Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 25-93

 

May 14, 1996

 

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

 

Counsel:    For Plaintiffs, Asaua Fuimaono

For Defendants, Albert Mailo

 

Opinion and Order:

 

Plaintiff Patea family brought this action to evict the defendant Liu family from certain land in the Village of Vaitogi, American Samoa, and to quiet [30ASR2d41] title to this land in the Patea family as its communal land.  The immediate impetus for the action was the burial of a Liu family member on the land. 

 

The trial lasted several days, with members of both families and their counsel present.  We heard testimony on November 13, 14, 15 and 28, 1995, and concluded by visually inspecting the land on February 21, 1996.

 

The land consists of approximately 1.785 to 1.84 acres and is variously known as "Taanoa" and "Fanua Tanu."  Our inspection visually comported with the copies in evidence of surveys, which were made in 1926 and 1993, and a larger map showing the land and structures in the surrounding area.  Precise boundaries with neighboring lands are not presently at issue.

 

During the course of the trial, we heard extensive testimony about both the Patea and Liu families: sa`o, or family head, title and blood relationships; guesthouse sites and burial grounds; rank and status in the village; and actual use and possession of the land at issue.  We have studied the evidence at length and find that actual use and possession, coupled with certain other factors, are determinative of the title question.

 


Based on the evidence, we are persuaded that the persons who most recently and permanently lived on the land were Patea Toli and Liu Utuutu, both deceased. Patea Toli, who was apparently over age 100 when he died in 1977, outlived Liu Utuutu by a substantial margin.  Liu Utuutu may have died as far back as, or even before, 1931, when Liu Togi ascended to the Liu title.  However, Patea Toli moved elsewhere well before his death, by at least 1967, probably due to his age and declining health.

 

Even though Liu Togi did not live on the land, the Liu family continued to use the land for various family purposes both before and after Patea Toli moved out, up to the present time.  Liu Togi, who died in 1978, is buried on the land.  So is Liu Iole, who succeeded to the Liu title in 1979 and whose burial in 1993 spawned this action.  No Patea family members or other persons are buried there.

 

The Patea family was also active on the land.  For example, after he returned from Hawaii and his investiture in the Soa title in 1967, plaintiff Soa Tinitali, a Patea family member, cultivated portions of the northern side of the land and erected at least temporary Samoan structures there.  He also permanently resides on adjacent land to the north, where he began construction of a guesthouse in 1993.  One corner of the guesthouse, which is now substantially finished, appears to encroach upon the land.  Soa [30ASR2d42]Tinitali is the brother of Patea Tinitali, who succeeded to the Patea title in 1979.  Both claimed use of this guesthouse, but the Soa and Patea titles are independent, and the building was erected as a Soa guesthouse.

 

Patea family members also testified that the village hierarchy recognizes the Patea family as having pule, or control, over the land.  Soa Tinitali stated that he was asked and gave permission to create a cricket malae, or ground, on the land for village use.  Both he and Patea Tinitali asserted that the Patea family is responsible for the cleanliness of the land.  Jack Liu, on the other hand, declared that he authorized the cricket malae and the Liu family is accountable for the maintenance of the land.

 

The answer to this puzzle is revealed by events in an earlier era.  In Patea v. Auau, HC No. 9-1926, apparently decided in 1927, this court declared that as between Patea and Auau as contenders, Patea held authority over the same land now at issue.  Patea Toli lived on the land then, but interestingly did not testify at that trial.  Liu Utuutu had lived on the land, but at that time was staying in Village of Pago Pago, because he was ill, and also did not testify.  Clearly, however, both Patea Toli and Liu Utuutu, and their predecessors, had lived on the land for at least 30 years and probably longer.

 

The Patea and Liu titles are independent, but despite some contrary assertions, the families are blood-related.  Patea Toli was the son of Noa.  Noa's father was a Liu family member and his mother was a Patea family member.  Certainly, the two families lived and worked compatibly together when they shared living arrangements on the land and other mutual family interests.  Patea Toli actually lived with Liu Utuutu in a permanent Liu house on the land, until he later had his own smaller house nearby.

 

We are convinced, under the evidence as a whole, that the Liu family preceded the Patea family on the land, and that the Patea family used the land at the Liu family's invitation.  Accordingly, as between the Patea and Liu families, we find that the Liu family has the superior right to the land and declare the land to be the communal land of the Liu family.  The complaint is dismissed.

 

It is so ordered.

 

 

 

 

********

 

Leiataua ; American Samoa Gov’t v. ,


[30ASR2d157]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

THERESA FANUA GURR LEIATAUA, Defendant

 

High Court of American Samoa

Trial Division

 

CR No. 9-94

CR No. 44-94

 

August 30, 1996

 

[1]  T.C.R.Cr.P. 35(a), which states that an illegal sentence may be corrected at any time, conflicts with and must give way to A.S.C.A. § 46.2402, which requires that a motion for new trial shall be filed within ten days after entry of the judgment or sentence.

[2]  When a criminal court imposes a term of imprisonment with execution suspended, the sentence is the term of imprisonment, which does not begin unless and until probation is revoked.  This sentence is distinct from any detention that is a condition of probation.[30ASR2d158]

[3]  Unlike a criminal sentence, the court may modify a detention that is a condition of probation under changed circumstances without finding that the party has violated probation.

 

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

 

Counsel:              For Plaintiff, Henry W. Kappel, Assistant Attorney General

For Defendant, Ellen A. Ryan

 

Order Denying Motion For Reconsideration:

 

Defendant Theresa Fanua Gurr Leiataua ("Leiataua") moved for reconsideration of the court's denial of her motion to correct an illegal sentence.  We regularly heard the motion on August 21, 1996.  Counsel for both parties were present.

 

Plaintiff American Samoa Government ("ASG") contends, as it did on the original motion, that the court lacks jurisdiction to hear the motion for reconsideration.  We could have proceeded on this basis.  Leiataua's motions are procedurally based upon T.C.R.Cr.P. Rule 35(a), which states that an illegal sentence may be corrected at any time.  Rule 35(a) conflicts and must give way to A.S.C.A. § 46.2402, which requires that a motion for new trial shall be filed within 10 days after entry of the judgment or sentence.  American Samoa Government v. Falefatu, 17 A.S.R.2d 114, 119-121 (Trial Div. 1990).

 

As stated in Falefatu, 17 A.S.R.2d at 120: 

 

Insofar as the cited provision of Rule 35 purports to extend or abolish the mandatory deadline for alleging errors of law in a criminal sentence, it is in direct conflict with the statute.  In cases of such conflict the statute, enacted pursuant to the power of the Fono to define and reasonably restrict the jurisdiction of the High Court, must prevail over the judge-made rule (citations omitted).

 


We chose, however, without fully articulating reasons, to follow the further Falefatu precedent of construing the original motion, and the present motion as well, as addressed to our discretion under A.S.C.A. § 46.2205(b) to modify the condition of probation to which Leiataua objects.  Id. at 121. Thus, we were enabled to consider and, if well taken, correct her alleged defect in this condition.[30ASR2d159]

 

[2]  We also wanted to point out Leiataua's misconception of the word "sentence," in the context of the original motion.  Her sentence is the term of imprisonment imposed with execution suspended.  It will not begin unless and until her probation is revoked.  We merely modified the detention condition of her probation on February 5, 1996, pursuant to our authority under § 46.2205(b).  This court fully discussed and recognized the distinction between a "sentence of imprisonment" and "detention as a condition of probation" in Atuatasi v. American Samoa Gov’t, CA No. 55-88, slip op. (Trial Div. July 25, 1988), aff'd 9 A.S.R.2d 67, 72 (Appellate Div. 1988).  We reaffirm this valid distinction now.

 

[3]  We also reaffirm our denial of the original motion.  Based on changed circumstances, clearly spelled out and fully explained, we modified Leiataua's conditional detention, as authorized by § 46.2205(b).  We were not required to find any violation of the conditions of her probation.  A violation is only a prerequisite to revocation of probation and execution or imposition of the sentence under A.S.C.A. § 46.2209.

 

The motion for reconsideration is denied. 

 

It is so ordered.      

 

 

 

 

********

 

Leiataua ; American Samoa Gov’t v.,


[30ASR2d122]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff-Appellee

 

v.

 

THERESA FANUAEA LEIATAUA, Defendant-Appellant

 

High Court of American Samoa

Appellate Division

 

AP No. 22-95

 

August 1, 1996

 

[1]    In determining whether a legal question is substantial enough to grant a stay of execution of a criminal sentence or release pending appeal, a substantial question is a close question or one that very well could be decided the other way.

 

[2]  Because the language of A.S.C.A. § 46.2401 is weighted against granting a stay of execution of a criminal sentence, a person seeking a stay bears the burden of showing that a close question of law exists.

 

[3]  The High Court is not bound to accept the definition of misapplication of funds expounded by the federal courts.  In fact, federal courts have used varying definitions for misappropriation of funds.

 

[4]  When two criminal sentences are identical and are running concurrently, the upholding of one is sufficient to deny the stay of execution without examination of the other.

 

Before KRUSE, Chief Justice.

 

Counsel:    For Plaintiff-Appellee, Henry W. Kappel, Assistant Attorney General

For Defendant-Appellant, Ellen A. Ryan

 

Order Denying Motion for Stay of Execution of Sentence:         

 

Appellant Theresa Fanuaea Leiataua ("Leiataua") moves us to stay execution of her criminal sentence, pending appeal, on the basis of "cause [30ASR2d123] shown" under A.S.C.A. § 46.2401.  Leiataua was convicted on two counts of larceny or fraud in violation of A.S.C.A. § 28.0111.  The first conviction, in CR No. 9-94, involved the use of a false invoice to secure a loan from the Development Bank of American Samoa ("DBAS").  The second conviction, in CR No. 44-94, involved Leiataua's actions in using her position as vice-president of loans at DBAS to bypass loan approval procedures.  For purposes of this Order, we accept the facts as found by the trial court and as recited in the memorandums of both Leiataua and the government.

 


DISCUSSION

 

Appellate Court Rule 9 outlines the criteria for release pending appeal as follows:

 

The decision as to release pending appeal shall be made in accordance with the relevant provisions of the American Samoa Code Annotated.  The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant.

 

A.C.R. 9(c) (emphasis added).  Leiataua moves for release under A.S.C.A. § 46.2401, which states:

 

Pending the hearing and determination of an appeal, execution of a final sentence of the High Court, except a sentence of death, will not be stayedunless the appellate division, the trial division, or the Chief Justice orders a stay for cause shown and upon such terms as it or he may fix.

 

A.S.C.A. § 46.2401 (emphasis added).  Leiataua claims she can show cause because a substantial question of law exists, making the reversal of her conviction likely. 

 

[1-2]  The federal courts have adopted two different standards to measure whether a legal question is substantial enough to grant a stay of execution or release pending appeal.  Under one standard, a substantial question is one that is "fairly debatable," "fairly doubtful," or "one of more substance than would be necessary to a finding that it is not frivolous."  Under the other standard a substantial question is "a 'close' question or one that very well could be decided the other way." U.S. v. Perholtz, 836 F.2d 554 (D.C. Cir. 1987).  The latter standard is more demanding.  Id.  Because the language of § 46.2401 is weighted against granting a stay, we adopt the latter standard in examining the question of substantiality.  Thus, a person seeking a stay bears the burden of showing that a close question of law exists, that is, one

[30ASR2d124] that could well be decided the other way on appeal.  In so requiring, we affirm the policy of the statute that convicted persons not be released without a substantial showing of error.

 

In attempting to show error, Leiataua makes a lengthy argument that her convictions do not fit the definition of misapplication of funds as contemplated by A.S.C.A. § 28.0111.1  She submits the following definition: "misapplication of funds . . . occurs when funds are distributed under a record which misrepresents the true state of the record with the intent that bank officials, bank examiners, or the Federal Deposit Insurance Corporation will be deceived."  United States v. Kennedy, 564 F.2d 1329, 1339 (9th Cir. 1977).  She claims that the trial court did not find the requisite misrepresentation under this definition.  This argument has no merit.

 

[3]  First, the High Court is not bound to accept the definition of "misapplication" expounded by the federal courts.  Although we often look to the federal courts for guidance, we are not bound by their pronouncements.  Thus, it is unclear whether we would adopt the same definition of misapplication as the federal courts have.

 

Second, even if we were to accept a federal court definition for misapplication, the definition offered by Leiataua is not the only definition they have used.  In one of the Ninth Circuit's more recent misapplication cases, it stated the following: 

 

The government can prove the misapplication element by showing that a bank has been "deprived of its right to . . . make its own decision as to how [its] funds are used."  United States v. Hazeem, 679 F.2d 770, 772 (9th Cir. 1982) (internal quotation omitted).  To show that the bank was deprived of that right, the government must show that funds were disbursed from the bank under a false pretense designed to deceive bank officials.  Id.;United States v. Unruh, 855 F.2d 1363, 1371 (9th Cir. 1987. 

 

U.S. v. Wolfswinkel, 44 F.3d 782, 786 (9th Cir. 1995).  This definition, broader than that offered by Leiataua, would seem to cover both of her convictions.  In CR No. 44-94, she misrepresented the status of her loan with Amerika Samoa Bank when she convinced DBAS to buy it out.  In CR No. 9-94, she allowed an expenditure of funds to reimburse her for materials that she never purchased nor intended to purchase.  These satisfy us as false pretenses under this definition.2

 

[4]  Finally, even if we accept the definition offered by Leiataua, she still does not have grounds for having her sentence vacated.  In convicting her in CR No. 9-94, the trial court found that Leiataua, at a minimum, acquiesced to a disbursement of funds to her based upon a false invoice.  A.S.G. v. Leiataua, 28 A.S.R.2d 206 (Trial Div. 1995).  This false invoice clearly constitutes a false record upon which funds were distributed.  Because both sentences were identical and are running concurrently, our upholding of one is sufficient to deny the stay of execution without examination of the other.  See United States v. Draiman, 614 F. Supp. 307, 312 (D.C. Ill. 1985).  Thus, we need not consider what effect this definition would have with regard to the conviction in CR No. 44-94 at this time. Therefore, Leiataua's arguments concerning the precise definition of misapplication are insufficient to show cause for a stay of execution.

 

Leiataua also makes an argument that the trial court's finding of intent was erroneous.  Her argument, however, is basically an assertion that the trial court gave too broad a reading to United States v. Krepps, 605 F.2d 101 (3d Cir. 1979).  This brief argument, even if accepted, does not negate the finding of intent, and is therefore not sufficient to show cause for a stay of execution.

 

The motion is denied.

 

It is so ordered.

 

 

 

*********

 



  1  We are not sure that Leiataua has properly preserved this argument for appeal.  However, we dispose of this motion on other grounds, and need not concern ourselves with this question at this time.[30ASR2d125]

2  This broad definition may also answer Leiataua's argument that she cannot be convicted merely because proper bank procedures were not followed.  It seems to us that the following of bank procedures is essential to the bank retaining its right to make its own decision as to how its funds are used.  This argument can be more fully explored on appeal.

Leiataua; American Samoa Gov’t v.,


[30ASR2d93]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

THERESA FANUAEA GURR LEIATAUA, Defendant

 

High Court of American Samoa

Trial Division

 

CR No. 9-94

CR No. 44-94

 

July 12, 1996

 

[1]  Although increasing a criminal penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the United States Constitution, the court may modify a period of detention ordered as a condition of probation in view of changed circumstances.

[2]  When an incarcerated criminal must leave the jurisdiction of the court in order to receive the specialized medical diagnosis then indicated, the medical release gives the person a temporary reprieve from the period of detention and dilutes the punishment, rehabilitative, and deterrent aspects of the detention.  The addition of one half-day of detention, or more if appropriate, for every day of release from detention is intended to strengthen the detention objectives in a way that is rationally related to the manner in which it was weakened by the reprieve from detention.[30ASR2d93]

 

[3]  When an incarcerated criminal must leave the jurisdiction of the court in order to receive the specialized medical diagnosis then indicated and the person further weakens the detention purposes by needlessly prolonging the stay in outside the jurisdiction, added detention time may aim at inducing the criminal to complete medical tests and return to American Samoa in a timely manner.

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

 

Counsel:    For Plaintiff, Henry W. Kappel, Assistant Attorney General

For Defendant, Ellen A. Ryan

 

Order Denying Motion To Correct Illegal Sentence and Revising Dates of The Detention Condition of Probation:

 

On November 6, 1995, this court sentenced defendant Theresa Fanuaea Gurr Leiataua ("Leiataua") to two concurrent five-year terms of imprisonment for her convictions of two counts of bank larceny and fraud in violation of A.S.C.A. § 28.0111.  Execution of the sentence was suspended and Leiataua was placed on probation for a period of five years.  She was required to serve a 20-month period of detention as one of the conditions of probation, subject to refinement when and if the pending motion for reconsideration or new trial was withdrawn or denied.


 

On January 11, 1996, after the motion for reconsideration or new trial was denied and following a further hearing on fixing the final conditions of probation, we revised the detention condition.  We retained the 20-month detention period, but suspended execution of 10 of those months and required Leiataua to serve the remaining 10 months, commencing January 16, 1996 and ending November 15, 1996.[1]  She was to be detained for the first three months without release, except by prior court order or in a medical emergency.  Beginning on or after April 16, 1996, she was permitted daytime work release to perform gainful employment, leaving the correctional facility no earlier than 6:30 a.m. and returning there no later than 5:00 p.m., Monday through Friday of each week.  She could commence work release only after the employer's submitted written verification of her employment submitted to her probation officer.

 

On February 5, 1996, however, this court granted Leiataua  temporary release from the correctional facility for purposes of traveling to Hawaii for medical examination and, if necessary, for treatment.  Leiataua was to serve her remaining detention time as condition of probation upon her return to American Samoa, with one half-day added for each day she spent on the medical release, or with a minimum of one day added, depending on the circumstances, for each day if she was malingering.

 

Modification of the Detention Condition

 

[1]  Leiataua now argues that our order increasing her period of detention for every day of her medical release violates the double jeopardy prohibitions of the United States Constitution and the Revised Constitution of American Samoa.  See U.S. Const. amend 5; Revised Const. of Am. Sam. art. I § 6.  Leiataua relies solely, for this contention, on a statement by the U.S. Supreme Court in United States v. Benz, 282 U.S. 304, 307 (1930) (quoting WHARTON, CRIMINAL PLEADING AND PROCEDURE § 913 (9th ed.)):

 

As a general practice, the sentence, when imposed by a court of record, is within the power of the court during the session in which it is entered, and may be amended at any time during such session, provided a punishment partly suffered be not increased.  . . . [T]o increase the penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution . . . .

 

In this case, however, detention was ordered as a condition of probation, pursuant to A.S.C.A. § 46.2206, and any condition of probation may be modified by the court at any time.  A.S.C.A. § 46.2205(b).  The U. S. Supreme Court clearly stated that the legislature has the power to permit the courts to modify conditions of probation in view of changed circumstances.

 

The dissenting opinion asserts that our interpretation of congressional intent is inconsistent with the common-law  rule that “a punishment already partly suffered be not increased.”  That common-law rule simply does not apply when Congress has provided a court with the power to modify a sentence in light of changed circumstances.  For example, a court may impose a sentence and probation, under the general probation statute . . . .  If the defendant violates the terms of his probation, the court may “increase” the punishment by requiring him to serve the initial sentence.

 

Ralston v. Robinson, 454 U.S. 201, 217 n.10 (1981).  [30ASR2d96]

 


[2-3]  Circumstances in this case materially changed after our order of January 11.  On February 5, unlike in other jurisdictions, Leiataua was required to leave the jurisdiction of this court in order to receive the specialized medical diagnosis then indicated.  The medical release gave Leiataua a temporary reprieve from her period of detention and diluted the punishment, rehabilitative and deterrent aspects of her detention.  It also gave her opportunity to further weaken these detention purposes by needlessly prolonging her stay in Hawaii.  The addition of one half-day of detention, or more if appropriate, for every day of release from detention was, and still is, intended to strengthen the detention objectives in a way that is rationally related to the manner in which it was weakened by the reprieve from detention.  The added detention time was also aimed at inducing Leiataua to complete her medical tests and return to American Samoa in a timely manner.2

 

Aside from the fact that we only changed a condition of her probation, not Leiataua's sentence, we also point out that in one sense, we did not even increase the period of detention.  We imposed a 20-month detention period on Leiataua, the permissible maximum under A.S.C.A. § 46.02206(2), and suspended the execution of 10 of those months.  The modification of the detention period only requires her to serve a portion of the suspended 10 months, which in no event could ever exceed the 20-month maximum.  More important, however, the modification is expressly authorized by law and is based on an actual change in circumstances.

 

For the above reasons, we will deny Leiataua's motion to correct the sentence.

 

Revised Dates of Detention

 

Leiataua's medical release in Hawaii began on February 16, 1996, and ended when she returned to American Samoa on June 19, 1996, a period of 135 days.3 She actually returned to custody on June 25, 1996, five days later, for a total release time of 140 days.  Thus, adding 67 and one-half days to the detention period for the time on medical release, Leiataua now must serve 207 and one-half days in detention at the correctional facility beyond November 15, 1996, or untilnoon on June 19, 1997.

 


We will not modify the three-month no-release period before Leiataua may commence work release, but will reset the earliest starting date for work release. Leiataua served 21 days of the three months prior to her release on February 5.  She must serve another 69 days before she has complied with this order.  Thus, we will now establish September 3, 1996, the first workday in September, as the date when she may commence work release.  The employer's prior submission of written verification of Leiataua's employment to her probation officer remains a prerequisite for work release to begin.               

Order

 

1.      The motion to correct the sentence is denied.

 

2.      Leiataua's present detention period now ends at noon on June 19, 1997.

 

3.      Leiataua may commence work release on or after September 3, 1996, provided she has actual gainful employment, which the employer has previously verified in writing to her probation officer.  She may then leave the correctional facility no earlier than 6:30 a.m. and return no later than 5:00 p.m., Monday through Friday, to perform her employment.

 

It is so ordered. 

 

 

 

 

********

 

 



  [1]  The order of January 11, 1996, mistakenly set the ending date on December 15, 1996.  This miscalculation is a clerical error and is formally corrected by this present order.[30ASR2d95]

 2  Leiataua was diagnosed free of her feared disease at least as early as April 22, 1996, and ultimately further testing scheduled on June 2, 1996, was canceled.  According to other reports, she was very active in other activities while in Hawaii.  We are inclined to believe that Leaitaua violated at least the spirit of our February 5 order, and we could be persuaded that she was in fact malingering.

 

  3  Leiataua was not remanded to the correctional facility immediately upon her return on June 19, 1996, but was permitted to remain in a release [30ASR2d97] status in order to participate in the funeral and related activities for her mother on June 20-23, 1996.  On June 24, 1996, she was remanded to custody as of 9:00 a.m. on June 25, 1996. 

Lavata`i; Pen v.


[30ASR2d10]

 

IOELU F. C. PEN, Appellant

 

v.                

 

FAIMA LAVATA`I, MEL LAVATA`I  and DOES I - V, Appellees

 

High Court of American Samoa

Appellate Division

 

AP No. 8-94

 

April 9, 1996

 

[1]  The mere fact of the Governor's approving signature does not render a flawed lease impervious to legal challenge any more than it could transform a bill into law without constitutionally proper legislative approval. 

 

[2]  A.S.C.A. § 4.1040 provides for appellate review of a final administrative decision in a "contested case."  In such cases, the Appellate Division may reverse or modify an agency decision if it is contrary to law or based on factual findings which are "clearly erroneous," or if it is otherwise arbitrary, capricious or abusive of discretion.  A.S.C.A. § 4.1043-44. 

 

[3]  Certain administrative functions, such as the determination of whether an alien should be deported according to existing immigration and probably the determination of whether an alienation of land is improvident within the meaning of A.S.C.A. § 37.0203(c), are beyond the reach of any judicial review because they are committed to agency discretion by law.

 

[4]  The function of the Land Commission and the Governor in the approval of leases of communal land is to provide a check against improvident leases, which would be harmful to the Samoan land tenure system, not to sit in judgment on land title issues.

[5]  The statute requiring the Governor’s approval on certain land transfers, A.S.C.A. § 37.0221, does not devise a system where the Governor effectively has the right to reallocate property without regard to the preexisting rights of others in that property, and then to have those decisions immune from judicial review. The Governor's statutory authority to approve a lease between private parties presupposes that the lessee actually has the authority to enter into the lease in the first place. 

 

[6]  An administrative decision does not concern a contested case under A.S.C.A § 4.1040 when a party was not represented at Land Commission hearings and could not contest the lease.[30ASR2d11]

 

[7]  Appellate courts lack subject matter jurisdiction to consider issues that  were not presented to the administrative agency.

[8]  As a matter of due process of law, the Land Commission must hold public hearings on proposed transfers of land, and give reasonable notice to interested parties. 

 

[9]  Separation of powers principles do not prevent the judicial branch from voiding a lease approved by the Governor in violation of due process rights. 

[10]  Customary family consultation in regards to dealing with communal land can continue in a system where the approval of the governor is also required for the leasing of native land.

 

[11]  Regardless of whether a matai is required to consult his family before he enters a lease, certain circumstances demand that he do so when revoking an assignment of communal land to a family member. 

 


[12]  An assignment of communal land may only be revoked for an overriding family purpose if the family meets, the matai reasonably decides the revocation is for an overriding family purpose, and alternate land or another reasonable arrangement is made. 

 

[13]  Family consultation is required when revoking a land assignment to a family member so that the land may be leased to non-family members.

 

[14]  A matai must arrive at consensus in the traditional Samoan way before revoking an assignment of communal land based on the family purpose doctrine. 

 

Before RICHMOND, Associate Justice, ALARCON*, Acting Associate Justice, UNPINGCO**, Acting Associate Justice, LOGOAI, Associate Judge, and SAGAPOLUTELE, Associate Judge.

 

Counsel:    For Appellant, Togiola T.A. Tulafono

                   For Appellees, Afoa L. Su`seu`e Lutu

 

Opinion:

 

RICHMOND, J.:

 

This case concerns the extent of matai authority to revoke assignments of family communal land.

 

HISTORY

 

Appellant Ioelu F. C. Pen ("Pen") brought this action in the Land and Titles Division ("trial court"), seeking a permanent injunction against appellees Faima Lavata`i ("Faima") and his son Malakai Lavata`i, to enjoin their interference with Pen's use and enjoyment of a portion of land named Lepine, leased to Pen by the late Lavata`i Natia ("Lavata`i"), then the sa`o, or senior matai, of the Lavata`i family of Nu`uuli.  Pen is not a member of the Lavata`i family.

 

On March 21, 1994, the trial court found that Pen's lease was not validly created because a preexisting assignment of the land to Faima was not validly revoked. The trial court delayed voiding the lease, however, in order to protect lending institutions with pecuniary interests in Pen's business.  Cross-motions to reconsider or for new trial were denied on May 9, 1994.  This appeal came properly before this court on October 24, 1995, with both parties represented by counsel. 

 

DISCUSSION


 

Pen argues that:  (1) the trial court factually erred in concluding that Faima possessed a valid assignment of communal land; (2) courts may not invalidate a lease approved by the Governor absent a showing of fraud in the procurement of the lease; (3) the trial court erred in reviewing the issues de novo, but instead should have treated the case as an appeal of an agency decision, giving proper deference to the agency's ruling; and (4) the trial court erred in limiting the power of the matai to change or revoke an assignment.

 

A.      The Factual Validity of the Assignment to Faima

 

On appeal, the trial court's factual findings will not be reversed unless they are shown to be clearly erroneous.  A.S.C.A. § 43.0801(b). 

 

In the present case, Pen challenges the trial court's factual finding that Faima held an assignment interest in Lepine, stating that Faima was present during a family meeting where the intended lease was discussed, and implying that Faima would have objected at that time if he had actually possessed a valid assignment.  Pen further asserts that Faima's claim is [30ASR2d13] defective because the matai who purportedly conveyed the assignment to Faima was not in office at the time the assignment allegedly became effective.  Finally, Pen asserts that Faima lived in Western Samoa for a period of time, and that he lived on land named Tutu whenever he was in American Samoa prior to 1980 when he actually took up residence on Lepine, indicating that Faima had no interest in Lepine until 1980 at the earliest.

 

Although Pen's view of the facts is one possible account, the trial court's findings are not clearly erroneous.  The trial court made its decision based, in part, on a visual inspection of Lepine and its structures.  Addressing specifically the argument that Faima would have objected to the lease if he actually had a valid assignment, Faima's testimony at trial and the opinion of the trial court both indicated that he did object.  We have no reason to hold that a reasonable finder of fact could not have believed Faima's testimony.    

 

To the assertion that the matai granting Faima's assignment was not in office at the time it was granted, there is evidence in the record that Faima had some interest in Lepine as early as 1931.  Although Faima testified that he thought the assignment occurred in 1963 (even though the matai did not take office until 1970), the thrust of Faima's testimony is that he began using heavy equipment to work the land after it was assigned to him by the Lavata`i titleholder.  Faima clearly did intend to testify that the assignment occurred, in chronology, after the matai took office.  Again, we have no particular reason to question the trial court's finding, despite the fact that Faima testified to events that occurred more than 20 years ago, and his memory of them may consequently not have been precise.

 

Regarding Pen's assertions about Faima's absences from Lepine, we acknowledge that these factors may be relevant.  However, in view of evidence that Faima cleared Lepine and worked the entire land mass in the 1930s, a reasonable finder of fact could readily conclude that Faima had important ties to Lepine prior to 1980, contrary to Pen's assertions.  The trial court's finding of an assignment is, accordingly, not clear error.

 

B.      Separation of Powers

 


Pen argues that the trial court's decision violates constitutional separation of powers principles by invalidating a lease of communal land, which was properly approved by the Governor in accordance with A.S.C.A. § 37.0221.  We doubt that this argument is of constitutional magnitude, since it is founded on a regulatory power created by statute, and not on the Constitution itself. 

 

[1-2]  The thrust of Pen's argument is, essentially, that the trial court could [30ASR2d14] not alter land lease decisions made by the Governor unless fraudulently induced.  The mere fact of the Governor's approving signature does not render a flawed lease impervious to legal challenge any more than it could transform a bill into law without constitutionally proper legislative approval.  Furthermore, A.S.C.A. § 4.1040 provides for appellate review of a final administrative decision in a "contested case."  In such cases, the Appellate Division may reverse or modify an agency decision if it is contrary to law or based on factual findings which are "clearly erroneous," or if it is otherwise arbitrary, capricious or abusive of discretion.  A.S.C.A. § 4.1043-44. 

 

[3]  Certain administrative functions are concededly beyond the reach of any judicial review because they are "committed to agency discretion by law."  SeeKENNETH C. DAVIS, ADMINISTRATIVE LAW OF THE SEVENTIES § 28.16 (1976).  For instance, the determination of whether an alien should be deported according to existing immigration policy is a question of policy, committed to the Immigration Board, and not judicially reviewable on its merits. Farapo v. American Samoa Gov't, 23 A.S.R.2d 136, 142-43 (App. Div. 1993).  Additionally, the determination of whether an alienation of land is improvident within the meaning of A.S.C.A. § 37.0203(c) is probably a question of policy, committed to the discretion of the Land Commission and the Governor, and ordinarily not reviewable by the courts.  See Vaimoana v. Tuitasi18 A.S.R.2d 88, 92 (App. Div. 1991). 

 

[4-5]  Pen has not made, nor can we think of, any serious argument that the Constitution or land lease statutes in any way commit the resolution of land title disputes to the Governor and the Land Commission by the force of law, thus insulating the Governor's decisions from judicial interference.  The function of the Land Commission and the Governor in the approval of leases of communal land is to provide a check against improvident leases that would be harmful to the Samoan land tenure system, not to sit in judgment on land title issues.  Vaimoana18 A.S.R.2d at 92.  The statute does not devise a system where the Governor effectively has the right to reallocate property without regard to the preexisting rights of others in that property, and then to have those decisions immune from judicial review.  The Governor's statutory authority to approve a lease between private parties presupposes that the lessee actually has the authority to enter into the lease in the first place.     

 

C.      De Novo Review

 

[6]  The present case was brought in the Land and Titles Division where the facts were reviewed de novo, not in the Appellate Division.  The administrative decision did not concern a contested case within the meaning of A.S.C.A. § 4.1040, because Faima was not represented at the Land Commission hearings, and thus could not contest the lease.  [30ASR2d15]

 


[7]  Clearly, the Land Commission could not have made a decision regarding competing claims to the property if one of the claims was never presented.  If the Land Commission and ultimately the Governor had considered the validity of Faima's claimed assignment when deciding whether to approve Pen's lease, the Land Commission's decision would have been entitled to proper deference by an appellate court.  In the present matter, however, the Land Commission never contemplated that collateral issue when approving the lease, and likewise never rendered an appealable judgment regarding Faima's claimed assignment. Appellate courts lack subject matter jurisdiction to consider issues that were not presented to the agency.  First National Bank of St. Charles v. Federal Reserve, 509 F.2d 1004, 1006 (8th Cir. 1975). 

 

[8-9]  As a matter of due process of law, the Land Commission should hold public hearings on proposed transfers of land, and give reasonable notice to interested parties.  Vaimoana v. Tuitasi, 22 A.S.R.2d 1, 6 (Trial Div. 1992).  Separation of powers principles do not prevent the judicial branch from voiding a lease approved by the Governor in violation of due process rights.  Conversely, if Faima did have reasonable notice of the proceedings at the Land Commission but failed to challenge the lease and thereby preserve his property interest, he should be estopped from subsequently asserting his interest in the courts to the detriment of the lessor who has expended resources in reliance on the validity of the lease.  See Mundy v. Arcuri267 S.E.2d 454, 457 (W.Va. 1980). 

 

The trial court found that the "lease was executed and presented for gubernatorial approval, all without Faima's knowledge or consent."  Pen v. Faima, LT No. 61-92, slip op. at 3 (Land & Titles Div. 1994).  The record does not demonstrate that this factual finding is clearly erroneous.  Failure by the trial court to conduct a de novo review of the facts would, therefore, have deprived Faima of a property interest without due process of law.

 

D.      Matai Authority

 

The fundamental issue in this case involves the extent of matai authority to revoke an assignment of communal land to a family member.  This issue brings the "twin cornerstones" of the fa`a Samoa into sharper focus:

 

The twin cornerstones of the Samoan way of life are communal land tenure and the matai system.  Each is essential to the other.  Without the matai system to administer it, the communal land system becomes anarchy.  Without the communal land system, there is no reason for the matai.

 

Calliope v. Silao, 2 A.S.R.2d 1, 2 (Land & Titles Div. 1983).  [30ASR2d16]

 


In the present case, the matai's powers are, at least superficially, at cross-purposes with the protection of family communal land, since the circumstances involve an attempt by the matai to revoke an assignment of land held by a family member in favor of a long-term lease to be granted to a non-family member.  The present facts bring a fundamental problem into focus, namely, the more power the matai retains, the more he is empowered to alienate or endanger family lands; and the more family lands are regulated and protected by law, the more the authority of the matai over family lands is weakened.

 

We approach this problem by a resort to the fundamental principles governing the application of Samoan customary law.  The Revised Constitution of American Samoa, Article I, Section III states, in relevant part:

 

It shall be the policy of the government of American Samoa to protect persons of Samoan ancestry against alienation of their lands and destruction of the Samoan way of life and language, contrary to their best interests.  Such legislation as may be necessary may be enacted to protect the lands, customs, culture, and traditional Samoan family organization.

 

This language not only empowers the Legislature to enact measures protecting the fa`asamoa, but also adopts protection of the fa`asamoa as a constitutionally mandated policy goal.  In this light, we should interpret statutes in a way that are protective of Samoan custom whenever it is possible to do so.     

 

In the present case, the matai entered the lease with Pen without any family discussion, although there was some evidence that he mentioned his intention to do so at a family meeting.   The trial court in this matter took the position that a matai is required to consult with the entire family when making the decision to lease communal land to a non-family member, where the lease would necessarily revoke an assignment of land to a family member.  This holding gives rise to three issues: (1) whether or not the matai must consult with family members prior to entering a lease; or (2) whether a matai must consult his family before revoking an assignment of land; and (3) if so, whether the requirement of consultation merely means notice and an opportunity to comment, or a process whereby the family agrees to the proposed action.

 

1.  Requirement of Consultation to Enter a Lease

 

[10]  Clearly, traditional Samoan custom requires a sa`o to consult with his family before dealing dispositively with communal land.  Nevertheless, this court argued in Vaimoana, 18 A.S.R.2d at 91, that the land lease statutes effectively rendered this customary requirement unnecessary by failing to codify it.  TheVaimoana court took note of Article I, Section III of the Revised Constitution, as well as the statutory directive that the "customs of the Samoan people not in conflict with the laws of American Samoa . . . shall be preserved," A.S.C.A. § 1.0202, but found the custom to be in conflict with the land lease statutes by virtue of the fact that it was not mentioned in the statutes.

 

Appellant errs, though, in arguing that because custom requires family consultation before the sa`o conveys communal land, courts must implement that custom.  This argument falters because of the statutory phrase, "not in conflict with the laws of American Samoa."  The statute provides for judicial preservation of customs "not in conflict" but not for those customs that are "in conflict."  This provision authorizes the Fono, not the High Court, to set aside custom by statutes to the contrary.


 

In this case, the Fono has provided by law for conveyances without an absolute requirement of family consultation, so the custom upon which appellants rely is "in conflict." Vaimoana, 18 A.S.R.2d at 91. 

 

We think that the foregoing conclusion flies in the face of logic.  The language of the statute does not specifically require family consultation, but neither does it specifically state that such consultation is no longer necessary.  The statute, if anything, is merely silent on the matter, and hardly "in conflict" with the custom. The fact that the statute enacted additional checks and safeguards against the improvident alienation of land should in no way imply that the traditional checks are supplanted, particularly in light of statutory language which demands the preservation of customs which are "not in conflict with the laws of American Samoa," and constitutional language declaring it the policy of the government to protect Samoans "against alienation of their lands, and the destruction of the Samoan way of life."  

 

There is no logical reason why customary family consultation cannot continue in a system where the approval of the Governor is also required for the leasing of native land.  Although we have other grounds upon which to base our present decision, if we were forced to revisit this particular portion of Vaimoana, we would likely have overruled it, or at least limited it to its facts.

 

2.  Requirement of Family Consultation to Revoke an Assignment[30ASR2d18]

 

[11]  Regardless of whether a matai is required to consult his family before he enters a lease, certain circumstances demand that he do so when revoking an assignment of communal land to a family member, and that is what the lease effectively does in this case.            Although communal land does not lose its communal character when assigned, see Tauiliili v. Moega, 3 A.S.R. 356, 357 (Trial Div. 1958), the assignee does receive certain traditional property rights according to Samoan custom, including the right to remain on the land for life, absent good cause for removal.  Taesali v. Samuela, 3 A.S.R. 359, 361-62 (Trial Div. 1958); see also Malala v. Temu, 11 A.S.R.2d 137, 142 (Land & Titles Div. 1989).  Good cause may include either a failure to render tautua (traditional service to matai and family), Leapaga v. Masalosalo, 4 A.S.R. 868, 872 (Appellate Div. 1962), or an overriding family purpose.  Tiumalu v. Lio, 3 A.S.R. 176, 179-80 (Trial Div. 1955). 

 

[12-13] An assignment of communal land may only be revoked for an overriding family purpose if specific conditions are present:

 

An express or implied assignment of a communally owned house and appurtenant areas creates in the family member the right to continue beneficial occupancy until death, voluntary removal or authorized removal.  Removal may be ordered by the matai only after:

a.  A family meeting at which all partied are permitted to be heard.


b.  A decision by the matai, reasonable under the circumstances, that the removal is for an important family purpose.

c.  Provision of specific alternate land for erection of a dwelling unit if desired, or other arrangement reasonable under the circumstances.

 

Coffin v. Felise, 4 A.S.R. 14, 18 (Land & Titles Div. 1970).      Although Vaimoana, 18 A.S.R.2d at 91, stood for the principle that family consultation is not required for a matai to lease communal property to non-family members (a doubtful proposition), family consultation is clearly required when doing so would mean revoking an assignment to a family member regarding the land to be leased.

 

3.  The Meaning of Family Consultation

 

The issue arises as to whether the required family consultation means that the matai consider the opinions of all who want to express them and then make his own decision, or whether it means that the family exercises authority. [30ASR2d19]

 

Governing by consensus is the Samoan way.  Consensus is not democracy by ballot, where one side wins and the other loses.  Rather, consensus governance is a system designed to promote harmony within the family by discussing issues and gradually melding opinions and wills so that in the end everyone involved is satisfied, and all objections are resolved, or at least withdrawn.  As former Governor Peter Tali Coleman recently explained:

 

Our American legal system—which also operates in Samoa—is based on English jurisprudence as it has evolved over the centuries.  It’s a system of conflict resolution which produces clearly identifiable winners and losers.  Our Samoan culture, on the other hand, is based on thousands of years of the evolution of a Polynesian heritage of conflict resolution by consensus building.  Whenever possible, we, as Polynesians, try to avoid conflict. When we can’t avoid conflict, we try to resolve it so everyone goes away a winner if at all possible.

 

Peter Tali Coleman, Peter Tali Coleman on the F.B.I. ReportSAMOA NEWS, Aug 7. 1995, at 10. 

 

[14]  Samoan society and culture, although governed by hereditary rulers within families, is not autocratic or dictatorial.   We hold, accordingly, that a matai must arrive at consensus in the traditional Samoan way before revoking an assignment of communal land based on the family purpose doctrine. 

The trial court's judgment is affirmed.  It is so ordered.

 

********

 



*  Hon. Arthur L. Alarcon, Senior Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation of the Secretary of the Interior.

**  Hon. John S. Unpingco, Chief Judge, United States District Court for the District of Guam, sitting by designation of the Secretary of the Interior.[30ASR2d12]

Lafoga; American Samoa Gov’t v.


[30ASR2d110]

 

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

SAMMY LAFOGA, FAGA`ALU PATU, and TOLO BERNARD, Defendants

 

High Court of American Samoa

Trial Division

 

CR No. 35-96

CR No. 36-96

CR No. 37-96

 

July 18, 1996

 

[1]  Prison discipline does not preclude a subsequent criminal prosecution based on double jeopardy.

 

[2]  Criminal procedure in the High Court must conform as nearly as practical to the Federal Rules of Criminal Procedure.  The High Court will consider interpretations of the federal rules by federal courts to be highly persuasive in the interpretation of the local rules, which mirror the federal rules. 

 

[3]  A prisoner already in custody who is merely returned to custody following an escape does not possess the liberty interest protected by T.C.R.Cr.P. 5.

 

[4]  To prevail under the defense of selective prosecution, a defendant must show that his prosecution was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, and that others similarly situated have not been prosecuted. 

 

[5]  Selective prosecution claims are reviewed under ordinary equal protection standards.

 

[6]  A claim for selective prosecution based on the publicity in a case is analyzed under the rational basis standard.

 

[7]  Under the rational-basis test, the government need only show that its actions are rationally related to a legitimate state interest. 

 

Before KRUSE, Chief Justice, BETHAM, Associate Judge, and SAGAPOLUTELE, Associate Judge.[30ASR2d111]

 

Counsel:              For Plaintiff, Frederick J. O'Brien, Assistant Attorney General

For Defendants Sammy Lafoga and Faga`alu Patu, David P. Vargas

For Defendant Tolo BernardVirginia Sudbury

 

Order Denying Motions to Dismiss:

 

INTRODUCTION

 

Three prisoners escaped from the Tafuna Correctional Facility ("TCF"), where they had been confined following conviction.  On March 25, 1996, Bernard escaped from the prison by walking through the open front  gate.  He was arrested a few hours later and returned to confinement.  Patu and Lafoga walked out the front gate of the TCF on April 2, 1996.  Patu returned to the facility later that afternoon.  Lafoga was arrested and returned to TCF the next day. 

 

Following their respective returns to custody, all three were removed from the general population and placed in maximum security.  On May 21, 1996, the government arraigned all three for escape from confinement in violation of A.S.C.A. § 46.4627.  The defendants have moved to dismiss the criminal actions on three grounds, all of which we deny, for the reasons given below.

 

DISCUSSION

 

I.       Double Jeopardy

 

The defendants first claim that their criminal prosecution constitutes double jeopardy.  They claim that, having already been subjected to punishment by prison officials, in that they were moved from the general prison population into maximum security, they cannot now be tried by the government.

[1]  Article I, Section 6 of the Revised Constitution of American Samoa, which mirrors the Fifth Amendment of the United States Constitution, provides that "No person shall twice be subject for the same offense to be twice put in jeopardy of life or liberty."  Federal law interpreting the Fifth Amendment is persuasive in our interpretation of our Double Jeopardy Clause.1 The defendants have not cited a single case to support their [30ASR2d112] argument of double jeopardy, which is sparse.  This is not surprising, because the law is firmly against them.  Every U.S. Circuit Court of Appeal that has examined the question has ruled that prison discipline does not preclude a subsequent criminal prosecution.  See, e.g., United States v. Rising, 867 F.2d 1255, 1259 (10th Cir. 1989); Kerns v.Parratt, 672 F.2d 690, 691-92 (8th Cir. 1982); Fano v. Meachum, 520 F.2d 374, 376 n.1 (1st Cir. 1975), rev'd on other grounds, 427 U.S. 215 (1976);United States v. Herrerra, 504 F.2d 859, 860 (5th Cir. 1974); United States v. Stuckey, 441 F.2d 1104, 1105-06 (3rd Cir. 1971); United States v. Apker, 419 F.2d 388 (9th Cir. 1969); United States v. Shapiro, 383 F.2d 680, 683 (7th Cir. 1967); Hamrick v. Peyton, 349 F.2d 370 (4th Cir. 1965); Gibson v. United States, 161 F.2d 973, 974 (6th Cir. 1947).  We agree that this is the rule under our Double Jeopardy Clause.  Thus, disciplinary actions by prison officials do not constitute jeopardy to preclude a subsequent criminal trial.

 

II.      Rule 5(a)

 

The defendants next argue that the prosecution should be dismissed as a violation of T.C.R.Cr.P. 5(a).  Rule 5(a) reads, in pertinent part:  "An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the next sitting of the district court."  The first time the defendants were taken before a court was at their arraignment on May 21, 1996, a significant time after their respective arrests. 

 

[2]  Criminal procedure in the High Court must conform as nearly as may be  practical to the Federal Rules of Criminal Procedure.  See A.S.C.A. § 46.0501. We consider interpretations of the federal rules by federal courts to be highly persuasive in our interpretation of the local rules, which mirror the federal rules. See American Samoa Gov't v. Isaia, CR No. 65-95, slip op. (Trial Div. March 28, 1996); Fanene v. American Samoa Gov't, 4 A.S.R. 957 (Appellate Div. 1968).   Unfortunately, the federal cases cited by the defendant have almost nothing to do with the present situation.  See United States v. Jernigan, 582 F.2d 1121 (9th Cir. 1978) (holding that dismissal is appropriate if officer delays executing arrest warrant until such time as arrestee cannot be brought before magistrate until serving long weekend in jail); United States v. Osunde, 638 F. Supp. 171, 176-77 (N.D. Cal. 1986) (holding that Rule 5(a) applies to criminal charges while a person is being held by immigration officials).  The cases cited by the government are even less relevant.  See United States v. Lovasco, 431 U.S. 783 (1977) (dealing with the Sixth Amendment right to a speedy trial); United States v. Marion, 404 U.S. 307 (1971) (same).

 

[3]  On the other hand, we were able to locate immediately with very little research effort the appropriate interpretation of Federal Rule 5(a).  "The provisions of Rule 5 . . . may not be availed of by a prisoner in escape status."  Rush v. United States, 290 F.2d 709, 710 (5th Cir. 1961); see 1 [30ASR2d113]  Charles Alan Wright, Federal Practice & Procedure § 71, at 77 (2d ed. 1982 & Supp. 1994) ("Rule 5 does not apply . . . to a prisoner who has escaped . . . ."); see alsoRedinger v. United States, 404 F.2d 310, 312 (10th Cir. 1968); Government of Virgin Islands v. Lovell, 378 F.2d 799 (3rd Cir. 1967); Wakakshan v. United States, 367 F.2d 639 (8th Cir. 1966), cert. denied, 386 U.S. 994 (1967); Rademach v. United States, 285 F.2d 100 (5th Cir. 1960); Edmonds v. United States, 273 F.2d 108 (D.C. Cir. 1959), cert. denied, 362 U.S. 977 (1960); cf. United States v. Carignan, 342 U.S. 36, 42 (1951) (holding that Rule 5 does not apply where confession was made before arrestee was presented to magistrate when he was arrested for a different crime).  A prisoner already in custody who is merely returned to custody following an escape does not possess the liberty interest protected by Rule 5.  Therefore, he is not denied any liberty interest where Rule 5 is not followed.

 

Thus, the local application of Rule 5 should follow the clear federal application of Rule 5, which does not apply to an escaped prisoner.

 

III.    Selective Prosecution

 

[4-5]  The defendants' final argument is as ill-constructed as their first two.  They claim that their prosecutions must be dismissed because they have been selectively chosen for prosecution.  However, mere selectivity in prosecution does not present a problem.  Oyler v. Boles, 368 U.S. 448 (1962).  To prevail under this defense and have his indictment dismissed, a defendant must show that his prosecution was "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification," and that others similarly situated have not been prosecuted.  Wayte v. United States, 470 U.S. 598, 608 (1985);Oyler, 368 U.S. at 456; Yick-Wo v. Hopkins, 118 U.S. 356, 373-74 (1886); United States v. Insco, 496 F.2d 204 (5th Cir. 1974); United States v. Falk, 479 F.2d 616 (7th Cir. 1973) (en banc); United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972); United States v. Steele, 461 F.2d 1148 (9th Cir. 1972). Selective prosecution claims are reviewed under ordinary equal protection standards.  Wayte, 470 U.S. at 608.

 

[6]  The defendants have not claimed that they belong to a suspect or quasi-suspect class, let alone that their prosecutions are based upon their membership in this class.  Nor have they claimed that they have had a fundamental right violated.  They claim that they have been selected out for prosecution because their escapes were publicized in the newspaper.  Assuming this is true, it is of no consequence in determining the level of scrutiny to be applied.  Furthermore, their attempt to analogize their case to United States v. Steele, 461 F.2d 1148 (9th Cir. 1972), is entirely misplaced.  In Steele, the court stated explicitly and at length that the defendants had been singled out for prosecution because they exercised their fundamental [30ASR114] First Amendment right of freedom of speech. See id. at 1151-52.  The defendants have absolutely no claim that they are being prosecuted because they exercised a constitutionally guaranteed right like that inSteele.

 

[7]  Thus, the defendants' claim is properly analyzed under the rational-basis test.  Under this test, the government need only show that its actions are rationally related to a legitimate state interest.  F.C.C. v. Beach Communications, Inc., 508 U.S. 997 (1993).  Any reasonable purpose will suffice.  The weight stands firmly in favor of the government. 

 

The defendants have not even presented an argument that the government cannot meet this test.  Clearly, the government has a legitimate interest in preventing and deterring prison escapes.  This is particularly true where prisoners commonly walk out the front gate of the prison, as the defendants allege.  We cannot say that the decision to prosecute only the most-publicized cases is unrelated to the interest of deterring escape.  Even if the defendants could prove every other element of this claim, they could not prevail.

 

CONCLUSION

 

The motions to dismiss are denied.

 

It is so ordered.

 

 

 

 

*********

 

 



  1  Interestingly, the Defendants have only moved for dismissal under the American Samoa Double Jeopardy Clause, not the Double Jeopardy Clause of the Fifth Amendment.  In the current case, however, our analysis of each would be the same.

Interocean Ships, Inc. v. Samoa Gases;


[30ASR2d170]

 

 

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 20, 1996

 

[1]   Where it appears that a judgment is void, and a party has moved the court to aid in the enforcement of that judgment, the court must examine the validity of the judgment, whether the examination is on subject matter grounds or other grounds, including the lack of capacity to sue.

 

[2]  A judgment that is void may be collaterally attacked.

 

[3]  A judgment for a corporation that has lost the capacity to sue, as when it no longer exists as an entity or has merged into another corporation, is void.

[4]  The court may void a judgment even after the parties have subsequently entered into a settlement, even though the decision, as a practical matter, invalidates the settlement.

 

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

 

Counsel:              For Plaintiff, William Reardon

For Defendant, Roy J.D. Hall, Jr.

 

Order Denying Motion for Reconsideration:

 

I.  INTRODUCTION

 

On May 2, 1994, we issued a decision finding defendant Samoa Gases liable in a products liability case in the amount of $47,455.96 plus 6% post-judgment interest.  On June 21, 1995, Samoa Gases paid $51,963.69 to the court registry to satisfy the judgment, and that amount was later forwarded to plaintiffInterocean Ships, Inc. ("Interocean").  On October 23, 1995, Interocean made a motion in aid of judgment, because it had been unable to cash the checks that had been issued to it.  The reason it could not cash the checks, based upon information from its off-island counsel, was that [30ASR2d171] Interocean had merged into a different corporation.

 

The motion in aid of judgment was the first time it was brought to our attention that, during the course of the proceedings, the plaintiff corporation had ceased to exist due to its merger into a new corporation.1  We were aware that, under the common law, when a corporation ceases to exist, it loses its capacity to sue.  We were also aware that American Samoa had no statute that explicitly continued the right to sue following a corporate dissolution.  If a judgment had been rendered where the corporation had no power to sue, as it arguably had in this case, then the case should have abated and the judgment was void. 

On December 4, 1995, we ordered both parties to brief us on the applicable law to determine whether or not the judgment was properly rendered.  In that order we asked specific questions dealing with the status of Interocean, conflict of laws, interpretation of the local and foreign corporate statutes, and assignment.

 

For all practical purposes, both parties failed to brief us in any useful way.  Thus, on March 7, 1996, we issued an order stating that, without arguments to the contrary, the common law still applied in American Samoa.  Under the common law, the judgment in favor of Interocean was void, and had to be vacated.  We ordered Interocean to return the checks issued to it to Samoa Gases.

 

On March 15, 1996, Interocean moved for reconsideration.  The motion came regularly for hearing on April 1, 1996, with counsel for both parties present.

                                                             

II.  DISCUSSION

 

A.  New Arguments Will Not Be Considered

 

We will not consider arguments in a motion for reconsideration or new trial that could have been raised in the original action but were not.  Olotoa v. Bartley, 3 A.S.R.2d 21, 22 (Land & Titles Div. 1986); see also Vaimaona v. Tuitasi (Mem.), 13 A.S.R.2d 76, 82 (Trial Div. 1989).  Counsel for Interocean had adequate opportunity to present the legal arguments it now makes in its motion for reconsideration.  These arguments are untimely and will not be considered. [30ASR2d172]

 

The only arguments we will consider from Interocean are those arguments prompted by our order vacating the earlier judgment.  These are the questions of subject matter jurisdiction, collateral attack, and enforcement of a settlement.

 

B.  Subject Matter Jurisdiction

 

[1]  Interocean points out that we have improperly equated lack of capacity to sue on its part with subject matter jurisdiction.  See Interocean Ships, Inc. v. Samoa Gases, 29 A.S.R.2d 110 at 112 (Trial Div. 1996) [hereinafter Order Vacating Judgment].  Although this may be true, it does not change the disposition of our order or give Interocean relief therefrom.  As a court, we are required to examine the validity of our suits when it comes to our attention that such a suit may be void, for lack of subject matter jurisdiction or otherwise.  Thus, in this case, even if we were not examining a question of subject matter jurisdiction, we were still faced with the question of whether our judgment was valid or void.  Where it appears that a judgment is void, and a party has moved the court to aid in the enforcement of that judgment, we must examine the validity of the judgment, whether the examination is on subject matter grounds or other grounds, including the lack of capacity to sue.

 

C.  Collateral Attack

 

[2-3]  Interocean claims that our order vacating judgment is an impermissible collateral attack upon the judgment.  Judgments are not generally subject to collateral attack.  See 46 Am. Jur. 2d Judgments § 621, at 781-82 (1969).  However, this rule does not apply where the judgment is void.  Id. at 782.  As we discussed in our earlier order, under the common law, a judgment rendered in favor of a corporation that has lost its capacity to sue is void.  See Interocean Ships, Inc. v. Samoa Gases, 29 A.S.R.2d 110 at 112 (Trial Div. 1995); Interocean Ships, Inc. v. Samoa Gases, 29 A.S.R.2d 201 at 207 (Trial Div. 1995).  This mirrors the common law rule that a judgment rendered in favor of a plaintiff who died during the suit is void.  See 46 Am. Jur. 2d Judgments § 649, at 807.  No rule bars collateral attacks on such judgments.  Thus, assuming arguendo that our order represented a collateral attack, there is no rule barring it.[30ASR2d173]

 

D.  Enforcement of the Settlement

 

[4]  Finally, Interocean argues that they have entered into a valid settlement with Samoa Gases and that this court is bound to uphold that settlement.  In other words, Interocean argues that our order invalidates the settlement between the parties.  As a practical matter, this may be true, but as a legal matter it is absolutely irrelevant.  The settlement between the parties is not presently before the court.  The only issue before us is whether the judgment entered on Interocean's behalf was valid.  It was not.  As such, Interocean has no right to enforcement of the judgment, regardless of any settlement they may have entered into with Samoa Gases.

 

The settlement between the parties is simply a contract between them.  See Omaha Nat'l Bank v. Mullenax, 320 N.W.2d 755, 760 (Neb. 1982).  If Interocean wants to sue Samoa Gases based upon the contract, it may do so, but it has not.  Of course, Samoa Gases may have numerous defenses, including mutual mistake.  All of those issues are properly considered in an action under the contract.

 

 

E.  Policy Considerations

 

Additionally, Interocean has claimed that, as a matter of policy, our order is problematic.  Specifically, they claim that our opinion will allow [30ASR2d174] corporations to avoid debt by dissolving during a lawsuit and will cause foreign corporations to be confused as to their status in American Samoa.  This is not the case.  Our order vacating judgment is based upon the fact that Interocean did not brief the legal issues that we asked it to brief.  We resolved this case under the common law because Interocean did not make an argument that any other law applied.  Had counsel for Interocean acted with a modicum of care in submitting its brief, the earlier decision may have come out differently.

 

This will not affect other corporations in other cases, assuming that they properly brief the issue of the law applicable to their case.  Thus, in most cases, we would expect the law of the forum of incorporation to apply under conflict of laws principles.  Interocean did not timely make this argument.  Similarly, we have not settled the question of how the American Samoa corporations code is to be interpreted on the issue of maintaining a lawsuit following corporate dissolution.  Interocean did not timely brief this issue either.  We will reach these issues when they are properly placed before us.  Until then, corporations need not unnecessarily worry that an anomaly in American Samoa law will keep them from conducting business here.

 

III.  CONCLUSION

 

The motion for reconsideration is denied.  If it has not already done so, Interocean is ordered to comply with the mandates of the Order Vacating Judgment immediately.

 

It is so ordered.

 

 

 

********

 



1 At the time of our Order Requiring Further Briefing, we believed Interocean had merely dissolved.  We later learned that it merged into another corporation.  Under the common law, on which this case was decided, this makes no difference.

[1]  We are not sure that our order actually represented a collateral attack on the judgment.

 

[A]n attack is regarded as direct where the proceeding in which it is made is brought for the purpose of impeaching or overturning the judgment, and as collateral if made in any manner other than by a proceeding the very purpose of which is to impeach or overturn the judgment.  Stated affirmatively, this rule is that a collateral attack upon a judgment is an attack made by or in an action or proceeding that has an independent purpose other than the impeaching or overturning of the judgment, although impeaching or overturning the judgment may be necessary to the success of the action.  Under this rule, an attack is regarded as collateral where the regularity of the judgment is presented as an incidental issue.

 

46 Am. Jur. 2d Judgments § 631, at 790 (footnotes omitted).  "The challenge of the integrity of a judgment in the action wherein the judgment is rendered is regarded as a direct attack upon the judgment."  Id. § 632, at 791.  Thus, motions to vacate, reconsider, amend or modify a judgment are all direct attacks.  We are unsure about the nature of a motion in aid of judgment, and have not been briefed on this issue.  As we stated, however, the issue is irrelevant since the judgment is void as a matter of law and no rule bars the collateral attack of void judgments.

In re Matai Title “Mulitauaopele ”,


[30ASR2d62]

 

PUA'ILIU SOLOMONA, LUA'ITAUA VILI SEUMANU, and LIUTOA LINO SEUMANU for themselves and on behalf of certain members of the Mulitauaopele Family of Lauli'i, American Samoa, Plaintiffs

 

v.

 

AGI GROSHE, Acting Territorial Registrar, American Samoa Government, and LEI'ATAUA PETER AH CHING, Defendants

 

Registration of the Matai Title "Mulitauaopele"

of the Village of Lauli'i

 

High Court of American Samoa

Land and Titles Division [30ASR2d63]

 

MT No. 4-94

 

June 18, 1996

 

[1]  A person is disqualified from registering a matai title when the person was born in Western Samoa of parents who then had permanent residential ties to that foreign country, despite the fact that the person’s mother was a U.S. National.

 

[2]  A judgment is commonly stayed when the trial court either has applied novel legal principles to situations in which the correct decision may be a close question or has applied settled legal law to situations about which reasonable persons can differ. 

[3]  Even though the usual appeal in a matai title case is fact-oriented and, given the clearly erroneous standard applicable to preponderance of evidence issues, is unlikely to result in reversal, a stay is often the better option, as time tends to heal family divisions inevitably existing when the court is called upon to select a successor matai. 

 

[4]  The court will not stay the enforcement of a judgment voiding and setting aside a matai registration and declaring a person ineligible for a matai title when the importance of continuing family deliberations on the successor to the title, free of the requested stay, outweighs the harm to the appealing parties.  The harm to the appealing parties is outweighed in the following circumstance:  the family will be effectively deprived of meaningful participation in deliberations that could lead to a consensus selection of the next titleholder before the decision on appeal, if a stay is granted; one appealing party is the registrar who will not be incurably hurt without a stay; and the other appealing party is unlikely to suffer perpetual harm because the selection of a successor to the title is not imminent.

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

 

Counsel:              For Plaintiffs, Togiola T.A. Tulafono

For Defendant Agi Groshe, Henry W. Kappel, Assistant Attorney General

For Defendant Lei`ataua Peter Ah Ching, Tuana`itau F. Tuia

 

Order Denying Motion to Stay Judgment: [30ASR2d64]

 

CURRENT JUDGMENT EVENTS

 

On February 6, 1996, the court voided and set aside the registration by Groshe, as the Territorial Registrar, of the matai title Mulitauaopele in Ah Ching's name, returned the process of selecting a successor to the title to the family for further deliberations, and declared Ah Ching ineligible to hold the title.  The Clerk of the Court entered the opinion and order on the same day.

 

Groshe and Ah Ching filed separate and timely motions for reconsideration or new trial.  The Court regularly heard these motions on March 25, 1996, and denied them on April 3, 1996.  Groshe and Ah Ching then filed separate and timely notices of appeal.

 

On June 4, 1996, Ah Ching moved to stay enforcement of the judgment pending appeal, without bond, and requested an expedited hearing.  The court granted the expedited hearing and regularly heard the motion on June 7, 1996.  Groshe joined in the motion at the hearing.  Ah Ching, his counsel, and Groshe's counsel were present.  Plaintiffs and their counsel were not present.

 


DISCUSSION

 

Procedurally, an appellant should ordinarily first seek a stay of judgment in the trial court.  A.C.R. 8(a).  Ah Ching, joined by Groshe, have correctly followed this rule.  Thus, we will substantively act on and, for the reasons stated below, deny their motion.

 

Statutory guidance is found in A.S.C.A. § 43.0803 as follows:

 

Pending the hearing and determination of an appeal, execution of the final judgment or order of the High Court shall not be stayed unless the appellate, trial, or land and titles division, or Chief Justice, orders  stay for cause shown and upon such terms as it or he may fix.

 

The trial court may in its discretion grant or deny such motions.  See T.C.R.C.P. 62(b), (d).

 

The standard for deciding whether to stay a non-monetary judgment takes into account two principal factors: (1) the likelihood of success on appeal, [30ASR2d65] and (2) the balance between the hardships that (a) the party losing at trial, should he prevail on appeal, may suffer before the appeal is decided if a stay is denied, and (b) the party who prevailed at trial may sustain if a stay is granted.  Asifoa v. Lualemana, 17 A.S.R.2d 10, 12-13 (App. Div. 1990); In re Matai Title Mulitauaopele, 17 A.S.R.2d 71, 73 (Land & Titles Div. 1990); Asifoa v. Lualemana, 17 A.S.R.2d 100, 102 (App. Div. 1990).  The impact of a stay on the public interest may also come into play.  Asifoa, 17 A.S.R.2d at 102.

 

Success on Appeal

 

We assess the likelihood that either Groshe or Ah Ching will prevail on appeal as improbable. 

 

We held that Groshe improperly acted when she followed the Attorney General's advice to register the title in Ah Ching's name, which was based on the only other remaining contender's death, and effectively deprived by default the decedent's supporters from promoting another qualified person in the family.

 

[1]  We also found that although his mother was a U.S. National, Ah Ching was disqualified by reason of his birth in Western Samoa of parents who then had permanent residential ties to that foreign country.   See A.S.C.A. § 1.0403(b).  Ah Ching, supported by Groshe, raised but did not truly develop constitutional issues regarding this finding.  However, the Appellate Division has already ruled that those issues as asserted are without merit.  In re Matai Title I`aulualo, 29 A.S.R.2d 131 (Appellate Div. 1995).

 


[2]  The issues on appeal will essentially deal with questions of law.  A judgment is commonly stayed when the trial court either has applied novel legal principles to situations in which the correct decision may be a close question or has applied settled legal law to situations about which reasonable persons can differ.  Asifoa, 17 A.S.R. at 12.  In this case, we do not think that our decision comes within either of these or similar characterizations.

 

Balance of Hardships

 

The balance of hardships, or equities, presently favors plaintiffs. 

 

[3]  The usual appeal in a matai title case is fact-oriented and, given the clearly erroneous standard applicable to preponderance of evidence issues,[30ASR2d66] A.S.C.A. § 43.0801(b), is unlikely to result in reversal.  Asifoa, 17 A.S.R.2d at 102; In re Matai Title Mulitauaopele, 17 A.S.R.2d at 73, 74.  However, a stay is often the better option, as time tends to heal family divisions inevitably existing when the court is called upon to select a successor matai.  See discussion in In re Matai Title Mulitauaopele, 17 A.S.R.2d at 73.

 

[4]  This case, however, is atypical in material respects.  Groshe is involved as a public official, not as a title claimant or objector.  She may be somewhat embarrassed but certainly not incurably hurt, without a stay, should she win her appeal. 

 

Ah Ching will be perpetually harmed, without a stay, if the successor to this title is selected while the appeal is pending and the trial court decision is eventually overturned.  However, he is not imminently threatened with that long-term harm. 

 

Plaintiffs, and more significantly the extended Mulitauaopele family, will be effectively deprived of meaningful participation in deliberations that could lead to a consensus selection of the next titleholder before the decision on appeal, if a stay is granted.  Ah Ching asserts, and Groshe in her official capacity confirms as a matter of public record, that plaintiff Liutoa Lino Seumanu has offered to register the title in his name over objection.[1]  Time will tell whether this turn of events eliminates the possibility of a consensus selection and embroil the family in another round of time-consuming and expensive legal proceedings.  However, the family will continue to deliberate, within or without the forthcoming dispute resolutions process formally before the Secretary of Samoan Affairs, pursuant to A.S.C.A. § 43.0302.  Ah Ching can participate either directly or through representatives in these ongoing negotiations.  This process will probably consume much, if not all, of the period of appeal before a title successor is selected.

 

On balance, we think that the importance of continuing family deliberations on the successor to the title, free of the requested stay, presently outweighs the harm to Ah Ching and certainly to Groshe. 


 

Public Interest

 

Public interest in the preservation and integrity of the matai system is a factor in this case.  See Cession of Tutuila and Aunu`u (April 17, 1900); Cession of Manu`a Islands (July 16, 1904); Rev. Const. Am. Sam. art. I, § 3 (July 1, 1967).  The courts must be ever protective of the Samoan way of life. 

 

However, the courts have recently had occasion to consider the matai qualification statute, A.S.C.A. § 1.0403(b), challenged by Ah Ching in several other cases and have made it abundantly clear that only the Legislature of American Samoa can properly undertake any reform of the statute.  See In re Matai Title I`aulualo, 25 A.S.R.2d 116 (Land & Titles Div. 1994), aff'd 29 A.S.R.2d 131 (App. Div. 1995); In re Matai Title Patea, 25 A.S.R.2d 139 (Land & Titles Div. 1994).  The Legislature must be equally alert to assure it enacts laws that are not violative of the matai system.

 

ORDER

 

The motion to stay the judgment is denied. 

 

It is so ordered.

 

 

 

 

********

 

 



  [1]  Ah Ching's claim is unverified.  We point out that if the facts relied upon for a stay are subject to dispute, the motion must be supported by an affidavit or other sworn statement.  A.C.R. 8(a).  But for the public records at the Territorial Registrar's Office, which we ascertained only on our own initiative, Ah Ching's factual contentions regarding the new registration offer and objection would certainly be disputable. [30ASR2d67]

In re Matai Title “Mulitauaopele”,


 

[30ASR2d05]

 

PUA'ILIU SOLOMONA, LUA'ITAUA VILI SEUMANU, and LIUTOA LINO SEUMANU, for themselves and on behalf of certain members of the Mulitauaopele Family of Laulii, Plaintiffs

 

v.

 

AGI GROHSE, Acting Territorial Registrar, American Samoa

Government, and LEI'ATAUA PETER AH CHING, Defendants

 

Registration of the Matai Title "Mulitauaopele" of

Village of Laulii

 

High Court of American Samoa

Land and Titles Division

 

MT No. 4-94

 

April 3, 1996

 

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

 

Counsel:              For Plaintiffs, Togiola T.A. Tulafono

For Defendant Agi Grohse, Henry W. Kappel, Assistant Attorney General

For Defendant Lei`ataua Peter Ah Ching, Tuana`itau F. Tuia

 

Order Denying Motion for Reconsideration or New Trial:

 

On May 4, 1994, plaintiffs brought this action to set aside the Territorial Registrar's registration of defendant Lei`ataua Peter Ah Ching ("Ah Ching") as the holder of one matai title Mulitauaopele in the Village of Laulii, American Samoa.  Trial was held on November 3, 1995.  On February 6, 1996, we issued our Opinion and Order voiding the title registration and issuing certain consequential orders.  The defendants have moved this court for reconsideration or new trial.[30ASR2d06]

 

The defendants' motions contain only one argument.  They argue that our order voiding Ah Ching's title registration violates the rights conferred upon him as a U.S. national under 8 U.S.C. § 1408(4), commonly known as the federal "one-parent" law.  As with nearly all of Ah Ching's previous arguments, this argument has already been addressed by the court in the I`aulualo cases.  See In re Matai Title "I`aulualo", AP No. 5-94 & AP No. 6-94, slip op. at 10 (App. Div. Dec. 13, 1995).

 

In I`aulualo, the appellate division stated that:


 

8 U.S.C. § 1408 grants U.S. national status to various individuals.  See 8 U.S.C.S. § 1408 (West 1987 & Supp. 1994).  It does not explicitly supersede A.S.C.A. § 1.0403 or any other local law.  There is no interpretive law to this effect.  We fail to see how 8 U.S.C. § 1408 has any effect on § 1.0403 or any other provision of American Samoa's laws.

 

Id.  The court then went on to state:

 

The second claim, that Mataiumu is entitled to seek a matai title because he is a U.S. national, also has no foundation.  Mataiumu's status as a U.S. national no more entitles him to claim a matai title than it [makes] his father an inhabitant of American Samoa.  There is simply no connection between the two.  We see no need to discuss this issue further.

 

Id.  The defendants in the present case have not presented any arguments which were not already disposed of in I`aulualo.  Thus, the motion for reconsideration or new trial is denied.

 

It is so ordered.

 

 

 

********

 

 

Johnson v. Coulter,


[30ASR2d126]

 

RICHARD JOHNSON, Plaintiff

 

v.

 

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

 

High Court of American Samoa

Trial Division

 

CA No. 22-91

 

August 5, 1996

 

[1]  Title ownership of shares of stock is prima facie evidence of true ownership.

 

[2]  Where no written agreement accompanies a loan, a 6% interest rate is inferred.

 

[3]  An offer of settlement is not a tender of payment that would stop prejudgment interest from accruing.

 

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

 

Counsel:    For Plaintiff, Marshall Ashley

                             For Defendants, Roy J.D. Hall, Jr. and Brian M. Thompson

 

Opinion and Order on Damages:

 

INTRODUCTION

 

Plaintiff Richard Johnson seeks compensation for monies advanced by him to defendants Robert B. Coulter, South Pacific Engine and Repair, Inc., and Samoa Napa, Inc., for services provided by him as an accountant, and for office equipment given to them.  Initially, Johnson claimed that the monies advanced and services performed were for the formation of a partnership between himself and Coulter in the two defendant companies.  In the first part of this bifurcated trial, we rejected Johnson's partnership theory.  See Johnson v. Coulter, et al.28 A.S.R.2d 218 (Trial Div. 1995).  Johnson now seeks to have his advances to the defendants repaid and his services compensated.  [30ASR2d126]

 

DISCUSSION

 

I.       Loans

 


Since we have already rejected Johnson's partnership theory, his only remaining tack is to attempt to recover the monies advanced to the defendants as loans.  The defendants do not deny that these loans were made.  Johnson lent the defendants $5,000 in April 1989, and an additional $65,029.41 between August 1989 and February 1990, for a total of $70,029.41. 

The defendants claim, first of all, that they have repaid a portion of this amount.  Specifically, they claim to have made three payments against the debt in the amounts of $7,895, $1,500, and $676, for a total of $10,071.  Johnson, on the other hand, claims that these amounts were given to him to pay his expenses for a business trip on behalf of the defendants.  We are not convinced, and will offset all three payments, leaving an unpaid balance of $59,958.41. 

 

[1]  The defendants next claim that this balance was repaid by transferring Coulter's stock in Precision Machine to Johnson.  However, Coulter's shares were transferred to Trevor Simmons, not Johnson.  The defendants claim that Simmons was holding these shares on Johnson's behalf, but they have failed to prove this claim.  The title of the shares was in Simmons' name.  This is prima facie evidence that he was the true owner.  The defendants did not call Simmons to testify.  As we stated in our earlier Opinion and Order, business people dealing in sophisticated business dealings should reduce their agreements to writing.  We do not accept this argument.

 

Johnson, on the other hand, has presented an extensive written argument that he is entitled to restitution damages above and beyond the amount conveyed to the defendants.  However, Johnson has not proved unjust enrichment, fraud, or any other quasi-contract theory that allows him any recovery beyond disgorgement of the money conveyed.  See Dan B. Dobbs, Handbook on the Law of Remedies § 12.1 (1973); RESTATEMENT OF RESTITUTION § 150 (1937) ("In an action of restitution in which the benefit received was money, the measure of recovery for this benefit is the amount of money received.").

 

[2-3]  Thus, the defendants owe Johnson $59,958.41, plus interest accruing from the date of the various loans.  Where no written agreement accompanies a loan, a 6% interest rate is inferred.  See A.S.C.A. § 28.1501; Ghiselli Bros., Inc., v. Ryan, Inc., 22 A.S.R.2d 57, 59 (Trial Div. 1992).  The defendants' assertion that interest should only accrue until March 24, [30ASR2d128] 1993 when "Johnson refused to accept repayment of the loan," Def.'s Closing Arg. at 6, is baseless.  First, the rule from the case they cite, Murphy v. T. Rowe Price, 8 F.3d 1420 (9th Cir. 1993), is based upon the interpretation and application of aCalifornia statute that has no parallel here.  Second, an offer of settlement is not a "tender of payment."  This argument has no legitimate basis.

 

Applying the defendants' $10,071 payment to the oldest loans, a breakdown of principal and interest still owed is as follows:

 

 

Date           Loan Amount1     Interest2                    Total

 

4/01/89                        $       00.003    $        00.00    $        00.00

8/07/89  $      293.824 $      123.27    $      417.09

8/07/89  $   7,535.18 $   3,161.12    $ 10,696.30

8/18/89  $ 33,735.65 $ 14,097.33   $ 47,832.98

9/11/89  $   5,193.76 $   2,149.94    $   7,343.70

1/05/90  $   8,500.00 $   3,355.47    $ 11,855.47

2/01/90  $   4,700.00 $   1,835.34    $   6,535.34

 

TOTAL $ 59,958.41 $ 24,722.47   $ 84,680.88

 

Therefore, we enter judgment in favor of Johnson for $84,680.88.

 

II.      Services Rendered

 

Johnson worked for the defendant companies for slightly over a year, from April 1, 1989 until June 1990.  He claims that he worked 60 to 80 hours per week during this time.  We believe this figure is greatly exaggerated, at least so far as he is referring to accounting services.  He apparently did not work regular hours, and the evidence just does not otherwise show that he was working between 9 to 12 hours per day, seven days per week. 

 

He also claims that the market value of his services was $70,000 per year.  This figure is apparently based upon his opinion of the market.  Johnson did not call any witnesses to testify as to what the normal value of an accountant doing work such as his would be.  Johnson is not a licensed accountant and was not when he worked for the defendants.  We seriously doubt that the market value of a licensed accountant in American Samoa is $70,000, let alone an unlicensed one. Additionally, there was testimony tending to show that Johnson's work was substandard.

 

While Johnson worked for the defendants, he was provided with a room and the use of a vehicle.  These had some value, but did not cover the entire value of Johnson's services.  We award Johnson an additional $20,000 to compensate him for the entirety of services rendered for the defendants.

 

III.     Office Equipment

 

Finally, Johnson alleges that he conveyed $5,000 worth of office equipment to the defendants.  As a matter of fact, he has failed to adequately prove either the existence of this equipment or its value.

 

CONCLUSION

 

Johnson is entitled to the repayment of the loan principals advanced to the defendants in the amount of $59,958.41, plus accumulated interest in the amount of $24,722.47, a total of $84,680.88.  He is also entitled to compensation for his services in the amount of $20,000.  Post-judgment interest of 6% will accumulate on the judgment until paid.

 

Judgment shall enter accordingly.

 

It is so ordered.

 

 

 

 

*********

 



  1  We have applied the defendants' repayments to the loans oldest-in-time.  We have chosen to award no interest on these offsets.

  2  We have awarded simple interest on the loan amounts.

  3  Loan amount - repayment = $5,000 - $5,000 = $0. 

  4  Loan amount - repayment = $5,364.82 - $5,071 = $293.82 [30ASR2d129]

Fanene v. Fanene ;


[30ASR2d115]

 

 

FANENE FETAIAIGA, Appellant

  

v.

 

 FANENE SU`A SCANLAN, Appellee

 

High Court of American Samoa

Appellate Division

 

AP No. 11-94

 

July 23, 1996

                                      

[1]  A rehearing is not a matter of right, but a privilege granted at the discretion of the appellate court.

 

[2]  The function of a rehearing is to correct errors of law or fact that the appellate court may have overlooked, leading to material errors.

 

[3]  Underlying values of res judicata must sometimes be balanced against the policies implicated by its application, but this principle does not mean that a decision can never be final simply because it implicates a compelling question of policy such as the protection of Samoan custom.

 

[4]  The western style court system delivers clearly identifiable winners and losers by providing decisive final decisions and orders that are legally binding and enforceable by the collective force of the community.  Litigants who cannot win family support for their views, and decide instead to take their chances in court, should be aware that their interpretations of custom may not be persuasive to the court either.

 

[5]  Professional standards are violated by filing a frivolous petition for rehearing, against the explicit warning of sanctions in a prior opinion, using the same arguments attempted in the appeal.  T.C.R.C.P. 11.

 


Before RICHMOND, Associate Justice, ALARCON*, Acting Associate Justice, UNPINGCO**, Acting Associate Justice, LOGOAI, Associate Judge, and SAGAPOLUTELE, Associate Judge.[30ASR2d116]

 

Counsel:              For Appellant, Tautai A.F. Fa`alevao

For Appellee, Arthur Ripley, Jr.

 

Order Denying Petition for Rehearing and Order to Show Cause:

 

This petition for rehearing arises from a dispute between two people holding the Fanene title of the Village of Pago Pago.  Underlying this dispute is appellantFanene Kava’s ambition to exercise influence in the management of the land Lalopu`a.  The trial court dismissed this action with prejudice, holding that it was barred by res judicata, having been litigated repeatedly.  Fanene v. Fanene, LT No. 6-94, slip op. (Land & Titles Div. April 13, 1994).  This court affirmed based on res judicata, holding that the exact issues raised by appellant had been resolved in Fanene v. Fanene, 19 A.S.R.2d 69 (Land & Titles Div. 1991), which was, itself, decided on grounds of res judicata.  Fanene v. Fanene, AP No. 11-94, slip op. at 3 (App. Div. April 9, 1996).

 

Appellant concedes that this issue has been litigated before, but argues that our constitutional duty to protect Samoan custom should lead to a relaxation of the rule of res judicata.  See REVISED CONST. OF AM. SAMOA, art. I § 3. 

 

STANDARD OF REVIEW

 

[1-2]  A rehearing is not a matter of right, but is a privilege granted at the discretion of the appellate court.  5 C.J.S. § 1409 (1985).  The function of a rehearing is to correct errors of law or fact that the appellate court may have overlooked, leading to material errors.  5 C.J.S. § 1410 (1985). 

 

DISCUSSION

 

[3]  Appellant alleges that we applied the doctrine of res judicata too rigidly and in derogation of greater policy interests in preserving Samoan custom.  It is true that the underlying values of res judicata must sometimes be balanced against the policies implicated by its application.  Spiker v. Hankin, 188 F.2d 35, 38-39 (D.C. Cir. 1951).  It is also true that the protection of Samoan custom is of primary constitutional importance in the legal and political system ofAmerican Samoa.  REVISED CONST. OF AM. SAMOA, art. I § 3.  However, it is not true that simply because a judicial decision implicates a compelling question of policy, the decision can never be final.

 

We recognize that the preservation of Samoan tradition is of paramount importance in American Samoa’s constitutional system.  We also recognize that the courts have a duty to interpret the law in accordance with Samoan custom whenever possible.  In this case, however, the court has definitively [30ASR2d117] interpreted the relevant tradition.  The fact that appellant refuses to accept the court’s interpretation neither makes the decision any less binding, nor entitles her to litigate the issue indefinitely, because of its acknowledged importance. 

 

Appellant cites former Chief Justice Gardner for the proposition that western legal principles and common law labels, such as the rule of stare decisis, do not always describe Samoan custom adequately.  See Tavai v. Silao, 2 A.S.R.2d 1, 2 (Land and Titles Div. 1983).  For instance, reliance on precedent does not always take into account the “shifting sands of custom.”  Id.  Appellant then uses this statement to argue that the principle of res judicata does not comport with Samoan custom.  Perhaps this is because the entire western court system is contrary to Samoan custom. 

 

As eloquently stated by former Governor Coleman:

 

Our American legal system—which operates in Samoa—is based on English jurisprudence as it has evolved over the centuries.  It’s a system of conflict resolution which produces clearly identifiable winners and losers.  Our Samoan culture, on the other hand, is based on the thousands of years of the evolution of a Polynesian heritage of conflict resolution by consensus building.  Whenever possible, we, as Polynesians, try to avoid conflict. When we can ‘t avoid conflict, we try to resolve it so everyone goes away a winner if at all possible.

 

Peter Tali Coleman, Peter Tali Coleman on the F.B.I. ReportSAMOA NEWS 10 (Aug 7, 1995). 

 

[4]  Appellant is again attempting to use the courts of American Samoa to achieve a result that she could not achieve in the Samoan way, while arguing that Samoan custom supports her contentions.  The western style court system delivers clearly identifiable winners and losers by providing decisive final decisions and orders that are legally binding and enforceable by the collective force of the community.  Litigants who cannot win family support for their views, and decide instead to take their chances in court, should be aware that their interpretations of custom may not be persuasive to the court either.

 

Appellant cites Davis & Cox v. Summa, 751 F.2d 1507 (9th Cir. 1985), for the proposition that the doctrine of res judicata “is supported by reasonable public policy also.”  Appellant’s Memo. at 3.  Although we can find no language to this effect in the cited opinion, it does state, “A final judgment on the merits bars a subsequent action between the same parties or their privies over the same cause of action.  The judgment prevents litigation of [30ASR2d118] all grounds and defenses that were or could have been raised in the action.”  Id. at 1518 (citations omitted).  In our opinion affirming the judgment of the trial court, we specifically found that “appellant or appellant’s predecessor raised or could have raised in previous cases every issue appellant has raised in the present case.” Fanene v. Fanene, AP No. 11-94, slip op. at 3 (April 9, 1996). 

 

Furthermore, a petition for rehearing is meant to alert the court to any legal issues or authorities which it may have overlooked in the course of its decision, and will not be granted merely for the purpose of reargument of issues which have already been fully briefed, argued, and decided.  Owens v. Hagenback-Wallace Shows, 112 A.L.R. 113, 124 (R.I. 1937).  Appellant’s argument regarding the doctrine of res judicata was adequately briefed on appeal,[Appellant’s Br. at 19-20], and was plainly rejected by this court.  We see nothing in appellant’s petition that we have previously overlooked.

 

RULE 11

 

In affirming the judgment of the trial court, we said:

 

The issues before the trial court have been litigated repeatedly, and need not be litigated again.  The biggest mystery to us is why appellee has not attempted to impose . . . sanctions on appellant under T.C.R.C.P. Rule 11 or for taking a frivolous appeal.  Perhaps such an action would finally convince appellant that the continuance of these lawsuits wastes both her and the court’s time and resources.

 

Fanene v. Fanene, AP No. 11-94, slip op. at 4 (April 9, 1996) (citation omitted).  Despite this stern warning, and our explicit rejection of his arguments, appellant's counsel brought this petition for rehearing, rearguing the same tired arguments that he had attempted on appeal, wasting more of the court’s and his client’s time and resources.

 

[5]  On March 1, 1996, the Chief Justice adopted an amended version of T.C.R.C.P. 11, which provides, in relevant part:

 

(b) By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney . . . is certifying that to the best of the [attorney’s] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . .[30ASR2d119]

 

(2)  the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. . . .

 

It is presently manifest to this court that appellant's counsel violated this professional standard by filing this frivolous petition for rehearing, against the explicit warning of sanctions in our prior opinion.

 

ORDERS

 

The petition for rehearing is denied.

 

Appellant's counsel shall, within 30 days after the entry of this order, file with the court a written response to show cause, if any he has, why he should not be sanctioned for violation of T.C.R.C.P. Rule 11(b).  

 

It is so ordered.

 

 

 

 

********

 



 *             Hon. Arthur L. Alarcon, Senior Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation of the Secretary of the Interior.

 **          Hon. John S. Unpingco,  Chief Judge,  United States District Court for the District of Guam, sitting by designation of the Secretary of the Interior.

Fanene v. Fanene;


[30ASR2d07]

 

FANENE FATAIAIGA KAVA, Appellant

 

v.

 

FANENE SU'A SCANLAN, Appellee

 

High Court of American Samoa

Appellate Division

 

AP No. 11-94

 

April 9, 1996

 

[1]  Dismissal for failure to state a claim under Rule 12(b)(6) is a question of law which we review de novo.   Dismissal on res judicata grounds is also a question of law receiving de novo review.

 

[2]  A 12(b)(6) motion to dismiss is a proper vehicle for the defense of res judicata. 

 

[3]  Res judicata, also known as claim preclusion, prevents subsequent litigation by parties or their privies of any issues that were raised or could have been raised in a previous litigation which led to final judgment.  A party is also barred from relitigating issues of law or fact which were actually litigated and decided in the previous action, even if based upon a different claim.

 

Before RICHMOND, Associate Justice, ALARCON,*Acting Associate Justice, UNPINGCO,** Acting Associate Justice, LOGOAI, Associate Judge, and SAGAPOLUTELE, Associate Judge

 

Counsel:    For Appellant, Tautai A.F. Faalevao

                   For Appellee, Arthur Ripley, Jr.

Opinion and Order:

Richmond, J.:

I.  Introduction

Before the court today is another in a long line of cases asking this court to resolve disputes between two people holding the matai title "Fanene" of the Villageof Pago Pago.  The basis of this case is appellant Fanene Kava's "outstanding ambition to have a say over certain Fanene family lands known as 'Lalopu`a.'" Order Mot. Dismiss, LT No. 06-94 (Land & Titles Div. Apr. 13, 1994). 

 

Appellant filed suit in the Land and Titles Division of the High Court ("trial court") seeking declaratory and injunctive relief concerning the nature of the title Fanene and control over the family land Lalopu`a.  Appellee made a T.C.R.C.P. Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.  The trial court granted this motion on April 13, 1994.  On April 25, 1994, Appellant filed a motion for reconsideration or rehearing, which the trial court denied on May 23, 1994 This appeal followed.

 

II.  DISCUSSION

 

[1]  The trial court granted appellee's 12(b)(6) motion to dismiss based upon res judicata.  Appellant argues that this was improper.  Dismissal for failure to state a claim under Rule 12(b)(6) is a question of law which we review de novo.  Oscar v. University Students Co-operative Ass'n. 965 F.2d 783, 785 (9th Cir.) (en banc), cert. denied, 113 S. Ct. 655 (1992).  Dismissal on res judicata grounds is also a question of law receiving de novo review.  PalomarMobilehome Park Ass'n v. City of San Mateo, 989 F.2d 362, 363 (9th Cir. 1993).

 

[2]  A 12(b)(6) motion to dismiss is a proper vehicle for the defense of res judicata.  See, e.g., United Parcel Serv., Inc. v. California Pub. Utils. Comm'n, 839 F. Supp. 702 (N.D. Cal. 1993).  Where the court is asked to consider matters outside the pleadings, however, the motion must be treated as a motion for summary judgment.  T.C.R.C.P. Rule 12(b)(6); see also United Parcel Serv., 839 F.Supp. at 704.  Both parties submitted affidavits regarding the 12(b)(6) motion.  It is unclear whether the trial court treated the 12(b)(6) motion under the standard for a summary judgment.  Regardless, under either standard, the plaintiff's claim in this case is barred by res judicata.

 

[3]  Res judicata, also known as claim preclusion, prevents subsequent litigation by parties or their privies of any issues that were raised or could have been raised in a previous litigation which led to final judgment.  Nevada v. United States, 463 U.S. 110, 129-30 (1983); Manufacturers Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84 (Trial Div. 1988);[30ASR2d09] Davis & Cox v. Summa Corp., 751 F.2d 1507, 1518 (9th Cir. 1985).  A party is also barred from relitigating issues of law or fact which were actually litigated and decided in the previous action, even if based upon a different claim.  Duncan v. United States(In re Duncan), 713 F.2d 538, 541 (9th Cir. 1983).

 

We agree with the trial court that appellant or appellant's predecessor raised or could have raised in previous cases every issue appellant has raised in the present case.  Although the trial court's order exhaustively reviews the history of the Fanene cases, there is no need to go this far.  In the most recent Fanene decision,Fanene v. Fanene, 19 A.S.R.2d 69 (Land & Titles Div. 1991), the court granted summary judgment on res judicata grounds on exactly the same issues as appellant raises in this case--i.e., whether there are one or two Fanene families and which Fanene has pule over Lalopu`a.  Cf. Taulaga M. v. Patea S., 4 A.S.R.2d 186 (Land & Titles Div. 1987) (Land title action was barred by res judicata when ownership of same tract had been resolved between same families over same issues by earlier final judicial resolution).

 

The fact that appellant raises a new legal argument in this action--that In re High Chief Title Mauga, 4 A.S.R. 132 (Land & Titles Div. 1974), determines the outcome in the Fanene cases--gets her nowhere.  This issue could have been raised in the 1991 Fanene case.  Therefore, res judicata precludes her from having a second chance to raise it here.

 

The issues before the trial court have been litigated repeatedly, and need not be litigated again.  The biggest mystery to us is why appellee has not attempted to impose attorney's fees or sanctions on appellant under T.C.R.C.P. Rule 11 or for taking a frivolous appeal, see Tuika v. Ala`ilima, 8 A.S.R.2d 163 (Land & Titles Div. 1988).  Perhaps such an action would finally convince appellant that the continuance of these lawsuits wastes both her and the court's time and resources.

 

The judgment of the trial court is affirmed.

 

 

 

********

 

 



*       Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.[30ASR2d08]

**       Honorable John S. Unpingco, Judge, United States District Court of Guam, serving by designation of the Secretary of the Interior.

American Samoa Gov’t v . Anoa'i;


[30ASR2d180]

 

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

SIPA ANOA`I dba SIPA'S FAMILY FITNESS CENTER, Defendant

 

High Court of American Samoa

Trial Division

 

CA No. 106-96

 

September 25, 1996

 

[1]  The determination of whether a lease is properly terminated is based on the terms of the lease.

 

[2]  A party that has properly terminated a lease agreement may be entitled to immediate possession of its premises.  A.S.C.A.  § 43.1405(2)(A).

 

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

 

Counsel:              For Plaintiff, Cheryl A. Crenwelge, Assistant Attorney General

For Defendant, Charles V. Ala`ilima

 

Order Granting Petition for Summary Eviction:

 

FACTS

 

This action arises out of a lease entered into by plaintiff, American Samoa Government ("ASG"), and defendant, Sipa Anoa`i ("Anoa`i").  Specifically at issue is Section 10 of the lease agreement, which reserves ASG the power to terminate the lease on 120 days notice "[i]n the event Lessor designates the premises for demolition."  Apparently the premises have been so designated, in order to facilitate a parking lot for a proposed new library.  Notice of the termination was initially delivered to Anoa`i on April 3, 1995.  Since then ASG has allowed Anoa`i to remain on the property for designated periods due to delays in the demolition and construction.  The final extension, however, was to terminate on May 1, 1996.  Anoa`i agreed to vacate at this time, but did not.  On May 28, 1996, ASG again served Anoa`i further notice to vacate and subsequently filed a notice of termination with the Territorial Registrar on July 31, 1996.

 

ASG asserts that all requirements under Section 10 of the lease have been [30ASR2d181] met and that Anoa`i is a holdover tenant subject to summary eviction under A.S.C.A. § 43.1405(2)(A).  Anoa`i, on the other hand, submits that ASG has no grounds to terminate the lease, and alternatively claims that ASG not only failed to give proper notice of the termination, but has also failed to perform a condition precedent to termination.

 


DISCUSSION

 

[1]  Anoa`i's first argument is that ASG may not terminate the lease in order to build a parking lot for the new library.  He reads the lease as only allowing demolition of the leased premises "in connection with the development of the Executive Office Building"; and that since the library is not in connection with the Executive Office Building, Anoa`i urges that the new library's attendant parking lot is therefore not a contingency contemplated under the lease's termination clause. 

 

Anoa`i has misread the lease.  The agreement states that "the [leased] premises are located in the vicinity of Lessor's new executive office building and may be designated by Lessor for demolition in connection with the development of the area surrounding the building."  The terms of the lease nowhere require that the demolition be "in connection with the development of the EOB," rather the lease simply states that the demolition may occur "in connection with the development of the area surrounding the [EOB] building."  Since the new library is in connection with the development of the area surrounding the ExecutiveOffice Building, ASG has proper ground for exercising its right to terminate under the lease agreement.

 

Next Anoa`i argues that he was not provided proper notice in accordance with the provisions of the lease.  Notice was originally provided to Anoa`i on April 3, 1995, well before the 120 day requirement.  The lease does not contain any specific requirements as to the substance of the notice; it only requires that the notice is written.  We are satisfied that ASG's written notice reasonably apprised Anoa`i of the designation for demolition of the leased premises and the subsequent termination.  Anoa`i's argument that ASG was somehow obligated to re-notice after the initial 120 day period had expired is specious.  The 120-day notice requirement is a minimum time requirement, not a mandatory time requirement.  We find that ASG has met the notice requirements of the lease, and has further met the seven-day notice requirement of A.S.C.A. § 43.1405(2)(A).

 

Finally, Anoa`i argues that ASG has breached the lease requirements which[30ASR2d182]


allow Anoa`i "the option, with Lessor's prior consent which shall not be unreasonably withheld, to either relocate to another building owned by Lessor in the general vicinity of the premises, . . . or to construct a new facility in the general vicinity of the premises."[1]   Anoa`i argues that ASG did not present Anoa`i with alternative site options and that the one site proposed by Anoa`i was unreasonably rejected by ASG.

 

The lease agreement clearly puts the burden on Anoa`i to submit a proposal to ASG.  ASG's only duty under the lease is to not unreasonably withhold its written consent to that proposal.  ASG has no affirmative duty to assist Anoa`i in the exercise of his option.  We are satisfied on the record that ASG met this requirement.

 

On May 11, 1995, Anoa`i submitted a proposal to be relocated to the building occupied by the Drug Free Program and the South Pacific Games Committee.2 The Real Property Management Board (“RPMB”) considered Anoa`i’s proposal and declined the request based on the limited amount of space available at the proposed site.  We have no reason to believe that the RPMB was acting unreasonable in its denial.  Moreover, it was shown tha t ASG actually went beyond its duty and affirmatively assisted Anoa`i in his efforts to relocate.  ASG’s actions, considered in totality, appear to us to have been more than reasonable.3

 

[2]  On the foregoing, we conclude that ASG has properly terminated the lease agreement and is entitled to the immediate possession of the premises, under A.S.C.A. § 43.1405(2)(A).  ASG’s petition for summary eviction is, therefore, granted.

 

It is so ordered.

 

 

 

********

 



  [1]  The Lease also contains an option "to rehabilitate the premises in a manner which is architecturally and operationally compatible with the development of the . . . area."  This option is not viable since you cannot renovate a gym to function as a parking lot.

  2  Anoa`i proposed two other options: that the ASG rehabilitate the current site and that he be given preference for other government facilities.  The first was not viable.  The second is not available under the lease.

 

  3  It is unclear whether the provision regarding the option to relocate is a condition precedent to the termination.  The cases are split on whether termination is conditioned on the performance of such a termination option.  See AM. JUR. 2D,Landlord and Tenant § 1012 (1995).  If the provision is a condition precedent then termination would be conditioned upon ASG’s performance of the provision.  The actual lease provision was, at best inartfully crafted.  It seems to start out as a condition precedent and then mutate into an incomprehensible proviso.  This ambiguity, however, is ultimately unimportant since we find that ASG has adequately performed on the provision, whatever the provision’s legal classification.[30ASR2d183]

Anoa'i; American Samoa Gov’t v.;


[30ASR2d180]

 

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

SIPA ANOA`I dba SIPA'S FAMILY FITNESS CENTER, Defendant

 

High Court of American Samoa

Trial Division

 

CA No. 106-96

 

September 25, 1996

 

[1]  The determination of whether a lease is properly terminated is based on the terms of the lease.

 

[2]  A party that has properly terminated a lease agreement may be entitled to immediate possession of its premises.  A.S.C.A.  § 43.1405(2)(A).

 

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

 

Counsel:              For Plaintiff, Cheryl A. Crenwelge, Assistant Attorney General

For Defendant, Charles V. Ala`ilima

 

Order Granting Petition for Summary Eviction:

 

FACTS

 

This action arises out of a lease entered into by plaintiff, American Samoa Government ("ASG"), and defendant, Sipa Anoa`i ("Anoa`i").  Specifically at issue is Section 10 of the lease agreement, which reserves ASG the power to terminate the lease on 120 days notice "[i]n the event Lessor designates the premises for demolition."  Apparently the premises have been so designated, in order to facilitate a parking lot for a proposed new library.  Notice of the termination was initially delivered to Anoa`i on April 3, 1995.  Since then ASG has allowed Anoa`i to remain on the property for designated periods due to delays in the demolition and construction.  The final extension, however, was to terminate on May 1, 1996.  Anoa`i agreed to vacate at this time, but did not.  On May 28, 1996, ASG again served Anoa`i further notice to vacate and subsequently filed a notice of termination with the Territorial Registrar on July 31, 1996.

 

ASG asserts that all requirements under Section 10 of the lease have been [30ASR2d181] met and that Anoa`i is a holdover tenant subject to summary eviction under A.S.C.A. § 43.1405(2)(A).  Anoa`i, on the other hand, submits that ASG has no grounds to terminate the lease, and alternatively claims that ASG not only failed to give proper notice of the termination, but has also failed to perform a condition precedent to termination.

 


DISCUSSION

 

[1]  Anoa`i's first argument is that ASG may not terminate the lease in order to build a parking lot for the new library.  He reads the lease as only allowing demolition of the leased premises "in connection with the development of the Executive Office Building"; and that since the library is not in connection with the Executive Office Building, Anoa`i urges that the new library's attendant parking lot is therefore not a contingency contemplated under the lease's termination clause. 

 

Anoa`i has misread the lease.  The agreement states that "the [leased] premises are located in the vicinity of Lessor's new executive office building and may be designated by Lessor for demolition in connection with the development of the area surrounding the building."  The terms of the lease nowhere require that the demolition be "in connection with the development of the EOB," rather the lease simply states that the demolition may occur "in connection with the development of the area surrounding the [EOB] building."  Since the new library is in connection with the development of the area surrounding the ExecutiveOffice Building, ASG has proper ground for exercising its right to terminate under the lease agreement.

 

Next Anoa`i argues that he was not provided proper notice in accordance with the provisions of the lease.  Notice was originally provided to Anoa`i on April 3, 1995, well before the 120 day requirement.  The lease does not contain any specific requirements as to the substance of the notice; it only requires that the notice is written.  We are satisfied that ASG's written notice reasonably apprised Anoa`i of the designation for demolition of the leased premises and the subsequent termination.  Anoa`i's argument that ASG was somehow obligated to re-notice after the initial 120 day period had expired is specious.  The 120-day notice requirement is a minimum time requirement, not a mandatory time requirement.  We find that ASG has met the notice requirements of the lease, and has further met the seven-day notice requirement of A.S.C.A. § 43.1405(2)(A).

 

Finally, Anoa`i argues that ASG has breached the lease requirements which[30ASR2d182]


allow Anoa`i "the option, with Lessor's prior consent which shall not be unreasonably withheld, to either relocate to another building owned by Lessor in the general vicinity of the premises, . . . or to construct a new facility in the general vicinity of the premises."[1]   Anoa`i argues that ASG did not present Anoa`i with alternative site options and that the one site proposed by Anoa`i was unreasonably rejected by ASG.

 

The lease agreement clearly puts the burden on Anoa`i to submit a proposal to ASG.  ASG's only duty under the lease is to not unreasonably withhold its written consent to that proposal.  ASG has no affirmative duty to assist Anoa`i in the exercise of his option.  We are satisfied on the record that ASG met this requirement.

 

On May 11, 1995, Anoa`i submitted a proposal to be relocated to the building occupied by the Drug Free Program and the South Pacific Games Committee.2 The Real Property Management Board (“RPMB”) considered Anoa`i’s proposal and declined the request based on the limited amount of space available at the proposed site.  We have no reason to believe that the RPMB was acting unreasonable in its denial.  Moreover, it was shown tha t ASG actually went beyond its duty and affirmatively assisted Anoa`i in his efforts to relocate.  ASG’s actions, considered in totality, appear to us to have been more than reasonable.3

 

[2]  On the foregoing, we conclude that ASG has properly terminated the lease agreement and is entitled to the immediate possession of the premises, under A.S.C.A. § 43.1405(2)(A).  ASG’s petition for summary eviction is, therefore, granted.

 

It is so ordered.

 

 

 

********

 



  [1]  The Lease also contains an option "to rehabilitate the premises in a manner which is architecturally and operationally compatible with the development of the . . . area."  This option is not viable since you cannot renovate a gym to function as a parking lot.

  2  Anoa`i proposed two other options: that the ASG rehabilitate the current site and that he be given preference for other government facilities.  The first was not viable.  The second is not available under the lease.

 

  3  It is unclear whether the provision regarding the option to relocate is a condition precedent to the termination.  The cases are split on whether termination is conditioned on the performance of such a termination option.  See AM. JUR. 2D,Landlord and Tenant § 1012 (1995).  If the provision is a condition precedent then termination would be conditioned upon ASG’s performance of the provision.  The actual lease provision was, at best inartfully crafted.  It seems to start out as a condition precedent and then mutate into an incomprehensible proviso.  This ambiguity, however, is ultimately unimportant since we find that ASG has adequately performed on the provision, whatever the provision’s legal classification.[30ASR2d183]

In re a Minor Child (JR. No. 141-95)


[1]  A party must cite the court to specific allegations of error, accompanied by legal citation where appropriate, or a motion for new trial or reconsideration shall be denied.  In extreme instances, we may even treat the motion as a nullity, cutting off the party's right to further appeal.

 

[2]  In making a motion for new trial, an attorney must do more than present the court with unresearched and unsupported conclusory assertions.   Failure to do so will subject the attorney to personal sanctions under T.C.R.C.P.  11.

 

Before KRUSE, Chief Justice, TAUANU`U, Chief Associate Judge, SAGAPOLUTELE, Associate Judge.

 

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

 

Order Denying Motion for Reconsideration:

 

The Petitioners have moved for rehearing or reconsideration following our denial of their petition for relinquishment.  Petitioners basically allege error on two grounds.  First, they allege that we failed to correctly weigh the facts in denying the petition.  Second, they allege that in denying the petition, the court somehow violated the due process or equal protection rights of the natural parents.  The petition for rehearing was unaccompanied by a memorandum of points and authorities.  The motion came regularly for hearing on April 3, 1996, with counsel present.  During the hearing, petitioners cited neither the record nor any statutory or case law in support of either contention.

 

Petitioners' attention is first directed to Judicial Memorandum No. 2-87, 4 A.S.R.2d 172, 175 (1987).  In that memorandum, the Justices pointed out the importance of the requirement in T.C.R.C.P. 7(b)(1) that every motion "shall state with particularity the grounds therefore."  "This is especially important in the case of a motion for a new trial, since the purpose of requiring such a motion before an appeal is to avoid unnecessary appeals by [30ASR2d23] giving the trial judge a chance to see the error of his ways."  Judicial Memorandum No. 2-87, at 175.  The importance of this has been re-emphasized in recent opinions.  See, e.g., Masaniai v. Patea, 17 A.S.R.2d 34, 35 (App. Div. 1990); American Samoa Government v. South Pacific Island Airsystems, Inc., 28 A.S.R.2d 167 (Trial Div. 1995) (in press); Craddick Dev. Inc., v. Craddick, 28 A.S.R.2d 170 (Trial Div. 1995) (in press).


 

[1]  To meet this particularity requirement, a motion for new trial must normally be accompanied by a memorandum of points and authorities.  See T.C.R.C.P. 7(b)(1) ("Each motion shall be accompanied by . . . an appropriate memorandum or brief which concisely states the arguments supporting the motions and cites authorities on each point . . . .").  This is particularly true where a party is going to assert a unique legal theory that was not raised at the original trial or hearing, such as the denial of constitutional rights alleged here.  At a minimum, a party must cite the court to specific allegations of error, accompanied by legal citation where appropriate, at the hearing.  Where a party does not cite specific instances of error, the motion for new trial or reconsideration shall be denied.  In extreme instances, we may even treat the motion as a nullity, cutting off the party's right to further appeal.

 

Petitioners here have failed to meet the particularity requirement.  Thus, we will deny their motion for rehearing or reconsideration on this ground.  We would like to additionally point out, however, that we doubt petitioners' constitutional argument has any basis in the law.  To assert that a parent has a constitutional right to waive his obligations to his child is tantamount to asserting that a parent has a constitutional right to shirk responsibility toward his child, to neglect or abandon his child, or even fail to make court ordered child support payments.  These are the logical extensions of petitioners' assertion, and such a position is preposterous.

 

[2]  Having said that, we point petitioners' counsel to another of this court's recent pronouncements.  In Interocean Ships, Inc. v. Samoan Gases, 29 A.S.R.2d 201 at 205 (Trial Div. 1996), the entire membership of the American Samoa Bar Association was put on notice that shoddy and unresearched work would no longer be acceptable.  In case we were not clear, this pronouncement applies to motions for new trial or reconsideration.  In making a motion for new trial, an attorney must do more than present the court with unresearched and unsupported conclusory assertions.  See also In the Matter of the Matai Title Lolo, 26 A.S.R.2d 46 (Land & Titles Div. 1994).  Failure to do so will subject the attorney to personal sanctions under T.C.R.C.P. 11.  If an attorney wishes to present novel constitutional arguments to this court, he had best be prepared to support them with precedent or arguments to extend or change precedent.  In the future, we suggest counsel heed this warning when he files a motion[30ASR2d24] for reconsideration or any other motion before this court.

 

The motion for rehearing or reconsideration is denied.

 

It is so ordered.

 

 

 

*********

 

Wing Hop Lee, Ltd. v. Soo,


[30ASR2d76]

 

WING HOP LEE, LTD., Plaintiff

 

v.

 

KI BYUNG SOO, KI BYUNG INN, TUUGA TINOISAMOA, and SAMOA SHARKSFIN TRADING CO., Defendants

 

High Court of American Samoa

Trial Division

 

CA No. 101‑95

 

June 27, 1996

 

[1]  An owner of a sole proprietorship is liable for its debts, including debts that were incurred because moneys were advanced on an unfulfilled contract and were never returned.

 

[2]  A partner is jointly and severally liable for partnership debts.

 

[3]  When a business license is registered in a resident’s name to avoid the more restrictive licensing requirements placed on nonresidents, the resident does not escape liability for the debts of the business by claiming that he or she was merely "fronting" for another person who runs the business.

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

 

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

For Defendants, Aumoeualogo Salanoa Soli

 

Order Granting In Part and Denying In Part Motion for Summary Judgment:

 

INTRODUCTION

 


Plaintiff Wing Hop Lee, Ltd. brought this action against the defendants to recover upwards of $300,000 which it claims was advanced to the defendants for business purposes, but which was neither used nor returned.  Through a consent judgment, defendant Ki Byung Soo ("Ki") was judged liable to the plaintiff in the amount of $325,151.35.  Also through a consent judgment, defendant Ki Byung Inn was dismissed from the case.  This leaves only Tuuga Tinoisamoa, Ki's wife, and defendant Samoa Sharksfin [30ASR2d77] Trading Co. ("Samoa Sharksfin").  The Plaintiff has moved for summary judgment against these parties.

 

STANDARD FOR SUMMARY JUDGMENT

 

Under T.C.R.C.P. 56, a party will receive summary judgment when there are no issues of material fact, and the party is otherwise entitled to judgment as a matter of law.  The moving party bears the burden of establishing a prima facie case showing that no material facts are at issue.  Celotex Corp. v. Catrett, 477 U.S. 317 (1986).  Once the moving party has established its prima facie case, the burden shifts to the adverse party to produce, by affidavit or otherwise, evidence showing that material facts are in issue.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

 

[A]n adverse party may not rest upon the mere allegations or denials of [her] pleading, but [her] response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.  If [she] does not so respond, summary judgment, if appropriate, shall be rendered against [her]. 

 

T.C.R.C.P. 56(e).  A court can grant summary judgment with regard to some issues but not others, including granting summary judgment on the question of liability but not damages.  T.C.R.C.P. 56(c)‑(d).    

 

DISCUSSION

  

Samoa Sharksfin was apparently established around 1979 for the purpose of purchasing sharks' fins from local fishermen for companies in Asia.  The business was licensed as a sole proprietorship in the name of Tuuga, shortly after her marriage to Ki.  The business is not a corporation.  Tuuga and Ki disagree as to who primarily ran the business.  They agree that they both ran it in the early years, but Tuuga claims that Ki ran it alone in the latter years, while Ki claims exactly the opposite.

 

Although it is unclear how many clients Samoa Sharksfin had, its primary client was the plaintiff.  Samoa Sharksfin was to buy shark's fins with money advanced by the plaintiff and then ship them to the latter in Hong Kong.  The plaintiff claims that between August 1994 and February 1995, it advanced a sum of $325,151.35 to Samoa Sharksfin for the purchase of fins.  It further claims that no fins were shipped to it from these advances, nor [30ASR2d78] was the money returned.  Samoa Sharksfin is now apparently insolvent.1

 

In order to prevail on a motion for summary judgment, the moving party must present sufficient evidence to show that no material facts are in issue.  See D. Gokal Co. v. Daily Shoppers, Inc., 13 A.S.R.2d 11, 12 (Trial Div. 1989).  The only evidence the plaintiff has produced, other than the admissions in Tuuga's answer, is Tuuga's deposition, which the parties stipulated would be part of the record for the purposes of this motion.  Despite its lengthy transcript, this deposition tells us next to nothing, and does very little toward the plaintiff's cause of establishing an absence of disputed facts.

 

[1]  As near as we can tell, the only material fact not in dispute, based upon the evidence, is that Samoa Sharksfin was owned by Tuuga as a sole proprietorship.2  As the owner of Samoan Sharksfin, which is not a corporation, Tuuga is liable for its debts, including debts that were incurred because moneys were advanced on an unfulfilled contract and were never returned.  Cf. A.S.C.A. § 30.0114(6) ("private property of stockholders is to be exempt from corporate debts"); 18 Am. Jur. 2d Corporations § 5 (1985); Ramirez v. United States, 514 F. Supp. 759 (D.P.R. 1981).  Tuuga claims that she did not know about the transactions because her husband Ki ran the business.  This is irrelevant.  Tuuga also claims that Samoa Sharksfin was a "family business," as if this is a legal doctrine that will protect her from liability.  It is also irrelevant. 

 

[2]  Tuuga owned Samoa Sharksfin.  Ki was either an employee of the business, or at most, a partner with Tuuga.3  However, while Ki's status as an employee or partner may have made a difference as to his liability, it matters not one whit regarding Tuuga's liability.  If Ki was an employee, Tuuga, as sole owner, is solely responsible for Samoa Sharksfin's debts.  If Ki were a partner, then Tuuga is jointly and severally liable for Samoa Sharksfin's debts.  Henderson v. Wadsworth, 115 U.S. 264 (1885); 59A Am. Jur. 2d Partnership §§ 638‑639 (1987).  In either case, she is liable to the plaintiff for the entire debt.4  3 C.J.S. Agency §§ 406‑408 (stating that a principal is bound by contracts made by its agents in its name); 59A Am. Jur. 2d Partnership § 639  (stating that each partner is jointly and severally liable for the debts of the partnership).

 

[3]  All of the parties apparently agree that the business license was issued in Tuuga's name, rather than Ki's, to avoid the more restrictive licensing requirements placed on nonresidents.  See A.S.C.A. § 27.0207.  Tuuga further claims that Ki was the one responsible for the business and that she had almost nothing to do with it.  We fail to see the relevancy of this.  A Samoan resident does not escape liability for the debts of his/her/their business by claiming that he/she/they was/were merely "fronting" for another person.  Even if this practice is widespread, that does not change the laws of liability.  Residents considering "fronting" a business should seriously consider the liability to which they may be exposing themselves before doing so.  We conclude that the plaintiff is entitled to summary judgment on the question of Tuuga's liability.  She is personally liable to the extent that the plaintiff can prove the business was liable as a sole proprietorship.

 

The plaintiff, however, has not presented evidence on any other issue.  Notably, it has failed to present any evidence on the issue of Samoa Sharksfin's liability or the extent of damages.  Judging by the Defendants' Motion in Opposition to Summary Judgment, establishing the extent of liability probably would have been simpler than establishing the liability itself.  But the plaintiff has left us wanting, and we must save that determination for a later day.5

 

CONCLUSION

 

The plaintiff's Motion for Summary Judgment is granted on the sole issue of Tuuga's liability with regard to the debts of Samoa Sharksfin while it was a sole proprietorship.  The plaintiff's Motion for Summary Judgment is denied on all other issues.

 

It is so ordered.

 

 

 

*********

 



  1  It does not appear that Samoa Sharksfin underwent any formal bankruptcy proceeding.  No affirmative dissolution of the business took place.  See Dep. of Tuuga Tinoisamoa at 23.

  2  Plaintiff admitted this in her answer and confirmed it in her deposition.  There apparently now exists a corporation by the same name of Samoa Sharksfin, which has some relationship to the defendants, their present attorney, and possibly also the Plaintiff.  The business of this corporation and its relation to the parties is unclear.  Its relationship to the sole proprietorship is also unclear.  We make no determination with regard to this corporation, which is not a party to this case.

   3  However, under the strict requirements for showing a partnership between family members, it is unlikely that Tuuga could have proven Ki [30ASR2d79] was a partner in the business.  See 59A Am. Jur. 2d Partnership, § 207 at 349 (1987).

  4  The apportionment of liability between Tuuga and Ki is not at issue in this motion.

  5  The consent judgment with regard to Ki does nothing as far as determining the liability for Samoa Sharksfin or Tuuga.  No dollar amount is even mentioned in Tuuga's deposition.

Aumavae; Maiava v.


[30ASR2d175]

 

 

MOLIPOPO MAILO, Plaintiff

 

v.

 

ROSALIA AUMAVAE, IOSEFO TALOLO, and AMERIKA SAMOA BANK, Defendants

__________________________

 

AMERIKA SAMOA BANK and IOSEFO TALOLO, Cross-Claimants

 

v.

 

ROSALIA AUMAVAE, Cross-Defendant

 

High Court of American Samoa

Land and Titles Division

 

LT No. 3-95

 

September 24, 1996

 

[1]  A grantor cannot deed land he or she does not own, the deed for which is entirely outside the grantor’s individually owned land. 

 

[2]  Although reformation of a deed may be in order if, for example, the fact that the deeded land was outside the grantor’s individually land was a mistake, reformation is not available where overriding factors are present.  An overriding factor includes the procurement of the grantor’s signature through fraud. 

[3]  The traditional elements of actual fraud in contract or tort are (1) a false representation or concealment of a material fact, (2) made with knowledge of its falsity, (3) with the intent to induce the person to whom it is made to act upon it, and (4) such person acted in reliance upon the representation (5) to his damage.

 

[4]  If the fraud goes to the inception or execution of the agreement, so that the promisor is deceived as to the nature of his act, and actually does not know what he is signing, mutual assent is lacking, and the agreement is void.[30ASR2d176]

[5]  A  mortgagee for value, and without notice of any defect is entitled to protection as a bona fide encumbrancer. 

 

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

 

Counsel:    For Plaintiff, Charles V. Ala`ilima

For Defendants/Cross-Claimants Iosefo Talolo and Amerika Samoa Bank, William H. Reardon

For Defendant/Cross-Defendant Rosalia Aumavae, Pro Se

Opinion and Order:

Plaintiff Molipopo Mailo ("Molipopo") brought this action to void a deed of land to defendant/cross-defendant Rosalia Aumavae ("Rosalia"), a mortgage of the land by Rosalia to defendant/cross-claimant Amerika Samoa Bank ("ASB"), foreclosure of the mortgage, and sale of the land to defendant/cross-claimant Iosefo Talolo ("Talolo").  We preliminarily enjoined consummation of the sale to maintain the status quo, pending the decision.  

 

Molipopo, ASB and Talolo were present during the trial with their counsel.  Rosalia was duly served with non-resident process on the cross-complaint but did not appear at the trial.

 

FACTS

 

Molipopo is a 59-year old widow.  In 1969, Molipopo and her husband acquired several acres of land, named "Seugaali`i," in Ili`ili, American Samoa, to assure her place to reside after his death.  They registered the land with the Territorial Registrar as her individually owned land.  Molipopo sold at least three 60x60-foot parcels of this land during ensuing years, principally to raise funds for immediate living expenses.  She signed deeds prepared by the buyers, after full payment of the $3,000 purchase price, on these occasions.  Thus, she at least has familiarity with deeds and other aspects of land transactions.  

 

Rosalia is Molipopo's niece, and they shared a mother-daughter relationship, particularly at times during Rosalia's childhood.  In 1989, Rosalia requested Malipopo to designate but not convey a portion of "Seugaali`i" on which Rosalia's brother could build a house upon returning from overseas.  Molipopo pointed out an area adjacent to her store for this purpose.  Rosalia contemporaneously gave Molipopo $1,000 for current living expenses.  Molipopo also signed a paper on Rosalia's representation and her belief that [30ASR2d177] her signature would be used to obtain necessary permits for the construction.  The paper was blank, except for nonessential printing.

 

Rosalia transformed the blank paper into a warranty deed of 0.25 acres of individually owned land, assertedly within "Seugaali`i," from Molipopo to her, dated September 28, 1990.  Iosefa Tei, who was then Rosalia's co-worker at the American Samoa Government's Department of Public Safety and a notary public, executed an acknowledgement of Molipopo's signature, when in fact Molipopo did not appear before him for this purpose by his own admission.1  The Territorial Registrar registered the deed, with both an internal description and an attached survey of the land, on October 30, 1990.  ASB then loaned Rosalia $15,000, evidenced by her promissory note, dated November 23, 1990, and secured by a mortgage of the plot, dated January 15, 1991.  

 

Rosalia defaulted on the loan repayment, and under the agreement, ASB foreclosed the mortgage nonjudicially.  ASB obtained a resurvey during the foreclosure proceedings.  ASB then learned that the plot as originally surveyed was entirely outside of any land owned by Molipopo and was actually located a substantial distance westward.  It also learned that the plot as resurveyed bisected Molipopo's store.

 

When Molipopo found out about Rosalia's default, she sought ASB's assistance to save her property.  She deposited $500 with ASB to further this effort.  ASB apparently considered accepting Molipopo as the loan obligor, but ultimately made the executive decision that she was unable to assume the debt and foreclosure sale to another was necessary to protect its interests.  ASB refunded the $500.  Molipopo commenced this action after Talolo became the expectant purchaser of the land in 1994.  Talolo is one of Molipopo's neighbors.

 

DISCUSSION

 

[1-2]  A grantor cannot deed land he or she does not own.  The deed in this case described land totally outside Molipopo's individually owned land.  Reformation may be in order if this circumstance was, for example, a mistake.  However, in this case, overriding factors are present.  Molipopo signed a blank paper, which was procured by Rosalia's misrepresentations and later converted into a deed.

 

[3-4]  The traditional elements of actual fraud in contract or tort are (1) a false representation or concealment of a material fact, (2) made with knowledge of its falsity, (3) with the intent to induce the person to whom it is made to act upon it, and (4) such person acted in reliance upon the representation (5) to his damage.  See, e.g., Pinney & Topliff v. Chrysler Corp., 176 F. Supp. 801, 803 (S.D. Cal. 1959).  If the fraud goes to the inception or execution of the agreement, so that promisor is deceived as to the nature of his act, and actually does not know what he is signing, mutual assent is lacking, and the agreement is void.  See, e.g., Development Bank v. Ilalio, 5 A.S.R.2d 1 (Trial Div. 1987); Trout v. Taylor, 32 P.2d 968 (Cal. 1934); Bryce v. O'Brien, 55 P.2d 488 (Cal. 1936); Green v. McAdam, 346 P.2d 474 (Cal. App. 1959).          

 

We are persuaded under the totality of evidence in this case that Rosalia took undue advantage of her familial relationship with Molipopo.  Rosalia clearly and knowingly misrepresented the fact that she sought designated but not conveyed land for her returning brother's house and obtained Molipopo's signature for construction permits on blank paper.  She wanted Molipopo to act upon her concealed purpose of acquiring title in her name to a portion of Molipopo's land.  Molipopo acted in expectation of Rosalia's honest dealing and now faces loss of the falsely deeded plot.

 

We find no facts under the evidence showing that Molipopo either ratified the deed or is estopped from denying its validity as a result of her negligence, laches, or other cause.  See Green, 346 P.2 at 478-79.  We can only conclude that Molipopo was actually defrauded and that as between her and Rosalia the agreement is void.

 

[5]  Ordinarily, ASB would have intervening third person rights in this transaction.  A mortgagee for value and without notice of any defect is entitled to protection as a bona fide encumbrancer.  See, generally, Osbourne, Law of Mortgages at 316-35 (2d ed. 1971). Unquestionably, ASB gave value when it loaned Rosalia $15,000.  Registration of the deed to Rosalia served to give all, including ASB, notice of the conveyance.  A.S.C.A. § 37.0210(b); Vaimoana v. Tuitasi, 18 A.S.R.2d 88, 96 (Appellate Div. 1991). 

 

 SEQ CHAPTER \h \r 1However, as ASB later discovered, the land described was not the land [30ASR2d179] actually intended to be conveyed and mortgaged.  Unless reformed, the deed conveyed nothing to Rosalia.  We think that ASB was under a duty to ensure that land described in a deed and mortgage to secure a loan was actually owned by the mortgagor and, failing to inquire, is constructively notified of the defect and acted at its peril.  See National Resources, Inc. v. Wineberg, 349 F.2d 685, 690 (9th Cir. 1965).

 

Moreover, since the deed was absolutely void by reason of Rosalia's fraud upon Molipopo, ASB is not protected as a bona fide encumbrancer, even though it acted in good faith.  See Trout, 32 P.2d at 970; Bryce, 55 P.2d at 489.

 

ASB must seek recovery from Rosalia, who occasioned the fraudulent loss under the evidence before the court.  See Trout, 32 P.2d at 970; Green, 346 P.2d at 479.  Rosalia has been served with process and is in default on the cross-complaint.  However, ASB has not yet moved for a default judgment against her.  She was also not of record noticed of the trial.  Accordingly, we can only leave the cross-complaint pending at this time.

 

ORDER

 

1.  The deed by Molipopo to Rosalia, mortgage by Rosalia to ASB, foreclosure proceedings, and sale of the land by ASB to Talolo are void.

 

2.  The Clerk of Courts shall have a certified copy of the judgment registered with the Territorial Registrar.

 

3.  The cross-complaint by ASB against Rosalia remains pending.

 

It is so ordered. [1]

 

********

 

 

 

 



  1  Besides further illustrating Rosalia's deceit in creating the deed, we also make special note of the notary's dishonesty.  His notarial act falsely states that Molipopo personally appeared and acknowledged her signature.  The acknowledgement is in the customary form.  Although not statutorily required for the validity of deeds, acknowledgements are commonly used in deeds in this jurisdiction.  False acknowledgements corrupt and mock the procedure and should not be tolerated.  Unfortunately, unlike every other American jurisdiction, our Legislature has yet not seen fit to regulate notaries.  As a result, notaries cannot be sanctioned, criminally or civilly, at least with any specifically directed statutory penalties.  [30ASR2d178]     

[1] Editor’s Note:  Mailo v. Aumavae, 31 A.S.R.2d __ (Land & Titles Div. 1996)(order clarifying and amending part of opinion and order), amends the language of the first two paragraphs on this page.

American Samoa Power Auth. v. National Pacific Ins. Co.,


[30ASR2d145]

 

AMERICAN SAMOA POWER AUTHORITY, Plaintiff

 

v.

 

NATIONAL PACIFIC INSURANCE COMPANY, LTD., Defendant

 

High Court of American Samoa

Trial Division

 

CA No. 39‑92

 

August 13, 1996

 

[1]  When a party signs an instrument without reading it, the party may not avoid enforcement of a contract on the ground that he or she did not read the instrument or did not understand its contents. 

 

[2]  A party who did not read a contract may nonetheless be granted relief when he or she was induced by misrepresentation. 

 

[3]  A mutual mistake of fact occurs when the parties to an agreement have a common intention, but the written contract erroneously fails to reflect their intention due to a mistake on the part of both parties in writing the agreement.  Accordingly, in order for the affirmative defense of mutual mistake to be sustained, defendant must raise fact issues showing that both parties were acting under the same misunderstanding of the same material fact.

 

[4]  A party is not ordinarily allowed to avoid a contract due to a mistake as to the contents of the contract.  However, where the writing does not reflect the agreement previously made and the term was not omitted by agreement,[30ASR2d146] the court will grant reformation for mutual mistake despite the negligence involved in failing to read the document, the parol evidence rule, and the Statute of Frauds.

 

[5]  A motion for summary judgment may be denied at any time and for any reason when the court concludes that justice is served by proceeding to trial rather than resolving the case on motion.

 

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

 

Counsel:    For Plaintiff, Marshall Ashley

For Defendant, Brian M. Thompson

 

Order Denying Motion for Summary Judgment:

 

We earlier denied defendant National Pacific Insurance Company's ("NPI") motion for summary judgment, satisfied on the extent of the record then before us that a genuine issue of fact existed as to whether a provision of the relevant insurance contract between the parties was entered into by mutual mistake, and thus opening the contract to reformation.  See American Samoa Power Authority v. National Pacific Ins., 23 A.S.R.2d 100 (Trial Div. 1993).  NPI has since moved for summary judgment, arguing the absence of mutual mistake, and hence the absence of any further issues of fact.

 

The underlying dispute involves a transaction in which plaintiff American Samoa Power Authority ("ASPA") agreed to purchase insurance for a turbine that it had rented.  The language of the insurance agreement clearly indicates that insurance would only cover damages resulting from the negligence of ASPA or its employees.  There is no indication that the damage involved in this case was related to the negligence of ASPA or its employees.  ASPA complains that it was unaware of this limiting language, and that the limitation does not represent the true intentions of the parties.  Conversely, NPI argues that the language of the agreement reflected exactly the extent of coverage that it offered to ASPA.

 

STANDARD OF REVIEW

 

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. Rule 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).  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 also  Lokan v. Lokan, 6 A.S.R.2d 44, 46 (Trial Div. 1987); U.S. v. Diebold, 369 U.S. 654 (1952).

 

DISCUSSION

 

NPI claims that in our denial of its earlier motion for summary judgment, we delimited the issues for trial to the issue of whether or not there was a mutual mistake regarding the limitation of insurance coverage to damages resulting from the negligence of ASPA employees.  Nowhere in the opinion did we so delimit the issues.  We simply found that the issue of mutual mistake presented a genuine issue for trial.  See American Samoa Power Authority v. National Pacific Ins., 23 A.S.R.2d 100.  However, since ASPA has presented no other legal theory in defense against this motion for summary judgment, we base the present order solely on whether or not this case can proceed to trial on the issue of mutual mistake.

 

[1-3]  It is basic contract law that a party to a contract has a duty to read the contract and "may not later complain that he did not read the instrument or that he did not understand its contents."  John D. Calamari & Joseph M. Perillo, Contracts § 9‑42 (2d ed. 1979).  An exception to this general rule exists for contracts induced by misrepresentation for the reason of mistake. Id. at § 9‑43(c).  If the mistake occurs because of the failure of one party to read the contract, however, it will not ordinarily justify avoidance of the contract.  Id.; Sanger v. Yellow Cab, 486 S.W.2d 477, 481 (Mo. 1972).  Both parties must be mistaken about the relevant contract term to justify reformation of the contract.  United States v. Fowler, 913 F.2d 1382, 1389 (9th Cir. 1990).

 

[A] mutual mistake of fact occurs where the parties to an agreement have a common intention, but the written contract erroneously reflects that intention due to a mistake on the part of both parties in writing the agreement.  Accordingly, in order for the affirmative defense of mutual mistake to be sustained, defendant must raise fact issues showing that both parties were acting under the same misunderstanding of the same material fact.

 

Newsom v. Starkey, 541 S.W.2d 468, 472 (Tex. 1976) (emphasis added).

 

[4]  ASPA's rendition of the facts is, essentially, that NPI never informed ASPA about the limitation of insurance coverage to damage caused by the negligence of ASPA or its employees, and that ASPA was not otherwise aware of this limitation.  ASPA does not allege fraud on the part of NPI, nor [30ASR2d148] that NPI was mistaken as to the contents of the document.  These circumstances give rise to a factual question as to whether the language of the policy contradicts an actual agreement entered into by the parties, or if the fault belongs solely to ASPA.

 

When a party signs an instrument without reading it, it is clear that in a loose (but not legal) sense he is operating under a mistake as to the contents of the document.  Under the rules previously stated, however, he is not ordinarily allowed to avoid the contract.  Nonetheless, the situation is different if the writing does not reflect the agreement previously made and the term was not omitted by agreement.  In such a situation most courts have granted reformation for mutual mistake despite the negligence involved in failing to read the document, the parol evidence rule, and the Statute of Frauds.

 

John D. Calamari & Joseph M. Perillo, Contracts § 9‑43 (2d ed. 1979) (citations omitted).  Even if we assume ASPA's argument to be correct, it does not support the finding of a mutual mistake, because it does not attempt to show that NPI was mistaken as to the contents of the agreement, nor that NPI had ever agreed in any way to provide more extensive coverage than what was enumerated in the written policy.  ASPA's argument makes factual claims only about what ASPA requested, not about what NPI agreed to provide.  The deposition of Victor H. Stanley (at 29) does provide testimony, however, that NPI's representative agreed with Mr. Stanley to provide the more extensive coverage.  We are puzzled as to why this testimony received no mention in ASPA's memorandum opposing summary judgment.

 

[5]  A motion for summary judgment may be denied at any time and for any reason when the court concludes that justice is served by proceeding to trial rather than resolving the case on motion.  Charles Alan Wright, Law of Federal Courts § 99 (2d ed. 1972).  Finding that an issue of material fact exists regarding the extent of coverage that NPI agreed to provide, we deny the motion for summary judgment.

 

ORDER

 

The motion for summary judgment is denied.

 

It is so ordered.

 

 

 

 

American Samoa Gov’t v. Tua'ililiu,


[30ASR2d151]

 

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

FERETI TUA`ILILIU aka FERETI FATUESI, Defendant

 

High Court of American Samoa

Trial Division

 

CR No. 40-94

 

August 27, 1996

 

[1]  The sentencing court may take into account retributive goals as well as rehabilitative goals, when framing an appropriate sentence. 

 

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

 

Counsel:              For Plaintiff, Frederick J. O'Brien, Assistant Attorney General

For Defendant, Charles V. Ala`ilima

 

Order on Motion to Modify Conditions of Probation:

 

The defendant was convicted of Assault in the First Degree, a Class B Felony, and was sentenced to five years imprisonment.  Execution of sentence was suspended for a period of five years and the defendant was placed on probation for five years, subject to a number of conditions.  The defendant was required to, among other things, undertake a term of detention of twenty months at the Tafuna Correctional Facilities ("TCF"), without any release whatsoever, except for medical emergency.  We earlier granted defendant's request to modify this condition of probation, citing hardship to his dependents, to permit his participation in work release programs provided by the TCF.  Defendant has now served a little over 15 months of his detention and he has again moved for further modification of his probation to allow his early release from the remainder his probationary detention.  The thrust of defendant's motion is the enhancement of rehabilitative goals, and his eligibility thereunder.

 

[1]  In 1987, the Fono amended A.S.C.A. § 46.2206 to permit the sentencing court to impose as a condition of probation a term of detention of up to one-third of the authorized maximum sentence of imprisonment.  In so doing, the Fono made it quite clear that the sentencing court may also take into account retributive goals, as well as rehabilitative goals, when framing an appropriate sentence.  Atuatasi v. Moaali`itele, 8 A.S.R.2d 53 (1988),[30ASR2d152]  aff`d sub. nom. 9 A.S.R.2d 67 (Appellate Div. 1988); see also American Samoa Gov’t v. Fa`amoni, 17 A.S.R.2d 114 (Trial Div. 1990).  Obviously, by imposing the extended probationary detention term, beyond traditional "shock value" detention terms, the court had additional sentencing goals in mind beyond rehabilitation.

 


After due consideration to the favorable testimony of the Assistant Warden, defendant's employer, and to the submissions of counsel, and after careful review of the circumstances of the offense for which the defendant was convicted, and the sentence imposed in this matter, the court is not persuaded that the term of detention as heretofore modified, should be further varied. 

 

The motion is, therefore, denied.

 

It is so ordered.

 

 

 

 

*********

 

American Samoa Gov’t v. Togialeoli,


[30ASR2d130]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

ANA TOGIALEOLI, Defendant

 

High Court of American Samoa

Trial Division

 

CR No. 12‑96

 

August 7, 1996

 

[1]   From the face of the statute, the court does not appear to have discretion in ordering forfeiture of bail if a condition of the bond is violated.  T.C.R.Cr.P. 46(e)(1)

 

[2]  Failure to appear for trial and violating travel restrictions are ample justification for forfeiture of a bond.

 

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

 

Counsel:             For Plaintiff, Lionel M. Riley and Frederick J. O'Brien, Assistant Attorneys General

For Defendant, David P. Vargas

 

Order Granting Motion to Forfeit Bond:

 

Defendant Ana Togialeoli was scheduled to appear for trial on charges of Assault in the First Degree on June 18, 1996, but failed to appear.  Defendant was released on bail in the amount of $10,000, on the condition that she not leave or attempt to leave the territory, among other conditions.  In lieu of a cash bond, Toloumu Lin assured defendant's compliance with the conditions of release by giving to the court her written and secured undertaking.  The defendant's counsel acknowledged that the defendant fled to Western Samoa on May 4, 1996.  The Government now moves for forfeiture of bail and entry of default.  The Public Defender appeared and opposed the motion.[1]

 

[1]  T.C.R.Cr.P. 46(e)(1) states:  “If there is a breach of condition of a bond, the district court or High Court shall declare a forfeiture of the bail.” (emphasis added).  At face value, this language does not seem to provide any discretion whereby we may not order forfeiture of bail if a condition of the bond is violated, as in this case.


 

[2]  Failure to appear for trial and violating travel restrictions are ample justification for forfeiture of a bond.  Babb v. United States, 414 F.2d 719, 723 (10th Cir. 1968); Brown v. United States, 410 F.2d 212, 218 (5th Cir. 1982).

 

The government's motion is granted.  The defendant's default is entered and bail/bond, assuring her compliance with conditions of release, is hereby declared forfeited.

 

The Clerk of Courts is directed to serve a copy hereof on the parties and to the surety, Toloumu Lin.

 

It is so ordered.

 

 

 

 

********

 



  1  Anticipating forfeiture, the public defender argued for the remission of forfeiture under T.C.R.Cr.P. 46(e)(2), appealing to the court's "sound discretion."  This argument is premature; however, a T.C.R.Cr.P. 46(e)(2)[30ASR2d131] motion may be subsequently availed by the surety.

American Samoa Gov’t v. Suani;


[30ASR2d27]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

NUUSILA SUANI, Defendant

 

High Court of American Samoa

Trial Division

 

CR No. 21-95

 

April 29, 1996

 

[1]  An attorney must file a timely notice of appeal if the client so requests, even if the attorney thinks the appeal frivolous, in order to avoid prejudicing the client's cause before the court decides whether the appeal is actually frivolous.

 

[2]  If a motion to withdraw by counsel of an indigent in a criminal case is successful, the appeal is found by the appellate court to be frivolous and simultaneously dismissed.  The appellate division, not the trial court, is therefore the proper forum for a motion to withdraw under the Anders doctrine. 

 

[3]  An attorney filing an Anders brief must make a thorough review of the record and discuss the strongest arguments revealed by that review.  This discussion of arguments requires analysis, the citation of applicable case authority, and specific references within the record.

 

[4]  In the criminal context, good faith is judged by an objective standard, meaning that an appeal is taken in good faith if it raises a non-frivolous issue.

 

[5]  The burden to prove that a criminal appeal is frivolous rests with the government.

 

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

 

Counsel:    For Plaintiff, Frederick J. O'Brien, Assistant Attorney General

For Defendant, Reginald E. Gates

 

Order Denying Counsel's Motion To Withdraw:

 

On November 27, 1995, this court convicted defendant Nuusila Suani of one count of possession of a controlled substance, a class C felony for second offenders under A.S.C.A. § 13.1022.  A motion for reconsideration or new trial was denied, except with respect to the sentence, on March 4, 1996.  On March 28, 1996, Public Defender Reginald E. Gates filed the present motion for permission to withdraw as counsel, giving his opinion that there is no non-frivolous issue for appeal.

 

DISCUSSION

 

The public defender's motion relies on this court's decision in American Samoa Government v. Agasiva, 6 A.S.R. 2d 32, 34 (Trial Div. 1987), and on the good faith requirement of the in forma pauperis procedures of A.C.R. 24.

 

1.  Agasiva

 

The Agasiva Court, in dicta, reviewed the constitutionally required procedure for an attorney to withdraw from the pursuit of an appeal that he considers to be frivolous.  This procedure includes: (1) advising the court that the attorney believes the appeal to be frivolous; (2) requesting permission to withdraw; and (3) filing a brief pointing out any contents of the record which might arguably support an appeal.  Agasiva, 6 A.S.R.2d at [[30ASR2d29]. 

 

[1]  This procedure arises from the line of cases beginning with the U.S. Supreme Court decision in California v. Anders, 386 U.S. 731 (1967).  The purpose of the foregoing requirements is to strike a balance between the constitutional obligation to provide indigent defendants with equal access to judicial relief and effective assistance of counsel, and the attorney's ethical obligation to refuse to prosecute frivolous appeals.  Id. at 744; McCoy v. Court of Appeals, 486 U.S. 429, 435-39 (1988); Polk County v. Dodson, 454 U.S. 312, 322-24, 326-27 (1981); United States v. Humphrey, 7 F.3d 1186, 1191 (5th Cir. 1993).[1] 

 

[2-3]  If the motion to withdraw is successful, the appeal is found by the appellate court to be frivolous and simultaneously dismissed.  Anders, 386 U.S. at 740 n.2, 742, 744; United States v. Patterson, 11 F.3d 824, 826 (8th Cir. 1993); Humphrey, 7 F.2d at 1191-1193.  The appellate division, not this court, is therefore the proper forum for the motion to withdraw under the Anders doctrine.  See Anders at 740 n.2; Patterson at 826; United States v. Griffy, 895 F.2d 561, 563 (9th Cir. 1990); Grimes v. United States, 444 F. Supp. 78 (S.D.N.Y. 1977); Young v. Oklahoma, 428 F. Supp. 288, 295 (W.D. Okla. 1976); Broadnax v. Rundle, 329 F. Supp. 785, 786-87 (E.D. Penn. 1971).[2]  Although the trial court has broad latitude to substitute one [[30ASR2d30] appointed counsel for another as justice requires, United States v. Dangdee, 608 F.2d 807, 809 (9th Cir 1979), a properly filed notice of appeal shifts jurisdiction to the Appellate Division.  See United States v. Katz, 206 F. Supp. 1404, 1406 (S.D.N.Y. 1969).        

 

2.      The In Forma Pauperis Rule

 

[4]  The public defender declares that the present appeal is frivolous, and therefore does not satisfy the good faith test of A.C.R. Rule 24, which prevents appeals "not taken in good faith"[3] from proceeding in forma pauperis.  A.C.R. Rule 24 provides that a criminal appellant who has proceeded "as one who is financially unable to obtain adequate defense" at the trial level, as in this case, may proceed on appeal in forma pauperis "without further authorization" unless the trial court affirmatively certifies in writing that the appeal is "not taken in good faith," or that the appellant is otherwise not entitled to proceed in forma pauperis. 

 

[5]  The burden to prove that a criminal appeal is frivolous rests with the government.  Coppedge, 369 U.S. at 447-48.  Accordingly, we find that it was inappropriate for the public defender to unilaterally move this court to certify that his client's appeal was "not taken in good faith" and we will therefore not consider this motion.[4]   We know of no precedent for a public defender using Rule 24 as authority for withdrawing from an appeal.  The public defender's proper approach is to file an Anders motion with the Appellate Division. 

 

For the foregoing reasons, we do not grant the public defender's motion to withdraw.

 

 

 

********

 



[1]  The public defender argues that the newly adopted T.C.R.C.P. 11 is in tension with the right of the criminal defendant to counsel on appeal, since the defendant's appeal may be frivolous, and Rule 11 requires that attorneys present only supportable legal and factual conclusions.  The cited rule is a civil procedure rule, and T.C.R.C.P. 1 clearly specifies that the civil procedure rules apply only to civil proceedings.  The confusion is perhaps understandable since the amended rule was mistakenly issued as "High Court Rule 11."  This mistake was corrected by Judicial Memorandum on April 15, 1996.  In any event, the public defender's basic instinct is correct, since the canons of professional ethics prevent an attorney from prosecuting frivolous appeals, regardless of Rule 11.  Dodson, 454 U.S. at 322-24, 326-27.   

 

Notwithstanding the foregoing principles, an attorney must file a timely notice of appeal if his client so requests, even if he thinks the appeal frivolous, in order to avoid prejudicing his client's cause before the court decides whether the appeal is actually frivolous.  Cannon v. Berry, 727 F.2d 1020, 1022-23 (11th Cir. 1984); McInnes v. Anderson, 366 F. Supp. 983, 987 (E.D. Okla. 1973).

 

  [2]  In the interest of judicial economy, we point out that we would probably find the Anders brief filed by the public defender to be inadequate, even if it were properly before us, since it merely makes a cursory listing of potential issues for appeal. 

 

The Anders brief is not a substitute for an advocate's brief.  As explained above, it is a device for assuring that the constitutional rights of indigent defendants are scrupulously honored. . . .

 

The attorney must still provide his or her client precisely the services that an affluent defendant could obtain from paid counsel--a thorough review of the record and a discussion of the strongest arguments revealed by that review.  In searching for the strongest arguments available, the attorney must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client.

 

McCoy, 486 U.S. at 444.  The aforementioned discussion of arguments requires analysis, the citation of applicable case authority and specific references within the record.  Anders, 386 U.S. at 345; Griffy, 895 F.2d at 562-63; Broadnax, 329 F. Supp. at 786.  These requirements exist, in part, "to provide the appellate courts with a basis for determining whether appointed counsel have fully performed their duty to support their client's appeals to the best of their ability."  McCoy at 439.

 

  [3]  A "good faith" appeal is one that is not frivolous, as judged by the standard for an Anders motion.  Watson v. Ault, 525 F.2d 886, 892 (5th Cir. 1976).  In the criminal context, good faith is judged by an "objective" standard, meaning that an appeal is taken in good faith if it raises a non-frivolous issue.  Coppedge v. United States, 369 U.S. 438, 444-45 (1962).  The "good faith" of an appeal is, therefore, not judged by the "subjective" sincerity of the defendant seeking appellate review of a conviction.  Id.[ [30ASR2d31]

[4]  There is a split of authority in the federal system as to whether the trial court may deny a defendant leave to appeal in forma pauperis on grounds of frivolity, when the defendant proceeded at trial "as one who is financially unable to obtain adequate defense" and therefore has no obligation to seek the trial court's authorization to proceed in forma pauperis on appeal.  A.C.R. Rule 24.  The Fifth Circuit holds (and the text of the rule seems to agree) that the trial court may unilaterally do so, United States v. Boutwell, 896 F.2d 884, 887-89 (5th Cir. 1990); while the Ninth Circuit reasons that an indigent defendant who qualifies as a pauper at trial is entitled to appointed representation during his appeal regardless of frivolity.  United States v. Dangdee, 608 F.2d 807, 810 n.3 (9th Cir. 1979).  Regardless of which approach is correct, our decision in this case is based on our judgment that a public defender may not seek a declaration that his client's appeal is frivolous at the trial level in order to be relieved of the case, but must follow the Supreme Court's precedents in the Anders line of cases.

American Samoa Gov’t v. Su'a;


[30ASR2d43]

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

LESCO "BRIAN" SU`A, Defendant

 

High Court of American Samoa

Trial Division

 

CR No. 32-96

 

May 21, 1996

 

[1]  While the prosecuting attorney has almost unfettered discretion to decide whether or not to prosecute a case, the court has the discretion to decide whether or not to grant a motion to dismiss a criminal complaint.  T.C.R.Cr.P. 48(a).

 

[2]  The court may refuse to dismiss a criminal case when it clearly and convincingly determines that dismissal would not be in the public interest.

 

[3]  In order to determine whether dismissal of a criminal case serves the public interest, the court can require the prosecuting attorney to disclose his reasons for wishing to dismiss the case prior to a ruling thereon.

 

Before KRUSE, Chief Justice.

 

Counsel:    For Plaintiff, Frederick J. O'Brien, Assistant Attorney General

                   For Defendant, David P. Vargas

 

Order on Motion to Dismiss:

 

The defendant in this matter is charged with assault second, a Class D felony; unlawful use of a weapon, a Class D felony; and unlawful possession of a firearm, a Class A misdemeanor.  The affidavit in support of the initiating complaint filed with the District Court alludes to the defendant's unlawful possession of a handgun, his discharging it at an occupied vehicle, and his pointing it at the face of an occupant of the vehicle.  Against this background, the prosecuting attorney has moved to dismiss the complaint on the conclusory assertion that dismissal would be [30ASR2d44] "in the interests of justice."  The moving papers further state that "the motion is at the request of the complaining witness."

 

[1-2]  While the prosecuting attorney has almost unfettered discretion to decide whether or not to prosecute a case, the court has, under T.C.R.Cr.P. 48(a), the discretion to decide whether or not to grant a motion to dismiss a criminal complaint.  As a federal court said with regard to the parallel federal rule, F.R.C.P. 48(a):

 

The Attorney General of the United States, as its chief legal officer, has the authority and the duty to exercise control and supervision of all criminal proceedings and civil suits to which the United States is a party. . . . Accordingly, his judgment, or more correctly, that of the members of his staff who are in immediate charge of the matter, that a prosecution should be abandoned on the ground that the available evidence is insufficient to make out a prima facie case against one defendant, and requires a shift in theory from that presented to the grand jury as to the other defendants as to whom there is a question of the sufficiency of the evidence to establish the charges beyond a reasonable doubt, is entitled to great weight.  His recommendation gains added force, aided as it is by the presumption that he is acting in good faith and in the proper discharge of his duties, but it is not conclusive upon the court; otherwise there would be no purpose to Rule 48(a), which requires leave of Court to enter the dismissal.  However, to overcome the force of his recommendation, it must clearly and convincingly appear that the public interest requires its refusal.

 

United States v. Greater Blouse, Skirt & Neckwear Contractors Ass’n, 228 F. Supp. 483, 486 (S.D.N.Y. 1964).  Thus, because the prosecuting attorney is supposed to act in the public interest, the court can deny a motion to dismiss where it determines that the motion is not actually in the public interest.

 

On information supplied, it is hardly apparent that dismissal of the complaint in this matter would be consistent with the public interest.  Rather, refusing to prosecute someone accused of brandishing and firing an illegal firearm simply because the complaining witness so desires, seems to serve only the interests of the defendant and the complaining witness.  It [30ASR2d45] goes without saying if the complaining witness’s desires run contrary to the public interest, the public interest must prevail.  This is certainly true where a complaining witness wishes a prosecution, but the prosecuting attorney has determined that it is not in the public interest to pursue the prosecution.

 

[3]  In order to determine what best serves the public interest, the court can require the prosecuting attorney to disclose his reasons for wishing to dismiss the case prior to a ruling thereon.  Greater Blouse, 228 F. Supp. at 486; 21 Am. Jur. 2d Criminal Law § 516 (1981).  As the court is in this instance unable to make an informed decision on the extent of the showing made, the prosecuting attorney will be required to reveal the underlying basis supporting the motion.

 

Therefore, the Clerk of Courts will calendar the motion for hearing and notify the parties accordingly.

 

It is so ordered.

 

 

*********

 

 

 

American Samoa Gov’t v . Samana;


[30ASR2d01]

 

 

 AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

ABRAHAM SAMANA aka APELU SAMANA, and ABIGAIL SAMANA, Defendants

 

High Court of American Samoa

Trial Division

 

CR No. 72-95

CR No. 73-95

 

April 2, 1996

 

[1]  The informer’s privilege is in reality the government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. 

 

[2]  The public interest in protecting the flow of information must be balanced against the individual’s right to prepare his defense.  Where the disclosure of an informer’s identity is relevant and helpful to the defense of an accused, or is essential to a fair determination of the cause, the privilege must give way.

[3]  An in camera hearing to disclose an informant’s identity is not granted merely because a confidential informant was relied on to obtain a search warrant. The confidential informant must also somehow be important to the government’s case in chief.

 

[4]  If a defendant can develop sufficient evidence which puts the existence or reliability of the confidential informant in question, the defendant may move for an in camera hearing on the question of disclosure of the informant’s identity.

 

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

 

Counsel:    For Plaintiff, Frederick J. O'Brien, Assistant Attorney General

For Defendant Abraham Samana, Reginald E. Gates

For Defendant Abigail Samana, David P. Vargas[30ASR2d02]

 

Order Denying Motion for In Camera Hearing:

 

On December 21, 1995, plaintiff American Samoa Government filed an information charging defendants with unlawful production of the controlled substance of marijuana, A.S.C.A. § 13.1020(a), and unlawful possession of the same controlled substance, A.S.C.A. § 13.1022(a).  They were arraigned on December 22, and trial by jury is presently set for April 23, 1996.

 

On March 25, 1996, defendants moved this court to conduct an in camera hearing with the confidential informant used by the government in this case in order to determine whether the informant's identity should be disclosed.  The motion was heard on March 29, 1996, with all counsel present.  Defendants waived their right to be personally present.

 

I.       FACTS

 


On December 13, 1995, Police Officer Paulo Leuma presented an affidavit to District Court Judge John L. Ward II in support of a search warrant for marijuana on Samana family land in Leone, American Samoa, and in buildings there, the defendants' residence, a converted warehouse, and the old "Sogi" store.  In the affidavit, he noted that a confidential informant had visited the Samanas’ house on October 26, 1995 and had personally observed  10 marijuana plants growing between the house and store.  Leuma went on to state that the confidential informant had provided reliable and accurate information to him in the past concerning the presence of marijuana plants.  This prior information had led to arrests and seizures of marijuana.  On December 2, 1995, the confidential informant advised Leuma that he had purchased marijuana from defendants at their residence.  Leuma also stated that on two occasions in the past, January 18 and July 13, 1995, he had seized a total of 144 marijuana plants from the same property where the confidential informant claimed to have seen plants.

 

Based upon Leuma’s affidavit, the judge found probable cause to believe that marijuana and narcotics paraphernalia would be found on the Samana property. He issued a search warrant for the land, residence and store.  On December 15, 1995, Leuma and other officers executed the warrant, seizing marijuana plants, marijuana seeds, marijuana substance, and related drug paraphernalia.  Arrest warrants were issued, and defendants were arrested and taken into custody. [30ASR2d03]

 

 

II.      DISCUSSION

 

[1-2]  Defendants seek the confidential informant's identity.  The seminal case on this subject discusses the purpose of the privilege against disclosing an informant's identity:

 

What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.  The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement.  The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.

 

Roviaro v. United States, 353 U.S. 53, 59 (1957) (citations omitted).  Roviaro states that the public interest in protecting the flow of information must be balanced against the individual’s right to prepare his defense.  Id. at 62.  Also, “[w]here the disclosure of an informer’s identity . . . is relevant and helpful to the defense of an accused, or is essential to a fair determination of the cause, the privilege must give way.”  Id. at 60-61.

 

After Roviaro, courts began using the technique of examining confidential informants in camera to determine whether the balancing test would tip in favor of the defendant and disclosure.  See, e.g., United States v. Rawlinson, 487 F.2d 5, 7 (9th Cir. 1973); United States v. Hurse, 453 F.2d 128 (8th Cir. 1971);United States v. Lloyd, 400 F.2d 414 (6th Cir. 1968); United States v. Jackson, 384 F.2d 825 (3d Cir. 1967). 

 


In an appropriate case, the in camera examination seems to us an effective way to satisfy the balancing of interests required by Roviaro.  As the U.S. Court of Appeals for the Ninth Circuit has stated:  “[By holding an in camera hearing,] [t]he interests of law enforcement are served by protecting the identity of the informant except where a need is demonstrated for disclosure by the informant’s own testimony, and not by the speculative claims of the defendant.” Rawlinson, 487 F.2d at 7.

 

[3]  However, all of the cases defendants have cited and all of the cases we have found granting an in camera hearing do so only when the confidential informant is somehow important to the government’s case in chief.  No case that we have found has granted an in camera hearing where the confidential informant was relied on merely to obtain a search warrant.  In fact, the rule[30ASR2d04] seems to be firmly against defendants in such a situation:

 

What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer’s identity even in formulating evidentiary rules for federal criminal trials.  Much less has the Court ever approached the formulation of a federal evidentiary rule of compulsory disclosure where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake.  Indeed, we have repeatedly made clear that federal officers need not disclose an informer’s identity in applying for an arrest or search warrant.  As was said in United States v. Ventresca, 380 U.S. 102, 108, we have "recognized that an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, so long as the magistrate is informed of some of the underlying circumstances supporting the affiant’s conclusions and his belief that any informant involved whose identity need not be disclosed . . . was credible or his information reliable"  (emphasis added; internal quotation marks and citations omitted).

 

McCray v. Illinois, 386 U.S. 300, 311 (1967).  Thus, while we must still balance according to Roviaro where the confidential informant is used merely to obtain a warrant, the balance is already tipped firmly against a defendant.

 

In this case, Leuma’s affidavit informed the district court judge of some of the underlying circumstances supporting his conclusion that the confidential informant was credible and reliable.  The judge found the information sufficient to show probable cause to issue a warrant.  Defendants have not shown sufficient evidence tending to contradict this finding and tip the balance in their favor.  As McCray, 386 U.S. at 313, further states:  "Nothing in the Due Process Clause of the Fourteenth Amendment requires a state court judge in every such hearing to assume the arresting officers are committing perjury."  We will not make this assumption.  Defendants must present sufficient evidence to bring the affiant’s veracity into question.

 

[4]  At trial, defendants will certainly have an opportunity to cross-examine Leuma under oath.  If during that cross-examination they are able to develop sufficient evidence which puts the existence or reliability of the confidential informant in question, they can again move for an in camera hearing on the question of disclosure of the informant’s identity.  If no such evidence is developed, there is no need for us to further explore this question.[30ASR2d05]


 

The motion is denied.  It is so ordered.

 

 

 

********

 

Fanene v. Malauulu


[30ASR2d45]

 

FANENE AIPOPO LAULU, Plaintiff

 

v.

 

DOTTIE T. MALAUULU, CATHY TAITO, and the ESTATE OF AFA TAITO MALAUULU, Defendants

 

High Court of American Samoa

Land and Titles Division

 

LT No. 67-90

 

May 21, 1996

 

[1]  Formal adoption via the adoption statute does not pre