5ASR3d

5ASR3d

5ASR3d204


J.M. GEBAUER, INC., and KEPAOA DEVELOPMENT CORPORATION, Plaintiffs,

 

v.

 

AMERICAN SAMOA POWER AUTHORITY, Defendant.

 

High Court of American Samoa

Trial Division

 

CA No. 139-00

 

December 7, 2001


 

 

[1] When lessor’s conditional notice of default unambiguously provides definite date of termination, it can function as termination of lease if its terms are not met.  However, notice merely expressing conditional retaking of leased premises upon failure to cure default can be too indeterminate to convey intent to terminate lease.

 

[2] When lessor’s notice of default in rent payments demanded that defendant cure default and set specific date for beginning of eviction proceedings but did not set specific date for termination of lease, notice conveyed intent to continue with terms of lease rather than intent to terminate lease.  As notice of default did not terminate lease, defendant’s relinquishment of premises constituted abandonment of lease.

 

[3] Unless otherwise agreed, upon abandonment of lease, lessor may (a) accept lessee’s offer of surrender and terminate lease or (b) attempt to mitigate loss of rents by leasing premises to another lessee.  If lease is terminated, lessee is liable for rent accrued before acceptance of surrender and for damage caused by abandonment.  If premises are leased to another party, original lessee is liable only for difference between promised rent and rents obtained.

 

[4] Whether lessor’s reentry onto premises constitutes acceptance of surrender is question of fact.

 

[5] Considering notice of default, when lessors reentered for their own purposes, they in effect accepted surrender of premises.

 

[6] From beginning of lease, lessee openly used area beyond leased premises. Use was so obvious and extended in time that lessors impliedly gave permission for use and could not recover rent for extra space.

 

[7] Object is fixture if it is treated as part of premises, which may not be removed except by owner of property.

 

[8] Improvements made on real estate without direct consent of owner of land become part of realty.  Unauthorized removal or destruction of improvement is act of waste.

 

[9] Person who makes improvements on land in good-faith belief that owner authorized him to build improvements is entitled to compensation for their value. 

 

[10] Equity will not allow landowner to be unjustly enriched by taking improvements that tenant constructed on land.

 

[11] By not completely removing improvements, leaving premises in disheveled state and less valuable than when it was leased, defendant committed waste maliciously and is liable for compensatory and exemplary damages.

 

[12] When rent is fixed at definite sum, recovery for failure to pay rent is that sum plus interest and costs of suit, less any duty to mitigate.

 

[13] Damages for lessee’s waste can be measured by (a) diminution in value of property resulting from waste or (b) cost of repairing or restoring property to its former condition.  Since there is no universal test for determining which measure of damages to apply, method must be decided on facts of each case.

 

[14] Although lessee’s improvements were made at its expense under lease provision, lessee is not entitled to recover on claim of improving premises due to circumstances of lease termination.

 

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

 

Counsel:          For Plaintiffs, Katopau T. Ainu`u

 For Defendant, Roy J.D. Hall, Jr.

 

OPINION AND ORDER

 

On November 21, 2000, plaintiffs J.M. Gebauer, Inc., (“JMG”) and Kepaoa Development Corporation (“Kepaoa”) filed this action against defendant American Samoa Power Authority (“ASPA”) to recover damages for breach of a lease agreement between JMG and ASPA, unauthorized use of unleased adjacent area, and injuries to the leased premises. On December 27, 2000, ASPA filed its answer and counterclaim against JMG and Kepaoa to recover unpaid utility charges and the value of improvements made to the leased premises.  Trial took place on July 12, 2001.  Both counsel were present.

 

Facts

 

By the written instrument dated November 5, 1997, JMG leased to ASPA the building in Nu`uuli, American Samoa, commonly referred to as the “Aiga Basket” (“the premises”), for a term of 20 years commencing on November 1, 1997, with a renewal provision of another 20 years.  On or about January 27, 2000, Kepaoa assumed from JMG the lessor’s rights and obligations under the lease.  ASPA issued checks to either JMG or both JMG and Kepaoa to pay the rent until September 2000 when it completely stopped paying rent.

 

In a letter dated October l8, 2000, Kepaoa notified ASPA of the default in rent payments and demanded the problem be remedied within 30 days. ASPA, from the beginning of the lease, also used approximately 272 square feet beyond the leased premises, without paying rent for this extra space.  In the October 18 letter, Kepaoa also notified ASPA that it had 30 days to remedy the lost rent for this extra space.

 

Without responding to the letter and without written notice, ASPA quit the premises around November 14, 2000.  In the course of moving, ASPA caused substantial structural damage to the premises, which JMG and Kepaoa repaired at their own expense.  ASPA acted deliberately and maliciously in causing this damage.

 

Discussion

 

A. Abandonment

 

The default clause in the lease of the premises provides JMG and Kepaoa with two options upon ASPA’s default: (1) retake possession of the premises after a 10- or 30-day notice of default or (2) require that ASPA cure the lease default.  Under either option, JMG and Kepaoa retain the right to charge ASPA for associated costs or damages.

 

[1] The lease uses language of reentry rather than termination to effect cancellation of the lease.  The only condition to reentry is that the lessee be given 10 days’ notice in the case of financial default or 30 days’ notice in the case of other default.  Where a lessor’s conditional notice is unambiguously conveyed, providing a definitive date of termination, it can function as a termination of the lease if its terms are not met.  Hodel Co. v. Sutherland, 415 N.E.2d 517, 521 (Ill. 1981).  A notice merely expressing a conditional retaking of leased premises upon failure to cure a default can be too indeterminative to convey intent to terminate a lease. See Kaplan v. McCabe, 532 So. 2d 1354, 1357 (Fla. 1988) (conditional notice to pay rent or quit premises raises presumption landlord intends for tenant to remain under terms of lease); Ostlund v. Hendricks, 615 P.2d 327, 330 (Or. 1980).

 

[2] The question, then, is whether the October 18th letter, of itself or in conjunction with later actions, conveyed an intent to exercise the right to reenter.  The determination relies in part on the specific language of the letter.  The letter establishes a condition precedent—eviction proceedings will not be instituted until default continues for another 30 days.  While a specific date is set for the beginning of proceedings, no specific date for termination is set—there is no unambiguous date by which ASPA must quit the premises.  If JMG and Kepaoa intended the October 18th letter to terminate the lease, the letter would have provided a definitive date for termination, rather than the ambiguous threat of beginning proceedings. The letter conveys an intent to continue with the terms of the lease and a demand for ASPA to cure payment according to those terms, rather than an intent to terminate the lease.  See Kaplan, 532 So. 2d at 1357.

 

As the letter alone did not terminate the lease, ASPA’s relinquishment of the premises constitutes an abandonment of the lease.  See 49 Am. Jur. 2d Landlord and Tenant § 250 (1995) (“Abandonment generally occurs when the lessee leaves the rented premises vacant with the clear intention not to pay rent or to be bound by the lease.”).  ASPA’s conduct and letter of October 18, 2000, clearly indicate that it was voluntarily vacating the premises with no intent to pay rent.

 

B.  Acceptance

 

[3] Except to the extent the parties agree otherwise, a lessor may, upon a lessee’s abandonment, (1) accept the lessee’s offer of surrender and terminate the lease, leaving lessee liable only for rent accrued before the acceptance and damage caused by the abandonment or (2) attempt to lease the premises to another lessee as a means of mitigating the loss of rents, in which case the original lessee is liable for the difference between promised rent and rents obtained.  Restatement (Second) of Property § 12.1 (1977); Noce v. Stemen, 419 P.2d 450, 451 (N.M. 1966) (a lessor may enter premises which have been abandoned for the purpose of making ordinary and necessary repairs without affecting the lessee’s liability for future rent); Pague v. Petroleum Prod., Inc., 461 P.2d 317, 320 (Wash. 1969) (a lessor may re-enter abandoned premises to prepare them for a prospective lessee without accepting the abandonment; the abandoning lessee remains responsible for rent).

 

[4] Whether a lessor’s reentry onto the premises constitutes acceptance of surrender is a question of fact.  See Riggs v. Murdock, 458 P.2d 115, 118 (Ariz. Ct. App. 1969) (the trier of fact must “determine whether the dominion and control exercised by the landlord was for the landlord’s own benefit or for the benefit of and on behalf of the original tenant”).

 

Here, JMG and Kepaoa argue that when they reentered the premises, they did so to prevent further damage to the building caused by ASPA’s removal of fixtures, not with an intent to release ASPA from its lease obligations.  However, clearly the efforts of JMG and Kepaoa were directed toward profits to be gained from new lessees—not in protecting the relationship with ASPA.

 

[5] While preventing further damage to the premises was certainly one motivating factor for the reentry by JMG and Kepaoa, clearly they were acting for their own benefit as well.  Taken in conjunction with the October 18th letter, the reentry constituted a legal reentry and retaking of the premises.  Accordingly, once JMG and Kepaoa reentered for their own purposes, they in effect accepted ASPA’s unambiguous surrender of the premises.

 

 

 

C.  The 272 Square Feet

 

ASPA asserts that JMG and Kepaoa had positively granted permission to ASPA to use the extra 272 square feet without paying extra rent, and that it was only when Ryanny Oebauer, representing JMG and Kepaoa, and Gary Sword, representing ASPA, had a disagreement that JMG and Kepaoa demanded rent.

 

[6] The use of the extra 272 square feet was quite difficult to miss, and occurred from the beginning of the lease.  Whether JMG and Kepaoa granted permission to use this property or not, ASPA’s use was so obvious and extended that JMG and Kepaoa at the very least impliedly gave permission for ASPA’s use.  JMG and Kepaoa did not demand compensation for ASPA’s use until October 18, 2000—nearly three years after the lease began.  ASPA quit the premises before 30 days had passed after this demand.  Because the use before October 18, 2000 was permissive, and no improper use took place afterward, ASPA is not liable for any rent for use of the extra 272 square feet.

 

D.  Fixtures

 

[7-9] The issue of ASPA’s improvements and then removal of some improvements from the premises must be assessed under the law of fixtures and improvements.  An object is a fixture if it is treated as part of the premises; it may not then be removed except by the owner of the property.  See 35 Am. Jur. 2d Fixtures § 2 (1995).  Improvements made on real estate without the direct consent of the owner of the land interest become a part of the realty—rendering removal or destruction of the improvement an act of waste.  See 41 Am. Jur. 2d Improvements § 3 (1995).  A person who makes improvements on the land in the good-faith belief that the owner authorized him to build the improvements is entitled to compensation for their value.  See Leapagatele v. Nyel, 17 A.S.R.2d 201, 204 (1990) (no entitlement to compensation where no good-faith belief landowner has given permission).

 

[10-11] Equity will not allow a landowner to be unjustly enriched by taking improvements a tenant constructed on his land.  41 Am. Jur. 2d Improvements § 3.  However, ASPA did not attempt to take the improvements in such a way that left the premises in their original state. Rather, by taking apart but not completely removing the improvements, ASPA left the premises in such a condition that JMG and Kepaoa by necessity had to expend funds to make the premises rentable.  JMG and Kepaoa cannot be faulted for choosing to expend funds to replace the removed fixtures rather than expending funds to tear down what was left. By leaving the premises in a state more disheveled and less valuable than they had found it, ASPA committed waste maliciously.  JMG and Kepaoa are therefore entitled to both compensatory and exemplary damages.

 

E.  Damages

 

[12] The acceptance by JMG and Kepaoa of ASPA’s abandonment did not free ASPA from its obligations under the lease up until that point. Where the amount of rent is fixed at a definite sum, the recovery for failure to pay rents is that sum, plus interest and the costs of the suit, less any duty to mitigate.  See 49 Am. Jur. 2d Landlord and Tenant § 791 (1995).  ASPA has a legal obligation to pay previously unpaid rents causing the original default as well as rents between the October 18, 2000 letter and the reentry of JMG and Kepaoa.  However, ASPA has established that it has paid the back rents through November of 2000, when reentry took place.

 

[13] The destruction ASPA caused to the property upon its departure is compensable.  A lessor’s recovery for a lessee’s waste can be measured by the diminution in the value of the property resulting from the waste. Johnson v. Nw. Acceptance Corp., 485 P.2d 12, 17 (Or. l971); 49 Am. Jur. 2d Landlord and Tenant § 847.  Damages for a lessee’s waste are also frequently measured by the cost of repairing or restoring the property to its former condition.  Johnson, 485 P.2d at 17.  There is no universal test for determining which measure of damages to apply—the method must be decided on the facts of each case.  Id. (where injury is easily repairable, cost of repair is the preferred amount).  JMG and Kepaoa have already made efforts to put the premises back in its original condition.  Calculating the approximate value of the property would involve another complex factual determination which we will not undertake.  Thus, we will use the cost-to-repair theory of damages.  JMG and Kepaoa have established an estimate for these repairs at $21,626.26.  This amount is an appropriate measure of their compensatory damages caused by ASPA.  In addition, ASPA will be assessed $5,000.00 in exemplary damages.

 

[14] ASPA counterclaims for unpaid electrical and water service and reimbursement for alleged improvements to the premises.  ASPA has established the unpaid electrical and water charges at $25,000.  However, ASPA’s expenditures on improvements were made at its expense, under the provision in the lease for remodeling or making structural improvements, and it is therefore not entitled to recover on its claim of improving the premises in the amount of $50,000, or any other amount, upon the circumstances of the lease termination.  Rather, as discussed above, ASPA maliciously caused and is responsible for the damage to the premises which JMG and Kepaoa had to repair at their own expense.

 

Order

 

We award JMG and Kepaoa $21,626.26 in compensatory damages and $5,000.00 in exemplary damages, a total of $26,626.26, and ASPA $25,000 in relief.  Accordingly, ASPA shall pay JMG and Kepaoa the net sum of $l,626.26, plus post-judgment interest on this amount at the rate of 6% per annum.  The parties shall bear their respective costs of suit and attorney’s fees, under the circumstances of this case.

 

It is so ordered.

 

 

5ASR3d215


OLO U. MISILAGI LETULI, Claimant,

 

v.

 

PILI POPO LETULI, ENI F.H. FALEOMAVAEGA, MITIOMAAUGA SALAVE`A, FONOTI TAFAIFA,

and IOSEFO KAPELI IULI, Counterclaimants.

 

[In re the Matai Title “LETULI” of the Village of Iliili]

 

High Court of American Samoa

Land and Titles Division

 

MT No. 11-98

 

February 12, 2001

 

 

[1] To determine successor to matai title “Letuli” of Village of Iliili, Court evaluated qualifications of four candidates according to mandated criteria in statutory order of priority: (a) best hereditary right; (b) wish of majority or plurality of family clans; (c) forcefulness, character, and personality, and knowledge of Samoan customs; and (d) value to the family, village and country.

 

[2] Each candidate is blood member of Letuli family and is therefore qualified under hereditary right criteria to hold “Letuli” title. Nonetheless, to compare relative strength of candidates’ blood connection to title at issue, Court has traditionally applied judicial rule that distance of each candidate’s relationship is measured from closest preceding titleholder in candidate’s lineage.

 

[3] Court held that Olo U. Misilagi Letuli should be registered as Letuli of Village of Iliili as he prevailed over other candidates on criterion of personal characteristics and knowledge of Samoan customs, and value of prospective service, while equally entitled by hereditary right along with two other candidates.

 

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

 

Counsel: For Claimant Olo U. Misilagi Letuli, Afoa L. Su`esu`e Lutu

             For Counterclaimant Pili Popo Letuli, Salanoa Aumoeualogo Soli

 For Counterclaimant Eni F.H. Faleomavaega, Tauivi Tuinei

 For Counterclaimant Mitiomaauga Salave`a, Pro Se

 For Counterclaimant Fonoti Tafaifa, Asaua Fuimaono

 For Counterclaimant Iosefo Kapeli Iuli, Isa-Lei Iuli

 

OPINION AND ORDER

 

On December 30, 1997, claimant Olo B. Misilagi Letuli (“Olo”) filed with the Territorial Registrar his claim to succeed to the vacant matai title “Letuli” of the Village of Iliili was noticed and attracted seven counterclaims.  The counterclaimant Ufuti Fa`afetai Ieremia dropped out, however, by failing to file with the court answers to the questionnaire required in matai title cases.  Later, before trial, counterclaimant Fugaipaono V. Tagaloa withdrew. Trial began on January 25, 2000, and initially concluded on February 3, 2000.  The remaining six candidates and all counsel were present throughout this phase of the trial.

 

The Court deliberated and, on March 24, 2000, returned the selection process to the family to hold one or more meaningful family meetings to select the successor matai.  On March 27, 2000, an amended order replaced the first order solely to correct the inadvertent omission of the name of the pro se counterclaimant, Mitiomaauga Salave`a (“Mitiomaauga”), from the list of counsel.

 

We also took cognizance of two special collateral matters in the return order.  First, counterclaimant Eni P.R. Faleomavaega (“Faleomavaega”) did not timely file with the Territorial Registrar a claim supported by at least 25 members of the family, which numbers far in excess of 25 members, as required by A.S.C.A. § 1.0407(b), and therefore failed to become an eligible candidate.  Faleomavaega filed a motion for a new trial on this eligibility issue, which we denied on June 6, 2000. Second, we noted the untimely demise of counterclaimant Iosefo Kapeli Iuli on March 6, 2000.

 

On September 5, 2000, the four remaining candidates, Olo and counterclaimants Pili Popo Letuli (“Pili”), Mitiomaauga Salave`a (“Mitiomaauga”), and Fonoti Tafaifa (“Fonoti”), jointly informed the Court that the family met on August 19, 2000, and was still unable to select the successor to the “Letuli” title.  They therefore requested that we continue with the judicial selection process.  Then, on December 11, 2000, we resumed the trial by taking further evidence solely concerning the issue of the wish of the majority or plurality of the family clans in choosing the successor.

 

Discussion

 

[1] From the evidence presented on December 11, 2000, we find that after due notice was given, the Letuli family met on August 19, 2000, to select the successor to the “Letuli” title.  On this occasion, the family thoroughly discussed the issue and was unable to reach agreement on the selection of the next titleholder.  The family carried out the Court’s direction to engage in a meaningful process to choose a new sa`o and has not succeeded.  Accordingly, we will now evaluate the qualifications of the four remaining candidates, according to the mandated statutory criteria, and adjudicate the issue.  We discuss the criteria in the statutory order of their priority.

 

1.  Best Hereditary Right

 

[2] Each of the four remaining candidates is a blood member of the Letuli family and is thus qualified under the hereditary right criteria to hold the “Letuli” title.  The Court has traditionally applied an artificial rule to compare the relative strength of the candidates’ blood connection to the title at issue.  Under this judicial rule, the distance of each candidate’s relationship is measured from the closest preceding titleholder in the candidate’s lineage.  Olo is Letuli Pili’s grandson and has a 1/4th relationship.  Pili is Letuli Tagaloa’s grandson and has the same 1/4th connection.  Mitiomaauga is Letuli Tuiaana’s grandson and likewise has a 1/4th relationship.  Fonoti is Letuli Alaese’s great-great-granddaughter and has a more remote 1/16th relationship to a former titleholder.

 

On this basis, we find that Olo, Pili, and Mitiomaauga equally share the best hereditary right to succeed to the “Letuli” title, and Fonoti trails them.

 

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

 

The Letuli family presently recognizes three clans within the extended ranks of the family, Manualii, Kenese, and Faalogo. Olo and Mitiomaauga are members of the Manualii clan.  Pili belongs to the Kenese clan, and Fonoti is in the Faalogo clan.  Based on the clear lack of a decision by the clans on selecting a successor to the “Letuli” title, none of the four candidates has the support of either a majority or plurality of the present-day traditional clans of the family.

 

We find, therefore, that none of the four candidates fares any better than the other three on the clan wish criterion. The criterion is a wash.

 

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

     Customs

 

We have carefully considered the four candidates’ backgrounds and careers, but will not set forth a detailed list of their accomplishments. Suffice it to say that each of them has experienced a purposeful and successful life in significantly different directions from the other three.

 

Judging this evidence along with the candidates’ demeanor, we first find that each is of good character.  We likewise find that their knowledge of Samoan customs is essentially equal.  We do find that Olo and Fonoti have a decided advantage in forcefulness, and that Olo has a particularly engaging personality.

 

On the evidence, we rate Olo first on the personal attributes criterion and Fonoti next, by slight margins over Pili and Mitiomaauga.

 

4.  Value to the Family, Village and Country

 

Each of the four candidates is quite capable of leading the Letuli family. The distinguishing factor is that Olo is a veteran of a more lengthy record of responsible leadership positions.  On this basis, we find that Olo’s value to his family, village, and the territory is presently more pronounced over the other three candidates.

 

We therefore also award the leadership potential criterion to Olo.

 

Conclusion

 

[3] Olo, Pili, and Mitiomaauga are equally entitled by hereditary right to the “Letuli” title and prevail over Fonoti on this highest priority criterion for judicial selection of a successor matai titleholder.  None of the candidates prevail over the others on the majority or plurality clan wish criterion.  Due to his forcefulness and personality, Olo slightly prevails over the other three candidates on the personal characteristics and knowledge of Samoan custom criterion.  He also has the present advantage on the value of prospective service criterion.  Accordingly, we will award the “Letuli” title to Olo.

 

Order

 

The “Letuli” title is awarded to Olo U. Misilagi Letuli.  The Territorial Registrar shall register the “Letuli” title in Olo’s name, provided that he has resigned from and is not holding any other registered title.

 

It is so ordered.

5ASR3d219


FAUMUINA SUAFA`I SATELE,      Plaintiff,

 

v.

 

TAUTOLO GALOSA and AMERICAN SAMOA

POWER AUTHORITY, Defendants.

 

High Court of American Samoa

Land and Titles Division

 

LT No. 09-95

LT No. 31-95

 

March 1, 2001

 

 

[1] The 10-day time limit in which a party must file a motion for reconsideration or new trial is a mandatory time limit and is jurisdictional.

 

[2] Where court partially granted motion for reconsideration or new trial, the court’s order granting such motion effected a new judgment and the time limit for filing a subsequent motion for new trial ran from the date of that order.

 

[3] Trial Court Rule of Civil Procedure 59 gives a trial court broad discretion to permit a new trial in the interests of justice.

 

[4] Even when there is substantial evidence supporting the trial court’s decision, a new trial, and attendant reweighing of the evidence, may be conducted where the interests of justice would be furthered. 

 

[5] Where new trial was warranted and previous associate judges sitting on case were unavailable, court could properly empanel other associate judges to hear case.

 

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

 

Counsel:          For Plaintiff, Charles V. Ala`ilima and Marie A. Lafaele

 For Defendant Tautolo Galosa, Arthur Ripley, Jr.

 For Defendant American Samoa Power Authority, Roy J.D. Hall, Jr.

 

ORDER GRANTING MOTION FOR RECONSIDERATION OR NEW TRIAL, AND PROVIDING FOR A LIMITED REHEARING

 

Defendant Tautolo Galosa (“Tautolo”) moved for reconsideration or a new trial of the Court’s order entered on November 6, 2000, that partially granted the motion by Plaintiff Faumuina Suafa`i Satele (“Faumuina”) for reconsideration or a new trial of our opinion and order entered on August 3, 2000.  The motion was heard on February 15, 2001.  Only Tautolo’s counsel appeared.

 

Discussion

 

[1-2] Faumuina argues, by written opposition to Tautolo’s present motion, that Tautolo’s motion is untimely because it was filed more than 10 days after the opinion and order was entered.  See A.S.C.A. § 43.0802(a).  We disagree.  The 10-day time limit is mandatory and jurisdictional.  Am. Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114, 119 (Trial Div. 1990); see also In re Matai Title “Mulitauaopele”, 17 A.S.R.2d 75, 80 (Land & Titles Div. 1990).  However, the 10 days sensibly run from the date of entry of the order partially granting Faumuina’s motion for reconsideration or new trial.  This order substantially modified the original decision and was effectively a new judgment for purposes of filing a motion for new trial with respect to the modification.  See Judicial Memorandum No. 2-87, 4 A.S.R.2d 172, 174 (1987).  We have, therefore, carefully considered the substantive arguments put forth by Tautolo’s present motion.

 

[3-4] “A new trial may be granted . . . on all or part of the issues for any of the reasons for which rehearings have heretofore been granted in suits in equity.”  T.C.R.C.P. 59(a).  Rule 59 gives a trial court broad discretion to permit a new trial in the interests of justice and applies equally to nonjury trials.  11 Charles Alan Wright et al., Federal Practice and Procedure § 2803 & 2804 (2d ed. 1995).  A new trial may be appropriate in order to reweigh the evidence for this purpose even when there is substantial evidence supporting the decision.  Id. at § 2806.

 

A rehearing limited to specific factual issues is justified in this case.  We originally held that as between Faumuina and Tautolo, the entire land at issue was the Tautolo family’s communal land. Upon Faumuina’s motion for reconsideration or new trial, we revised the decision to hold that a particular portion of the land was the Faumuina family’s communal land. However, Tautolo’s present motion demonstrates that the revision deserves further evaluation.

 

[5] Unfortunately, the sole associate judge sitting on this case up to this point is now fully retired from the bench and is now a newly selected Senator in the Legislature of American Samoa.  He is not presently available to participate with the presiding justice in the deliberations.  Hence, we will hold a rehearing with a new panel of associate judges.  However, the rehearing will be limited to taking evidence relevant to any acquisition of title to the land held by the Faumuina family, as claimed by Faumuina and disputed by Tautolo.  Further evidentiary development on this factual issue is required for the ends of justice in this case.  All other factual issues can be decided by the new panel of judges on the evidence previously admitted.

 

Order

 

We grant Tautolo’s motion for reconsideration or a new trial.  The existing judgment is opened.  A rehearing will be scheduled upon either party’s motion.  During the rehearing, the new panel of judges will take additional evidence that is limited and relevant to the specific factual issue of any acquisition of title to the land at issue, or any part of it, by the Faumuina family.  Evidence previously admitted will be considered for other findings of fact.  We will then amend or make new findings of fact and conclusions of law, as may be appropriate, and direct entry of a new judgment. 

 

It is so ordered.

 

**********

 

5ASR3d221


STEVEN SIUFANUA, for and on behalf of the CHILDREN of LEE

LIAE SIUFANUA and DUWAYNE SIUFANUA, Plaintiffs,

 

v.

 

ESTATE OF LIAE LILI`I SIUFANUA, MATE M. SIUFANUA JACKSON, TALIVE SIUFANUA, MATAATA LILII

SIUFANUA, ESTELLA LILII SIUFANUA REID, MELITA SIUFANUA LEUDER, TAFAOMANIFO LILII SIUFANUA, ARVAY M. SIUFANUA, PULEONO LANA SIUFANUA BURGESS, and WENDALL FUIFATU SIUFANUA, Defendants.

______________________________

 

Estate of LIAE LILI`I SIUFANUA, Deceased.

 

High Court of American Samoa

Land and Titles Division

 

LT No. 15-99

PR No. 08-96

 

April 23, 2001

 

 

[1] The cardinal purpose of the doctrine of equitable adoption is to justify the expectations of individuals when their personal relationships fail the test of traditional legal concepts, and to thereby avoid serious hardship.

 

[2] Courts apply the doctrine of equitable adoption only when de facto relationships are present.

 

[3] An equitable adoption can be found when a child has stood from an age of tender years in a position exactly equivalent to a formally adopted child.

 

[4] Where grandparents had raised two biological grandchildren as their own children, where extended family accepted the de facto parent-child relationship, where the biological mother and siblings of the two grandchildren expressly acknowledged the parent-child relationship, where public and church records relating to the births, marriages, and deaths of the two grandchildren stated that the grandparents were their parents, and where recorded document signed by all other children recognized the two grandchildren as the deceased grandparents’ children, Court considered circumstances appropriate for application of the equitable adoption doctrine and considered the two grandchildren to be “children” of the grandparents under the deceased grandfather’s will.

 

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

 

Counsel:          For Administrator and Defendants, David E. Vargas

 For Plaintiffs, Steven Siufanua, Pro Se

 

OPINION AND ORDER

 

Liae Lili`i Si`ufanua (“Liae”) died on December 12, 1992.  At the time of his death, Liae was domiciled in Hawaii, but his estate included property in American Samoa, individually-owned land (“the land”) registered with the Territorial Registrar under the name “Liae Lili`i & children.”  The land, named “Ala`iasu,” contains approximately 18.623 acres, and is located in the Village of Faleniu.  The proceeding to probate Liae’s will, PR No. 8-96, was commenced on March 6, 1996.  On April 25, 1996, Arvay N. Siufanua (“Arvay”), one of Liae’s daughters, was duly appointed administrator of the estate with the will annexed.

 

On June 1, 1998, Arvay filed her final accounting and proposed distribution of the estate.  Steven Siufanua (“Steven”), the plaintiff in LT No. 15-99, notified Arvay that heirs of two of Liae’s grandchildren, Lee Liae Siufanua (“Lee”) and Duwayne Siufanua Lili`i (“Duwayne”), both then deceased, claimed interests in the land as registered.  As a result, on October 19, 1998, the Court approved Arvay’s final accounting and ordered distribution of Liae’s interest in the land to the beneficiaries according to Liae’s will, subject to a judicial declaration, upon application by the deceased grandchildren’s heirs to the Land and Titles Division, of the deceased grandchildren’s interests in the land.

 

On July 7, 1999, in the absence of the anticipated declaratory relief action, Arvay moved to dismiss Steven’s objections to her distribution. However, Steven responded by filing LT No. 15-99 for declaratory relief on July 30, 1999.  Trial was held on May 15, 2000.  Steven and Arvay, with her counsel, were present.

 

Discussion

 

Liae’s will was duly executed in Hawaii, on January 24, 1990.  The will names Liae’s immediate family as his heirs.  In addition to his spouse Liva Pilimai Siufanua (“Liva”), there are nine children: Mate M. Siufanua Jackson (“Mate”), Talive Siufanua (“Talive”), Mataata Lilii Siufanua (“Mataata”), Estella Lilii Siufanua Reid (“Estella”), Melita Siufanua Lueder (“Melita”), Tafaomanifo Lilii Siufanua (“Tafaomanifo”), Arvay, Puleono Lana Siufanua Burgess (“Puleono”), and Wendall Fuifata Siufanua (“Wendall”); two grandchildren: Lee and Duwayne; and two deceased children; Liae Siufanua and Muaaufaalele Siufanua, who died in infancy.  Liae’s “personal representative,” in the preference listed, was to be Mate, Talive, or Mataata.  Since all three resided outside of American Samoa, Arvay, a resident of the Territory, was selected to be the administrator for the probate proceedings here.

 

The residuary clause of the will governs the disposition of Liae’s interest in the land.  It provides that the residue of the estate, real and personal, is devised in equal shares to Mate, Talive, Mataata, Estella, Melita, Tafaomanifo, Arvay, Puleono, Wendall, Lee and Duwayne.  Thus, Liae’s interest in the land devolves in equal 1/11th shares to these eleven beneficiaries.

 

The registration certificate shows that the land is owned by “[Liae] & children.”  Without a joint tenancy provision, Liae and his children held the title to the land as tenants in common.  If the children are the nine living children named in the will, then Liae and each child held an undivided 1/10th interest in the land, and Liae’s undivided 1/10th interest would devolve to the named beneficiaries in the will in eleven equal shares.  The heirs of Lee and Duwayne would first acquire any title to the land only by this devise.  On the other hand, if Lee and Duwayne are included as Liae’s children, as Steven contends, then Liae and each child held an undivided 1/12th interest in the land, and Liae’s undivided 1/12th interest would still devolve to the beneficiaries in eleven equal shares.  The devise would add to the existing title of the heirs of Lee and Duwayne.

 

[1] Resolution of the issue depends upon the application of the doctrine of equitable adoption to the factual situation in this case.  This court applied the doctrine for inheritance purposes in the Estate of Fuimaono, 23 A.S.R.2d 33 (Trial Div. 1992).  The cardinal purpose of the doctrine is to justify the expectations of individuals when their personal relationships fail the test of traditional legal concepts, and to thereby avoid serious hardship.  Homer E. Clark, Jr., The Law of Domestic Relations in the United States § 25.9, at 926 (2d ed. 1988).  The purpose is especially served “when the person whose interests are at stake was a child when the operative facts occurred.”  Id.

 

[2-3] Courts apply the doctrine only when de facto relationships are present. Id. at 927.  An equitable adoption can be found when a child “has stood from an age of tender years in a position exactly equivalent to a formally adopted child.” Wheeling Dollar Sav. & Trust Co. v. Singer, 250 S.E.2d 369, 373-74 (W. Va. 1979).  Most courts require proof of the de facto relationship by clear and convincing evidence. Clark, supra, at 927.

 

Lee and Duwayne were the biological children of Thurman W. Jackson and Mate, a daughter of Liae and Liva.  Thus, they were the biological grandchildren of Liae and Liva.  Liae’s will recognizes the natural relationships.  Clearly, however, Lee and Duwayne were raised from infancy by Liae and Liva as if Lee and Duwayne were their own children.  The extended family as a whole appears to have accepted the de facto parent-child relationship between Liae and Liva as parents and Lee and Duwayne as their children.  Certainly Mate, their mother, and three of the biological siblings of Lee and Duwayne have expressly acknowledged the parent-child relationships of Lee and Duwayne with Liae and Liva. Public and church records relating to the births, marriages, and deaths of Lee and Duwayne also state that Liae and Liva are their parents.

 

Telling evidence in the context of this family situation is the “Acknowledgement of ownership and subdivision of Land Alaiasu” recorded with the Territorial Registrar on November 15, 1993.  This document recognizes the eleven beneficiaries under the will as Liae’s children and as common owners of the land.  It was signed by all eleven beneficiaries Mate, Talive, Mataata, Estella, Melita, Tafaomanifo, Arvay, Puleono, Wendall, Lee, and Duwayne­.

Lee and Duwayne might be considered Liae’s children adopted in accordance with Samoan custom, with all attendant rights.  See Leasiolagi v. Fao, 2 A.S.R. 451, 452-53 (Trial Div. 1949).  In any event, we are persuaded that this is an appropriate situation to apply the equitable adoption principle.  Liae and Liva raised Lee and Duwayne as their children.  It would be unnecessarily harsh to deprive the heirs of Lee and Duwayne of ownership rights in the land based upon the acknowledged de facto parent-child relationships of Lee and Duwayne with Liae and Liva and the expectations of Lee and Duwayne to be among the common owners of the land.

 

It is so ordered.

 

**********

 

5ASR3d225


FAGAOALI`I LALOULU TAGOILELAGI, Claimant,

 

v.

 

ULIMASAO SITALA SITALA, Counterclaimant.

 

 

[In re the Matai Title “TAGOILELAGI” of the Village of Vatia]

 

High Court of American Samoa

Land and Titles Division

 

MT No. 01-96

 

May 23, 2001


 

 

[1] The concept of “clans” is not defined in the statutes governing matai titles.

 

[2] Clan identity must be determined by the particular family’s current traditions.

 

[3] Samoan customs are fluid, varying from family to family, and evolving from time to time within each family.

 

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

 

Counsel: For Claimant, Aitofele T. Sunia

 For Counterclaimant, Afoa L. Su`eseu`e Lutu

 

OPINION AND ORDER

 

On September 21, 1998, the Court entered the original Opinion and Order in this action awarding the matai title “Tagoilelagi” to Counterclaimant Tilimasao Sitala Sitala, Jr. (“Ulimasao”).  Claimant Fagaoali`i appealed the Trial Court’s decision, and the Appellate Division remanded the case to this Court to determine the customary clan(s) of the family, as well as whom is supported by the clan(s) as the next holder of the title. Fagaoaii`i v. Ulmasao, 3 A.S.R.3d 66, 70 (App. Div. 1999).  These facts are essential to a positive finding on the second of the four selection criteria mandated by statute, the wish of the majority or plurality of the family’s customary clans.  A.S.C.A. § 1.0409(c)(2).

 

The remand hearing was held on December 14, 2000. Fagaoali`i, Ulimasao, and their respective counsel were present. Testimony was taken, and the parties agreed to submit written arguments. The written arguments were filed on December 21, 2000, in accordance with the agreement.

 

Discussion

 

1.  The Family’s Customary Clans

 

Fagaoali`i identifies a single customary clan of the Tagoilelagi family, Uitualagi.  Fagaoali`i follows the tradition of clans based on the names of the progeny of the original titleholder, who he believes is Tagomailelagi Tagaloalagi.  Tagomailelagi Tagaloalagi had two children, a son Uitualagi and a daughter Silaulelei, who did not have children.  Thus, Fagaoali`i believes that Uitualagi is the sole family clan today.

 

Ulimasao counters with five customary clans of the family, Falemalama, Suiufa`iga, Sa`a, Sina, and Tuiasosopo. Ulimasao believes that Tagomailelagi Tagaloalagi’s son, Tagomailelagi Ultualagi, was the first true sa`o of the family in Vatia.  Tagomailelagi Uitualagi had four sons, Falemalama, Suiufa`iga, Sa`a, and Tuiasosopo, and one daughter, Sina. Tuiasosopo’s descendents, if any, faded from family history a long time ago.  Thus, Ulimasao holds to the view that the other three sons and the daughter are the source of names of the customary family clans that are recognized and participate in current family fa`alavelave (“family events”).

 

In addition to the two remaining candidates, chiefs Te`o Tavai, who descends from Sina, and Vaifetuli Gaoteote, who descends from Sa`a, testified at the remand hearing.  The two chiefs corroborate Ulimasao’s position that four distinct clans are presently recognized and actively function in the Tagoilelagi family’s fa`alavelave.  At these fa`alavelave, descendents of the three brothers, Falemalama, Sulufa`iga and Sa`a, and one sister, Sina, separately present si`i (“customary gifts”).  Chief Te`o also points out that Sina’s descendants are distinguished as the family tama-sa (“sacred clan”).

 

[1-2] The concept of the “clans” of a Samoan family is not defined in the statutes governing matai titles. A.S.C.A. § 1.0401-.0414. Rather, guidance is given only by the general phrase “clans of the family as customary in that family” for purposes of deciding title succession controversies.  A.S.C.A. § 1.0404(c)(2).  As in this case, opposing claimants frequently disagree about the identity of the family’s clans when urging support within the family for their respective candidacies, often making judicial resolution of the clan wish issue perplexing.  In re Matai Title “Tauaifaiva”, 5 A.S.R. 2d 13, 15 (Land & Titles Div. 1987). In any case, the statutory reference to the “customary” clans provides clear direction that clan identity must be determined by the particular family’s current traditions.  Id.; In re Matai Title “Atiumaletavai”, 22 A.S.R.2d 94, 98 (Land & Titles Div. 1992).

 

[3] Samoan customs are fluid, not static. In re Matai Title “Atiumaletavai”, 22 A.S.R.2d 94, 97-98 (Land & Titles Div. 1992); In re Matai Title “Tauaifaiva”, 5 A.S.R.2d 13, 14 (Land & Titles Div. 1987). They vary from family to family, and evolve from time to time within each family.  We are satisfied by a preponderance of the evidence that Tagamailelagi Tagaloalagi was first holder of the “Tagoilelagi” title.  However, we are also convinced by a preponderance of the evidence that the Tagoilelagi family customarily developed, and for purposes of the present successor selection process still has, four clans, namely the Falemalama, Sulufa`iga, Sa`a, and Sina clans, that actively and separately participate in the family’s fa`alavelave.

 

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

 

Based on the evidence presented at the remand hearing, our findings in the original opinion and order of September 21, 1998, concerning family meetings to select the successor to the “Tagoilelagi” title were essentially correct.  Quoting that Opinion and Order at 2 A.S.R.3d 230, 234-235, we repeat those findings (deleting the reference to a single clan based on our present finding of four clans), as follows:

 

The family . . . clans first met in February 1994.  Ulimasao and another tulafale (or “talking chief”) of the family were nominated.  The discussions were peaceful and harmonious in accordance with Samoan customs. Although Ulimasao appeared to have more support, the selection was postponed until a later time.  The second meeting was held in May 1994. Again, the same persons were nominated.  After discussions, Ulimasao was still the apparent favorite for the title, but the family . . . clans decided that yet another meeting would be held in an effort to achieve a true consensus.

 

Fagaoali`i nominated Ulimasao’s competitor and was not himself nominated during the first two meetings.  However, on July 20, 1994, he filed his claim for the title “Tagoilelagi” with the Territorial Registrar.  His action prompted the five original counterclaimants to oppose Fagaoali`i’s claim and seek the title.  When the third meeting of family . . . clans was held, considerable displeasure was expressed over Fagaoali`i’s offer to register the title, and Ulimasao continued to have the most support to be the next titleholder.  However, Fagaoali`i and his supporters would not join a consensus for Ulimasao. Thus, the family . . . clans met a fourth time.  Ulimasao still retained his previous support at the fourth meeting.  However, to maintain peace and harmony, the family . . . clans decided that Fagaoali`i and Ulimasao would jointly hold the title.  Both Fagaoali`i and Ulimasao were given the traditional kava cup ceremony that day, but with the understanding that Fagaoali`i would withdraw his offer to register the title.  However, the Village Council of Vatia never met to record the family’s decision, and Fagaoali`i did not withdraw his registration offer.

 

Clearly, the family met meaningfully on several occasions to discuss and select the successor to hold the “Tagoilelagi” title.  Although Ulimasao enjoyed the most support for selection, the family failed to reach a true consensus choice.  Though not nominated until the fourth meeting, and then as a compromise gesture, Fagaoali`i probably has the support of his clan, the Sulufa`iga clan, at least at this time.  Ulimasao has the support of his clan, the Falemalama clan.  At the remand hearing, chiefs Te`o, implicitly by testifying, and Vaifetuli, expressly, confirmed the support of their clans, the Sina and Sa`a clans respectively, for Ulimasao.

 

Accordingly, we find that Ulimasao has the majority support of three of the four customary clans that are presently active in the affairs of the Tagoilelagi family.  Even if we discount the Sina clan as indecisive on the issue, Ulimasao still has the plurality support of two clans of the four clans.  Either way, Ulimasao prevails on the clan wish criterion.

Conclusions

 

Both candidates are blood members of the Tagoilelagi family and are qualified on this basis to hold the “Tagoilelagi” title.  Fagaoali`i does prevail, however, as previously found, on the statutory best hereditary criterion under the rules judicially formulated to evaluate this issue.  We also previously found, and still consider, both candidates equally qualified on the third priority criterion of forcefulness, character, personality, and knowledge of Samoan customs.  Ulimasao prevails, however, on the second priority clan wish criterion and, again as previously and still found, fourth priority criterion of value to family, village, and country.

 

In our evaluation, Ulimasao notably outranks Fagaoali`i as the choice of the majority or plurality of the customary clans of the family and in leadership potential, the second and fourth priority criteria, and these ratings surpass Fagaoali`i’s nominally stronger hereditary right.  We therefore reaffirm our decision of September 28, 1998, to award the “Tagoilelagi” title to Ulimasao.

 

Order

 

The title “Tagoilelagi” is awarded to Ulimasao Sitala Sitala, Jr.  The Territorial Registrar shall register the title in Ulimasao’s name, provided that he has resigned from and is not registered holding any other matai title.

 

It is so ordered.

 

______________________________

 

JUDGE ATIULAGI, Dissenting,

 

My view was before and still is that the title “Tagoilelagi” should be awarded to Fagaoali`i.

 

Fagaoali`i has a better hereditary right to the title than does Ulimasao. I am persuaded that the Tagoilelagi family follows the tradition of identifying clans by the names of the original titleholder’s offspring.  The first titleholder, Tagomailelagi Tagaloalagi, had one child who had descendents, his son Uitualagi.  Thus, I am not convinced that the Tagoilelagi family has more than the one clan, identified by Fagaoali`i as the Uitualagi clan.  This single clan has not reached a consensus to support Ulimasao, and I would therefore find that neither candidate prevails on this issue.

 

Again, as I indicated before, I believe that Fagaoali`i is a more forceful person and stronger leader.  Except while receiving his higher education, Fagaoali`i has lived in American Samoa his entire life.  He has held a matai title in the Tagoilelagi family for a slightly longer period than has Ulimasao.  I would therefore find that Fagaoali`i prevails on the third and fourth criteria.

 

Because he prevails on the first, third, and fourth criteria in my view, I would award the “Tagoilelagi” title to Fagaoali`i.

 

**********

 

5ASR3d230


FILIUPU A. OFISA, Claimant,

 

v.

 

POGISA TUIOLEMOTU, Administrator of the Estate of

AUKUSO M. TUIVETA, and TE`I TAUFA`ASE, Objectors.

______________________________

 

POGISA TUIOLEMOTU, Administrator of the Estate of

AUKUSO M. TUIVETA, Claimant,

 

v.

 

LOGOAI SIAKI, AINA SAOLUAGA NUA,

FILIUPU A. OFISA, and LAIE MATA`UTIA, Objectors.

 

High Court of American Samoa

Land and Titles Division

 

LT No. 22-94

LT No. 14-97

 

June 18, 2001


 

 

[1] A straight line of trees is a common method of defining boundaries between adjacent, unregistered tracts of land in Samoa, and is strong circumstantial evidence of a historic property boundary.

 

[2] Court held that disputed land belonged to family with title of equal rank to its neighboring families as it was unlikely that lesser title in village hierarchy would control land in same vicinity of lands held by such higher ranked titles.

 

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

 

Counsel: For Claimant/Objector Filiupu A. Ofisa, Aumoeualogo S. Salanoa

             For Claimant/Objector Pogisa Tuiolemotu, Administrator of the Estate of Aukuso M. Tuiveta, and Objector Logoai Siaki, Aitofele T. Sunia

             For Objector Te`i Taufa`ase, Pro Se

             For Objector Ama Saoluaga Nua, Tauivi Tuinei

 

 

OPINION AND ORDER

 

Both of these actions arose out of objections to offers to register land in the Village of Fitiuta on the Island of Ta`u in the Manu`a Islands.  A portion of the lands claimed by the two original claimants and several objectors overlap in varying ways. Within the common area of the overlaps, the American Samoa Government (“ASG”) located a well to provide water to the residents of Fitiuta.  The American Samoa Power Authority (“ASPA”) now has jurisdiction over the well.  An access road crosses the claimed lands, and a part of the road is within the overlaps. On March 23, 1998, the two actions were consolidated because of the overlaps and parties common to both actions.

 

Before trial, several of the original parties to this action were replaced. Filiupu Galea`i (“Filiupu G.”), the original land registration claimant in LT No. 22-94, passed away and was replaced by claimant/objector Filiupu A. Ofisa (“Filiupu O.”), the present Filiupu titleholder. Aukuso M. Tuiveta (“Aukuso”), the original land registration claimant in LT No. 14-97 and an original objector in LT No. 22-94, also passed way, and his claim is now handled by his daughter and administrator of his estate, claimant/objector Pogisa Tuiolemotu (“Pogisa”).  Te`i Lanu Fetu (“Te`i L.”), an original objector in LT No. 22-94, passed away and was replaced by his son, objector Te`i Taufa`ase (“Te`i T.”), who now holds the Te`i title. So`oupu Ama Savea (“So`oupu”), an original objector in LT No. 14-97, was replaced by her son, objector Ama Saoluaga Nua (“Ama”), who recently succeeded to the Ama title.  Objector Laie Mata`utia (“Laie”) in LT No. 14-97 never filed a statement of claim and, by this inaction, dropped out of the case.

 

Trial commenced on April 10, 2001, and concluded on April 18, 2001. On May 11, 2001, the court inspected the lands claimed with a designated spokesperson of each of the four parties still actively pursuing their claims.

 

I.  The Offers of Land Registration

 

A.  The Filiupu Registration

 

On September 4, 1992, pursuant to A.S.C.A. § 37.0101-.0120, Filiupu G. filed with the Territorial Registrar his offer to register approximately 0.712 of an acre, named “Lalopiu,” as his individually owned land.  The offer was duly noticed in accordance with A.S.C.A. § 37.0103. Aukuso and Te`i L. objected in a timely manner.  Aukuso asserted that the land offered for registration by Filiupu G. encroached upon his individually owned land. Te`i L. declared that Filiupu G.’s claim encroached upon the Te`i family’s communal land.  Both encroachments involved the well site and an immediately adjacent portion of the access road.  Accordingly, the matter was referred to the Secretary of Samoan Affairs for dispute resolution proceedings, mandated in communal land controversies, and in due course on March 14, 1994, the Secretary issued a Certificate of Irreconcilable Dispute, a jurisdictional requirement for judicial communal land title determinations.  A.S.C.A. § 43.0302; Ava v. Logoa`i, 20 A.S.R.2d 51, 52 (Land & Titles Div. 1992).  On July 1, 1994, the Registrar referred the matter to this Court for resolution.  The referral became LT No. 22-94.

 

Filiupu G. offered to register the land he claimed as his individually owned land.  However, at trial, the testimony of the Filiupu family members on behalf of Filiupu O. made clear that Filiupu O. considered the land to be Filiupu family communal land.

 

B.  The Aukuso Offer of Registration

 

On December 5, 1995, Aukuso offered to register approximately 1,442 acres, named “Loi,” as his individually owned land. After notice of the offer was disseminated, objectors Logoai Siaki (“Logoai”), So`oupu, Filiupu G., and Laie timely opposed the registration. All four objectors asserted that the land claimed by Aukuso encroached upon their lands, specifically upon the area of the well site and an adjacent portion of the access road.

 

The Filiupu claim, whether as individually owned land or as family communal land, may be subordinate to the Galea`i family’s claim to the same land as its communal land.  We take judicial notice of Tuiveta v. Te`i, LT No. 30-85, dismissed without prejudice by bench order during trial on April 8, 1987.  LT No. 30-85 involved claims to the same well site at issue in the present actions.  In LT No. 30-85, the court had only a survey showing a 20-foot square of land around the well. Competing claims to the well site were put forth by Aukuso as the Laie family’s communal land (Aukuso testified that his father was Laie Misa, but his matai title “Tuiveta” was from his wife’s family, the Galea`i family), by Te`i L. as the Te`i family’s communal land, and by Galea`i Poumele as the Galea`i and Filiupu families’ communal land.  The Court recognized that each family owned land in the vicinity of the well. However, the Court declined to adjudicate the competing land claims in the absence of surveys of the entire area around the well site claimed by each family, and therefore dismissed the action until the parties were prepared to proceed in this manner.

 

The testimony and other evidence in LT No. 30-85 illustrate the marital alliances and other complex interrelationships among the families involved.  This is also apparent in the present actions.  We note one aspect here in particular.  The Filiupu matai title serves the Galea`i matai title.  See In re Matai Title “Galea`i”, MT No. 6-98, pretrial orders at 3 (Land & Titles Div. Nov. 19, 1999).  Thus, it appears that the Filiupu claim, whether as individually owned land or as communal land, is subordinate to the Galea`i family’s claim to the same land as its communal land.  However, we do not need to decide that issue in the present actions.

 

So`oupu and Laie separately maintained each of their claims to be family communal land.  As such, this controversy was referred to the Secretary of Samoan Affairs for dispute resolution proceedings, which on June 27, 1997, resulted in the issuance of a Certificate of Irreconcilable Dispute. On August 4, 1997, the Registrar referred this controversy for judicial determination.  The referral became LT No. 14-97.

 

As noted previously, Laie did not pursue his contention of land ownership in the well-site area.  Similarly, during Logoai’s case-in-chief, Logoai’s counsel advised the court that he also represented Pogisa as the administrator of Aukuso’s estate.  He further advised us that because the interests of Logoai and Aukuso in the land claimed for registration by Aukuso in LT No. 14-97 were in fact identical, Pogisa was withdrawing the claim of Aukuso’s estate to the well-site area as individually owned land in favor of Logoai’s claim to the same land as the Logoai family’s communal land.  With Laie and Aukuso withdrawn, the competing land claims enclosing the well site and disputed portion of the access road are reduced to the four by Filiupu O., Logoai, Ama, and Te`i T.

 

Discussion

 

Each of the remaining four claimants presented evidence of family history and personal knowledge of the particular land over which each claims ownership.  Insofar as this evidence deals with relatively modern times, it is largely related to cultivated use of the land claimed.  The evidence further demonstrates the intricate interrelationships between some of the families.

 

We need not dwell on the details of those relationships, however, except for conflicts in testimony that may truly impact our decision.  The broad history of the area and our physical observations are far more persuasive factors.

 

The area where the well site and access road are located is known as “Faga” and has major historical significance.  It is reputed to be one of the oldest, and some say the first, human settlement in the Samoan archipelago.  Along the way, however, the settlement was removed to the present location of Fitiuta.  Nonetheless, “Faga” never lost its sacred identity, and ownership of land within the area was apportioned as communal land among the families and under the pule (“authority”) of the highest-ranking matai (“chiefs”) of present-day Fitiuta.

 

The portion of “Faga” at issue lies immediately adjacent to the public road, which goes to Fitiuta to the east and to the Village of Ta`u to the west.  The boundaries along the east and west sides of the apportioned lands within this portion of “Faga” were established in straight lines running from the public road at the north end towards the mountains at the south end.  Before reaching the disputed area, the access road is clearly within the Te`i family’s communal land, named “Sina.”  The communal lands of the Logoai, Patea, and Filiupu families are situated east of the Te`i family’s communal land, towards Fitiuta, and communal lands of the Taaga and Paopao families are situated on the west side, towards Ta`u.[1]

 

According to Te`i T., the southern boundary of his land claim is the northern boundary of Logoai’s land claim.  In Te`i T,’s survey, this boundary is shown sufficiently inland to place the well site and the disputed portion of the access road within the southeast area of his land claim.  The eastern boundaries of both Te`i T.’s survey and Logoai’s survey (originally Aukuso’s survey) also coincide roughly in this area. Te`i T.’s southern boundary does not, however, follow any clearly discernible boundary marked by trees or other identifying markers.

 

[1] The northern and eastern boundaries of Logoai’s survey enclose the well site and the disputed portion of the access road within the northeast area of his land claim.  Unlike Te`i T.’s placement of the boundary between his and Logoai’s land claim, the northern boundary of Logoai’s survey follows a distinct line of trees.  This court has found a straight line of trees, a common method of defining boundaries between adjacent, unregistered tracts of land in Samoa, to be strong circumstantial evidence of a historic boundary.  See Faleafine v. Suapilimai, 7 A.S.R.2d 108, 112 (Land & Titles Div. 1988).  In weighing the lack of distinguishing field markers defining the southern boundary in Te`i T.’s survey against the actual line of trees along the northern boundary of Logoai’s survey, we must give deference to the circumstance of existing trees. We therefore find that the northern boundary of Logoai’s survey is the southern boundary of the Te`i family’s communal land, and that the well site and the disputed portion of the access road are outside of the Te`i family’s communal land.

 

Filiupu O.’s survey is not configured in the manner used to apportion the lands within “Faga.”  Neither the east nor the west boundaries of this survey follow anything near straight lines.  The east boundary artificially juts out to include approximately one-half of the eastern side of the well site, and a substantial part of the eastern side of disputed portion of the access road within this survey.  Strangely, this configuration happens to put the western side of well site and the disputed access road within the Ama family’s land claim.  This delineation of the boundary appears to be deliberately rather than coincidentally determined for these actions.  The evidence shows that the Filiupu family owns communal land in this vicinity.  However, we find that the well site and the disputed portion of the access road are outside of the Filiupu family’s communal land.

 

Ama did not present a survey of his land claim.  However, Ama’s land claim essentially coincides with Logoai’s land claim, except he agreed that the eastern boundary of the Ama family’s communal land is the same as the western boundary of the Filiupu family’s communal land.  Thus, Ama claims approximately one-half of the western sides of the well site and the disputed portion of the access road, as defined by the peculiar boundary between his and Filiupu O.’s land claims.  Unlike Logoai’s survey that defines the boundaries of his land claim consistently with the traditional layout of lands in “Faga” established by the ranking Fitiuta matai, we do not believe that there is any historical basis for the common boundary claimed by Ama and Filiupu O.

 

So`oupu, Ama’s mother, pointed out that her family had a plantation fale within Ama’s land claim.  Her father, however, was from the Logoai family.  She further testified that her brother Kiliona held the Ama title as the sa`o (“head chief”) of the family, as proof of Ama’s land claim.  She claimed that Kiliona as the Ama permitted Aukuso to maintain a plantation on the land.  She admitted, however, that Kiliona later held the Logoai title as the sa`o of the Logoai family.  The present Logoai maintained that Kiliona as the Logoai authorized Aukuso’s plantation. Furthermore, Aukuso’s son acknowledged that he currently plants within the land claimed by both Logoai and Ama, as his father used it before him, under the authority of the Logoai title.  No doubt the connection between the Logoai and Ama families in the past lends to confusion over ownership of land each family is now claiming.

 

[2] The Logoai title is a high-ranking matai in the hierarchy of Fitiuta. The Filiupu, Te`i, Patea, Taaga, and Paopao titles, which have pule over lands in the immediate proximity of the land claimed by Ama and Logoai, are comparable in rank to the Logoai title.  The Ama is a lesser title in the village hierarchy, and it is unlikely that the Ama title would control land in Faga in the same vicinity of the lands held by these other titles.

 

We hold, therefore, that the land within Logoai’s survey (formerly Aukuso’s survey), which encompasses the well site and the disputed portion of the access road, is the Logoai family’s communal land.

 

Order

 

1. The land within Logoai’s survey, which encompasses the well site and the disputed portion of the access road, is the Logoai family’s communal land.  The Territorial Registrar is directed to register this land in this manner.

 

2. Logoai is entitled to receive the unpaid compensation from ASPA or ASG, or both, accrued for use of the well site and access road within the land from the inception of the well site and access road to the present time, and accruing in the future.

 

It is so ordered.

 



[1] We have listed the communal land in geographical order from the public road towards the inland direction.

5ASR3d237


FILIUPU A. OFISA, Claimant,

 

v.

 

POGISA TUIOLEMOTU, Administrator of the Estate of

AUKUSO M. TUIVETA, and TE`I TAUFA`ASE, Objectors.

______________________________

 

POGISA TUIOLEMOTU, Administrator of the Estate of

AUKUSO M. TUIVETA, Claimant,

 

v.

 

LOGOAI SIAKI, AINA SAOLUAGA NUA,

FILIUPU A. OFISA, and LAIE MATA`UTIA, Objectors.

 

High Court of American Samoa

Land and Titles Division

 

LT No. 22-94

LT No. 14-97

 

June 18, 2001


 

 

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

 

Counsel: For Claimant/Objector Filiupu A. Ofisa, Aumoeualogo S. Salanoa

 For Claimant/Objector Pogisa Tuiolemotu, Administrator of the Estate of Aukuso M. Tuiveta, and Objector Logoai Siaki, Aitofele T. Sunia

 For Objector Te`i Taufa`ase, Pro Se

 For Objector Ama Saoluaga Nua, Tauivi Tuinei

 

ORDER DENYING MOTIONS FOR RECONSIDERATION

 

The Opinion and Order of the Court was entered on June 18, 2001. Claimant/objector Filiupu A. Ofisa (“Filiupu”) and objector Ama Saoluaga Nua (“Ama”) filed timely motions for reconsideration or new trial.  The motions were heard on July 20, 2001.

 

Both Filiupu and Ama submitted their motions on their written arguments at the hearing. We have considered the written arguments and will deny the motions without further comment, except in two particulars.

First, Ama claims that neither he nor his counsel were notified of the date of the Court’s site visit.  The Court is assured that the staff of the Clerk of the Court notified the offices of all counsel by telephone of the site visit scheduled on May 11, 2001.  Then, in accordance with the Court’s instructions, the Court inspected the claimed land areas on the scheduled date, with the assistance of a spokesperson representing each party, Ama included.  Filiupu’s counsel was also present.

 

Second, Ama argues that, with the Court’s concurrence, claimant/objector Pogisa Tuiolemotu (“Pogisa”) abused her authority as the administrator of the estate of Aukuso M. Tuiveta (“the estate”) when she withdrew the estate’s land claim in favor of the claim of objector Logoai Siaki (“Logoai”) to the identical land.  Though contradicted by the other claimants, Ama fails to recognize that there was solid testimony that Aukuso N. Tuiveta (“Aukuso”) cultivated the area claimed by Logoai as the Logoai family’s communal land, knowing full well that he did so under the authority of the Logoai title.  Aukuso initially claimed the land as his individually owned land.  However, any expectation he may have harbored that the underlying communal landowner would accede to his claim unimpeded, especially in a communal-land area like tradition-bound Faga, was unrealistic and did not succeed.

 

Ama also ignores the fact that the estate was probated while the present actions were pending, with Pogisa as administrator and under an attorney’s guidance.  The estate was closed and its assets were distributed without inclusion of the land Aukuso initially claimed as his individually owned land in the present cases.  Estate of Aukuso Tuiveta Misa, PR No. 42-98 (Trial Div. Oct. 8, 1999) (Amended Judgment Settling First and Final Account and Report of Administrator and of Final Distribution).

 

Both motions for reconsideration or new trial are accordingly denied.

 

It is so ordered.

 

5ASR3d239


TUIAGAMOA T. TAVAI, plaintiff,

 

v.

 

TU`UGAOLO LOGOTAEAO, Defendants.

 

High Court of American Samoa

Land and Titles Division

 

LT No. 20-00

 

September 7, 2001


 

 

[1] Where case involves the same parties and issue regarding land ownership and court has previously adjudicated the land at issue to be communal land of a certain family, court will recognize the res judicata effect of the previous decision to reinforce the holding that the land at issue is that family’s communal land.

 

[2] Where possession of land is pursuant to a traditional assignment of a family’s communal land by the family’s sa`o, the family member in possession of the land is obligated to render tautua to the sa`o in order to protect and preserve the family member’s right to occupy and use the land at issue.

 

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

 

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

 For Defendant, Mark Ude

 

OPINION AND ORDER

 

Trial of this action began on August 23, 2001, and ended the same day in remarkable and dramatic fashion, with defendant Tu`ugaolo Logotaeao (“Tu`ugaolo”) reaffirming her fidelity and pledging tautua (“traditional service”) to plaintiff Tuiagamoa T. Tavai (“Tuiagamoa”) as the sa`o (“senior chief”) heading the Tuiagamoa family of the Village of Malaeola, American Samoa.  We memorialize this result, and in the process will summarize the essence of the situation, to encourage lasting effect for the benefit of both parties and counsel.

 

Tuiagamoa brought this action to evict Tu’ugaola, a member of the Tuiagamoa family, from a portion of the family’s communal land named “Toeleve” in Malaeloa (“the land at issue”), based on alleged lack of compliance with her obligations to the sa`o under the traditional Samoan customs pertaining to the Tuiagamoa family.

 

[1] Tu’ugaolo initially defended in large measure on a claim that the land at issue is her individually owned land.  This Court, however, in a case involving the same parties and issue regarding land ownership, has previously adjudicated the land at issue to be communal land of the Tuiagamoa family.  Logotaeao v. Tuiagamoa, LT No. 14-84, slip op. at 3-4 (Land & Titles Div. Nov. 20, 1984).

 

Moreover, she did not pursue this claim at trial. Accordingly, we need not address this issue further than to recognize the res judicata effect of Logotaeao and to reinforce the holding that the land at issue is the Tuiagamoa family’s communal land.

 

[2] Tu’ugaolo has lived on the land at issue for most of her life.  Her possession is, however, tantamount to a traditional assignment of a family’s communal land by the family’s sa`o.  See Coffin v. Mageo, 4 A.S.R. 14, 17 (Land & Titles Div. 1970).  Because of that assignment, and as member of the Tuiagamoa family, she is obligated to render tautua (“traditional service”) to Tuiagamoa in order to protect and preserve her right to occupy and use the land at issue.  Id.; see also Seventh Day Adventist Church of Am. Samoa v. Maneafaiga, 23 A.S.R.2d 150, 154-55 (Land & Titles Div. 1993); Toleafoa v. Tiapula, 7 A.S.R.2d 117, 120 (Land & Titles Div. 1988).

 

During the l970s, Tu`ugaolo and her husband Aofetalaiga Logotaeao (“Aofetalaiga”), now deceased, were strong supporters of Tuiagamoa’s candidacy to fill the then vacant Tuiagamoa title.  In the ensuing matai title action, this court awarded the title to the present titleholder. In re Matai Title “Tuiagamoa”, LT No. 1394-74, slip op. at 5 (Land & Titles Div. Dec. 26, 1974).  Tuiagamoa and Tu`ugaolo differ in the role and significance of this support, both during the pendency of the title action and the investiture ceremony in its aftermath.  The differences are not now, however, an important factual issue.

 

After Tuiagamoa assumed the title, Tu`ugaolo and Aofetalaiga provided unfailing tautua to Tuiagamoa as the family sa`o until 1983.  Then, in reference to construction of a building, Tu’ugaolo, claiming to own the land at issue as her individually owned land, and Aofetalaiga, as the owner of the building entered an agreement to separate the building from the land at issue, pursuant to A.S.C.A. §§ 37.1501-.1506, and Tuiagamoa objected.  These actions precipitated Logotaeao, LT No. 14-84, and the ultimate declaration of the Tuiagamoa family’s communal ownership of the land at issue. After Logotaeao was decided, there was, in Tuiagamoa’s estimation, a precipitous decline in the rendering of acceptable tautua by Tu`ugaolo and Aofetalaiga to Tuiagamoa.

 

Tuiagamoa attributes this backsliding principally to the outcome of the Logotaeao case.  He describes the lessening of tautua especially in terms of Tu’ugaolots failures on several occasions to obtain his permission as the family’s sa`o for significant construction or remodeling of improvements on the land at issue, and to regularly provide foodstuffs and similar measures of traditional support and respect.  He indicates that after Tu`ugaolo left in 1987 to reside outside of American Samoa, except for occasional brief return visits, she essentially ceased to contribute tautua and continually offended the dignity of his office as the head of the Tuiagamoa family.

 

Tu`ugaolo explains her actions, first saying that she understood from the staff of the Building Branch of the American Samoa Government’s Department of Public Works that the sa`o’s approval signature was not required for the kinds of construction work she had done on the land at issue.  She further states that until Aofetalaiga joined her outside American Samoa for health reasons in 1994, he continued to regularly provide tautua to Tuiagamoa, such as providing traditional foodstuffs to him on Sundays, and that since then, she has done her best to provide appropriate tautua to him, within her limited financial resources, when she was notified of family affairs requiring the support of family members.

 

Nonetheless, after expressing her viewpoint on the situation, Tu`ugaolo apologized to Tuiagamoa and reaffirmed her loyalty to him.  She promised to obtain Tuiagamoa’s permission before she undertook any new construction or remodeling activity on the land at issue and appropriately provide tautua to him.  Though Tuiagamoa then took issue with certain aspects of Tu’ugaolo’s explanations, he accepted her apology and agreed to permit her continued occupancy and use of the land at issue so long as she kept her promises.  Tu’ugaolo stood steadfast by her apology and promises.  On this note, we concluded the trial.

 

Order

 

Tu`ugaolo shall obtain Tuiagamoa’s consent before she begins new construction or remodeling of improvements on the land at issue.  She shall also render tautua to Tuiagamoa to the best of her ability in a manner satisfactory under the traditions of the Tuiagamoa family. Tu`ugaolo shall remain in possession of and have use the land at issue so long as she complies with her promises and fulfills her obligations to the Tuiagamoa title.

 

It is so ordered.

 

5ASR3d24


AMERICAN SAMOA GOVERNMENT, Plaintiff,

 

v.

 

DAVID GALUMALEMAGA, Defendant.

 

High Court of American Samoa

Trial Division

 

CR No. 98-00

 

February 14, 2001


 

 

[1] Although self-incriminating statements of a suspect under interrogation without a prior Miranda warning are subject to the exclusionary rule, the suspect must be in custody and subject to official interrogation.

 

[2] On-the-scene questioning by police officers to determine whether a crime has been committed or is in progress, as distinguishable from custodial interrogation, does not require Miranda warnings.

 

[3] General test for determining whether there has been custodial interrogation—whether reasonable person would have believed he could not leave freely—has been held inapplicable in prison setting where question is whether, during interrogation, inmate was subjected to more than usual restraint on prisoner’s liberty to depart.

 

[4] On-the-scene investigative questioning in prison setting does not require Miranda warnings.

 

[5] Defendant returning from unsupervised work release was subjected to routine search on prison grounds which revealed contraband in his shoe.  Without threats, deceptions, intimidations, or Miranda warnings, officer conducting search began on-the-scene questioning and defendant immediately answered.  Defendant’s right against self-incrimination was not violated and statements to officer are admissible.

 

[6] In determining whether person has right against unreasonable search and seizure, reasonable-expectation-of-privacy standard is clearly restricted when person asserting expectation is incarcerated or in custody.

 

[7] Inmate returning from work release has no reasonable expectation of privacy and, therefore, no right under Rev. Const. of Am. Samoa, Art. I, Sec. 5, regarding routine patdown and shoe-search procedures, which only pose minimal degree of intrusion upon privacy.

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

 

Counsel:          For Plaintiff, John W. Cassell, Assistant Attorney General

             For Defendant, Bentley C. Adams III, Assistant Public Defender

 

ORDER DENYING DEFENDANT’S MOTIONS TO SUPPRESS

 

The defendant David Galumalemaga (“Galumalemaga”) is charged with unlawful possession of a controlled substance under A.S.C.A. §§ 13.1022 and 13.1006.  Just after midnight on the morning of August 30, 2000, Galumalemaga returned from work release to the Correctional Facility in Tafuna, where he was serving detention as a probation condition.  He encountered PSO Pasi Sua`ava (“PSO Sua`ava”), the guard on duty at the time.  Siaosi Aiono, the watch commander, ordered PSO Sua`ava to conduct a routine search of Galumalemaga, including a search of Galumalemaga’s shoes.  Inside the flap of one shoe, PSO Sua`ava spotted what appeared to be three cigarettes of marijuana.  Without giving Galumalemaga the Miranda warnings, PSO Sua`ava asked him “What is this?” and Galumalemaga replied, “Give me a chance.”

 

On December 11, 2000, Galumalemaga submitted a motion in limine to suppress “any and all statements of any nature obtained from defendant by government agents,” as well as a motion to suppress the contraband marijuana seized by PSO Sua`ava on August 30, 2000.  We discuss our denial of these motions as follows.

 

I.  Motion to Suppress Statement

 

Galumalemaga claims that his statement to PSO Sua`ava was made while in custody, during an interrogation, without consultation with known appointed counsel, and without adequate advisement of his rights.  Because he was not administered the Miranda warnings, and did not have the opportunity to waive them, Galumalemaga argues that the statement was illegally obtained in violation of his Fourth, Fifth or Sixth Amendment Rights of the U.S. Constitution, as well as Article I, Sections 5 and 6 of the Revised Constitution of American Samoa, and therefore must be suppressed.

 

[1] As well­ established by Miranda v. Arizona, self-incriminating statements given by a suspect during custodial interrogation without a prior warning are in violation of constitutionally protected rights, and are subject to the exclusionary rule.  See generally Miranda v. Arizona, 384 U.S. 436 (1966).  However, in order to trigger Miranda, an individual must be in custody, and must be subject to official interrogation.  A statement made by a person who was not in a custodial situation is not subject to suppression on Miranda grounds.  Am. Samoa Gov’t v. Fealofa`i, 24 A.S.R.2d 10, 11-12 (Trial Div. 1993).  In Berkemer v. McCarty, the Court stated, “[f]idelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.”  468 U.S. 420, 437 (1984).  The first issue, then, is whether Galumalemaga was subject to the sort of coercive conditions contemplated by Miranda.

 

Custodial interrogation has been taken to mean “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”  Miranda, 384 U.S. at 444.  The intent inspiring the Miranda requirement is to protect individuals subjected to inquisition in a “police-dominated atmosphere,” Miranda, 384 U.S. at 445, which is said to generate “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.”  Id. at 467.

 

[2] Custodial interrogation is distinguishable from on-the-scene questioning, which does not require Miranda warnings.  The Court stated that the required warnings “[are] not intended to hamper the traditional function of police officers in investigating crime.”  Miranda, 384 U.S. at 477-78.  It further clarified that “[g]eneral on-the-scene questioning as to the facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding.”  Id.  In Lowe v. United States, the Ninth Circuit reasoned that such questions, posed during the fact-finding process, enable officers “to determine whether a crime has been committed or is in progress.”  407 F.2d 1391, 1393-94 (9th Cir. 1969).

 

[3] The general test for determining whether custodial interrogation has occurred is whether a reasonable person would have believed he could not leave freely.  United States v. Kennedy, 573 F.2d 657, 660 (9th Cir. 1978). Such a test has been held inapplicable in a prison setting, where prisoners may not, by definition, leave freely, and where such a test would thus be tantamount to a pragmatically untenable per se custody finding.  See United States v. Conley, 779 F.2d 970, 973 (4th Cir. 1985).  The Ninth Circuit in Cervantes v. Walker, 589 F.2d 424, 428 (9th Cir. 1978), refined the dicta in the Supreme Court case of Oregon v. Mathiason, 429 U.S, 492, 495 (1977) (per curiam)[1] to create a standard for custody in prison situations according to the relative level of “restriction” experienced by the prisoner.  Specifically, it applied the same four factors cited for the “free to leave” test used in United States v. Curtis, 568 F.2d 643, 646 (9th Cir. 1978), for determining situations which would require Miranda warnings:

 

[T]he language used to summon the individual, the physical surroundings of the interrogation, the extent to which he is confronted with evidence of his guilt, and the additional pressure exerted to detain him must be considered to determine whether a reasonable person would believe there had been a restriction of his freedom over and above that in his prisoner setting.

 

Cervantes, 589 F.2d at 428 (emphasis added).  The Fourth Circuit in Conley interpreted the restriction as a relative concept that “necessarily implies a change in the surroundings of the prisoner which results in an added imposition on his freedom of movement.”  Conley, 779 F.2d at 973 (citing Cervantes, 589 F.2d at 428).  The question, then, is whether during the interrogation, the inmate “was subjected to more than the usual restraint on a prisoner’s liberty to depart.”  Conley, 779 F.2d at 973.

 

[4] The Cervantes case concerned an on-scene investigative situation very much resembling the current case before the Court. A prisoner was being moved from one cell to another when his belongings were searched and a small matchbox with a green odorless substance was found.  An officer asked him, “What’s this?” to which the prisoner replied, “That’s grass, man.”  The court held the statement admissible, ruling that in the prison setting, on-the-scene investigative questioning does not reach the level of restriction contemplated by the Miranda warnings.  The Ninth Circuit reasoned that requiring Miranda warnings to every prison investigation could “totally disrupt prison administration,” and would illogically provide more protection to a prisoner than a non-prisoner in on-the-scene investigative matters.[2]  Cervantes, 589 F.2d at 427.  We agree with, and follow, this rule and its reasoning.

 

[5] In the current case, Galumalemaga was returning on his own from an unsupervised work release program and had just entered prison grounds.  He was subjected to a routine search procedure that required his shoes to be taken off and checked.  The officer saw the three cigarettes in the shoe before spontaneously asking Galumalemaga what they were.  Galumalemaga immediately answered him.  These circumstances are a straightforward example of the in-prison, on-the-scene questioning considered by the Ninth Circuit.  Galumalemaga was undergoing a routine search procedure; the search yielded questionable artifacts; the officer queried him on-the-scene; Galumalemaga answered him subject to none of the threats, deceptions, or intimidations that tend to complicate Miranda custody questions.  We find no evidence of the coercive, police-dominated setting contemplated by the Miranda decision, nor any basis for inferring one.  Even though Galumalemaga was in the process of transitioning from the relative independence of work release to the prison setting, at the time of his search, he was already in the Correctional Facility, on which premises at least he is considered a full-fledged prison inmate.  We conclude that Galumalemaga’s constitutional right against self-incrimination has not been violated and hold that statements to PSO Sua`ava are admissible.

 

II.  Motion to Suppress Physical Evidence

 

Galumalemaga argues that the contraband discovered in his shoe during the August 30, 2000, search by PSO Sua`ava should be suppressed because it was carried out in violation of his constitutional rights.

 

The first issue is whether Galumalemaga, an inmate returning to the prison from work release, had a Fourth Amendment right against unreasonable searches and seizures, as expressed in Article I, Section 5, of the Revised Constitution of American Samoa.  This assures the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.”  See Mapp v. Ohio, 367 U.S. 643, 656 (1961); Am. Samoa Gov’t v. Afamasaga, 17 A.S.R. 145, 148 (Trial Div. 1990).  Prisoners are guaranteed this right against unreasonable searches and seizures “at least to some minimal extent.”  Bonner v. Coughlin, 517 F.2d 1311, 1317 (7th Cir. 1975).[3]  However, this right has been limited for prisoners,[4] primarily as a “practical matter, to accommodate a myriad of ‘institutional needs and objectives’ of prison facilities, . . . chief among which is internal security.”  Hudson, 468 U.S. at 524 n.4.

 

[6] The existence of a Fourth Amendment right is determined by whether the person claiming it has a “justifiable,” or “reasonable,” or a “legitimate expectation” of privacy with respect to the place searched and/or the item seized, as measured by his or her subjective expectation.  Hudson, 468 U.S. at 525; Smith v. Maryland, 442 U.S. 735, 740 (1979); Rakas v. Illinois, 439 U.S. 128, 137-38 (1978); Katz v. United States, 389 U.S. 347, 353 (1967).  This standard is limited by what “society is prepared to recognize as ‘reasonable.’”  Hudson, 468 U.S. at 525 (citing Katz, 389 U.S. at 360, 361 (Harlan, J., concurring)).  The reasonable expectation standard is thus clearly restricted when the individual asserting the expectation is incarcerated or in custody.  United States v. Savage, 482 F.2d 1371, 1372-73 (9th Cir. 1973) (applying Katz). In a prison setting, the test of reasonableness requires a balancing test between the need for the search against the invasion of personal rights that the search entails.  Bell v. Wolfish, 441 U.S. 520, 559 (1979).

 

[7] PSO Sua`ava has testified that prison procedures required him to check all inmates returning to the prison in a routine manner for drugs, weapons, or tools that might be used to escape.  Such a policy is obviously necessary and reasonable, given the pragmatic concerns of prison security.  The evidence indicates that Galumalemaga was returning from work release, where he was unsupervised and in constant contact with unincarcerated persons.[5]  Galumalemaga had every reason to expect that his shoe would be searched, not only because he was returning from work release to the highly supervised life of the prison, but also because such searches were routine procedure, routinely performed.  Further, the search entailed no threat, nor intimidation, nor body cavity exposure, but merely a patdown and peering into Galumalemaga’s shoe, and posed a minimal degree of intrusion upon his privacy.  Therefore, we conclude that, as an inmate returning from work release, Galumalemaga has no reasonable expectation of privacy, and therefore no Section 5 right, regarding routine pat-down and shoe search procedures.[6]

 

Galumalemaga’s constitutional rights under Article I, Sections 5 and 6, of the Revised Constitution of American Samoa were not violated by PSO Sua`ava’s search and questioning on August 30, 2000.  The motions to suppress defendant’s statement and the evidence obtained during the search are, therefore, denied.

 

It is so ordered.

 

**********

 



[1]  In Mathiason, the Supreme Court held that a suspect who voluntarily comes to a police station is not “in custody” for Miranda purposes.  The Court recognized that some coercive element inevitably arises in any interview with police officers, which are “part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.”  The line between custodial and non-custodial situations cannot, therefore, depend on the mere presence of police officers in a confined setting, but rather on the “totality of circumstances” involved.  California v. Beheler, 463 U.S. 1121, 1125 (1983), further cited Mathiason, in its formulation of the test for custody in technically noncustodial situations: “the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.”

[2]  The Ninth Circuit distinguished its ruling from that of the Supreme Court in Mathis v. United States, 391 U.S. 1 (1968).  In Mathis, the Supreme Court ruled that evidence obtained from a prisoner during a routine tax investigation was illegal because the Internal Revenue agent had not administered the Miranda rights.  The Ninth Circuit pointed to the difference between the tax investigation and on-the-scene questioning, as well as to the pragmatic implications for prison administration of requiring warnings before any and all types of questioning.

[3]  The Supreme Court in Hudson v. Palmer, 468 U.S. 517, 523 (1984), clearly states that “prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration.”

[4]  As reasoned in Lanza v. New York, 370 U.S. 139 (1962) (citations omitted), and cited in United States v. Dawson, 516 F.2d 796, 805 (6th Cir. 1975):

[T]o say that a public jail is the equivalent of a man’s “house” or that it is a place where he can claim constitutional immunity from search or seizure of his person, his papers, or his effects, is at best a novel argument . . . . [W]ithout attempting either to define or to predict the ultimate scope of Fourth Amendment protection, it is obvious that a jail shares none of the attributes of privacy of a home, automobile, an office, or a hotel room.  In prison, official surveillance has traditionally been the order of the day. 

See also Palmigiano v. Travisono, 317 F.Supp. 776 (D.R.I. 1970).

[5]  The Supreme Court stated: “Prisons, by definition, are places of involuntary confinement of persons who have a demonstrated proclivity for anti-social criminal, and often violent, conduct.  Inmates have necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint; they have shown an inability to regulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others. . . . Within this volatile ‘community,’ prison administrators are to take all necessary steps to ensure the safety of not only the prison staffs and administrative personnel, but also visitors.  They are under an obligation to take reasonable measures to guarantee the safety of the inmates themselves. They must be ever alert to attempts to introduce drugs and other contraband into the premises which, we can judicially notice, is one of the most perplexing problems of prisons today; they must prevent, so far as possible, the flow of illicit weapons into the prison.”  Hudson, 468 U.S. at 526-27.

[6]  Relevant caselaw has variously held that bodily searches held incident to routine prison security procedures are not violative of the Fourth Amendment rights of inmates.  In Daughtery v. Harris, 476 F.2d 292 (10th Cir.), the court held that the procedure requiring rectal searches on release from court appearance are not violative of the Fourth Amendment rights of inmates even in absence of a showing of special cause justifying such searches, given necessary and reasonable nature of the requirement in a maximum security institution, and given that the search was performed by trained medical assistants.  In Bell v. Wolfish, 441 U.S. 520, 558 (1979), it was held that the practice of visual body-cavity searches of pretrial detainees following contact visits were neither unreasonable nor unconstitutional, and could be conducted on less than probable cause.  Finally, in United States v. Dawson, it was held that a prisoner has no reasonable expectation of privacy in his jail cell.  516 F.2d 796, 805 (9th Cir. 1975) (using the test in Katz v. United States, 389 U.S. 347 at 361 (1967)).  All of these cases depended, more or less, on the practical circumstances of insuring the safety and confinement of the prison environment.

5ASR3d242


LILA PEFU POMARE, KAISARA PEFU,

and ASAUA FUIMAONO, Plaintiffs,

 

v.

 

ANISI PEFU and OTHERS, Defendants.

 

High Court of American Samoa

Land and Titles Division

 

LT No. 18-00

 

September 20, 2001


 

 

[1] Where individual relocated to Hawaii, such action constituted a voluntarily abandonment of his authority to act, under power of attorney, for person residing in American Samoa.  Such abandonment effectively terminated the power of attorney and such authority could not be restored without execution of new power of attorney.

 

[2] An agent who abandons the principle or his duties as an agent has terminated the agency relationship.

 

[3] Mental capacity to contract is presumed until it is proven by a preponderance of evidence that actual unsoundness of mind existed at the time of contractual act.

 

[4] In determining mental capacity to contract, the legal standard is whether the person fully understood the nature, purpose, and effect of the particular transaction.

 

[5] As a general rule, the making of a contractual transaction is presumed free of undue influence until it is established by a preponderance of evidence that unfair persuasion was actually exerted.

 

[6] A presumption of undue influence arises when the parties to an improvident transaction have a confidential or fiduciary relationship.

 

[7] Once the presumption of undue influence arises, it can be rebutted only by clear and convincing evidence.

 

[8] The legal standard for determining whether undue influence was exerted is whether the questioned act was done by a person who had lost his free will and would not have entered the transaction but for another imposing compulsion.

 

[9] The parent-child relationship can constitute the type of confidential relationship necessary to show undue influence.

 

[10] The remedy to cure the unjust consequences of undue influence is to undo the transactions.

 

[11] Where one co-tenant conveys title to part of the co-owned land without authorization of the other co-tenants, title to tract conveyed may still inure to the grantee of the unauthorized conveyance where the tract is partitioned to the grantor in subsequent proceedings and if recognition of the prior conveyance can be done without prejudice to the other co-tenants.

 

[12] Where portion of property had been previously transferred, without recording, to third-party, and subsequent transferals of property were rescinded, court nonetheless found it equitable to relocate portion of property previously transferred due to construction that had already taken place on land.

 

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

 

Counsel: For Plaintiffs, Asaua Fuimaono

 For Defendants, S. Salanoa Aumoeualogo

 

OPINION AND ORDER

 

On November 20, 2000, plaintiffs Lila Pefu Pomare (“Lila”), Kaisara Pefu (“Kaisara”), and Asaua Fuimaono (“Asaua”) filed this action to enjoin defendant Anisi Pefu (“Anisi”) from completing the construction of a new building until the court can determine the parties’ rights in the underlying land. The complaint also seeks to void a trust agreement, executed by Pefu Fania (“Pefu”), which provides Anisi with control over the land; to require Anisi to restore about $18,000 of Pefu’s funds; to judicially recognize a deed of a portion of the land by Pefu to Asaua; and to divide the rest of the land among Pefu’s four children.

 

Pefu’s four children include two sons, Kaisara and Anisi, and two daughters, Lila and Rasela Pefu (“Rasela”).  Asaua and Pefu also have a blood relationship—a brother of Pefu’s mother is Asaua’s grandfather.

 

A hearing was scheduled on December 7, 2000, on the Court’s order to Anisi to show cause why he should not be preliminarily enjoined pending the Court’s final decision in the action from further construction of the building, exercising ownership rights in the land, expending funds from sales of the land, and evicting Lila or her siblings from Pefu’s present house on the land and the land. The hearing was postponed several times—to permit Anisi further time to obtain counsel, afford his counsel time to prepare, and accommodate hearing schedules—and was held on February 9, 2001, with the parties and their counsel present. During this interim, we enjoined Anisi from engaging in further construction of the building.

 

We heard testimony and received other evidence on February 9 and 12, March 12, and May 22, 2001. In the process, we invoked T.C.R.C.P. 65 and consolidated the hearing on the preliminary injunction application with the trial on the merits.

 

Discussion

 

A.  Land at Issue

 

The particular land at issue is a portion of approximately 8.898 acres, named “Mosooi,” located in the Village of Ili`ili, American Samoa.  The 8.898 acres was the subject of extensive litigation between Pefu, his brother Sipili Atualevao (“Sipili”) and his nephew Atoa Atualevao (“Atoa”), Sipili’s son.  The decisions in Fania v. Sipili, 14 A.S.R.2d 70 (Land & Titles Div. 1990) and LT No. 38-91 (Land & Titles Div. Oct. 21, 1992) (order on application for partition), are quite relevant to the present action.  Thus, we take judicial notice of and begin by reviewing these past actions.

 

B.  Previous Litigation

 

We first summarize the findings in Fania, 14 A.S.R.2d 70.  Pefu began to clear a portion of the 8.898 acres in the 1950s.  In the 1960s, Pefu permitted Sipili to go on the land, and Sipili and Atoa cultivated the cleared area.  During Pefu’s absence on a missionary assignment to Swains Island from 1968 to 1973, Sipili and Atoa extended the cleared area. After Pefu’s return, conflicts arose over claims to the land but were temporarily resolved until Pefu initiated Fania in 1989.

 

Pefu surveyed 7.567 acres of the cleared land in 1975. Apparently, however, Sipili and the family sa`o (“head chief”) prevailed on him not to register the land.  Then, in 1979, Sipili offered to register as his individually owned land his survey of 2.05 acres within the cleared land. Atoa objected, claiming that the land was communal land of Pefu, Sipili, and himself.  Upon mediation at the Office of the Secretary of Samoan Affairs, it was agreed that Sipili would withdraw his registration offer, the land would be registered in the names of Pefu, Sipili, and Atoa, and then equally divided among the three of them.  This agreement was not, however, carried out.

Next, in 1981, Atoa attempted to register Pefu’s 1975 survey as his individually owned land. Sipili objected, complaining of his son’s disobedience and claiming that he cleared the land first.  Again, after mediation at Samoan Affairs, the issue was settled by Atoa withdrawing his registration offer.  Then, in 1983, Sipili offered to register as his individually owned land his survey of 8.67 acres of the cleared land. This time Pefu objected, citing his many years of working the land.  He withdrew his objection, claiming that he and Sipili settled their differences, but allowed the title to be registered in Sipili’s name alone. In 1985, Sipili persuaded the Territorial Registrar to amend the registration to show that he and Atoa owned the land in common by misrepresenting that Atoa was an original co-applicant for the 1983 registration offer.

 

Pefu withdrew his objection to Sipili’s registration offer in 1983 with Atoa’s assurance that the 8.67 acres would be divided between Sipili, Atoa, and himself.  He was unaware of the amendment adding Atoa as an owner with Sipili.  In fact, he continued to have free access to the land, constructed a house there with Sipili signing the building permit, and believed the three-way division of the land was in process.  He did not discover the actual status of the land until he learned that Atoa was selling parcels of the land without his knowledge and consent.  During a verbal altercation in 1989, Atoa told Pefu that Pefu had no interest in the land.  Pefu then commenced Fania, 14 A.S.R.2d 70.

 

The Trial Court in Fania found that Sipili and Atoa fraudulently deprived Pefu of his title in the 8.67 acres and imposed a constructive trust on the proceeds from sales of the land and on the remaining acreage to correct the unjust enrichment resulting from the fraud. 14 ASR 2d at 76-77.  The Court also permanently enjoined further sales of the land without Pefu’s consent, and directed the Territorial Registrar to reregister the title to the land in the names of Pefu, Sipili, and Atoa as tenants in common to reflect their original agreement on ownership.  Id.  The Appellate Division affirmed this decision.  See generally Sipili v. Fania, 17 A.S.R.2d 96 (App. Div. 1990).

 

The Fania Trial Court left any division of the proceeds from the land sales and of the remaining land to Pefu, Sipili, and Atoa.  However, they failed to amicably settle these matters, and in 1991, Pefu commenced LT No. 39-91 to require partition of the tenancy in common.  Lengthy efforts, including those promoted by the Court, still did not result in voluntary resolution of the issues.  Thus, by order entered on October 21, 1997, the Court imposed a solution.  Under this order, Pefu was awarded 2.647 acres of the cleared land.  The full size of the cleared land was 8.898 acres under the survey then before the Court.  Sipili and Atoa were given the remaining land as tenants in common, subject to existing encumbrances and other rights of third parties.  In addition, Sipili and Atoa were held jointly and severally liable to Pefu in the sum of $18,032.80, plus 6% post-judgment interest, as Pefu’s share of the proceeds from the prior land sales.  The parties were also ordered to obtain at their own expense legal descriptions for registration of their allotted parcels.  The stage was then set for the current legal controversy.

 

C.  Current Controversy

 

In the first place, lacking a complete legal description, Pefu has never registered the 2.647 acres awarded to him.  Likewise, Sipili and Atoa have not registered the portion awarded to them as tenants in common. This lack of proper follow-up, for whatever reasons, appears to be habitual of the parties to the present action as well as the feuding relatives in the earlier actions.

 

On March 15, 1990, two days after the decision in Fania was entered, Pefu executed an affidavit expressing his intent to convey to Asaua at least a half-acre within the 8.67 acres. Pefu’s affidavit stated that he wanted to reward Asaua for his financial and moral support and legal advice in winning a share of the land.  Asaua is an attorney.  He testified that, as Pefu’s relative, he provided Pefu cash, food and other items from time to time, and arranged for Pefu’s legal representation in the 1989 land case.  It is also stated in the affidavit that, in the immediate presence of Asaua and Kaisara, Pefu had already pointed out the location of the half-acre to be conveyed.  Lila was aware of Pefu’s action, but she was in the nearby house at the time and did not directly witness Pefu’s designation of land for Asaua.  Though Pefu’s 2.647 acres were still not precisely defined, the identified half-acre was near the house where Pefu lived and still lives and was well within the apparent location of Pefu’s 2.647 acres.  Asaua testified to this demonstration.

 

According to Asaua, a half-acre was surveyed in February 1991 pursuant to Pefu’s instructions.  On March 1, 1991, Pefu executed a deed conveying the half-acre to Asaua.  Asaua knew as an attorney, of course, that he could not register his title to the half-acre until the title to Pefu’s 2.647 acres was registered as Pefu’s individually owned land.  Asaua did not vigorously pursue the registration issue until now.  He testified that he felt unwelcome at Pefu’s house after Anisi, Pefu’s eldest son, returned to American Samoa in 1995.  He had, in 1994, prepared Pefu’s power of attorney giving Kaisara authority to conclude the pending litigation and perfect the title to Pefu’s 2.647 acres.  Otherwise, however, he let the matter languish until the present situation arose last year.

 

Anisi was a career soldier, having enlisted in the U.S. Army in 1974 and retired in 1995.  He regularly provided support from his military pay for his parents when both were living and then for his father after his mother died.  It is evident that upon his return in 1995, he took over care of Pefu’s personal needs, though not by any means exclusive of the contributions of Kaisara and particularly Lila.  Anisi did, however, take control of Pefu’s affairs.  In addition, friction developed between Anisi on one hand and Kaisara and Lila on the other, and the alienation remains in the picture.

 

Anisi either was unaware of or disregarded the power of attorney given to Kaisara.  He certainly knows of this document now and testified that, not long after his return in 1995, Pefu told Anisi that he did not trust Kaisara, feared that Kaisara would sell his 2.647 acres, and wanted Anisi to handle all of his affairs.

 

[1-2] Kaisara claimed that he wanted to avoid further confrontation with Anisi, and he moved to Hawaii, at least in part for this reason, where he has lived since the mid-1990s.  By his relocation to Hawaii, Kaisara voluntarily abandoned his authority to act for Pefu under the 1994 power of attorney—having left on his own accord, Kaisara’s power of attorney was effectively terminated and could not be restored without Pefu executing a new power to him.  See Fletcher v. Matthew, 448 N.W.2d 576, 581 (Neb. 1989) (power of attorney creates an agency relationship); Prezier v. Dudley, 314 P.2d 138, 144 (Cal. App. 1957) (an agent who abandons the principle or his duties as an agent has terminated the agency relationship); 3 AM. JUR 2D Agency § 49 (2000) (an agent conducting himself in a manner incompatible with his duties as an agent can be found to have willfully terminated the agency relationship).

 

Anisi also treated Lila at least irreverently.  In 1994, Lila took Pefu to the states for a visit lasting approximately a year.  Not long after she and Pefu returned, Anisi compelled Lila to leave the home on the 2.647 acres where she was living with him and Pefu.  Lila attributed Anisi’s conduct to his disrespect of her religious practices, but he claimed that she irresponsibly disregarded his instructions on housekeeping and Pefu’s personal care.  There have been at least two other occasions of similar sparring, the latest occurring last year.  Anisi also refused to participate in Lila’s recent wedding.  She now lives with her husband in another structure within the 2.647 acres.  During the trial, Anisi also falsely intimated that Pefu was not Lila’s natural father.

 

We have no doubt that each of the three siblings contributed to the estrangement between Anisi on one side and Lila and Kaisara on the other.  However, based on their demeanor throughout the trial, it is apparent that Anisi has a strong adversarial attitude towards his sister and brother and was the principal antagonist in causing the continuing rifts among them.

In this background of strained relationships, the cause of the present litigation erupted in 2000.  Anisi started to construct a house apparently within the half-acre that Pefu conveyed to Asaua in 1991.  Lila, Kaisara, and Asaua then learned of other actions taken by Anisi.

 

First, on April 10, 1998, Pefu, as grantor, and Anisi, as trustee, signed a trust agreement. Under this agreement, title to the 2.647 acres, improvements on the land, and the furniture and furnishings in Pefu’s home were transferred to Anisi.  Relevant to this action, Anisi, as trustee, must pay any income derived from the trust to Pefu for life, and may apply the principal of the trust as Anisi, in his discretion, deems necessary to provide for Pefu’s support.  In essence, Anisi was given full authority to enter transactions regarding the 2.647 acres within the parameters of this direction for Pefu’s care.  Anisi testified that the attorney who prepared the trust agreement explained in the Samoan language all the terms of the agreement to Pefu, and that Pefu understood the terms.  Although, on May 28, 1998, the Attorney General advised the Territorial Registrar to withhold registration of the trust agreement until the 2.647 acres was registered, the trust agreement was recorded on November 18, 1999.  We have no evidence on the reason the Registrar disregarded the Attorney General’s recommendation.

 

Second, on January 6, 2000, Pefu signed a power of attorney giving Anisi broad authority to conduct Pefu’s affairs, including transactions affecting the 2.647 acres. Anisi testified that this power of attorney replaced one that Pefu gave him upon his return in 1995 so that Anisi rather than Kaisara would handle Pefu’s affairs.  Anisi testified that the second power of attorney was necessary because the first one became wet and unreadable.

 

Third, on August 22, 2000, Pefu signed a warranty deed conveying to Anisi 0.133 of an acre, ostensibly within Pefu’s 2.647 acres.  The 0.133 of an acre appears to be substantially within the one-half acre that Pefu deeded to Asaua in 1991.  Anisi testified that the house he had under construction on the 0.133 of an acre would be Pefu’s new home for the rest of his life.  Anisi claimed that he made plans to build this house even before he retired, and that after returning in 1995 he discussed his plans with Pefu, who then approved this project.

 

Lastly, Sipili or Atoa, or both of them, paid to Anisi the $18,032.80 that the court required them to pay Pefu as his share of the proceeds of sales of portions of the 8.898 acres prior to the Court’s order of October 21, 1997.  There is no evidence on whether or not the amount actually given to Anisi included the amount of the 6% interest accruing after October 21, 1997.  Anisi testified that he spent $6,000 to repair a vehicle Anisi owns but was imported for Pefu’s use, $6,000 to repair Pefu’s house, and most of the balance on family affairs, emergencies, and attorney’s fees. He did not recall if any amount remained unexpended.  Anisi claimed that Pefu wanted to buy a new vehicle, but Anisi felt that other needs had priority.  Anisi denied contracting for the sale of any portions of the 2.647 acres and receiving funds from any such transactions.

 

Pefu’s mental state when he entered these recent contractual transactions is of serious concern.  Evidence is present that Pefu lacked the mental capacity to contract or was unduly influenced, or both, when he signed the trust agreement naming Anisi as trustee, made Anisi his attorney in fact, and conveyed the 0.133 of an acre to Anisi.

 

D.  Mental Incapacity to Contract

 

[3-4] Mental capacity to contract is presumed until it is proven by a preponderance of evidence that actual unsoundness of mind existed at the time of contractual act. 53 AM.JUR.2D Mentally Impaired Persons, § 5 at 161 (1996).  The legal standard is whether the person fully understood the nature, purpose, and effect of the particular transaction. Id. at 160.

 

Pefu is now about 88 years of age.  When Fania was an active action during 1989 and 1990, Pefu was apparently in reasonably good mental health.  Asaua and Kaisara supported that action and, based on age alone—then about 77 years—we do not doubt that Pefu required some encouragement and assistance to pursue that action successfully. However, Pefu testified during the trial in January 1990.  His signatures on documents in the Court’s Fania file appear to be clear and firm. Nothing in the court records suggests that Pefu’s mental condition had significantly deteriorated before or during the course of the proceedings in Fania.

 

Similarly, the evidence does not show any marked degeneration in Pefu’s mental faculties when he signed the affidavit expressing his intent and reasons for conveying the one-half acre to Asaua in 1990 or when he signed the deed carrying out that intent in 1991.  Likewise, the evidence indicates that Pefu remained mentally alert when he commenced LT No. 38-91 to partition the 8.898 acres later in 1991.  It may be noteworthy that while Pefu was present during the trial of LT No. 38-91 in October 1997, he did not testify.  Anisi was then Pefu’s only lay witness on personal and family matters.  The decision not to have Pefu testify may have been solely trial tactics.  On the other hand, it may confirm other evidence of Pefu’s lessening acumen during the intervening and subsequent years.

 

It is noteworthy that Pefu’s signature has degenerated over time.  His signatures affixed to the power of attorney to Kaisara in 1995, trust agreement in 1998, and especially to the power of attorney and deed to Anisi in 2000, while legible, are visibly shaky.  The gradual deterioration is evident.

 

The testimonial evidence on Pefu’s mental state is directly conflicting. Pefu’s children did agree that Pefu suffers from loss of hearing. It appears that this condition started to develop many years ago.  At one time, Pefu used a hearing aid, but apparently he has refused to use one for some years, perhaps since 1995 or so.  Anisi and Rasela Pefu, another sister, said that Pefu can read lips.  Lila stated that Pefu does not understand what others are saying to him unless the message is written and simple.  In any event, the siblings usually communicate with Pefu by writing notes, using sizeable printed letters.

 

Lila testified that beginning in 1995, Pefu became very deaf and showed signs of senility that is characterized today by repeated and random statements, misconception of communications, walking about aimlessly, and similar inappropriate behavior.  She also asserted that Anisi yells and swears at Pefu, and Pefu now fears Anisi.  Anisi denied that Pefu fears him and claimed he has always treated his father with utmost respect.

 

Anisi testified that he usually communicates with Pefu by means of written notes that Pefu understands.  He also said that Pefu knows where he is when they drive around the island, knows what he is eating, uses the bathroom properly, though he takes about two hours to shower, can read Anisi’s lips, and is otherwise aware of immediate circumstances.  Anisi emphasized that he, not Lila, is constantly taking care of Pefu.  Lila pointed out, however, that after Anisi returned in 1995, he was enrolled at the American Samoa Community College for awhile, frequently played golf, and was off-island due to illness for about a month, during which times she was Pefu’s primary caretaker.  She also pointed out that Anisi spends considerable time in such activities as playing golf and bingo.  Lila insisted that Anisi prevents her from helping more with Pefu’s care, and when she and Anisi are together, Anisi is frequently contentious with her.

 

Rasela, Lila’s and Anisi’s sister, gave her opinion that Pefu needs close attention and is forgetful due to his elderly age, but that he is still aware of his surroundings, eats and bathes without much help, and responds appropriately to written notes.  She confirmed that Pefu also can read lips.  She also indicated that Pefu did not attend the trial because he experiences back pains if he sits too long and was not well in general.  To Rasela’s knowledge, Anisi has never mistreated Pefu.  She believed that Pefu trusts Anisi.

 

Beginning at least in 1995, Pefu has manifested signs of progressive mental deterioration associated with old age, commonly referred to as senile dementia when unsoundness of mind sets in. See 10 AM. JUR. PROOF OF FACTS 374-77 (1961).  The evidence does not, however, sufficiently preponderate to establish that Pefu’s mental condition reached the stage of actual incompetency at the time he favored Anisi with a power of attorney in 1995, the trusteeship in 1998, and a second power of attorney and the land deed in 2000.  It appears that Pefu was fully aware of and understood the nature and effect of those transactions.

 

E.  Undue Influence

 

[5-8] As a general rule, the making of a contractual transaction is presumed free of undue influence until it is established by a preponderance of evidence that unfair persuasion was actually exerted. 25 AM. JUR. 2D Duress and Undue Influence § 38 (1996).  A presumption of undue influence arises, however, when the parties to an improvident transaction have a confidential or fiduciary relationship. Id.  Once interjected, the presumption can be rebutted only by clear and convincing evidence. Id. at § 40.  The legal standard is whether the questioned act was done by a person who had lost his free will and would not have entered the transaction but for another imposing compulsion.  Id. at § 30.

 

[9] The parent-child relationship can constitute the type of confidential relationship necessary to show undue influence.  Id. at § 38; 13 A.L.R.3d 381 (1998).  The situation in this case is fairly characterized in this manner.  Clearly, Anisi returned from military service bound and determined to take over his father Pefu’s personal care and affairs, essentially to the exclusion of his siblings Lila and Kaisara.  Undoubtedly, Anisi was motivated by good intentions and had in mind Pefu’s best interests.  However, when Anisi unilaterally took on this role in Pefu’s life, he necessarily assumed Pefu’s confidence and a mantle of fidelity in the conduct of Pefu’s affairs.

 

Anisi systematically went about solidifying his authority over Pefu and his affairs.  The power of attorney in 1995, immediately substituting Anisi for Kaisara as Pefu’s attorney in fact, the trust agreement in 1998 giving Anisi as the trustee further authority over Pefu’s 2.67 acres and other property, and the second power of attorney in 2000, ostensibly replacing the physically spoiled first power of attorney, attest to his efforts.  Using his authority, Anisi then, also in 2000, obtained Pefu’s signature to the deed of 0.133 of an acre to Anisi without any monetary consideration.

 

Under these circumstances, a presumption of undue influence unfolds with respect to all four transactions, the two powers of attorney, trust agreement, and land deed.  Even without the presumption, however, it is readily apparent that Anisi used undue influence to gain Pefu’s acquiescence to these transactions.  Though we find that Pefu had not totally lost his mental competency at the time of any of the four transactions, Pefu had clearly reached a stage of mental and physical weakness due to his advancing age.  Pefu lacked independent advice and was vulnerable to external pressures and unfair persuasion.  Anisi was singularly focused on controlling Pefu’s life and used his domineering personality to secure his objectives.

 

[10] We hold that Pefu was unable to resist Anisi’s oppressive insistence and entered the four transactions as a result of Anisi’s undue influence.  The remedy to cure the unjust consequences of undue influence is to undo the transactions.  1 B.E. WITKIN, SUMMARY OF CALIFORNIA LAW Contracts § 423 (9th ed. 1987).  We therefore rescind the four transactions, the power of attorney in 1995, trust agreement entered on April 10, 1998, second power of attorney granted on January 6, 2000, and the land deed executed on August 22, 2000.

 

F.  1991 Land Deed and Unfinished House

 

[11] Strictly, Pefu as a tenant in common with Sipili and Atoa had no legal right, without the co-tenants’ consent, to convey to Asaua any specific or distinct portion of the 8.67 acres in 1991.  20 Am. Jur. 2d Cotenancy and Joint Ownership § 107 (1995).  However, as an equitable principle, title to a tract of land held jointly may still inure to the grantee of such a conveyance in the event the tract is partitioned to the grantor in subsequent proceedings and if recognition of the prior conveyance can be done without prejudice to the other co-tenants.  See Seavey v. Green, 1 P.2d 601, 603 (Or. 1931); Annotation, Grant of Part of Cotenancy Land, Taken from Less Than All Cotenants, as Subject of Protection through Partition, 77 A.L.R.2d 1376 (1961).  If the half-acre conveyed to Asaua lies within the Pefu’s partitioned 2.647 acres, as appears to be the case, we do not find prejudice to Sipili and Atoa or any other impediment to equitable recognition of the transfer in light of the judicial partition in 1997.

 

[12] Anisi claims that he intends to provide Pefu with a new home for remainder of Pefu’s life in the house under construction within the rescinded deed of 0.133 of an acre unjustly transferred to Anisi.  The unfinished house also appears to be within the half acre deeded to Asaua on March 1, 1991. Construction of the house is well along to completion, and under the circumstances, it may be inappropriate and unnecessary to fully thwart Anisi’s intent.  It appears that Asaua’s half-acre can be resurveyed and relocated within Pefu’s 2.647 acres outside of the new house site.  We will, therefore, further enjoin the construction of the new house only long enough to complete the survey work described below and determine the feasibility of mutually accommodating both the new house site and the half-acre within Pefu’s 2.647 acres.

 

G.  Restitution

 

We are unable to satisfactorily ascertain, on the basis of Anisi’s imprecise accounting, and lack of any other definitive evidence, whether Anisi expended for his own devices some portions, and if so how much, of the $18,032.80 paid to him by Sipili or Atoa as Pefu’s share of the proceeds from previous sales of parcels within the 8.67 acres.  We are satisfied that Anisi spent some of the funds for selfish ends.  However, it is probably a practical impossibility at this juncture without any retained records to order Anisi to provide an adequate accounting or any other means to fix an amount of restitution for improper expenditures.

 

We will, therefore, only require Anisi to obtain, at his expense, from L.P. French, the professional surveyor who did the survey work prerequisite to the partitioning in LT No. 39-91, the completed legal description necessary to record Pefu’s 2.647 acres as directed by the court’s partition order of October 21, 1997.  The survey shall also depict the location of the new house under construction and surrounding 0.133 of an acre, and the potential relocation of the one-half of an acre conveyed to Asaua within the 2.647 acres but outside of the 0.133 of an acre.  This survey work must be done expeditiously.

 

Order

 

1. The power of attorney granted by Pefu to Kaisara in 1994 is terminated

 

2.  The power of attorney granted by Pefu to Anisi in 1995, the trust agreement entered on April 10, 1998, under which Pefu designated Anisi as trustee having management and control of Pefu’s 2.647 acres and other property, the power of attorney granted by Pefu to Anisi on January 6, 2000, and the deed of August 22, 2000, under which Pefu gave 0.133 of an acre within Pefu’s 2.647 acres to Anisi are rescinded.

 

3.  Pefu’s deed a half-acre to Asaua, to the extent it is within Pefu’s 2.647 acres, is valid.

 

4.  Anisi shall, at his expense, employ professional surveyor L.P. French to complete the previously undertaken survey work and legal description necessary for recording with the Territorial Registrar of Pefu’s 2.647 acres.  The completed survey shall depict the location of the new house under construction and surrounding 0.133 of an acre, the location of the half-acre conveyed on March 1, 1991, by Pefu to Asaua, and the potential location of the re­surveyed half-acre within the 2.647 acres but outside of the 0.133 of an acre.  The survey shall be completed, paid for, and filed with this court within 120 days of the entry of this order.  Upon receiving the completed survey, the court will schedule a hearing to consider further appropriate orders in this action.

 

5. The temporarily enjoined construction of the new house is now permanently enjoined until further order of the court.

 

6.  The Clerk of the Court shall cause this opinion and order to be served on the Territorial Registrar.

 

It is so ordered.

 


**********

 

5ASR3d254


GI MALALA and PULU TALALOTU

(for the Mauga family and Gi family), Plaintiffs,

 

v.

 

AMERICAN SAMOA GOVERNMENT, Defendant,

 

High Court of American Samoa

Land and Titles Division

 

LT No. 10-01

 

October 17, 2001

 

 

[1] Filing a Certificate of Irreconcilable Dispute upon the failure of dispute resolution proceedings before the Secretary is a jurisdictional prerequisite to hearing a controversy involving communal land.

 

[2] Where action involves a dispute over communal land, but no Certificate of Irreconcilable Dispute has been filed, the court may nonetheless issue appropriate preliminary orders and stay proceedings, rather than dismissing the action, until the certificate is filed. 

 

[3] The “Mauga” title is a paramount matai title of American Samoa and the highest-ranking title in Pago Pago.

 

[4] A.S.C.A. § 43.1309(b) allows an application for an injunction with regard to actions on communal land to be brought by two blood male matai members of the family, instead of the sa`o, if the sa`o title is vacant.

 

[5] Land ownership and easement rights extend to those uses that are incidental or necessary to the reasonable use of the land.

 

[6] Maintenance of a thoroughfare is incidental or necessary to the reasonable use of such land.

 

[7] New sidewalk which was installed outside of the area previously used by government for old road was determined to be within area reasonably required for lateral support of the old road and therefore installation of such new sidewalk was proper. 

 

[8] A preliminary injunction is appropriate only when there is (a) a substantial likelihood that at trial on the merits the applicant will prevail and obtain a permanent injunction, and (b) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on the propriety of a permanent injunction.

 

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

 

Counsel           For Plaintiffs, Marshall Ashley and Jeffrey Waller

 For Defendant, Fiti A. Sunia, Acting Attorney General, and Tala Uiagalelei, Assistant Attorney General

 

OPINION AND ORDER

 

Plaintiffs Gi Malala (“Gi”) and Pulu Talalotu (“Pulu”) seek injunctive relief against defendant American Samoa Government (“ASG”).  The relief was initially aimed at preventing construction of a sidewalk between the main public road and a rock wall in the Village of Pago Pago.  The requested relief was modified to removal of the sidewalk by the time of hearing on the application of Gi and Pulu for a preliminary injunction.

 

Pursuant to T.C.R.C.P. 65(a)(2), the Court consolidated the hearing on August 28 and September 4, 2001, on the application by Gi and Pulu for a preliminary injunction with the trial on the merits.  Gi, Pulu, and counsel were present on both dates.

 

 

Discussion

 

[1-2] This controversy involves communal land of the Mauga and Gi families and has not yet been mediated by the Secretary of Samoan Affairs.  Filing a Certificate of Irreconcilable Dispute upon the failure of dispute resolution proceedings before the Secretary is a jurisdictional prerequisite to proceeding with this action.  See A.S.C.A. § 43.0302(a); Meredith v. Koko, 28 A.S.R.2d 149, 150 (Land & Titles Div. 1996).  However, the Court can issue appropriate preliminary orders and stay further proceedings, rather than dismiss the action, until the Certificate is filed.  See A.S.C.A. § 43.0303; Moeigogi v. Faleafine, 5 A.S.R.2d 131, 133 (Land & Titles Div. 1987).  Gi and Pulu requested, and the court issued, a temporary restraining order to stop installation of the sidewalk temporarily.  The order was served too late to prevent the work. However, ASG installed the sidewalk knowing the unresolved objections that Gi and Pulu had to it.  This circumstance provides sufficient cause to consider the substantive need for a preliminary injunction.

 

The boundary of the land in question fronts approximately 300 feet along the public road through Pago Pago.  The side of the land towards the Village of Satala is the Mauga family’s communal land, explicitly named “Gagamoe.”  The side towards the head of Pago Pago Bay is the Gi family’s communal land, explicitly named “Legati.”  However, the name “Gagamoe” is a commonly used reference to both lands, and we will use the name in this sense below.

 

[3-4] The “Mauga” title is currently vacant.  It is a paramount matai title of American Samoa and the highest-ranking title in Pago Pago.  The “Gi” and “Pulu” titles are under the auspices of the “Mauga” title, and Gi and Pulu are among the matai titleholders who are responsible for the Mauga family’s affairs during the vacancy in the title.  “Gagamoe” is sacred land of the Mauga family.  An ancient rock wall is situated inland from the rock wall next to the sidewalk.  The ancient rock wall appears to be associated with the traditional site of the Mauga guesthouse.  Former holders of the Mauga title are buried not far from the guesthouse site. According to the evidence, the Cession of Tutuila and Aunu`u, formalizing the relationship of American Samoa with the United States on April 17, 1900, was signed on “Gagamoe.”  Gi and Pulu considered the installation of the sidewalk to be disrespectful of the dignity of the “Mauga” title and thus decided to bring this action to correct ASG’s affront.  Given the vacant “Mauga” title, they have standing to sue under A.S.C.A. § 43.1309(b).

 

Both the new paved public sidewalks and public road are integral parts of the road project through Pago Pago that was recently undertaken and is essentially completed.  Along “Gagamoe,” the new road lies in large part over the bed of the old road that was in existence well in excess of 30 years.  The new road is wider than the old road, but most of the expansion is seaward, on the side opposite “Gagamoe.”  Pedestrians could previously walk along unpaved areas immediately adjacent to both sides of the old road. Now paved sidewalks exist on both sides of the new road and extend in both directions well beyond “Gagamoe.”  Thus, the safety of the road system in Pago Pago has been enhanced for both vehicles and pedestrians.

 

At the Gi family’s end, the sidewalk straddles the bed of the old road and is approximately four feet from the rock wall.  The sidewalk gradually strays further from the old roadbed.  It is almost, if not entirely, off the roadbed at the Mauga family’s end, but there it is approximately 10 feet from the rock wall.  The best estimate is that approximately 300 square feet of the sidewalk is off the old roadbed and on previously unpaved land.

 

The precise means of ASG’s acquisition of the bed of the old road is not entirely clear from the evidence.  To the extent that the old road, followed the same path taken by the public road that was in place in 1900, ASG acquired title to the land by condemnation.  See A.S.C.A. § 37.2050.  Over time, the old road that was in place when the present renovation was initiated may have moved away from the 1900 road in some areas throughout Pago Pago.  However, even if this is true, the witnesses testifying at the hearing in this action gave us the impression that the owners of the land affected by any changes in the roadway throughout the years dedicated their land to this purpose.  In any event, given the length of time the public has used the old road as it existed when the present road project began, at the very least ASG acquired an easement in the roadbed.  See Warnack v. Coneen Family Trust, 879 P.2d 715, 723 (Mont. 1994); Sese v. Leota, 9 A.S.R.2d 25, 33 (Land & Titles Div. 1988); 25 Am. Jur. 2d Easements and Licenses § 56 (1995); see also Swift v. Kniffen, 706 P.2d 296, 302 (Alaska 1985) (affirmative permission, not mere acquiescence, required to refute prescriptive easement).  Based on the evidence at hand, it is uncontroverted that the old road in existence immediately before the present road rehabilitation project was and remains part of the public domain by title or easement. We therefore find that ASG rightfully installed the portion of the sidewalk over the old roadbed adjacent to “Gagamoe.”

 

[5-7] Public roads are not, however, totally defined by the traveled portion the road.  Virtually all paved roads have an engineering requirement of lateral support to maintain the paved portion of the road.  Land ownership and easement rights extend to those uses that are incidental or necessary to the reasonable use of the land—this includes maintenance of thoroughfares.  See Le`i v. Olo, 25 A.S.R.2d 33, 36-37 (App. Div. 1993); Pasadena v. California-Michigan Land & Water Co., 110 P.2d 983, 986 (Cal. 1941); 25 Am. Jur. 2d Easements and Licenses § 83 (1995).  We find no basis to except the road at issue.  The evidence does not establish the exact extent of adjacent land that was needed for lateral support of the old road.  However, the area of the sidewalk outside of the old roadbed is well within the area reasonably required for this purpose. We therefore also find that ASG rightfully installed the portion the sidewalk outside of the old roadbed adjacent to “Gagamoe.”

 

[8] A preliminary injunction is appropriate only when there is (a) a substantial likelihood that at trial on the merits the applicant will prevail and obtain a permanent injunction, and (b) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on the propriety of a permanent injunction.  A.S.C.A. § 43.1301(j).  Gi and Pulu have established neither of these criteria and, therefore, are not entitled to a preliminary injunction.  We further conclude that ASG is entitled to dismissal of this action on both the jurisdictional/procedural ground of the lack of a Certificate of Irreconcilable Dispute issued by the Secretary of Samoan Affairs and the substantive ground of ASG’s property interests in the land upon which the new sidewalk is situated.

 

Although we will dismiss this action, we will add that we do not condone the way ASG has handled this dispute.  Gi and Pulu acted in this matter on the basis of their obligations to protect the interests of the Mauga family while the “Mauga” title is vacant and on their good-faith belief that ASG was wrongfully taking the Mauga family’s communal land.  While ASG met with Pago Pago chiefs on several occasions to discuss the new road project and made some efforts to meet concerns about the project, it is evident that the prevailing attitude of ASG’s representatives was to go forward with the project, using whatever land was necessary for the roadway and sidewalks, and resolve the authority issue later.  This approach is impermissible.  See Am. Samoa Const. art. I, § 2; A.S.C.A. §§ 37.2001, 37.2010; Am. Samoa Gov’t v. Isumu, 4 A.S.R. 141, 143 (Land & Titles Div. 1974); see also U.S. Const. amend. V & amend. XIV, § 1.  It is also disrespectful and is all too prevalent in ASG’s land dealings with the owners of land standing in the way of a project.  Gi and Pulu would likely have been satisfied if ASG’s representatives had shown more sensitive insight, concern, and respect for the customs and traditions of the Mauga family.

 

Order

 

In any event, ASG is still entitled to dismissal of this and accordingly, it is dismissed.

 

It is so ordered.

 

5ASR3d259


GI MALALA and PULU TALALOTU

(for the Mauga family and Gi family), Plaintiffs,

 

v.

 

AMERICAN SAMOA GOVERNMENT, Defendant.

 

High Court of American Samoa

Land and Titles Division

 

LT No. 10-01

 

November 29, 2001

 

 

[1] To refute a claim of easement by prescription, a party must establish that they positively gave permission for such use of the land.

 

[2] Altering a prescriptive easement is not permitted where it increases the burden on the servient estate.

 

[3] With regard to prescriptive easements, an increase in the amount of traffic on a roadway (or people on a sidewalk) is not considered an increased burden.

 

[4] A right of way by prescription is bounded by reasonable enjoyment, but it carries with it such incidents as are necessary for that reasonable enjoyment.

 

[5] A sidewalk adjacent to a roadway is an incident necessary to the reasonable enjoyment of the roadway easement in that it provides a safe walkway for pedestrians using that right of way. 

 

[6] Although normal procedure was to stay proceedings pending administrative decision, where plaintiff modified request for injunctive relief, seeking instead the removal of a constructed sidewalk, such modification required full consideration of the property rights of the parties for both preliminary and permanent injunction purposes and rendered the case ripe for trial.  Court properly considered case at that point, and would have done the parties a disservice had it delayed further.

 

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

 

Counsel: For Plaintiffs, Marshall Ashley and Jeffrey Waller

 For Defendant, Fiti A. Sunia, Acting Attorney General, and Tala Uiagalelei, Assistant Attorney General

 

ORDER DENYING MOTION FOR

RECONSIDERATION OR NEW TRIAL

 

Plaintiffs have moved for reconsideration or a new trial with respect to the Court’s Opinion and Order rendered on October 17, 2001.  Plaintiffs submitted a memorandum of points and authorities; defendant did not. The Court heard oral arguments on November 16, 2001.  The motion will be denied, based on the following discussion.

 

Discussion

 

1. Apparently, plaintiffs and defendant are confused over the significance of the level of permission, or acquiescence, plaintiffs granted for use of the land in question. Plaintiffs have made much ado about the lack of permission, or mere acquiescence, granted, while defendant has argued that permission was actively given or clearly implied.  Neither party clearly recognized that a lack of permission would strengthen defendant’s position—and our holding—that use of the roadbed beyond the original condemnation has resulted in a prescriptive easement.

 

[1] Concerning plaintiffs’ first point of argument, we did not hold that the owners of Gagamoe dedicated their lands.  We held that the roadbed was originally taken by condemnation.  To the extent this use has been altered or broadened, the land has been taken by prescription.  We cited Swift v. Kniffen, 706 P.2d 296, 301 (Alaska 1985), for the proposition that plaintiffs cannot refute this taking by showing acquiescence—plaintiffs must establish they positively gave permission to refute prescription.  Counsel has missed the point by reversing our use of Swift.

 

2.  Plaintiffs have argued that we erred in finding the sidewalk was a reasonable alteration of a previously established right of use.

 

[2-3] Altering a prescriptive easement is not permitted where it increases the burden on the servient estate.  However, an increase in the amount of traffic on a roadway (or people on a sidewalk) is not an increased burden. See 25 Am. Jur. 2d Easements and Licenses § 931 cases at n.39 (1996). An alteration which affects a change not in the kind of use, but merely in the degree of use, is not an increased burden.  Id. at § 96.

 

[4-5] The sides of the roadway in this case have been used as a walking thoroughfare long enough to establish a prescriptive right of use. Whether use of the exact location of all parts of these walkways was acquired as part of the original condemnation, by prescription, or by other means, the use of the sides of the road as a walkway has been established.  A right of way by prescription is bounded by reasonable enjoyment, but it carries with it such incidents as are necessary for that reasonable enjoyment.  Id. at § 93.  Surely, a sidewalk that provides safety for the people using this walkway is an incident necessary to reasonable enjoyment.  Lack of safety where safety can be provided is unreasonable.

 

[6] 3.  Plaintiffs have raised procedural challenges to our decision.  Plaintiffs argue that the proper immediate remedy for the lack of a Certificate of Irreconcilable Dispute from the Secretary of Samoan Affairs would be a stay of proceedings until completion of the dispute resolution process before the Secretary.  This step is ordinarily utilized in such situations.

 

However, plaintiffs’ original request for injunctive relief preventing construction of the sidewalk was followed, at the time of the hearing on the application for a preliminary injunction, by their request for removal of the sidewalk.  This modification required full consideration of the property rights involved for both preliminary and permanent injunction purposes.  The issue was ripe for trial.  Appropriately, we consolidated the preliminary injunction hearing with the trial, and received evidence that fully developed the property rights issue.

 

Based on the evidence presented, we determined the property rights issue in defendant’s favor.  As a result, plaintiffs failed to establish entitlement to the relief they sought for purposes of both a preliminary injunction and ultimate disposition.  The posture of the case called for a final decision by dismissal on the substantive ground of defendant’s property interests. See, e.g., Sialega Family v. Tui, LT No. 19-87, slip op. (Land & Titles Div. Aug. 4, 1987).  Waiting, at this point, for an administrative certificate would have been a disservice to all parties involved as an unnecessary delay.

 

Order

 

Plaintiffs’ motion for reconsideration or new trial is denied.

 

It is so ordered.

 

5ASR3d262


FAUMUINA SUAFA`I SATELE,      Plaintiff,

 

v.

 

TAUTOLO GALOSA and AMERICAN SAMOA POWER AUTHORITY, Defendants.

 

High Court of American Samoa

Land and Titles Division

 

LT No. 09-95

LT No. 31-95

 

November 30, 2001

 

 

[1] Where two unrelated families had lived together on land peacefully and harmoniously over significant period of time, interspersing their own improvements upon the land without any logical pattern of present control, court would not declare land to be sole communal land of either family, nor would it create a new form of communal land ownership, but instead ruled that each was entitled to continue, indefinitely, such joint occupancy and use.

 

[2] Where land was found to be neither the exclusive communal land of either of two family-parties, court apportioned rents owed by government for use of such land based on the extent of occupancy and use by each family.

 

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

 

Counsel: For Plaintiff, Charles V. Ala`ilima

 For Defendant Tautolo Galosa, Arthur Ripley, Jr.

 For Defendant American Samoa Power Authority, Roy J.D. Hall, Jr.

 

OPINION AND ORDER

 

Following the trial of these consolidated actions on July 13 and 14, 2000, the Court’s Opinion and Order was entered on August 3, 2000.  Plaintiff Faumuina Suafa`i Satele (“Faumuina”) filed a timely motion for reconsideration or new trial.  We heard this motion on August 31, 2000, and granted partial reconsideration without a new trial on November 6, 2000.  Defendant Tautolo Galosa (“Tautolo”) then filed a timely motion for reconsideration or new trial.  We heard this motion on February 15, 2001, and granted a limited rehearing on March 1, 2001.  The rehearing was held on April 23 and 27, 2001.  Then, on June 28, 2001, we inspected the land at issue.  All counsel were present at the hearing and site inspection.

 

Discussion

 

We initially held that as between Faumuina and Tautolo, the entire land at issue, named “Agaoleatu” and located on the Island of Aunu`u, American Samoa (“the land at issue”), was the Tautolo family’s communal land.  We reconsidered this finding, following Faumuina’s motion for this purpose, and revised the decision to hold that a particular portion of the land at issue was the Faumuina family’s communal land. We were then persuaded, upon Tautolo’s motion for reconsideration or new trial, that further evidentiary development was required on the specific factual issue of how the Faumuina family acquired title, if any, to any portion of the land at issue, as claimed by Faumuina and disputed by Tautolo.

 

At the time of granting this limited evidentiary hearing, the only associate judge previously serving on the panel for this case had fully retired to become a newly selected Senator in the Legislature of American Samoa.  A new panel of associate judges was therefore constituted for the evidentiary rehearing.  We further apprised the parties that the new panel of judges would review the entire record, and that we would amend or make new findings of fact and conclusions of law, as may be appropriate, and issue a new decision.

 

The newly constituted Court has considered the evidence presented at the evidentiary rehearing, its inspection of the land at issue, and the record of previous proceedings.  We are persuaded that the Court’s decision in effect upon entry of the Order Partially Granting Motion for Reconsideration and Denying New Trial on November 6, 2000, is correct with respect to the ultimate holding of the Faumuina family’s title to a portion of the land at issue as its communal land.

 

It is now clear to us, however, that the Faumuina family did not acquire this portion of the land at issue from a Tautolo titleholder, but rather that a Faumuina titleholder on the family’s behalf acquired this portion of the land, principally for the titleholder’s sleeping quarters during visits to Aunu`u, in the customary manner of the time, by authority higher than the Tautolo title within the historical matai hierarchy of the original settlers of Aunu`u.  We therefore reaffirm the Faumuina family’s ownership of this portion of the land at issue as its communal land in accordance with the court’s decision that became effective on November 6, 2000.

We are also persuaded that the Tautolo family originally came upon the land at issue, or the remaining portion of the land at issue, in a similar historical manner, perhaps even before the Faumuina titleholder was there.  However, even if this occupancy preceded the Faumuina family’s presence on the land at issue, the Faumuina family was given the right, by customary means, to succeed to the portion of the land at issue where the former Faumuina sleeping quarters and now a former Faumuina titleholder’s grave are located, which we hold to be the Faumuina family’s communal land.  The Tautolo matai title is of lesser rank among the matai of Aunu`u and in relation to the Faumuina matai title in the county and territory.

 

Eventually, however, a Tautolo titleholder permitted members of the Fa`i family to share use of the remaining portion of the land at issue that the Tautolo family occupied after Faumuina titleholder entered the scene. The Tautolo and Faumuina families are not blood related.  Neither are the Tautolo and Fa`i families.  However, the Fa`i family is blood connected with the Faumuina family and owes ultimate allegiance to the Faumuina titleholder.

 

[1] Nonetheless, the Tautolo and Fa`i families have, for the most part over a long period of time, lived together peacefully and harmoniously under this shared occupancy and use arrangement.  The houses and other structures of both families on the remaining portion of the land at issue attest to this mutual accommodation.  These improvements are also interspersed to an extent that defies finding any logical pattern of present control by either family of large contiguous portions of the remaining portion of the land at issue.  Under these circumstances, while we are not satisfied by a preponderance of the evidence that the remaining portion of the land at issue is the Faumuina family’s communal land, we are also not satisfied that this remaining portion continues to be solely the Tautolo family’s communal land.

 

[2] We are not about to create or recognize a new form of communal land ownership that might be styled, in common law terms, as a tenancy in common of two or more families.  Rather, under the evidence, we only find that the Tautolo and Fa`i families have mutually assented to jointly or commonly occupy and use the remaining portion of the land at issue. On this basis, we will direct a proportionate sharing of the rent paid by the American Samoa Power Authority (“ASPA”) under the leases for the water well and refuge disposal sites within the remaining portion of the land at issue.  Evaluating the extent of occupancy and use by each family, we will direct ASPA to pay 60% of the rent to Tautolo and 40% of the rent to the Fa`i family.

 

During these proceedings, Faumuina surveyed and offered for title registration approximately 6.301 acres of the land at issue.  The Faumuina survey encompasses the portion of the land at issue that we are holding to be the Faumuina family’s communal land.  It also encircles ASPA’s well site, but not ASPA’s refuge disposal site.  There were no objectors to Faumuina’s offer to register the title except by Tautolo.  In addition, though generally described, we left, in our order of November 6, 2000, the precise location of the boundary between the Faumuina family’s communal land portion of the land at issue and the remaining portion of the land at issue undetermined until the parties successfully negotiated the boundary location or we established the location should the negotiations fail, and necessary resurveying was done.  Accordingly, the Faumuina family’s communal land, as determined by this decision, may be registered but only after the exact boundary issue is resolved.

 

Tautolo surveyed the entire land at issue, approximately 23.333 acres, but he has not yet offered to register the title.  The Tautolo survey surrounds both the water well site and refuge disposal site.  As of now, we will not, and cannot on the evidence presented, determine the ownership of the land at issue outside the portion recognized as the Faumuina family’s communal land, either within or outside of Faumuina’s survey. Therefore, no one may register the remaining portion of the land at issue at this time.  Tautolo can, of course, offer to register the title to the remaining portion of the land at issue included within his present survey and attempt perfect his claim of title by this means.

 

Order

 

1. As between Faumuina and Tautolo, the portion of the land at issue where the foundation of former sleeping quarters of Faumuina titleholders and a former Faumuina’s grave are located is the Faumuina family’s communal land.

 

2. Faumuina and Tautolo are directed to attempt to agree on the exact location of the boundary between the area determined to be the Faumuina family’s communal land and the remainder of the land at issue, and if they reach agreement, to have this boundary surveyed, each paying one-half the cost.  If they are unable to agree on the boundary within 90 days of entry of this order, we will determine this boundary, provided that Faumuina or Tautolo, or both of them, at their respective cost, submit a survey of his proposed boundary.

 

3. The Tautolo and Fa`i families may continue indefinitely to jointly occupy and use the remaining portion of the land at issue.

 

4. ASPA shall divide and pay the accrued and future rent for the water well site and disposal site on the remaining portion of the land at issue as follows: (a) 60% to Tautolo; and (b) 40% to the Fa`i family.

 

It is so ordered.

 

**********


 

5ASR3d266


ALAI`ASA FILIFILI MAILEI, Plaintiff,

 

v.

 

UIVA TE`O, LUELI TE`O, and LOGO TE`O, Defendants.

 

High Court of American Samoa

Land and Titles Division

 

LT No. 13-95

 

December 14, 2001


 

 

[1] Res judicata, or claim preclusion, applies when (1) there has been a final judgment on the merits (2) in a prior action involving the same parties or their privies and (3) the prior action involved the same claim.

 

[2] A judgment will have preclusive effect if the same parties are involved or if a non-party was in privity with a party to the previous action.

 

[3] Privity is a term that describes the relationship between a party and a nonparty that is deemed close enough to warrant the application of claim or issue preclusion to the party.

 

[4] Res judicata requires that the subject matter of the earlier case be identical to that of the case at hand.

 

[5] Res judicata prevents not only the relitigation of matters actually determined in a previous, final case, but also precludes the court from hearing other matters which could properly have been raised and determined in that action, whether or not such matters were in fact considered. 

 

[6] A person who takes an interest in real property from one who litigated the property’s title is in privity with him and is bound by res judicata.

 

[7] Permissive occupation cannot create title by adverse possession.

 

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

 

Counsel: For Plaintiff, Tautai A.F. Fa’alevao

 For Defendants, Afoa L.S. Lutu

 

OPINION AND ORDER

 

Plaintiff Alai`asa Filfili Mailei (“Alai`asa”) as the sa`o of the Alai`asa family, commenced this action to evict the defendants Uiva Te`o (“Uiva”), Lueli Te`o (“Lueli”), and Logo Te`o (“Logo”) (collectively “the Te`os”) and remove their house from certain land, named “Toa,” in the Village of Faleniu, and to recover the rental value of the Te`os’ occupancy of the land.

 

Alai`asa principally argues that the present case should be decided on res judicata grounds arising from the three consolidated cases previously decided, Moea`i v. Te`o, 8 A.S.R.2d 85 (Land & Titles Div. 1988), motion for reconsideration den., 9 A.S.R.2d 107 (1988), aff’d Moea’i v. A1ai`a, 12 A.S.R.2d (App. Div. 1989)[1] (“the consolidated cases”).  The Court agrees.

 

The consolidated cases held that the portion of land at issue used to be under the ownership of the Mormon Church, and is currently the Alai`asa family’s communal land. Following this decision in the consolidated cases, Alai`asa notified Leuli, who was then occupying the house, that the Te`os must leave the land in accordance with the court’s decision in the consolidated cases.  Alai`asa and Leuli negotiated for purchase of the house but failed to reach agreement.  The Te`os have not left the land, nor have they paid a reasonable rent to Alai`asa for their use of the land.

 

[1] Res judicata, or claim preclusion, applies when (1) there has been a final judgment on the merits (2) in a prior action involving the same parties or their privies and (3) the prior action involved the same claim. See Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1501 (11th Cir. 1990); 18 James Wm. Moore, Moore’s Federal Practice ¶ 131.01 (3d ed. 1999).

 

A.  Same Parties or their Privies

 

[2-3] A judgment will have preclusive effect if the same parties are involved or if a non-party was in privity with a party to the previous action.  Puailoa v. Estate of Lagafuaina Laisene, 19 A.S.R.2d 40, 46 (App. Div. 1991).  Privity is essentially a conclusory term that describes the relationship between a party and a nonparty that is deemed close enough to warrant the application of claim or issue preclusion to the party.  See Ditton v. Bowerman, 344 P.2d 919, 922 (Or. 1992).

 

Uiva was a named party in the consolidated cases.  Both Lueli and Logo have lived in the house from time to time.  Lueli is Uiva’s son and Logo is his daughter.  Moreover, the issue throughout the consolidated cases has been which chief controls which lands originally leased to the Mormon Church.  In this regard, Siufanua represented all Siufanua people, including the Te`os.  Uiva, as a party in the consolidated cases, and his children, Lueli and Logo, in privity with Uiva, clearly had close enough relationships to warrant the application of the consolidated cases to each of them.

 

B.  Subject Matter

 

[4] Res judicata requires that the subject matter of the earlier case be identical to that of the case at hand.  Puailoa v. Estate of Lagafuaina Laisene, 11 A.S.R.2d 54, 76 (Land & Titles Div. 1989).  The majority view holds that the same claim is involved if both claims arise out of the same transaction—the claim in the prior judgment must “include all rights of the plaintiff to remedies against the defendant with respect to all or part of the transaction . . . out of which the action arose.”  18 Moore’s Federal Practice § 131.20[2] (citing Restatement (Second) of Judgments § 24 (1982)).

 

Alai`asa claims that the house and land at issue lie within the land held in the consolidated cases as belonging to the Alai`asa family.  The Te`os argue that the case of Siufanua v. Uele, 2 A.S.R. 462 (Trial Div. 1949) is more applicable in establishing ownership of the land in question.

 

The trial on the merits demonstrated that the location of the house at issue is not within the area of land awarded by the court to be Siufanua land in Siufanua.  Rather, it is within the land established as the Alai`asa family’s communal land in the consolidated cases. The testimony of Meko Aiumu, a professional surveyor, in conjunction with a careful consideration of the survey maps of the land in question, clearly established the location of the house within the same survey of land that the Court awarded to the Alai`asa family in the consolidated cases.

 

C.  Adverse Possession

 

[5-6] The preclusion of issues by res judicata extends not only to matters actually determined in the consolidated cases, but also to other matters which could properly have been raised and determined in that action, whether or not these matters were in fact considered.  See Mfg. Hanover Trust Co. v. The Tifaimoana, 7 A.S.R.2d 84, 86 (Trial Div. 1988); Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 (1981); 4 Am. Jur. 2d Judgments 52 (1994).  But see In re Estate of Kope1y, 767 P.2d 1181, 1183 (Ariz. 1988) (where court in previous action specifically declined to rule on a matter, said matter is not precluded by res judicata). Arguments that the prior decision was contrary to custom or violative of previous agreement were or should have been presented to the court deciding that case and it would be totally contrary to the principles of finality underlying the judicial process to relitigate a matter that was already fully litigated.  Tela v. Aoelua, 12 A.S.R.2d 40, 42 (App. Div. 1989); Taulaga M. v. Patea S., 4 A.S.R.2d 186, 187 (Land & Titles Div. 1987); Puailoa, 19 A.S.R.2d 40, 45 (a person who takes an interest in real property from one who litigated the property’s title is in privity with him and so is bound by res judicata).

 

The Te`os claim that if the land is found to be owned by the Alai`asa family, then they have a right to it by means of adverse possession.  If Uiva wished to raise the argument that he has held possession to the land in question openly to the world and adverse to the interests of the true owners, Uiva or those in privity with Uiva should have raised this argument in the consolidated cases.

 

[7] Additionally, a claim of adverse possession would fail on the merits. Uiva, with his family, was originally permitted to occupy the house by the Mormon Church, which previously controlled the land in question. Permissive occupation cannot create title by adverse possession.

 

Conclusion

 

The subject of the ownership of the land on which the house is located was the same subject matter as in the consolidated cases.  These cases involved the same parties and reached a final decision on the merits.  Accordingly, res judicata applies.

 

The property rights of the land in question have been fully litigated in multiple proceedings.  This should be enough—“there must be an end to litigation some day.”  Puailoa, 19 A.S.R.2d at 47 (quoting Ackermann v. United States, 340 U.S. 193, 198 (1950)).

Accordingly, the Te`os shall vacate the premises within 30 days. Additionally, the Te`os should pay back rent for their continued use of the land following Alai`asa’s notice to vacate in 1985.  Alai`asa failed, however, to put on any evidence of the rental value.  He is, nonetheless, still entitled to at least nominal rent for the Te`os’ use of the house.  We require the Te`os to leave the house on the land for Alai`asa’s use and consider its value to be a reasonable amount of nominal rent in this case.

 

It is so ordered.

 


**********

 



[1] The case title identifying the parties in and the case number for each of the three cases are as follows: Moea`i Ui1iata v.Uiva Te`o and Si`ufanua Aitu, LT No. 13-85; Alai`asa Filifili v. Uiva Te`o, LT No. 42-85; Moea`i Uiliata v. Alai`a Filifili, Chiefs of Faleniu, and Tuia`ana Moi, LT No- 7-86.

5ASR3d270


TUILEFANO M. VAELA`A, Claimant,

 

v.

 

VALENTINO TAUFA`ASAU, UTAIFEAU T. MAUGA ASUEGA, FANENE F. KAVA, SEALI`IUTU F. MAUGA,

and MAILO ATONIO, Counter-claimants.

 

[In re Matai Title “MAUGA” of the Village of Pago Pago]

 

High Court of American Samoa

Land and Titles Division

 

MT No. 12-98

 

December 14, 2001


 

 

[1] In matai title dispute cases, Sotoa rule (candidate’s blood relationship determined by reference to relationship to original titleholder, not by descent to nearest past titleholder) is not of general application, particularly when family genealogical understanding is contentious and when family history suggests contrary tradition and understanding of entitlement.

 

[2] Using traditional formula, hereditary entitlement is determined by percentage of candidate’s blood relationship to former titleholder, as opposed to original titleholder. 

 

[3] Under A.S.C.A. § 1.0409(c)(3), evaluation and assessment of candidates is necessarily comparative exercise, varying in emphasis from case to case.  Court is statutorily directed to examine personal traits that, in part, appeal to personal observation.  However, leadership ability, honesty, education, public service, involvement in church and village affairs, and previous experience as matai are factors which aid in meeting this criterion.

 

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

 

Counsel:          For Tuilefano M. Vae1a`a, Afoa L.S. Lutu & Arthur Ripley, Jr.

 For Valentino M. Taufa`asau, Pro Se

 For Utaifeau T.M. Asuega, Asaua Fuimaono

 For Seali`iutu F. Mauqa, Aitofele T. Sunia

 For Mailo Atonio, Faiivae A.G. Ga1ea`i

OPINION AND ORDER

 

Introduction

 

This longstanding matter had its beginnings in May 13, 1998, when Tuilefano M. Vaela`a (Tuilefano) filed his claim to succession to the vacant matai title Mauga of Pago Pago.  The Territorial Registrar posted the claim publicly for the requisite 60-day period in accordance with the requirements of A.S.C.A. § 1.0406.  The claim in turn drew the filing of succession counterclaims from Valentino Mauga Taufa`asau (“Taufa`asau”) on July 10, 1998; from Utaifeau Tasi Mauga Asuega (“Utaifeau”) and Fanene Fetaiaiga Kava (“Fanene”) on July 13, 1998; and from Lavea Seali`iutu F. Mauga (“Lavea”) and Mailo Atonio (“Mailo”) on July 14, 1998.

 

The Territorial Registrar then referred the matter to the Secretary of Samoan Affairs who duly convened the parties for settlement conferences pursuant to A.S.C.A. § 43.0302.  Without a family settlement, the Secretary of Samoan Affairs certified an irreconcilable dispute to the Land and Titles Divisions under A.S.C.A. §43.0302(a).

 

Trial commenced herein on February 28, 2000,[1] with the evidentiary presentation of the parties concluded on March 3, 2000.  However, on March 6, 2000, the date and time anticipated for rebuttal evidence and final arguments, the parties jointly requested the Court to postpone the proceedings to allow them one more opportunity to attempt a family resolution.  Given the relative importance of the matai title Mauga,[2] the motion was granted, and the proceedings adjourned sine die, with the high expectation of a fa`a Samoa conclusion.[3]

 

The effort was to no avail.  The communal will to move forward and select a new Mauga titleholder was, it seems, nonexistent or, at best, feeble from the outset.  After some six months of family inertia, one of the parties felt compelled to file a motion to reinstate judicial proceedings citing the family’s unwillingness to at least call a meeting as previously represented to the Court.  The motion was denied and the parties were advised that the Court would not reconvene unless the family met, as promised, to meaningfully reconsider a successor matai. Following a further four months of family inaction, one family member then took it upon himself to publicly advertise the calling of a family meeting.  This action finally prompted a family gathering at Gagamoe[4] on February 3, 2001.[5]  As above noted, the extrajudicial exercise proved futile.

 

Discussion

 

The Court, having heard the evidence and considered the parties’ post-trial written arguments, makes the following findings pursuant to the criteria set out in A.S.C.A. § 1.0409:

 

1.  Hereditary Right—A.S.C.A. § 1.0409(c)(1)

 

[1] In the vast majority of matai title disputes before the Court, a candidate’s hereditary right has been calculated by tracing his lineage to his nearest ancestor holding the title.  See In re Matai Title Leiato, 3 AS.R.2d 133, 134 (App. Div. 1986).  This formula was almost universally applied until 1984 when the Court in In re Matai Title Sotoa, 2 A.S.R.2d 15 (Lands & Titles Div. 1984), suggested an alternative method of calculation as being more desirable.  Under the rule in Sotoa, a candidate’s blood relationship is to be determined by reference to his relationship to the original titleholder, and not by descent to the nearest past titleholder.[6]  The Court’s reasoning was that “every new titleholder does not start a new line of heredity.”  Id. at l5.[7]

 

The Sotoa rule, however, is not of general application, particularly where family genealogical understanding is contentious,  In re Matai Title Lolo, 25 A.S.R.2d 175, 176 (Land & Titles Div. 1994); In re Matai Title Tuaolo, 28 A.S.R.2d 137, 140 (Land & Titles Div. 1997), and where family history suggests a contrary tradition and understanding of entitlement.  In re Matai Title Tauaifaiva, 5 A.S.R.2d 13, 14 (Land & Titles Div. 1987); see also In re Matai Title La`apui, 4 A.S.R.2d 7, 10 (App. Div. 1987) (Murphy, J., concurring) (“Whether a family traces hereditary rights directly to the original title holder or to the last living holder of the title is . . . a matter of custom and tradition.”).

 

[2] With the matter at bar, we note that in past Mauga succession disputes before the Court, hereditary entitlement was determined by using the traditional formula, namely, percentage of a candidate’s blood relationship to a former titleholder, as opposed to the original titleholder.  See Asuega v. Manuma, 4 A.S.R. 616, 624 (Trial Div. 1965); Sialega v. Sal, MT No. 04-82 (Land & Titles Div. 1983).  Secondly, contemporary Mauga family history suggests two family branches separate and distinct to the lineage established by the original titleholder Mauga Mulivai.  See Asuega, 4 A.S.R. at 625.  Further, it is clear on the evidence that this family development evolved prior to the establishment of the government and the enactment of A.S.C.A. § 1.0409(c), which restricts eligibility only to those candidates with blood ties.  As this Court previously noted in In re Matai Title “Mulitauaopele”, 16 A.S.R.2d 63, 82-83 (Land & Trial Div. 1990), the legislative adoption of the “best hereditary criterion of § 1.0409(c) did not empower the Court to disenfranchise a family line who obtained the title hundreds of years prior to the enactment of the [A.S.C.A. § 1.0409(c)], even if the title was not acquired through blood.”

 

Using then the familiar rule of heredity, we find that Taufa`asau is the son of Mauga Iulio Taufa`asau, and is therefore 1/2; Lavea is the grandson of Mauga Palepoi and is therefore 1/4; Tuilefano is the great-grandson of Mauga Lei and is therefore 1/8; Utaifeau is also descended from Mauga Lei, who is his second great-grandfather, and is, therefore, 1/16.

 

Mailo’s blood claim of 1/16, given by tracing his relationship to the original titleholder Mauga Mulivai, is problematic.  While there was little dispute from the other parties as to Mailo’s entitlement, and while the evidence showed that Mailo family members have participated in past affairs of the Mauga family, we find that while Mailo is entitled, his claim, however, to 1/16 entitlement is unsupported.  His claim of heredity makes him the second great-grandson of the original titleholder. This is implausible when viewed against the intervening generations attested to by genealogy supplied by the other parties.  Moreover, Mauga family history, as alluded to by Mailo, pegs the original titleholder Mauga Mulivai to a time frame around the conclusion of the Tongan wars, circa A.D. 1600.[8]  (See Mailo’s Closing Arguments, at 7.)  There are clearly generational gaps in the family tree supplied us.  Moreover, Mailo’s pedigree also lists an intervening titleholder, Mauga Sivauea Sagaiga, a view which is singularly held and conspicuously at variance with the genealogy submitted by the other candidates.  While widely varying versions of family history are not uncommon in matai title disputes, especially when dealing with oral tradition that approaches the realm of legend, the discrepancy in this instance is nonetheless noteworthy.

 

We conclude on this criteria that Taufa`asau prevails over Lavea, who prevails over Tuilefano, who prevails over Utaifeau, who prevails over Mailo.

 

2.  Clan Support—A.S.C.A. § 1.0409(c)(2)

 

On this issue, the parties are in agreement on the number of clans; there are three. The evidence further bears out another important point of consensus; that is, the Mauga clans, as they are known today, are not defined in terms of the lineage(s) started by children of the original titleholder. Although there is some divergence in view as to labels assigned to identify each clan, the evidence clearly shows common awareness of three distinct family branches labeled in terms of geographic distribution. Conveniently, reference was freely made to one family branch identified as being those pertaining to Gagaxnoe, while another as being those family members pertaining to Siufaga, and yet another as being those family members pertaining to Maiva. Each of these locations also contains a family guest-house site.

 

The Gagamoe side gave rise to titleholders from the lineage established from Mauga Mulivai, the reputed original titleholder; the Siufaga side identifies those from the Mauga Pulumatala line, who are said to have obtained the title as a reward for past heroic service; while the Maiva side, identifies those from the Mauga Manuma line which came into being through adoption.  See generally Asuega v. Manuma, 4 A.S.R. 616.

 

While there were many family meetings’ called to select a matai, none of these meetings produced a majority of clan support for any one candidate.  If there was anything to be seen from the evidence on the issue of clan support, it is that family meetings were not exactly utilized to select a successor matai.  With each unyielding stance taken, the goal at these family meetings simply appeared to be ensuring against a family consensus on any one candidate.  Indeed, some candidates did not even bother to attend any pre-court family meetings, while others attended only sporadically.  Moreover, the parties’ exercise in continuing judicial proceedings in this matter proved to be nothing more than unproductive posturing as family meetings were not even called until there was prodding from the Court.[9]

We find that no candidate garnered the support of the majority of clans of the Mauga family.

 

3.  Forcefulness, Character and Personality, and Knowledge of Samoan Customs — A.S.C.A. § 1.0409(c)(3)

 

[3] Under this criterion, evaluation and assessment of the candidates is necessarily a comparative exercise, varying in emphasis from case to case.  The task is not always easy especially when presented with a slate of very capable people, while at the same time the Court is statutorily directed to examine personal traits that, in part, appeal to personal observation.  See Reid v. Tafalele, 4 A.S.R. 458, 463-64 (Trial Div. 1964); Fagau v. Tulei, 4 A.S.R. 490, 493 (Trial Div. 1964); Asuega v. Manuma, 4 A.S.R. at 629 (The Court’s consideration includes “personal demeanor, presence of mind, the clarity, speed and correctness with which answers were given, candidness, the ability to stand up to rigorous cross-examination, the education, the self-confidence, and other qualities which are reflected from the speech and behavior of the candidates, matters which can be assessed only from the personal observation of each individual candidate . . . .”). However, “[l]eadership ability, honesty, education, public service, involvement in church and village affairs, and previous experience as a matai are some of the factors which aid in meeting this criterion.”  In re Matai Title Leaeno, 25 A.S.R.2d 4, 8 (Land & Titles Div. 1994).

 

To these ends, the Court here has not only had the benefit of firsthand observation of each of the candidates as they testified, but of reviewing each personal history as recounted both on the stand and in final written arguments, in some cases not without a sprinkling of self-aggrandizement.  Each candidate testified as to his particular contribution and service to church, family, and village, as well as to educational and vocational background.  We have also seen certain shortcomings as developed on cross-examination and from personal observation.

 

Claimant Tuilefano pointed to, among other things, his early career with the United States Marine Corp, together with various commendations he received, including a citation for meritorious action during the Vietnam war; his succession to, and service as, the ranking orator Tuilefano of Malaeloa; his three terms as Aitulagi County’s Senator in the Legislative Branch; his various government board memberships; and his appointment to the political post of Commissioner of Public Safety. Additionally, Tuilefano lists business enterprises with which he is involved.

 

Counter-claimant Taufa`asau, who appearing pro se acquitted himself admirably in his own representation, appraised the Court of his 32 years of “outstanding and creditable” service to the United States Government, National Weather Service, attaining the “Gold Medal” award, and his education towards attaining his career goals. He now enjoys a well-earned retirement.  He argues that while certain of the other candidates can similarly lay claims to having held good government positions with the territorial government, he contends that their positions were more an incident of leading matai status rather than indices of personal merit.

 

Utaifeau urges an assessment of his character and personal qualities against his background of a stable family life, successful family business enterprises, together with his longstanding and continuing presence and service within the family and village. In his service to the family, he has given generously of his own time, money, equipment, and assets to, among other things, the family guesthouse and many fa`alavelave (family affairs). Likewise, he has equally donated time, money, equipment and assets to village community projects.  As the Utaifeau, appointed by Mauga Ioane, he has been instrumental in promoting the village’s standing, and pride, in the world of fautasi (longboat) racing and intra-village rugby. While conceding the breadth of Mailo’s knowledge of Samoan culture, Mailo having published a book on the subject, Utaifeau contends that, because of his continual firsthand experience with family matters, he is better situated with respect to the more pertinent customs and traditions of the Mauga family, and he is more familiar with the family’s communal landholding and assets.

 

Lavea directs us to a personal resume which includes his successful completion of a college education, Bachelor of Arts, his short military service, his leadership skills with the Aoa village aumaga (untitled men’s organization), resulting in three consecutive Samoan cricket crowns.  He has also had a varied career with the American Samoa Government in all its three branches, serving three terms in the House of Representatives, Probation work with the High Court of American Samoa, and as liaison officer for the Department of Public Safety.  In his capacity as the Lavea he has served as family spokesman for his many extended family ties, including the Mauga family. In all his endeavors, Lavea stresses his commitment to service.

Counter-claimant Mailo’s background is varied.  His early career was education related, involved with both teaching and administration.  As a product of the early government scholarship program, where he successfully completed postgraduate studies, Mailo experienced firsthand the program’s shortfalls.  Later he was appointed by Governor Haydon to reassess and revamp the whole program to make it more student-friendly. His extensive government career ended with his serving a term as Associate Judge of the High Court, from which he recently retired. Throughout his work life, Mailo has also operated a number of businesses, including a grocery store, a building contractor, a restaurateur and tavern operator, taxi operator, apartment owner and, more recently, commercial taro farming in the State of Hawaii.  He has held the Mailo title of Fagatogo for many years and is a leading official of the Roman Catholic Diocese of Pago Pago, Samoa.

 

In our assessment, we find that while Mailo prevails on the consideration of knowledge of Samoan custom, we rank Utaifeau slightly ahead of a very strong field on the considerations of forcefulness, character, and personality.  His superior business skills and industry; his leadership record with the village aumaga as the Utaifeau; his benevolence as evidenced by the regularity of his significant contributions in time, property, and money to family and village, his honesty and integrity, his unassuming manner and his sense of humility, has, in our view, spoken most persuasively in terms of his personal traits and personal potential.

 

We find that Utaifeau prevails on this consideration.

 

4.  Value to Family, Village, and Country—A.S.C.A. § 1.0409(c)(4)

 

Under this heading we find that no one candidate stands out decisively from the others in terms of value to country.  In their own career paths and endeavors, we are satisfied that all of the candidates have contributed creditably to the general welfare of the people and country.  With regard to the considerations of value to family and village, while each candidate is able to point to specific instances of tautua (traditional, service) to either family, church, or village, we find that Utaifeau’s contribution to both the Mauga family and the village of Pago Pago stands out as more consistent and conspicuous over the claims of the other candidates.  Utaifeau, in our view, better personifies the proverb O le ala i le pule o le tautua.”  Moreover, he has lived in the village for most of his life and has been actively involved in the affairs of the village and family.  His familiarity with family needs and members is preferred.  See Aano v. Sitau, 2 A.S.R. 107, 110-11 (Trial Div. 1940); Tuinei v. Ieliko, 2 A.S.R. 117, 123 (Trial Div. 1940).  Although Taufa`asau grew up, and has returned to live, in the village after an extensive absence because of education and off-island duty stations, he has been involved in village and family affairs to a much lesser extent than Utaifeau.

 

We rate Utaifeau first on this criterion.

 

Conclusion & Order

 

[4] Based on the foregoing, we hold that Utaifeau is qualified to hold the title Mauga as he prevails on the third and fourth statutory criteria although preceded by Taufa`asau, Lavea, and Tuilefano on the first.  The second criterion is discounted.

 

The Territorial Registrar shall, in accordance with A.S.C.A. § 1.0409(b), register the matai title Mauga, attached to the village of Pago Pago, in candidate Utaifeau Tasi Asuega.

 

It is so ordered.

 



[1] By this time, Fanene had withdrawn her counterclaim, which was previously dismissed in open court, but she continued to file additional material with the Clerk.

[2] See Taufa`asau v. Manuma, 4 A.S.R. 947, 949 (App. Div. 1967) (“Historically, the Mauga is known to be among the oldest and most influential matai titles of American Samoa.  Available historical records dating from the earliest contacts of the Europeans with eastern or American Samoa contain numerous references to the Mauga.”) The preeminence of the Mauga title is, according to one account, traced to the time of the Tongan occupation in Samoa, some seven centuries ago.  See Amerika Samoa, Capt. J.A.C. Gray, United States Naval Institute, 1960.

[3] Under A.S.C.A. § 3.0242(b), the Land and Titles Division is accorded certain procedural flexibility consistent with the exigencies of justice and convenience.

[4]  One of the Mauga family’s traditional meeting sites.

[5] Candidate Mailo explains family inertia in terms of “sub-family” politics over the issue of who should call family meetings. The matter, however, appears quite clearly to have become a non-issue after somebody took the initiative to use the public media to call a family meeting.

[6] A variation of the rule employs blood relationship to the nearest common ancestor titleholder.

[7] It has also been suggested that the “Sotoa rule” is more equitable in that it “avoids discrimination against clans which have not held the title for several generations but whose members, according to the tradition in many families, remain entitled to a fair chance at each new vacancy and perhaps even to some affirmative credit on the theory that each clan should have its turn at the title.”  In re Matai Title “Laie”, 18 A.S.R.2d 35, 37 (Land & Titles Div. 1991).

[8] This history, incidentally, coincides with some written accounts.  See fn. 2, infra.

[9] This sort of strategy, now prevalent with most ranking matai succession disputes, seems to underscore one thing only, and that is the common reality that there is the well-beaten path to the courthouse.  But the converse of this observation is the emerging reality that the Judicial Branch is more and more evolving into being the preferred “matai picker,” with Samoan families increasingly abdicating their traditional role.

   Law reform efforts recurrently come and go before the Fono without any readily apparent solution to the present avowedly unsatisfactory state of affairs; judicial appointments and the rank suspicion that goes along with an unpopular, albeit legally correct, court determination. For this reason, law reform efforts could at least be redirected to explore matai selection alternatives.  The focus does not have to be centered on the option of removing the decision-making function from an indecisive family in favor of the courts, but on keeping decision-making within the family by way of an alternative decision-making process.

   If a family, for any reason, is unable or unwilling to utilize the selection process handed down by their forebears, where the model is open discussions upon discussions until a consensus is reached, than an alternative selection process geared to keeping the decision within the family might perhaps be more appropriate, rather than passing the buck onto the court. 

   Undoubtedly, an alternative selection process will be critically viewed as un-Samoan, but such would be no more Samoan than the current process of leaving it to a panel of non-family members, Associate Judges, who are guided in part by statutory criteria that essentially appeal to the subjective.

5ASR3d3


ISLAND’S CHOICE, INC., Petitioner

 

v.

 

AMERICAN SAMOA GOVERNMENT, OFFICE OF PROCUREMENT AND LOLO M. MOLIGA,

CHIEF PROCUREMENT OFFICER, AND 

G.H.C. REID & CO., INC., Respondents.

 

High Court of American Samoa

Appellate Division

 

AP No. 13-00

 

July 9, 2001

 

 

[1] Judicial power in American Samoa, like the United States, is limited review of presently pending cases or controversies.

 

[2] The Court cannot hear cases that are moot, or where the issues to be determined are no longer “live” or the parties lack a legally cognizable interest in the outcome. 

 

[3] Judicial review of administrative action is limited by the requirement that there be an actual, live controversy to adjudicate.

 

[4] An exception to mootness doctrine lies where the acts at issue are “capable of repetition, yet evading review.” 

 

[5] If the reviewing court can afford prospective relief, the controversy is not moot.

 

[6] The “capable of repetition, but evading review” exception to the mootness doctrine is limited to cases where (1) the challenged action was too short to be fully litigated prior to its cessation or expiration, and (2)  there is a reasonable expectation that the same complaining party will be subject to the same action again.

 

[7] Under the “capable of repetition, but evading review” exception to the mootness doctrine, there must be a reasonable expectation that harm will again come to the same plaintiff, not merely a theoretical possibility of future harm.

 

[8] Courts reviewing federal agency actions under the Administrative Procedures Act are limited to compelling agency actions or holding actions unlawful.  Courts cannot grant monetary relief.

 

[9] In American Samoa, pecuniary relief is not available in judicial review of administrative proceedings. 

 

[10] If a disappointed bidder wishes for monetary relief, the proper course of action is not through appellate review of administrative proceedings, but rather through such means as a trial de novo.

 

[11] Where respondent had not filed an answer in response to petition for review of order, such omission did not require court to give judgment in petitioner’s favor, as rule requiring timely filing of answer imposed no sanction for its violation.

 

Before KRUSE, Chief Justice, RICHMOND, Associate Justice, WARD,* Acting Associate Justice, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Associate Judge.

 

Counsel: For Petitioner, Roy J.D. Hall, Jr.

 For Respondents American Samoa Government and

 Procurement Officer, Fiti A. Sunia, Assistant Attorney General

 For Respondent G.H.C. Reid & Co. Inc., Jennifer L. Joneson

 

OPINION AND ORDER

 

Disappointed bidder, Island’s Choice, Inc. (“ICI”), petitions this court to review an order of the Administrative Law Judge (“ALJ”) affirming an agency decision to award the contract for the supply and delivery of milk for the School Lunch Program (“milk contract”) to co-defendant G.H.C. Reid and Co., Inc. (“Reid”).

 

Reid and ICI were the two primary bidders who responded to an April 2000 annual invitation for bids published by the Office of Procurement of the American Samoa Government (“OP-ASG”). The bidders competed according to who scored the highest points on an agency-established five-point test, including (“Section I”) carton, 200 points, (“Section II”) product specifications, 300 points, (“Section III”) experience and ability to perform, 200 points, (“Section IV”) sample, 200 points, and (“Section V”) cost, 300 points.  The Source Evaluation Board (“SEB”) evaluated the bidders and awarded points in each category.

 

OP-ASG selected Reid for the milk contract on May 3, 2000.  ICI appealed the agency decision in a timely and proper manner.  Specifically, ICI filed a notice of dispute with the agency almost immediately, on May 16, 2000.  OP-ASG denied the notice of dispute on May 30, 2000.  ICI then filed a petition for review of agency action with the ALJ on June 19, 2000.  The ALJ heard arguments between August 23 and August 30, 2000, on which date Reid was to begin supply and delivery of milk under the milk contract.  The ALJ rendered his opinion affirming OP-ASG’s award of the milk contract to Reid on September 15, 2000.  ICI then submitted a motion to reconsider or to have a new trial to the ALJ.  This was apparently denied in open session, and the ALJ published a written order denying the motion on October 12, 2000.  Petitioner then followed timely and proper procedure to appeal the ALJ decision.  It submitted a petition for this court’s review of the ALJ opinion on October 3, 2000.  The transcript of ALJ proceedings was filed in court on November 16, 2000; ICI filed its appeal brief on December 22, 2000; and Reid filed its appeal brief on January 22, 2001.  ICI then moved to set a date for oral argument on February 7, 2001, which we heard on May 23, 2001.  The milk contract term ended, and supply ceased, on June 1, 2001.

 

In its petition for appellate review of the ALJ decision, ICI has asked for this Court to (1) set aside the milk contract on A.S.C.A. § 4.1044 grounds, and to (2) reverse the order and award the milk contract to ICI, or else grant damages to ICI for OP-ASG’s failure to properly award the contract.

 

Jurisdiction properly arises for Appellate Court review of the ALJ order under A.S.C.A. §§ 4.0604(g) and 4.1041. 

 

I.  Mootness

 

It is now summer in the American Samoa school year, if not in meteorological terms, and the milk contract has, like the school year, expired with Reid as the purveyor of milk.  There is no contract to set aside for petitioner, nor pertinent order to reverse.  It thus appears that the issue of the appropriateness and legality of the 2000-2001 contract award is moot.

 

[1-2] Judicial power in American Samoa, like the United States, is limited review of presently pending cases or controversies.  U.S. Const. art. III; Rev. Const. Am. Samoa art. III, § 1; A.S.C.A. § 3.0103; Burke v. Barnes, 479 U.S. 361, 363 (1987); Meredith v. Mola, 4 A.S.R. 773, 776 (Trial Div. 1973) (citing Baker v. Carr, 397 U.S. 186 (1962); Powell v. McCormack, 395 U.S. 486 (1969)).  Simply put, we cannot hear cases that are moot, or where the issues to be determined are no longer “live” or the parties lack a legally cognizable interest in the outcome.  Senate of the Legislature of Am. Samoa v. Lutali, 26 A.S.R.2d 125, 129 (Trial Div. 1994); Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam); Powell, 395 U.S. at 496.

 

[3-4] Judicial review of administrative action is limited by the requirement that there be an actual, live controversy to adjudicate.  Campesinos Unidos v. U.S. Dept. of Labor, 803 F.2d 1063, 1067 (9th Cir. 1986) (citing Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 72-73 (1983)).  However, courts confronting expired official acts frequently find exception to mootness where the acts at issue are “capable of repetition, yet evading review.”  S. Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911); see also Charles Alan Wright et al., Federal Practice and Procedure § 3533.8 (2d ed. 1990).  Moreover, if the reviewing court can afford prospective relief, the controversy is not moot.  Campesinos, 803 F.2d at 1068; Associacao Dos Industriais de Cordoaria v. United States, 828 F.Supp. 978, 984 (Ct. Int’l Trade 1993).

 

Clearly, the issue of to whom to award the milk contract is moot because the school year has ended, the contract has been fully performed, and the contract term of August 30, 2000 to June 1, 2001 has expired.  The issue is thus whether or not the procurement acts at issue by OP-ASG in awarding the milk contract to Reid are “capable of repetition, yet evading review,” and if they are, whether or not this court can provide prospective relief to ICI.

 

A.  Capable of Repetition, Yet Evading Review

 

In Lutali, the only American Samoa case on record to have dealt with the mootness issue, the Trial Division evaluated the “capable of repetition, yet evading review” doctrine based on a two-part standard employed by the U.S. Supreme Court in Murphy, 455 U.S. at 357, which was cited in Weinstein v. Bradford, 423 U.S. 147 (1975), and which first originated after a thorough review of the history of the mootness doctrine by that Court in Sosna v. Iowa, 419 U.S. 393 (1975).  The Lutali Trial Court, however, cited a narrower version of the standard used by the U.S. Supreme Court.  Specifically, in Lutali, the Court stated that in non-class actions, the “capable of repetition, but evading review” doctrine is limited to cases where “(1) a defendant terminates the challenged action before the issue is fully litigated, and (2) there is a reasonable expectation the plaintiff would be subject to the same actions in the future.”  Lutali, 26 A.S.R.2d at 129-30 (emphasis added).  The exact language used in U.S. Supreme Court cases, however, is:  “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.”   Murphy, 455 U.S. at 357 (emphasis added); Weinstein, 423 U.S. at 353 (emphasis added).

 

The Lutali Court thus states a more specific version of the U.S. Supreme Court language.  Where the Supreme Court requires that, to overcome a finding of mootness, the challenged action be “too short to be fully litigated,” the Lutali Trial Court stated the first element as being when “a defendant terminates the challenged action” before it is fully litigated.  The language used by the Trial Court in Lutali seems a logical, valid and acceptable interpretive application of the Supreme Court’s language where a defendant perpetrator terminates a controverted action.  This was appropriate in the Lutali case, where the Fono sued ASG for implementing ASG employee pay increments without prior authorization. Once the suit was initiated, however, the Governor decided not to implement the pay increases, and argued that the case was therefore moot.  The Trial Court held that the Governor’s conduct fell within its articulated exception for mootness.  

 

The language used by the Trial Division to state the “capable of repetition, yet evading review” doctrine, though appropriate for adjudicating specific fact instances akin to Lutali, is unduly restrictive.  The Trial Division did not state how or why it deviated from the U.S. Supreme Court language, nor did it indicate that it was doing so.  The circumstances where the Trial Division’s language apply are simply too specific to be generalized.

 

[6] We expand upon Lutali and adopt the more generally applicable language employed by the U.S. Supreme Court in Sosna, Murphy, and Weinstein in evaluating whether or not an action is capable of repetition, yet evading review.  For the mootness inquiry, the questions before the court are thus: was the challenged action too short to be fully litigated prior to its cessation or expiration, and is there a reasonable expectation that the same complaining party will be subject to the same action again?

 

First, was the challenged action in its duration too short to be fully litigated prior to its cessation or expiration?  That is, was the agency award of the milk contract too short to be fully litigated prior to its expiration?  We find that it was.  OP-ASG announced its choice for the milk contract on May 3, 2000.  ICI complied with the appeals process and was denied at each level, first applying for review by the OP-ASG, then with the ALJ, and finally filing with the Appellate Court.  The most efficient of appeals would not have brought the case to this court until late winter or early spring, at which point the contract would already have been substantially completed.  We thus find that the agency’s decision on the milk contract is one that may, even under the most proper or timely of circumstances, evade review.

[7] The second element of the mootness exception analysis regards whether there is a reasonable expectation that the same complaining party would be subjected to the same action again.  As stated in Lutali, “‘[r]easonable expectation’ must go beyond a theoretical possibility of repetition to the same plaintiff.”  Lutali, 26 A.S.R.2d at 129 (citing Delta Air Lines, Inc. v. Civil Aeronautics Bd., 674 F.2d 1 (D.C. Cir. 1982)); Murphy, 455 U.S. at 357.  ICI is one of the consistent annual bidders to the milk contract, and thus is a plaintiff that would again be subject to the bidding, evaluation and selection process for future milk contracts.  Our inquiry, however, is more specific, and regards whether ICI would reasonably be expected to be subject to the specifically challenged actions again, not merely the general process of procurement.  We do not judge the merit of the actions, but simply their repeatability.

 

1. Misbranding

 

Within ICI’s general allegation against OP-ASG for its wrongful assessment of points, ICI refers to roughly five specific acts or omissions of OP-ASG in assessing points to bidders.  First, with regards to Section I of the five-point test, ICI argues that SEB only subtracted 25 points out of 200 instead of subtracting all 200 points for Reid’s alleged misbranding of its product in violation of applicable federal standards for procurement.  We need not reach the issue of whether Reid’s product was misbranded, whether Reid’s labeling violated federal standards, or whether a 25-point subtraction is enough.  For the mootness inquiry, we need only ask whether there is a reasonable expectation that the circumstance of an opponent’s mislabeling and the SEB’s subtraction of points would occur again.  ICI’s arguments do not indicate that this problem has occurred before or will occur again; no pattern of repetition has been shown, nor does it seem that the mislabeling and point assessment are due to a potentially repeatable, procedural event rather than a one-time event and number assignation.  Finding no evidence that this situation has occurred before, and no indication that it will occur again, we find ICI’s arguments regarding Reid’s misbranding moot.

 

2. Product Specifications

 

Second, ICI argues that the SEB wrongfully deducted 33 points out of 300 from Section II of its evaluation, regarding product specifications.  It appears that ICI did not place the words “Grade A” on its carton, where Reid did, and ICI was penalized for this failure.  ICI, however, itself indicates that this deduction was a fluke rather than a recurring mistake, since in previous years, no deduction was made for not including the “Grade A” label.  We thus fail to find a reasonable expectation of ICI’s again being penalized for failure to place “Grade A” on its carton.

 

3. Failure to Perform

 

Third, ICI argues that the SEB did not accurately assess Part III of the evaluation, since it did not subtract points from Reid despite Reid’s failure to perform or deliver during fifteen days of the 1999-2000 contract.  According to ICI, the SEB was not even informed of Reid’s failure to perform or deliver.  The question is thus whether the SEB can be reasonably expected to again misassess points for failure to perform due to missing information.  ICI does not argue that such a lapse of information in the selection process has happened before, or is likely to happen again.  As to whether such a point assessment is endemic to the process and by default, repeatable, ICI seems to answer this question for us by introducing the testimony of Tuna Hunkin, an SEB member for the 2000-2001 milk contract.  He stated, “we would have deducted points” had they known of the failure.  Thus, the assessment seems not to have been the result of an unfair process, but rather a singular occurrence of a forgotten fact.

 

4. Point Scoring

 

Fourth, ICI argues that Part IV of the test, the sample portion, was inappropriately point-scored for all bidders.  Specifically, ICI argues that the correct method of point-scoring is to divide the 200 points into three sections of 67 points each, labeled “A,” “B,” and “C.”  Russell Aab (“Aab”), a member of the SEB in 2000-2001 who tallied the scores, apparently allocated all 200 points to the “C” category, entitled the “Taste Test Panel.”  It appears that there is no consensus among the SEB as to how Section IV is correctly computed.  In testimony before the ALJ, Aab claimed that all 200 points should be allocated to subsection C, while others such as Pat Tervola and Tuna Hunkin claim that the method of dividing into three subsections is correct.  It is not clear how Section IV was evaluated in the past.

 

The disparities in SEB members’ accounts tend to reveal inconsistent, nontransparent, and therefore unpredictable point-scoring for Section IV of the evaluations for procurement.  We thus find that ICI may reasonably expect itself to be subject to agglomerated point-scoring again.

 

5. Taste Test

 

Finally, ICI wages a number of arguments against the taste test conducted by the SEB.  First, ICI argues that the taste test was a “preference test” of eight members of a taste panel selected by the School Lunch Program department, rather than “an objective testing process that is representative of the students island wide” based on a “comparative study based on past data or statistics,” which is “scientifically tested for reliability.”  ICI also argues that the very use of a taste test is inappropriate. The issue confronting the Court for mootness determination is thus whether ICI is reasonably expected to be subject to a taste test, evaluated according to the preferences of a taste test panel, again.

 

Since the taste test by a taste test panel is, evidently, part of the annual procedure adopted by OP-ASG for evaluating bids, we find that ICI has a reasonable expectation of being subject to it again, in bids for milk procurement contracts. 

 

Overall, we find ICI’s appeal with respect to point assessments for misbranding, product specification, and previous noncompliance incapable of repetition, and therefore moot.  We further find that ICI’s claims with respect to point scoring and the taste test are capable of repetition, yet evading review.  We now turn to the question of whether we are able to afford prospective relief for any of these claims.

 

B.  Prospective Relief

 

As stated by the Ninth Circuit court in Campesinos, “if prospective relief can still be afforded, the controversy is not moot.”  Id., 803 F.2d at 1068; see also Associacao Dos Industries de Cordoaria, 828 F.Supp. at 984 (“The test is whether a present controversy exists as to which effective relief may be granted.”).  In this case, ICI asks for us to set aside the milk contract on A.S.C.A. § 4.1044 grounds, and to reverse the order and award the milk contract to ICI, or else grant damages to ICI for OP-ASG’s failure to properly award the contract.  Clearly, we cannot reverse OP-ASG’s choice for the milk contract and award it to ICI because it has already expired.  The remaining question is thus whether we can grant damages to ICI.

 

[8] Federal law 5 U.S.C.A. § 706, the Administrative Procedures Act (“APA”), defines the scope of judicial review for courts reviewing federal agency action.  According to this provision, courts subject to the APA may compel agency action or hold it unlawful on a number of grounds.  No provision is made, however, for granting monetary relief.  Damages are thus simply not available under the APA. See, e.g., Williams v. Casey, 657 F.Supp. 921, 926 (S.D.N.Y. 1987).

 

[9-10] The Legislature of American Samoa has adopted administrative procedures based on an earlier model of the APA effectuating a similar scope of judicial review.  Model State Admin. Procedures Act (1961).  Specifically, A.S.C.A. § 4.1040(a) states:

 

A person who has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision in a contested case shall be entitled to judicial review under this section and 4.1041 through 4.1044.

 

A.S.C.A. §§ 4.1041 and 4.1044 limit judicial review to actions staying an agency’s decision, reversing, or modifying the decision.  Therefore, as in the federal case, pecuniary relief is not available in judicial review of administrative proceedings in American Samoa.  We note, moreover, that A.S.C.A. § 4.1040(b) allows for “the utilization of, or the scope of, judicial review available under other means of review, redress, relief or trial de novo provided by law.”  If a disappointed bidder wishes for monetary relief, the proper course of action is not through appellate review of administrative proceedings, but rather through such means as a trial de novo.  See Kajima/Ray Wilson v. Los Angeles County Metro. Transp. Auth., 82 Cal.Rptr.2d 348 (Cal.App.4th 1999).

 

Two of ICI’s claims against OP-ASG and Reid may be capable of repetition, yet evading review, yet prospective relief is simply not available for any of ICI’s claimed grievances.  We thus must declare the substance of ICI’s petition, moot.

 

II.  Failure to File a Timely Answer

 

[11] ICI requested judgment for relief based on Reid’s failure to file a timely answer to ICI’s initial petition to this Court.  As basis for this claim, ICI mistakenly cited A.C.R. 15(b), which provides that judgment be awarded where respondent fails to file an answer within 20 days of petitioner’s application for enforcement of an order.  However, the applicable rule is A.C.R. 15(a), which applies to petitions for review of the orders themselves rather than enforcement thereof.  This rule sets the standard that “[w]ithin 20 days after the petition is filed, the respondent shall serve on the petitioner and file with the clerk an answer to the petition.”  However, the rule does not require the court to give judgment where the time schedule is not followed, nor does it impose any other sanction.

 

ICI’s mistake of law is noted, and its claim based thereupon, dismissed.

 

It is so ordered.

 



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

5ASR3d31


YHT, INC., Plaintiff,

 

v.

 

OXFORD/PROGRESSIVE GROUP doing business as PROGRESSIVE INSURANCE COMPANY (PAGO PAGO), LTD.; PROGRESSIVE INSURANCE COMPANY (APIA), LTD.; OXFORD PACIFIC INSURANCE COMPANY; INSURANCE COMPANY OF THE PACIFIC; THE BOSTON GROUP;

and DOES 1-5, Defendants.

 

High Court of American Samoa

Trial Division

CA No. 92-00

 

February 21, 2001


 

 

[1] Under definition of “contract of reinsurance” in A.S.C.A. § 29.1590, T.C.R.C.P. 26(b)(2) allows discovery of existence and contents of insurance agreement between reinsurer and insurer.

 

[2] T.C.R.C.P. 26(b)(1) requires that discovery be both non-privileged and relevant to subject matter in pending action. 

 

[3] Reinsurance contract is made by original insurer for its own protection.  It creates privity only between reinsurer and reinsured, and no rights accrue to original insured.

 

[4] Discovery of identity of reinsurers and their contracts with defendant are not relevant to subject matter of case. Although T.C.R.C.P. 26(b)(2) allows discovery as to “any insurance agreements,” Court exercised its discretion to limit discovery.

 

[5] Court denied plaintiff’s motion to compel discovery, granted defendant’s motion for protective order, and awarded reasonable expenses of motion, including attorney’s fees. Plaintiff’s counsel may resume deposition but shall not ask irrelevant questions regarding reinsurers of insurance policy issued to plaintiff.

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

 

Counsel: For Plaintiff, Paul F. Miller

 For Defendants, William H. Reardon

 

ORDER ON MOTIONS TO COMPEL DISCOVERY

AND MOTION FOR PROTECTIVE ORDER

 

Plaintiff YHT, Inc., (“YHT”) started to take the deposition upon oral examination of a Defendant Oxford/Progressive Group (“Progressive”) representative, specifically of the entity identified as Progressive Insurance Company (Pago Pago), Ltd.  During the deposition, the representative, Julian E. Ashby, refused to identify the reinsurers that may have responsibility for any liability imposed on Progressive under the insurance policy at issue in this case.  On October 17, 2000, YHT moved, pursuant to T.C.R.C.P. 25 and 30, to compel Progressive, during the discovery process, to reveal the identity of any and all reinsurers that may be liable under the insurance policy at issue in this case, and generally to require cooperation in discovery proceedings. In response, Progressive moved, pursuant to T.C.R.C.P. 30(d), for a protective order to limit the scope of the oral examination deposition.  We deny the motion to compel discovery and grant the protective order.

 

1. Motion to Compel Discovery

 

The first issue concerns whether discovery may be conducted as to reinsurers.  T.C.R.C.P. 26 governs the liberal scope of discovery allowed in the trial court.  T.C.R.C.P. 26(b)(2) specifies the scope allowed for discovery pertaining to insurance agreements.  It states:

 

A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

 

T.C.R.C.P. 26(b)(2) (emphasis added).  The question is thus whether the statute contemplates, and common law allows, the inclusion of reinsurance agreements in its formulation of “any insurance agreement.”

 

[1] A contract of reinsurance is defined by A.S.C.A. § 29.1590 as a contract by which “an insurer procures a third person to insure him against loss or liability by reason of such original insurance.”  Under such a contract, the reinsurer essentially indemnifies the original insurer against the loss or liability that insurer has incurred under a separate contract with the original insured.  Fontenot v. Marquette Cas. Co., 247 So. 2d 572, 574-76 (La. 1971).

 

Given this definition, the plain language of T.C.R.C.P. 26(b)(2) would allow for discovery regarding the existence and contents of “any insurance agreement” between a reinsurer and insurer.  Our reading is taken from the explicit language in the rule which allows discovery regarding contracts where the “[insurer] may be liable to . . . indemnify or reimburse for payments made to satisfy the judgment [entered in the action].” T.C.R.C.P. 26(b)(2).  Since a reinsurer would be liable to an insurer to indemnify payments made to an original insured to satisfy a judgment, we hold that discovery of the existence and contents of insurance agreements between reinsurers and insurers is allowed under T.C.R.C.P. 26(b)(2).

 

2. The Issue of Relevancy

 

[2] Despite the above finding, we exercise our discretion under the general preface of T.C.R.C.P. 26, which enables us to limit the scope of Rule 26(b) provisions so long as they are in accordance with the rule.[1]  Specifically, we rule according to the provision T.C.R.C.P. 26(b)(1), which was applied in Johnson v. Coulter, 25 A.S.R.2d 84, 87 (Trial Div. 1993), and cited by YHT.  This rule requires that discovery be both non-privileged and relevant to the subject matter in the pending action.  T.C.R.C.P. 26(b)(1).

 

[3] We find that the existence and content of Progressive’s reinsurance contracts are irrelevant to the subject matter before the Court. A reinsurance contract is made by the original insurer for its own protection as to the whole or part of a risk.  People ex rel. Sea Ins. Co. v. Graves, 8 N.E.2d 872, 873, 874 (N.Y. Ct. App. 1937).  Reinsurance is neither double insurance nor co-insurance.[2]  A reinsurance contract creates privity only between the reinsurer and the reinsured.  It protects the first insurer from a risk he has already assumed, and “creates no privity whatever between the reinsured and the person originally insured, the reinsurer being in no respect liable to the person originally insured.” Bethke v. Cosmopolitan Life Ins. Co., 262 Ill. App. 586, 591 (Ill. App. 1931); see also Hunt v. New Hampshire Fire Underwriters’ Ass’n, 38 A. 145, 147 (N.H. 1985); Southwestern Surety Ins. Co. v. Stein Double Cushion Tire Co., 180 S.W. 1165, 1168 (Tex. Civ. App. 1915); Philadelphia Ins. Co. v. Washington Ins. Co., 23 Pa. 250, 253 (Pa. 1854).  As stated in Thomas v. Land, 30 S.W.2d 1035, 1037 (Mo. Ct. App. 1930), “no rights could accrue to [the original insured] by virtue of such contract of reinsurance.”

 

Thus, we reject all arguments by YHT’s counsel made in the document submitted on October 25, 2000, entitled the “Attorney’s Declaration in Support of Motion to Compel.”  In this document, counsel declares “under penalty of perjury” that YHT has asserted claims based on A.S.C.A. § 29.1537 against unknown defendants Does 1-5, and that the identity of these defendants is “central to the theory of liability asserted as is the extent of that liability.”  First, contrary to counsel’s avowal, there are no claims pleaded in the complaint pertaining to defendants Does 1-5, nor any mention of A.S.C.A. § 29.1537.  Second, A.S.C.A. § 29.1537, which grants injured persons a right of direct action against insurers and is liberally construed by the courts, Holland v. Haleck’s Island Motors, 15 A.S.R.2d 44, 46 (Trial Div. 1990), is not applicable to reinsurers by any courts of the United States or western world.  As held in Fontenot, 247 So.2d at 580, “[t]he direct action statute is not applicable to reinsurance policies where neither a novation of the original policy obligation nor a merger of the companies has occurred.”  See also Arrow Trucking Co. v. Cont’l Ins. Co., 465 So. 2d 691, 692 (La. 1985); 19 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 2d § 80.69, at 676 (1983).

 

[4] Accordingly, discovery of the identity of reinsurers and their contracts with Progressive are not relevant to the subject matter of this case at hand.  Counsel should exercise caution in swearing to averments.  Progressive should consult T.C.R.C.P. 41 as regarding Does 1-5.

 

The plain language of T.C.R.C.P. 26(b)(2) allows YHT to conduct discovery as to any insurance agreements, including those between Progressive and its reinsurers.  We exercise our discretion, however, to limit this power because YHT’s discovery does not meet the relevancy test established generally in T.C.R.C.P. 26(b)(1).

3. Protective Order

 

[5] Progressive applies to the court to issue a protective order pursuant to T.C.R.C.P. 30(d) against YHT counsel’s inquisition of Progressive’s representative. T.C.R.C.P. 30(d) states:

 

upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court . . . may order the officer conducting the examination to cease forthwith from taking the deposition or may limit the scope and manner of the taking of the deposition as provided in 26(c) TCRCP.  If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. . . .  The provisions of 37(a)(4) TCRCP apply to the award of expenses incurred in relation to the motion.

 

We grant Progressive’s motion for a protective order.  YHT’s counsel may resume the deposition of Progressive’s representative, but will be constrained to ask questions that are non-privileged, relevant, and if inadmissible at trial are “reasonably calculated to lead to the discovery of admissible evidence.”  T.C.R.C.P. (b)(1).  YHT’s counsel shall not ask further irrelevant questions regarding the reinsurers of the insurance policy issued to YHT by Progressive.  We will further award reasonable expenses of the motion, including attorney’s fees, to Progressive.

 

Order

 

1. The motion to compel discovery from Progressive’s representative, Julian E. Ashby, is denied insofar as the contracts of reinsurance on the subject matter of YHT’s insurance policy at issue is concerned.

 

2. The motion for a protective order is granted to Progressive constraining YHT’s counsel to relevant discovery.

 

3. Expenses, including attorney’s fees, of bringing the motion for a protective order are awarded to Progressive against YHT in the amount of $300.00.

 

It is so ordered.

 



[1] The preface to Rule 26 states, “[u]nless otherwise limited by order of the court in accordance with these rules.”  T.C.R.C.P. 26.

[2] “Double insurance” or “co-insurance” exists when the same party is separately insured by several insurers with respect to the “same subject, interest and risk.” A.S.C.A. § 529.1583; see also Pink v. Fidelity & Deposit Co. of Maryland, 15 F. Supp. 715, 716 (S.D.N.Y. 1936); Providence-Washington Fire Ins. Co. v. Atlanta-Birmingham Fire Ins. Co., 166 F. 548, 553 (C.C.N.D. Ga. 1909); Ocean S.S. Co. v. Aetna Ins. Co., 121 F. 882, 887 (S.D. Ga. 1903).  “Reinsurance,” however, is a contract to indemnify the entity reinsured, which binds the reinsurer to pay the reinsured party, to the extent it is reinsured, for the loss sustained as defined by the subject matter of the insurance.  This is independent of the interest, loss, or ability to pay of the original party insured.  Allemannia Fire Ins. Co. of Pittsburg v. Firemen’s Ins. Co. of Baltimore, 209 U.S. 326, 332 (1908).

5ASR3d57


PROGRESSIVE INSURANCE COMPANY (PAGO PAGO) LTD., Plaintiff

 

v.

 

SOUTHERN STAR INTERNATIONAL, INC.

dba HONG KONG RESTAURANT, TUTUILA

INTERNATIONAL, INC., NTV ELECTRONICS, INC.,

KENNY AND HELEN YOUNG, AINOAMA FATA

dba NOFO’S STORE, AND DOES I-V, Defendants.

 

High Court of American Samoa

Trial Division

 

CA No. 129-99

 

March 13, 2001

 

 


[1] American Samoa statutes and rules of court provide no authority for bringing a motion to reconsider a non-final interlocutory order in a pending case.

 

[2] A motion for reconsideration or new trial is a necessary precondition for filing an appeal.

 

[3] The requirement that a pre-trial order be final or fall within the collateral order exception to the finality rule before it may be appealed applies to interim orders before they may be reconsidered.

 

[4] As a general rule, pre-trial orders governing discovery are neither final decisions, nor fall within the collateral order exception.

 

[5] A party affected by a court’s interim discovery ruling may challenge the decision on appeal from the final decision in the case.

 

[6] Court declined to reconsider pre-trial discovery ruling, granting motions to quash and for protective order, since said ruling was reviewable upon appeal from final decision in case.

 

[7] Where counsel failed to heed Court’s warning to be forthcoming with court, and court determined that he had violated T.C.R.C.P. 11(b)(3), monetary sanctions were proper.

 

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

 

Counsel: For Plaintiff, Roy J.D. Hall, Jr.

 For Defendants Southern Star International, Inc. dba Hong  Kong Restaurant, and Kenny and Helen Young, Paul F. Miller

 For Defendant Ainoama Fata, Katopau T. Ainu`u

 

ORDER ON MOTION TO RECONSIDER ORDER QUASHING

SUBPOENA AND GRANTING PROTECTIVE ORDER

 

At this stage in the proceedings, defendants Southern Star International, Inc. dba Hong Kong Restaurant (“SSI”), and Kenny and Helen Young (“Youngs”) (together “Defendants”) in their motion for reconsideration, ask the Court to revisit an earlier decision rendered in this case.  On January 29, 2001, we issued an interlocutory order granting Progressive Insurance Company (Pago Pago) Limited (“Progressive”), and the Bank of Hawaii’s motions to quash the June 5, 2000 subpoena duces tecum ad testificandum for the Bank of Hawaii, and granted Progressive’s motion for a protective order against the same subpoena.  On February 7, 2001, Defendants moved for reconsideration of the order.  On February 21, 2001, Progressive responded with a memorandum in opposition to Defendants’ motion.  The next day, counsel argued the motion.  For the following reasons, we deny reconsideration.

 

Motion to Reconsider or for a New Trial

 

[1-2] American Samoa statutes and rules of court provide no authority for bringing a motion to reconsider a non-final interlocutory order in a pending case.  While a motion for reconsideration or a new trial is prescribed as a mandatory pre-requisite to appeal a judgment under A.S.C.A. § 43.0802, this provision applies to final decisions, not to non-final interlocutory orders.[1]  Under A.S.C.A. § 43.0802(a), “[b]efore filing a notice of appeal, a motion for a new trial shall be filed within 10 days after the announcement of the judgment.”  The appeal must be filed “within 10 days after the denial of a motion for a new trial.”  A.S.C.A. § 43.0802(b).  The plain language of A.S.C.A. § 43.0802 expressly mandates that motions for reconsideration or new trial be raised as a condition to appeal, almost immediately preceding that appeal.

 

[3] In Kim v. American Samoa Gov’t, 17 A.S.R.2d 193, 195 (App. Div. 1990), the Appellate Division decided that an interlocutory order must be final or fall within the collateral order exception to be appealable:

 

To fall within the collateral order exception, an order must (1) conclusively resolve the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from the final judgment in the main case.

 

Id. (citations omitted).  Because motions for reconsideration or new trial are brought as part and parcel of an appeal, the requirement that a pre-trial order be final or fall within the collateral order exception to the finality rule before it may be appealed likewise applies to interim orders before they may be reconsidered.  See Kim, 17 A.S.R.2d at 195 (App. Div. 1990).

 

The purpose of motions for reconsideration is to conserve judicial resources by allowing the trial court the opportunity to assess and correct its own errors prior to appellate review.  However, requiring the court to reconsider all interlocutory orders would run counter to this very principle.  In the interest of judicial economy we adopted the rule of finality, and the collateral order exception to the rule as outlined in Kim, and further apply that standard to motions for reconsideration.

 

[4-5] Generally, pre-trial orders governing discovery are not final decisions, nor do they fall within the collateral order exception to the rule.  A party affected by a court’s interim discovery ruling is not foreclosed from challenging the decision on appeal from the final decision.  See Hancock v. State, 800 S.W.2d 683, 684 (Tex. App. 1990) (denying appellate review of discovery order); Clark v. Monnens, 436 N.W.2d 830, 831-32 (Minn. Ct. App. 1989); Kennedy v. Chalfin, 310 N.E.2d 233, 235 (Ohio 1974).

 

[6] Similarly, our January 29, 2001 pre-trial discovery ruling, granting the motions to quash and for a protective order, is reviewable upon appeal.  Therefore, since Defendants are not precluded from challenging the discovery order upon appeal, we deny reconsideration.

 

Sanctions

 

On June 5, 2000, Defendants served a subpoena for documents and a deposition on the Bank of Hawaii.  Subsequently, Progressive and the Bank of Hawaii each moved to quash the subpoena and Progressive requested a protective order against the same.  Defendants failed to file any written opposition before the hearing on the motion.  Counsel for Defendants assert that, “the hearing scheduled to hear the motions inadvertently and through no fault never occurred and the subject was visited the first time during the pre-trial hearing on January 11, 2001.”  (Def.’s Mot. for Reconsideration 4.)  Contrary to counsel’s averment, counsel argued the motion on June 20, 2000, and the Court took the motion under advisement.  The matter was raised during the January 11, 2001 pre-trial hearing, but only in the context of tying up loose ends in preparation for trial.[2]

 

[7] We have previously warned Defendants’ counsel, Mr. Miller, to consider seriously his ethical duty to be forthcoming with the Court.  (Order on Motion to Quash Subpoena and for Protective Order at 4-5 (January 29, 2001).)  He has failed to heed this warning.  When counsel affixed his signature to his motion for reconsideration, he certified that “to the best of . . . [his] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the allegations and other factual contentions have evidentiary support.”  T.C.R.C.P. 11(b)(3).  Contrary to counsel’s certification of truth, counsel falsely states that the Court did not hear the motions to quash the subpoena and issue a protective order.  We judicially note that in another matter similar to the case at bar, in which Mr. Miller was the counsel of record, the Court ordered payment of reasonable expenses and attorney’s fees for the bringing of the motion in the amount of $300.00.  See YHT, Inc. v. Oxford/Progressive Group, 5 A.S.R.3d 44, 48 (Trial Div. 2001) (issuing protective order and commanding $300.00 payment for the bringing of the motion).  Likewise, for counsel’s transgression in this matter, we sanction him and order that he pay Progressive’s costs for answering the motion in the amount of $300.00.

 

Order

 

1. Defendants’ motion for reconsideration is denied.

 

2. Counsel Paul Miller shall pay Progressive’s reasonable expenses, including attorney’s fees, of answering the motion for reconsideration in the amount of $300.00.

 

It is so ordered.

 

**********

 



[1] Authorized by A.S.C.A. § 43.0802, T.C.R.C.P. 59 permits parties to move for a new trial or for alteration or amendment of judgment within a similar timeframe.

[2] Counsel in response to the Court’s inquiry on pending motions, explained that Progressive and the Bank of Hawaii’s motions to quash the June 5, 2000 subpoena and issue a protective order were under advisement and awaited the Court’s written decision.

5ASR3d61


AMERICAN SAMOA GOVERNMENT, Plaintiff/Counterdefendant,

 

v.

 

.145 ACRES, MORE OR LESS, OF LAND AND RIGHT-OF-WAY TO THE LAND IN SQUARE 28, UNIT D, IN THE VILLAGE OF TAFUNA, COUNTY OF TUALAUTA, WESTERN DISTRICT, ISLAND OF TUTUILA, AMERICAN SAMOA,

NEIL ANNANDALE, and DOES I-X, Defendants/Counterclaimants/Cross-Claimants,

 

v.

 

AMERICAN SAMOA POWER AUTHORITY, and

FLETCHER CONSTRUCTION, Cross-Defendants.

 

High Court of American Samoa

Trial Division

 

CA No. 36-95

March 14, 2001

 

 

[1] The tort of trespass to land is the unlawful interference with its possession.

 

[2] The only intent needed to be proven in order to establish the tort of trespass is the intent to enter another’s land, regardless of the actor’s motivation.

 

[3] In a civil trespass case, the claimant must establish (1) unlawful interference with the possession of property, (2) which is the result of intentional, reckless, negligent or ultrahazardous activities, (3) where plaintiff attempted to be at the place on the land where the trespass allegedly occurred, and (4) the entry of some other person or thing.

 

[4] Where employees of construction company, while on contract with public utility, entered private landowner’s property; destroyed a cement wall, chain-link fence, mango tree, plants and shrubs; and dug a trench in the ground without first obtaining easement or making arrangements to obtain one, such conduct constituted a trespass.

 

[5] As a general rule, the employer of an independent contractor is not liable for harm resulting from that contractor’s acts or omissions.

 

[6] If an employer employs an independent contractor to do work, which he knows or has reason to know will likely involve a trespass upon the land of another, he is liable for harm resulting to others from such trespass.

 

[7] The court will construe pleadings and their amendments liberally, in order to do substantial justice, even if the pleadings occasionally do not strictly comply with formal requirements.

 

[8] In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc., --leave to amend a complaint should, as the rules require, be freely given.

 

[9] Where defendant/cross-claimant had not moved to amend cross-claim, but simply added extraneous language to his trial memorandum, despite having more than five years time to so move, court would not accept implicit “amendment” of cross-claim because of the undue delay, prejudice resulting to other parties.

 

[10] A minimum requirement for a party’s amendment of pleadings is that it submit a motion for leave to amend under T.C.R.C.P. 15 (a).

 

[11] Compensatory damages are designed to compensate for actual injury or loss, and punitive damages are awarded as punishment or deterrence for particularly egregious conduct.

 

[12] In trespass actions, compensatory damages are to be measured by (1) diminution in value, i.e., difference between market value of land before and after the harm, or cost of restoration when appropriate, (2) loss of use of the land, and (3) discomfort and annoyance to the occupant of the land.

 

[13] In trespass actions, proof of pecuniary loss is required.

 

[14] In trespass actions, where substantial actual damages are not susceptible to precise proof, the damage entitlement is limited to nominal damages.

 

[15] Where plaintiff in trespass action had testified that defendants had destroyed plants, fences and walls on his land, but had failed to present any evidence regarding the market value of such items, court would not award compensatory damages.

 

[16] Although plaintiffs are normal required to prove the market value of items destroyed by a trespass, a “restoration cost exception” exists where the landscaping and vegetation destroyed have intrinsic value to the landowner and are located on a homesite or recreational lot.  In such cases, intrinsic value is assumed, and evidentiary support is not required.

 

[17] In trespass actions, restoration cost damages may exceed the diminution in market value of the real property on which the vegetation grew.

 

[18] Where property and vegetation damaged as result of trespass was on rental property, court refused to award restoration cost damages.

 

[19] Punitive or exemplary damages may be awarded whether or not compensatory damages are awarded, in order to punish a wrongdoer as well as to deter other from similar future misconduct which resulted in injury, loss or detriment to another. 

 

[20] In order to award punitive damages in a trespass action, the trespasser’s conduct must have been wantonly reckless or malicious.

 

[21] Although trespassing parties’ actions did not appear to have based on any evil intent, they nonetheless were done with reckless disregard for rights of private property owner, in violation of written contract and public utilities’ rules, and despite repeated requests to cease.  Consequently, punitive damages were warranted.

 

[22] In trespass cases, damage awards must be trebled where the damage is to timber, young tree growth, products of tree growth, or cultivated grounds without lawful authority or permission.

 

[23] Attorney’s fees are not ordinarily recoverable by a prevailing party, but may be awarded when an opposing party has acted in bad faith, wantonly, oppressively or when required by statute.

 

[24] Where public agencies and their agents had acted oppressively and in wanton disregard of the valid property claims of an individual citizen, court determined an award of attorney’s fees to be proper.

 

OPINION AND ORDER

 

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

 

Counsel: For Plaintiff, Fiti A. Sunia, Attorney General

 For Defendant, Charles V. Alailima,

 For Cross-Defendants, Roy J.D. Hall, Jr.

 

In 1995, plaintiff American Samoa Government (“ASG”) initiated this action pursuant to A.S.C.A. §§ 43.1001-.1036 to condemn interests in land of defendant Neil Annandale (“Annandale”) in Tafuna for installations connected with the public sewage collection system in this area.  By this action, ASG sought to acquire a fee simple interest in approximately 0.045 acre along the southern boundary of the land (“Parcel A”) and a right-of-way in approximately 0.10 acre across the land (“Parcel B”).

 

ASG declared the value of the interests to be $4,000.00 for Parcel A and $50.00 for Parcel B, and deposited the total sum of $4,050.00 in the Court registry, in accordance with A.S.C.A. §§ 43.1001 and 43.1003.  By this making this deposit, ASG immediately acquired title to the interests desired, pursuant to A.S.C.A. § 43.1005.  ASG also served Annandale with process and, under A.S.C.A. § 43.1002, gained the right to possess and use those interests.

 

When Annandale answered the complaint, he rejected the amount of the compensation deposited.  He also counterclaimed against ASG and cross-claimed against defendants American Samoa Power Authority (“ASPA”) and Fletcher Construction (“Fletcher”) for damages based on trespass on Annandale’s land, allegedly beginning on or about January 23, 1995, and destroying plants, fences and walls.

 

In view of Annandale’s objections to ASG’s estimated values of the condemned interests in the land, determination of the compensation amount was referred to arbitration, pursuant to A.S.C.A. § 43.1010.  On August 19, 1996, the arbitrators awarded $5,800.00 for Parcel A and $50.00 for Parcel B.  Annandale accepted the award for Parcel A, and on December 15, 1997, the Court’s partial judgment and order was entered with respect to this parcel, confirming ASG’s title to Parcel A and requiring ASG to pay $5,800.00 to Annandale for this parcel.

 

Annandale appealed the award for Parcel B.  On May 19, 1997, the Appellate Division held that the arbitrators failed to support the award for Parcel B with findings and conclusions, and remanded this award to the same arbitrators for further proceedings and a determination, based on written findings and conclusions, to be submitted to this court.  The Attorney General has informed the Court that the arbitration award for the Parcel B was made in December 2000, but the arbitrators have yet to publish their decisions.

 

Trial on the trespass claims was held on July 10, 2000, and this opinion and order is limited to those claims.  The two issues before the Court are (1) whether the actions by ASPA and Fletcher constitute trespass, and if so, (2) whether and what damages ASPA and Fletcher owe to Annandale.

 

Discussion

 

I.  Trespass

 

[1-2] This Court declared its standard for trespass in Letuli v. Le`i:

 

The tort of trespass to land is the unlawful interference with its possession. W. Prosser and W. Keeton, The Law of Torts § 13, at 70 (5th ed. 1984).  It may be committed as the result of an act which is intentional, reckless, or negligent, or as the result of ultrahazardous activity. Gallin v. Poulou, 295 P.2d 958, 959-62 (Cal. App. 1956).  The only intent required is the intent to enter another’s land, regardless of the actor’s motivation. Miller v. National broadcasting Co., 232 Cal. Rptr. 668, 676-77 (Cal. App. 1986).  Trespass may occur by causing the entry of some other person or thing. Restatement (Second) of Torts §158 (a), at 277 (1965).

 

Letuli v. Le`i, 22 A.S.R.2d 77, 82 (Land & Titles Div. 1992).

[3] We read the rule applied in Letuli to mean that in adjudging whether trespass has occurred in civil cases, the claimant must establish (1) unlawful interference with the possession of property, (2) which may be the result of intentional, reckless, negligent or ultrahazardous activities, (3) where there existed an attempt to be at the place on the land where the trespass allegedly occurred, and (4) which may consist of the entry of some other person or thing.  We find that ASG, ASPA, and Fletcher did trespass upon Annandale’s land based on these four criteria.

 

[4] On or about Monday, January 23, 1995, employees of Fletcher, while on contract with ASPA, entered Annandale’s land and destroyed a cement wall, a chain-link fence, a mango tree, plants and shrubs, and dug a trench in the ground.  At the time, ASPA had not obtained an easement from Annandale for use of his land, nor had Fletcher remedied this oversight by making arrangements to obtain one.

 

Annandale appropriately and immediately notified ASPA authorities through legal counsel, but none of these parties responded to his appropriate protest against Fletcher’s invasion of Annandale’s land. Fletcher thus engaged in repeated intentional acts consisting of unpermitted and uninvited infringement upon, injury to, and invasion of Annandale’s land.

 

[5-6] ASG and ASPA are liable with Fletcher for trespass as employers of that independent contractor.  As a general rule, the employer of an independent contractor is not liable for harm resulting from that contractor’s acts or omissions.  RESTATEMENT (SECOND) OF TORTS § 409 (1965); Letuli, 22 A.S.R.2d at 83.  However, if an employer employs an independent contractor to do work which he knows or has reason to know will likely involve a trespass upon the land of another, he is liable for harm resulting to others from such trespass.  RESTATEMENT (SECOND) OF TORTS § 427B (1965).  Here, ASPA hired Fletcher to institute an underground sewer line, which work inherently implies effacement and destruction of Annandale’s land.  ASG and ASPA had reason to know that Fletcher’s work would involve trespass; their duty was to secure authorization for the intended work activity, so as to render the encroachment and conversion of Annandale’s property lawful.  The contract between ASPA and Fletcher, with respect to the necessity and distribution of responsibility for obtaining easements, confirms ASPA’s awareness of the potential for trespass and consequent liability involved in contracting for sewer line placement.  Because they did not obtain valid authorization, ASG and ASPA are liable for harm resulting from their independent contractor’s physical trespass.

 

ASG and ASPA claim that they acted with Annandale’s consent to work on the property, and argue that they are thus not liable for co-opting it. However, they have failed to convince the court that Annandale consented to their doing work on the property.  In fact, Annandale’s subsequent complaints to ASPA indicate that he not only lacked knowledge of the extent of the work, but also that he did not give ASPA consent to perform it.  In any case, consent to enter and work on property does not justify total government taking.

 

This case involves forced preemption of private property by a government entity.  At the time of the trespass, on January 23, 1995, ASPA rules specified that no buildings, structures, or residences were to be built over public sewers.  In invading and clearing Annandale’s land without an easement or other proper authorization, making the land unfit for any other use, ASPA embarked on an unauthorized taking.  Such unilateral takings are regulated by definitively proscribed legal standards for condemnation. A.S.C.A. §§ 43.1001-.1036 detail procedures such as filing a comprehensive complaint with the High Court and/or Attorney General, service of notice, and payment of compensation for private property taken.  These procedures protect the property and personages of individual citizens against cooption by arbitrary authority.  Violation of these procedures by a government entity is unlawful and unjust.

 

ASG and ASPA failed their duty to comply with the procedures set forth in A.S.C.A. §§ 43.1001-.1036.  ASPA did not request that ASG condemn Annandale’s land until March 6, 1995, about six weeks after Fletcher entered the land.  ASG did not file a complaint to condemn the land until March 14, 1995, almost two months after the entry.  We thus find that Fletcher, ASPA and ASG engaged in intentional and unlawful interference with Annandale’s land between January 23, 1995 and March 14, 1995.  Clearly, their joint activity constitutes trespass.

 

II.  Basis for Relief

 

We now turn to the issue of damages.  Annandale’s original complaint, filed on March 14, 1995, states a slightly different basis for relief than does his trial memorandum, submitted on July 10, 2000.  Annandale’s counterclaim and cross-claim seek punitive and compensatory damages for damage to his land.  His trial brief, however, seeks compensatory damages for indemnity or restitution for “loss of plantings,” emotional distress, and attorney’s fees and costs, and not merely for damages to property.  A threshold issue is thus whether the court may recognize the additional bases for relief requested in the trial brief that were not mentioned in the counterclaim or cross-claim.  In legal terms, the issue is whether the added terms of Annandale’s trial brief constitute a valid amendment of his claims.

 

A.  Amending Pleadings

 

[7-8] T.C.R.C.P. 15(a) delineates the parameters for amending or supplementing pleadings.  It states:

 

A party may amend his pleadings as a matter of course at any time before a responsive pleading is served.  Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

 

See also 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1486 (2d ed. 1990).  This Court construes pleadings and their amendments liberally, in order to do “substantial justice,” even if the pleadings occasionally do not strictly comply with formal requirements.  T.C.R.C.P. 8(f); see, e.g., Dev. Bank v. Ilalio, 5 A.S.R.2d 110, 115-16 (Trial Div. 1987).  We give wide latitude to parties to amend material pleadings.  See, e.g., Thomsen v. Bank of Hawaii, 28 A.S.R.2d 86, 87 (Trial Div. 1995).  There are, however, certain limitations to our vast discretion to freely give leave to amend pleadings.  In McKenzie v. Le`iato, 27 A.S.R.2d 53, 55 (Trial Div. 1994), we applied the U.S. Supreme Court ruling in Foman v. Davis, 371 U.S. 178, 183 (1962), which requires that a trial court give justifying reasons for denying an opportunity to amend a complaint.  Foman suggested several viable factors for a trial court’s denial of a motion for leave to amend:

 

In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.,--the leave sought should, as the rules require, be ‘freely given.’

 

Foman, 371 U.S. at 183.  Annandale has not officially applied for leave to amend or to supplement his complaint.  Instead, he has added extraneous language to his trial memorandum, and left it to the discretion of this court to determine whether “justice so requires” our recognizing the implicit amendment.

 

[9] The record shows that Annandale had more than ample time to amend his counterclaim and cross-claim.  The condemnation complaint was filed on March 14, 1995, and a partial judgment was entered on December 10, 1997, as to Parcel A.  More than two years then passed, during which no pleading or action on the case was taken by either party.  On December 22, 1999, an order by this court was entered declaring that the case was not diligently prosecuted, and that the case would be dismissed with prejudice within 30 days unless good cause was shown otherwise.  Exactly 30 days later, the motion for hearing to set trial date was filed, and the trial was held on July 10, 2000.  Thus, Annandale had a wide berth of time—more than five years—during which he might have moved to amend or supplement his counterclaim and cross-claim, but did not. Such undue delay precludes us from giving Annandale leave to amend his pleadings.

 

Moreover, allowing such a last-minute amendment would be prejudicial to the opposing parties.  One novel basis for relief slipped into a trial memorandum in the form of seemingly innocuous, extraneous language. Because of the prejudice that allowing such unstated ‘amendments’ would cause, we follow our ruling in McKenzie and refuse to extend our obligation to liberally construe pleadings to avoid injustice, towards refashioning a party’s theory of relief.  McKenzie, 27 A.S.R.2d at 67.

 

[10] A minimum requirement for a party’s amendment of pleadings is that it submit a motion for leave to amend under T.C.R.C.P. 15 (a).  The procedural requirement of filing a motion for leave to amend enables the court to consider the justice of the filing.  It places the opposing party on timely and proper notice of the new claim for relief, and more importantly, enables that party to contest the claim in open court.  The extraneous language included in Annandale’s final memorandum constitutes a deviation from High Court Rules and does not comport with the court’s standards of due process.  We will not accept Annandale’s implicit “amendment” of his counterclaim and cross-claim because of undue delay, and because doing so would be unduly burdensome and prejudicial to ASG, ASPA, and Fletcher.

 

Therefore, based on our court rules and the relevant case law, we will not recognize the new claim for compensatory relief stated in Annandale’s trial memorandum--specifically, the claim for emotional loss. Referring back to Annandale’s original pleadings, and considering that the condemnation and arbitration have taken since place to account for lost value of the land itself, we consider Annandale’s claims to be as follows: against ASPA and Fletcher for willful trespass and destruction of property.

 

 

 

B.  Compensatory Damages

 

[11] Annandale’s complaint seeks compensatory and punitive damages, excluding just compensation for the depreciated value of the land, which is accounted for in the condemnation proceedings.  Compensatory damages are designed to compensate for actual injury or loss, and punitive damages are awarded as punishment or deterrence for particularly egregious conduct.  Nappe v. Anschelewitz, 477 A.2d 1224, 1228 (N.J. 1984).  The issue is what compensation may be justly afforded to Annandale for the destruction of the vegetation, fences and walls on his property caused by the trespass.

 

[12-14] We have previously addressed the issue of compensation for victims of past trespass for damages to land in Letuli in which we set our standard for compensatory damages. Letuli, 22 A.S.R.2d at 85.  Compensatory damages are to be measured by (1) diminution in value, i.e., difference between market value of land before and after the harm, or cost of restoration when appropriate, (2) loss of use of the land, and (3) discomfort and annoyance to the occupant of the land.  Id.; see also Restatement (Second) of Torts § 929(1) (1965).  If a severable thing attached to the land is damaged, recovery of the loss in market value to the attachment is an optional approach.  Restatement (Second) of Torts § 929(2) (1965).  In any case, proof of pecuniary loss is required. “In the absence of such proof, which can occur when substantial actual damages are not susceptible to precise proof, the damage entitlement is limited to nominal damages in a trivial amount.”  Letuli, 22 A.S.R.2d at 85; see also Restatement (Second) of Torts § 907 (1965).

 

[15] In the course of their trespass, ASG, ASPA, and Fletcher destroyed plants, fences and walls on Annandale’s land.  However, no evidence was presented regarding the market value of the damaged vegetation, fences, and walls.  In the absence of such evidence, we must rule according to our holding in Letuli, where no evidence was presented as to the market value or other readily ascertainable pecuniary value, and where we could not, therefore, award compensatory damages.

 

[16-17] As discussed in great detail in Dixon v. City of Phoenix, case authority points to a restoration cost exception to the market value measure of damages where landscaping and vegetation have intrinsic value to the landowner.  845 P.2d 1107, 1116 (Ariz. Ct. App. 1982).  Such intrinsic value is assumed, and does not require evidentiary support, where the property damaged is a homesite or recreational lot. See Restatement (Second) of Torts § 929 cmt. b (1965); Thatcher v. Lane Construction Co., 254 N.E.2d 703, 706 (Ohio Ct. App. 1970); Rector, Etc. v. C.S. McCrossan, 235 N.W.2d 609, 610 (Minn. 1975); Denoyer v. Lamb, 490 N.E.2d 615, 618 (Ohio Ct. App.1984).

 

[I]n appropriate cases, a landowner whose vegetation has been destroyed by a trespass may receive damages based on restoration costs.  This is so even when the amount may exceed the diminution in market value of the real property on which the vegetation grew.

 

Dixon, 845 P.2d at 1117.  Dixon also emphasized that only reasonable costs of replacing destroyed vegetation may be recovered.  Id.

 

[18] We do not find sufficient indication, either by evidence or reason, of any intrinsic value of the lost landscaping and vegetation.  The property in question was a rental property rather than a homesite or recreational lot for which intrinsic meaning has been found in order to apply the restoration cost standard for compensatory damages.  See Thatcher, 254 N.E.2d at 708; Rector, 235 N.W.2d at 610; Denoyer, 490 N.E.2d at 618. The “intrinsic meaning” of the vegetation and attachments to Annandale’s land must be held to be, therefore, negligible.

 

There being no evidence as to (1) the intrinsic value of the property or else the pecuniary worth of its diminution in value due to trespass, (2) no issue as to the loss of the land itself (that being decided by arbitration), and (3) no “satisfactory proof of consequential illness or significant bodily or emotional injury” to merit compensation for emotional distress, our award of compensatory damages for trespass upon Annadale’s land is limited to the nominal amount of $1.00.   See Letuli, 22 A.S.R.2d at 86,

 

C.  Punitive Damages

 

[19-20] Punitive or exemplary damages may be awarded whether or not compensatory damages are awarded, in order to punish a wrongdoer as well as to deter other from similar future misconduct which resulted in injury, loss or detriment to another.  Letuli, 22 A.S.R.2d at 86; Nappe, 477 A.2d at 1232; Restatement (Second) of Torts § 908 and cmts. b & c (1965).  The punitive award is based on whether the trespasser’s conduct was wantonly reckless or malicious.  The offender must have engaged in “intentional wrongdoing in the sense of an ‘evil-minded act’ or an act accompanied by a wanton and willful disregard of the rights of another.”  Nappe, 477 A.2d at 1230.

 

[21] The actions of ASG, ASPA, and Fletcher in trespassing upon Annandale’s land do not appear to have occurred with any evil intent. However, their actions did occur with reckless disregard for Annandale’s rights as a private property owner, and in violation of the contract between ASPA and Fletcher and ASPA’s rules regarding obtaining easements or condemnation before commencing work.  The trespass continued despite repeated written requests to cease.  In Letuli, we awarded the plaintiff $1,500.00 in punitive damages where the defendant bulldozed natural growth trees on a 12-foot right of way in malicious retribution for the plaintiff’s refusal to clear the property for the defendant’s ocean view.  The factors we considered in that case were “the character of the defendant’s act, the nature of the plaintiff’s harm, and defendant’s responsible station in life.”  Letuli, 22 A.S.R.2d at 86.

 

In this case, the property in question involves more or less 0.145 acres, the destruction of erected fences and shrubs, and sloppiness in procuring the requisite consent, easement or condemnation action before commencing sewer line work on private property.  ASG, ASPA, and Fletcher trespassed upon the property illegally for more than two months despite Annadale’s immediate and repeated notice and protest.  For punishment of such wanton disregard of the rights of private property owners, and for deterrence against ASG, ASPA, and Fletcher whose frequent infrastructure work and abundant resources necessitate attention to detail and care, we award Annadale $3,000.00 in punitive damages.

 

[22] Furthermore, A.S.C.A. § 43.5051 requires that damages be trebled in trespass cases where the damage is to “timber, young tree growth, or products of tree growth . . . , or cultivated grounds” without lawful authority or permission.  We thus award to Annandale a total of $9,003.00 in compensatory and punitive damages.

 

D.  Attorney’s Fees and Costs

 

[23-24] Attorney’s fees are not ordinarily recoverable by a prevailing party, but may be awarded when an opposing party has acted in bad faith, wantonly, oppressively or when a statute dictates.  See Fiaui v. Faumuina, 27 A.S.R.2d 36, 42 (Trial Div. 1994); F.D. Rich Co.v. Indus. Lumber Co., 417 U.S. 116, 129 (1973).  Annandale is deserving of attorney’s fees in this case, where public agencies and their agents acted oppressively and in wanton disregard of the valid property claims of an individual citizen.  Annandale is also entitled to costs of suit.  T.C.R.C.P. 54(d).

Order

 

1.  There being no proof of compensatory damages, ASG, ASPA, and Fletcher are jointly and severally liable for $1.00 in nominal damages to Annandale for willful trespass to his land.

 

2.  Due to their reckless indifference to Annandale’s right to private property protected by the laws of American Samoa, as well as the contract between ASPA and Fletcher and ASPA’s rules, ASG, ASPA, and Fletcher are jointly and severally liable for $3,000.00 in punitive damages.

 

3.  Pursuant to A.S.C.A. § 43.5051, the total amount of damages jointly and severally owed by ASG, ASPA, and Fletcher to Annandale are tripled to the total amount of $9,0003.00.

 

4.  ASG, ASPA and Fletcher are also jointly and severally liable to pay to Annandale attorney’s fees in the amount of $1,500.00 plus his actual costs of suit.

 

It is so ordered.

 

**********

 

5ASR3d73


AMERICAN SAMOA GOVERNMENT and BRENNAN ISAAKO for AASU and AOLOAU CATHOLIC CHOIR, Plaintiff.

 

v.

 

NTV ELECTRONICS and MANAGER NING TAN and KENNY AND HELEN YOUNG, PROGRESSIVE INSURANCE COMPANY, Defendants.

____________________

 

NTV ELECTRONICS and MANAGER NING TAN, and KENNY and HELEN YOUNG, Cross-Claimants/Cross-Claim Defendants,

 

v.

 

OXFORD/PROGRESSIVE GROUP, et al., Defendants/Cross-Claim Plaintiffs.

 

High Court of American Samoa

Trial Division

 

CA No. 74-00

 

March 19, 2001

 

 

[1] In considering a motion to dismiss for failure to state a claim, the pleadings are to be construed in the light most favorable to the claimant.

 

[2] A cross-claim is any claim by one party against a co-party.

 

[3] T.C.R.C.P. 13(g) permits parties to assert cross-claims, arising out of the same transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein, or that relates to any property that is the subject matter of the original action.

 

[4] A cross-claim fails to state a claim, and is subject to dismissal under Rule 12(b)(6), if it merely requests indemnity from a co-party but does not assert a plea for affirmative relief against the co-party.

 

[5] Cross-claims for indemnity are permitted.

 

[6] Cross-claims for indemnity must be timely made where they are available.

 

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

 

Counsel:           For Plaintiff, Albert Mailo, Attorney General

 For Defendants and Cross-Claim Defendants, Paul F. Miller

 For Defendants and Cross-Claim Plaintiffs, Roy J.D. Hall, Jr.


 

ORDER GRANTING MOTION TO DISMISS

 

Facts

 

Plaintiff American Samoa Government (“ASG”) brought this consumer protection action for Plaintiffs Brennan Isaako, acting on behalf of the Aoloau Catholic Choir (collectively “the choir”) pursuant to A.S.C.A. §§ 3.0302 and 27.0401 on July 14, 2000.  Allegedly, the choir left their Technics Console Organ at Defendant NTV Electronics (“NTV”) store on August 11, 1999, to correct its tone, and the store promptly burned down in the evening of the same day.  ASG and the choir ask for a judgment over $5,000 against Defendant Ning Tan (“Tan”), as NTV’s store manager, Defendants Helen and Kenny Young (“the Youngs”), as principals of NTV, and Defendant Progressive Insurance Company (“Progressive”).

 

NTV, Tan and the Youngs filed their answer and cross-claims on August 9, 2000.  The cross-claims alleged that Progressive insured South Star International, Inc. (“SSI”), and the negligence of SSI’s employees caused the fire resulting in damage to NTV and Tan.  The Youngs may also be principals of SSI, and counsel for NTV, Tan and the Youngs represents SSI in another pending action.  See Progressive Ins. Co. v. S. Star Int’l, Inc., 4 A.S.R.3d 147 (Trial Div. 2000).  SSI has not been joined as a party to this case.

 

Progressive filed its answer and cross-claim on August 24, 2000.  The cross-claim seeks indemnity against NTV and Tan, if Progressive is held liable to ASG and the choir.  NTV, Tan, and the Youngs filed a motion to dismiss this cross-claim on September 8, 2000.  Next, Progressive filed a motion for protective order related to discovery proceedings initiated by counsel for NTV, Tan and the Youngs, as well as for T.C.R.C.P. 11 sanctions against him.  NTV, Tan and the Youngs then filed a motion for Rule 11 sanctions against Progressive’s counsel.  The motion to dismiss is the subject of this current order.

 

Discussion

 

Progressive claims that NTV and Tan are liable to the choir for the loss of the organ under the choir’s “contract of bailment,” where defendants NTV and Tan have a privity of contract with the choir as bailor and bailee. Progressive asks that NTV and Tan indemnify it and pay judgment if the court finds it liable to the choir for loss of the organ.

 

[1] NTV, Tan and the Youngs submitted their motion to dismiss this cross-claim based on the ground that Progressive “[failed] to state a claim upon which relief can be granted.”  T.C.R.C.P. 12(b)(6).  A motion to dismiss for failure to state a claim will be denied unless it appears beyond a doubt that no set of facts can be proven which would entitle the claimant to relief.  Moeisogi v. Faleafine, 5 A.S.R.2d 131, 134 (Land and Titles Div. 1987); Conley v. Gibson, 355 U.S. 41, 45-46 (1957).  The pleadings are construed in the light most favorable to the claimant.  Beaver v. Cravens, 17 A.S.R.2d 6, 8 (Trial Div. 1990); NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).  The burden of proving the absence of a claim rests on the movant.  Moeisogi, 5 A.S.R.2d at 134; Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).

 

NTV, Tan and the Youngs assert that Progressive has failed to state a claim on which relief can be granted, because it “lacks standing to assert any contractual claim, and, having suffered no loss, is not entitled to assert a claim based on tort.”  This argument very obliquely asserts the relevant law, but is essentially correct.[1]

[2-3] T.C.R.C.P. 13(g) permits parties to assert cross-claims, defined by “any claim by one party against a co-party” arising out of the same transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein, or that relates to any property that is the subject matter of the original action.  See also 6 Charles Alan Wright et al., Federal Practice and Procedure § 1431 (2d ed. 1990).  T.C.R.C.P. 8(a) further requires claims to consist of “a short and plain statement of the claim showing that the pleader is entitled to relief.” Because of Rule 8(a), the federal courts have held that “Rule 13(g) is not a general provision for indemnity or contribution.  It is a procedural device for facilitating affirmative claims for relief among co-parties to a lawsuit.”  Conn. Gen. Life Ins. v. Universal Ins. Co., 838 F.2d 612, 623 (1st Cir. 1988).

 

[4] It is not sufficient for the cross-claim to merely allege blamelessness and lack of liability against the opposing party’s claim.  A claimant must present a claim for affirmative relief against its codefendant, not merely facts relieving it from liability for plaintiff’s claim, in order to avoid subjecting the cross-claim to dismissal by the court.  Conn. Gen. Life Ins, 838 F.2d at 623; Jones v. Ill. Dep’t of Rehab. Services, 689 F.2d 724, 733 (7th Cir. 1982); Wash. Bldg. Realty Corp. v. Peoples Drug Stores, Inc., 161 F.2d 879, 880 (D.C.Cir. 1947).  A cross-claim thus fails to state a claim, and is subject to dismissal under Rule 12(b)(6), if it merely requests indemnity from a co-party but does not assert a plea for affirmative relief against the co-party.

 

Washington Building involved a personal injury action against a landlord and tenant, where the defendant tenant cross-claimed against the defendant landlord, alleging that plaintiff’s injury occurred in a public passageway maintained by the landlord.  161 F.2d at 879.  The Court dismissed this cross-claim, holding that these facts may relieve the claimant tenant from any liability for plaintiff’s claim, but they do not constitute a claim for affirmative relief against the co-defendant. Id. at 880.  The Court stated that:

 

[Claimant] alleges facts that relieve it of any and all liability for plaintiff’s injury and it makes [co­defendant] solely responsible for the plaintiff’s injury.  It is not alleged that the parties are jointly liable, as a result of which a claim for contribution would arise, nor that [claimant] is only secondarily liable, as a result of which it would have a claim for indemnity, nor that there is a contract between [claimant] and [co­defendant] which would entitle [claimant] to complete indemnity.  In short, in its cross-claim [claimant] has alleged only facts that constitute as to it a complete defense to the original tort action, and nothing constituting a claim against [co-defendant].

 

Id.  This statement clarifies what constitutes a claim for affirmative relief, rather than a simple conclusory statement of entitlement to indemnity.

 

[5-6] The cross-claim in this case is similar to Washington Building in that Progressive argues for indemnity from co-defendants NTV and Tan based, not on its own obligations or duties with those co-parties, but rather on those co-parties’ duties to the choir.  Cross-claims for indemnity are permitted.  Gentry v. Wilmington Trust Co., 321 F. Supp. 1379, 1383-85 (D. Del. 1970).  Indeed, cross-claims for indemnity must be timely made where they are available.  Martell v. Boardwalk Enter., Inc., 748 F.2d 740, 749 (2d Cir. 1984).  However, in this case, Progressive’s request for indemnity is not based on a claim for affirmative relief from NTV and Tan, but rather on the complete defense to the claims of ASG and the choir arising out of NTV and Tan’s bailment contract with the choir.  The duty of NTV and Tan under the bailment contract extends only to the choir, and not to Progressive. Progressive cannot, therefore, stake a claim for affirmative relief upon the bailment contract.  See Jones, 689 F.2d at 733.

 

Because Progressive has failed to state a claim for affirmative relief against a co-party in contravention of the T.C.R.C.P. 8(a) and 13(g) requirements for cross-claims, we will dismiss Progressive’s cross-claim against NTV and Tan.

 

Order

 

The motion to dismiss is granted.

 

It is so ordered.

 

*********

 



[1] The motion to dismiss by NTV, Tan and the Youngs’ motion involves extraneous and irrelevant citations regarding the relationship between a corporation and stockholders, which frankly baffles the court, in addition to citing Rule 12(b)(6) and making the general statement above.  We choose to construe the pleading so as to “do substantial justice” according to our Trial Court Rules, rather than prejudice NTV, Tan and the Youngs by dismissing it due to the maladroit arguments of their attorney.  T.C.R.C.P. 8(f).

5ASR3d77


AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

AFA ALATAUA, Defendant.

 

High Court of American Samoa

Trial Division

 

CR No. 116-00

 

April 18, 2001


 

 

[1] The Revised Constitution of American Samoa guarantees individuals the right against self-incrimination and requires that any confession be voluntary.

 

[2] The right against self-incrimination requires that anyone in police custody be advised, before interrogation by the police, of his or her right to remain silent, and right to counsel.

 

[3] The court must look to the totality of the surrounding circumstances to determine whether a confession is made voluntarily.

 

[4] Totality of the circumstances surrounding defendant’s post-arrest interrogation demonstrated that his statement was voluntarily made where defendant had previously refused to talk to police officers but had asked to speak to specific officer, was advised of Miranda rights prior to questioning, and where there were no facts indicating defendant was either coerced or threatened.

 

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

 

Counsel: For Plaintiff, Suzanne L. Tiapula, Assistant Attorney General

 For Defendant, Bentley C. Adams III, Assistant Public Defender

 

ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS

 

Facts

 

Defendant Afa Alataua (“Alataua”) is charged with nine felony counts, consisting of two counts of rape; two counts of sodomy, two counts of incest, two counts of sexual abuse in the first degree, and one count of assault in the third degree.  These charges stem from alleged incidents of sexual intercourse and other sexual contact by Alataua with his sixteen-year-old step-daughter (“complainant”), and an alleged incident of assault by Alataua upon his wife.

 

On December 8, 2000, after a report that Alataua was attempting to entice the complainant to go with him, police apprehended him and placed him in custody at the Tafuna Correctional Facility (“TCF”).  Meanwhile on the same day, District Court Judge John L Ward II issued a warrant for Alataua’s arrest and commitment to the TCF without bail.

 

While Alataua was held at the TCF, he refused to speak to any of the officers present, and specifically requested that he communicate only with Lieutenant Aiga Suitonu (“Lt. Suitonu”).  On the morning of December 9, 2000, Lt. Suitonu, a veteran police officer holding a supervisory position with the Domestic Violence and Sexual Assault Division of the Department of Public Safety, arrived at the TCF at approximately 10:00 a.m.  Accompanied by Detective Michael Nix (“Det. Nix”), Lt. Suitonu met with Alataua.  The watch commander at the TCF invited the officers and Alataua to use his office so that they might have more privacy.  Both Lt. Suitonu and Det. Nix were in plain clothing.

 

Before Lt. Suitonu began any discussion with Alataua, she wrote down the time of 10:00 a.m. at the top of Alataua’s statement form.  She then asked Alataua why he wished to speak with her, to which he replied that he needed Lt. Suitonu’s help.  Lt. Suitonu then told him to wait while she read him his rights.  Det. Nix, a native Samoan speaker, read Alataua his rights in the Samoan language.  Det. Nix advised Alataua that he had the right to remain silent, the right to have an attorney present and/or appointed for him, and the right to discontinue questioning at any time.  Nix also informed Alataua that any statements made may be used against him later in court.  Lt. Suitonu asked Alataua if he understood his rights, to which he answered affirmatively.  Police did not threaten or otherwise coerce Alataua to induce him to make a statement.

 

According to Lt. Suitonu, at approximately 10:30 a.m., Alataua indicated that he understood those rights by signing a one-page document, which listed his rights in the Samoan language.  (This form is commonly known as the constitutional rights waiver form (“waiver form”).  Then, after discussing the circumstances surrounding the charges against him with Suitonu, Alataua wrote a statement regarding this case.  Alataua completed and signed his written statement at approximately 11:15 a.m., as indicated on the bottom of his written statement.  At sometime during this process, Lt. Suitonu served Alataua with the warrant for his arrest.

 

Alataua moves this Court to suppress his oral and written statements made on December 9, 2000.  After due consideration of the motion, we deny it for the following reasons.

 

Discussion

 

[1] The Revised Constitution of American Samoa guarantees individuals the right against self-incrimination.  Article I § 6 of the American Samoa Constitution states that “[n]o person . . . shall . . . be compelled in any criminal case to be a witness against himself.”  Also, the Due Process Clause of the Revised Constitution of American Samoa, Article I § 2, requires that a confession be voluntary.  In interpreting the right against self-incrimination, this Court has adopted the Supreme Court’s ruling in Miranda v. Arizona, 384 U.S. 436 (1966), which requires that certain protections be afforded criminal defendants.  See Am. Samoa Gov’t v. Luki, 21 A.S.R.2d 84, 86 (Trial Div. 1992); Am. Samoa Gov’t v. Fealofa`i, 24 A.S.R.2d 10, 11-12 (Trial Div. 1993).

 

[2-3] Under Miranda, the right against self-incrimination requires that anyone in police custody be advised, before interrogation by the police, of his or her right to remain silent, and right to counsel.  Miranda, 384 U.S. at 497.  “The police may use a defendant’s confession [obtained during a custodial interrogation] without transgressing his . . . right [against self-incrimination] only when the decision to confess is the defendant’s free choice.”  United States v. Anderson, 929 F.2d 96, 98 (2d Cir. 1991).  The court must look to the totality of the surrounding circumstances to determine whether a confession is made voluntarily.  See Green v. Scully, 850 F.2d 894, 901 (2d Cir. 1988).

 

In United States v. McGuire, 957 F.2d 310, 315 (7th Cir. 1992), the Court, after considering the totality of the circumstances, concluded that the defendant’s confession was voluntarily made.  These circumstances included evidence that the defendant appeared sober, was not under any duress during the interview, and had been advised of his Miranda rights before the interrogation.  See also Nelson v. Walker, 121 F.3d 828, 833-34 (2d Cir. 1997).

 

In the instant case, as a preliminary factual matter, we find that police properly complied with Miranda before interrogating Alataua.  Alataua contends that the times as reflected on the waiver form and statement show that the statement was elicited before he was read his constitutional rights.  However, we find that Lt. Suitonu is a credible witness, and accordingly believe her testimony that before making any statement, she advised Alataua of his constitutional rights.

 

[4] Furthermore, we find that the totality of the circumstances surrounding Alataua’s post-arrest interrogation demonstrates that Alataua’s statements were voluntarily made.  The fact that Alataua refused to talk to police officers at the TCF and specifically asked for Lt. Suitonu demonstrates his willingness to make a statement to police.  In addition, none of the elicited facts shows that Alataua was coerced or threatened either before or during his questioning.  In fact, during the interview, Lt. Suitonu and her companion were dressed in civilian clothing, and the interview took place in a private office.  Finally, police advised Alataua of his rights as required by Miranda before Alataua made any statements to police.  Accordingly, we find that Alataua’ statements were made of his own “free choice” and were not procured by police in violation of Alataua’s constitutional right against self-incrimination.

 

 

Conclusion and Order

 

For the foregoing reasons, defendant Alataua’s motion to suppress his statements is denied.

 

It is so ordered.

 

**********

5ASR3d81


AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

FOGAVA`A FONOTI aka FOGAVA`A ENOKA, Defendant.

 

High Court of American Samoa

Trial Division

 

CR No. 99-00

 

April 23, 2001


 

 

[1] Article 36(1)(b) of the Vienna Convention requires that foreign nationals arrested or otherwise detained be informed that they have right to notify the consular post of their country that they have been detained and that such communication be made without delay. 

 

[2] The Supremacy Clause of the U.S. Constitution sometimes requires that courts exclude evidence where such is explicitly commanded by a treaty or an executive agreement.

 

[3] The admissibility of evidence in an extradition proceeding is determined by the applicable extradition treaty.

 

[4] Because the Vienna Convention is a ratified treaty, its provisions must be regarded as supreme.

 

[5] There may exist remedies where the consular notification requirement of the Vienna Convention has been violated, but exclusion of evidence is not one of them.

 

[6] Violation of the Vienna Convention consular notification requirement does not require suppression of subsequently-obtained evidence in a criminal proceeding against a foreign national.

 

[7] Border searches are subject to a significantly less demanding standard than that required for searches within the interior of the country. 

 

[8] A.S.C.A. § 27.1002(a), the statutory provision that authorizes border searches by American Samoa customs officials, is constitutional under Article I, Section 5 of the Revised Constitution of American Samoa and the Fourth Amendment to the U.S Constitution. 

 

[9] Foreign national had no privacy interest with respect to waist pouch, worn in plain view on the outside of his clothing, at border crossing.

 

[10] The routine search of an article of luggage at a border crossing which requires no patdown or other bodily incursion, does not invoke constitutional protections. 

 

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

 

Counsel: For Plaintiff, John W. Cassell, Assistant Attorney General

 For Defendant, Bentley C. Adams III, Assistant Public Defender

 

ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS

 

This case concerns an October 12, 2000, charge against Fogava`a Fonoti, a.k.a. Enoka (“Enoka”), a citizen of Samoa, by American Samoa Government (“ASG”), for unlawful possession of a controlled substance under A.S.C.A. §§ 13.1022 and 13.1006, to which Enoka pled not guilty. Enoka filed a motion seeking to suppress certain statements of his made August 3, 2000, as well as all evidence seized on that date.

 

On August 3, 2000, Enoka arrived in Pago Pago harbor on the ship MV Lady Naomi.  During a routine border search, he was found by Customs Officer Pa`uulu Lagai (“Lagai”) to be carrying what was later verified as 4.5 grams of marijuana.  When Enoka first approached the inspection table, at about 7:35 a.m., he claimed that he had nothing to declare and that everything with him was his own.  Lagai inspected Enoka’s carry-on bag and umu, and then asked Enoka to hand over the black waist pouch he was wearing.  One of the pockets was locked, and Lagai asked Enoka to open it.  Enoka took a key out of his pants pocket and opened the compartment, revealing a yellow plastic bag appearing to contain marijuana.  Lagai seized the bag and its contents.  He then turned Enoka and the items over to Captain Jeannette Thompson (“Thompson”).  Thompson escorted Enoka to the Customs Office and notified Detective Lima Togia of the Department of Public Safety’s Vice and Narcotics unit (“Togia”).  Togia arrived and performed an on-site field test on the substance that proved positive for tetrahydrocannabinols (“THC”), the active ingredient of marijuana.  At 9:00 a.m., Togia escorted Enoka and the seized items to the Department of Public Safety (“DPS”), where the suspected marijuana was weighed at 4.5 grams.

 

At 9:40 a.m., Togia advised Enoka of his constitutional rights in the Samoan language.  In a written statement made and signed thereafter, Enoka stated that he received the waist pouch by someone who lived with his brother, and was told to take it with him to American Samoa where someone would be waiting for it on the wharf wearing a light yellow or beige-colored hat.  Enoka stated that he did not know and was not suspicious of what the waist pouch contained, though he was told not to open it.

 

Enoka claims that Togia threatened to hit him on the head with a chair if he did not make this statement.  ASG denies that threats were made, but rather that Enoka waived his rights and voluntarily gave a statement.  We note that Togia was cordial enough so as to drive Enoka to his on-island aiga to deliver his umu.  He then took Enoka out to lunch.

 

On August 7, Enoka visited Togia at the police station and attempted to exchange a bag of Samoan cocoa for his travel documents.  He also stated that he would work for Togia in return for Togia’s helping him out on the case.  Enoka returned a few minutes later with a person recognized by Togia.  Both persons asked for Enoka’s travel papers but were told to leave.  Enoka returned twenty minutes later and offered Togia forty dollars to help him out.  Togia warned Enoka of the serious consequences of bribery, but gave back Enoka’s documents and allowed him to depart.

 

I.  Motion to Suppress Statements

 

Enoka moves to suppress all statements made to officials on August 3, 2000.  He argues that he was not given the opportunity to apply for appointed counsel despite being subject to custodial interrogation, that he was not advised of his Miranda rights, and that he did not make a valid waiver of those rights.  He furthermore argues that he was not informed of his Vienna Convention right to communicate with a consular official prior to taking his statement.  We consider these arguments in turn.

A. Miranda Rights

 

We find as a matter of fact that Enoka received the Miranda warnings at DPS at 9:40 a.m. in accordance with Miranda v. Arizona, 384 U.S. 436 (1966).  We further find that Enoka validly waived these rights.  Enoka claims that Togia threatened to hit him on the head with a chair if he did not make the statement, but this claim is substantially discredited by contradictions and inconsistencies in Enoka’s testimony, as well as his apparent lapses in memory regarding major events such as whether or not he returned to Western Samoa after his release from jail or whether or not he was rearrested one month later.  We thus find that Enoka received and waived his Miranda rights.  His statement was voluntary and therefore admissible.

 

We furthermore do not accept Enoka’s argument regarding his lack of opportunity to apply for appointed counsel.  Included in the Miranda rights given to Enoka was the right to the presence of an attorney, and the fact that he would be appointed an attorney if he could not afford one.  After hearing and waiving these rights, Enoka was with Togia in custody for almost an entire working day.  Enoka had plenty of opportunity to apply for appointed counsel, both while he was under interrogation as well as under the later, informal circumstances of visiting his family and having lunch with Togia.

 

B. Right to Communicate with Consular Official

 

[1] Enoka claims that he was not notified of his right to communicate with consular officials in violation of the Vienna Convention on Consular Relations (“Vienna Convention”), April 24, 1963, 21 U.S.T. 77.  Article 36(1)(b) of the Vienna Convention states:

 

(1)  With a view to facilitating the exercise of consular functions relating to nationals of the sending State: . . .

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner.  Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay.  The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph[.]

 

[2-3] The Supremacy Clause of the U.S. Constitution may sometimes require that courts exclude evidence where this is explicitly required by a treaty or by executive agreement.  U.S. Const. art. VI, Cl. 2; see also  22 Charles Alan Wright et al., Federal Practice and Procedure § 1431 (2d ed. 1990).  For example, the applicable extradition treaty determines the admissibility of evidence in an extradition proceeding.  United States v. Rauscher, 119 U.S. 407, 421-24 (1886); O’Brien v. Rozman, 554 F.2d 780, 782-83 (6th Cir. 1977); see also United States v. Flores, 538 F.2d 939, 945 (2d Cir. 1976).  Also, federal courts have recognized a judicially enforceable right to request consular notification in deportation proceedings based on INS regulations which embodied the Vienna Convention provisions. United States v. Rangel-Gonzales, 617, F.2d 529, 532 (9th Cir. 1980); United States v Calderon-Medina, 591 F.2d 529, 531-32 (9th Cir. 1979); 8 C.F.R. §242.2(e).

 

[4] Because the Vienna Convention is a ratified treaty, its provisions must be regarded as “the supreme Law of the Land.” U.S. Const. art. VI, cl. 2; Breard v. Greene, 523 U.S. 371, 376 (1998) (per curiam).  The Vienna Convention, however, makes no provision for the remedy of suppression of evidence where the constitutional notification requirement has not been met.  Without such explicit provision, we are unwilling to supply such a remedy, especially where doing so would contravene the apparent intent expressed in the preamble to the Vienna Convention.  The preamble states that:

 

[T]he purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States.[1]

 

[5-6] Other remedies for violation of the consular notification requirement of the Vienna Convention may be possible, but exclusion of evidence is not one.  This issue was explicitly treated by the Ninth Circuit in United States v. Lombera-Camorlina, 206 F.3d 882 (9th Cir. 2000) (en banc), and the Seventh Circuit in United States v. Lawal, 231 F.3d 1045 (7th Cir. 2000).  Both cases involved foreign nationals invoking the Vienna Convention to suppress statements that were obtained without their having been notified of a right to contact their respective consuls.  Lombera-Camorlina, 206 F.3d at 883-84; Lawal, 231 F.3d at 1047.  Both courts ruled that violation of the Vienna Convention consular notification requirement does not require suppression of subsequently-obtained evidence in a criminal proceeding against a foreign national.  Lombera-Camorlina, 206 F.3d 884; Lawal, 231 F.3d at 1048.  Further, the fact that a foreign national was not informed of the right to notification following arrest as required by the Vienna Convention does not warrant exclusion of post-arrest statements made by such national in subsequent prosecutions.  Lombera-Camorlina, 206 F.3d at 884-87; Lawal, 231 F.3d at 1048.  The circuits cite various reasons for these rulings, including the lack of explicit intent to grant the remedy of suppression of evidence in the treaty, the absence of such a policy with respect to criminal procedure by any statutory body of the United States, as well as practical problems and expense should the remedy be judicially enforced.  Lombera-Camorlina, 206 F.3d 884-89; Lawal, 231 F.3d at 1048-49.

 

It is true that, upon his detention and arrest, the Samoan national Enoka was not informed of the Vienna Convention requirement of consular notification.  It is also true that he did not make any request to speak with a Samoan consul, which, incidentally, does not exist in American Samoa. Lagai and Togia’s apparent failure to warn Enoka of his right to notify consul may constitute a violation of the Vienna Convention requirement. However, such a failure is not accompanied by the remedy of exclusion of evidence.  Adoption of the suppression remedy may be inevitable given the increasing interdependency of diverse markets prompting the need for the greater protection of human rights of traveling nationals.  However, until amendments grant international treaties explicit control of particular areas of domestic law, and until such language is signed, ratified and affirmed by the executive, legislatures and the courts, we are not inclined to assume the authority to fashion new rights out of ideal but ineffectual language, nor to override international law by imputing domestic practice.  Until the federal courts of the United States interpret the U.S. Constitution to allow otherwise, we must conclude that the Vienna Convention does not create a remedy of suppression of evidence due to failure by government authorities to apprise a detained or arrested foreign national of a right to notify consul.

 

II.  Motion to Suppress Evidence

 

Enoka further claims that the evidence obtained from him while subject to an ASG customs search in American Samoa was illegally seized as the fruit of a warrantless search where he had a reasonable expectation of privacy, where there was no probable cause or reasonable and articulable suspicion of criminal activity, nor exigent circumstances to excuse the warrant requirement, nor knowing and voluntary consent to the search.  The issue before the court is thus whether the routine search of Enoka’s waist pouch, conducted by customs officer Lagai, was rendered illegal due to lack of a warrant, probable cause or other exigent circumstances.

 

[7] Article I, § 5 of the Revised Constitution of American Samoa affords to all individuals certain protections against unreasonable searches and seizures by the government.  The Fourth Amendment of the U.S Constitution also guarantees these protections.  However, the United States Supreme Court has made it clear that a border search may be subject to a significantly less demanding standard than that required for searches within the interior.  United States v. Montoya de Hernandez, 473 U.S. 531, 539-40 (1985).  Specifically, the Supreme Court has ruled constitutional those federal regulations granting customs authorities plenary authority to conduct routine searches and seizures at the border without probable cause or a warrant.  Id.; United States v. Ramsey, 431 U.S. 606, 616-17 (1977); 19 U.S.C.A. §§ 1467, 1481, 1582; 19 C.F.R. § 162.6, 162.7 (1984).  Although entrants have a reasonable expectation of privacy in border crossings, their privacy interest is lessened.  Ramsey, 431 U.S. at 616-17.

 

[8] For similar reasons, this Court has also held upheld as constitutional A.S.C.A. § 27.1002(a), the statutory provision that authorizes border searches.[2]  Am. Samoa Gov’t v. Pua`a, 31 A.S.R.2d 73, 78 (Trial Div. Nov. 22, 1996); Am. Samoa Gov’t v. Vagavao, 3 A.S.R.3d 72, 75 (Trial Div. Feb. 4, 1999); see also Rev. Const. of American Samoa art. I, § 3.

 

[9-10] Enoka arrived in American Samoa from Samoa, which, however conjoined in common heritage, language, and consanguinity, is lawfully regarded as an independent and foreign state.  He was thus subject to the statutorily authorized and mandated border search by the customs official Lagai when the contraband was found on his person.  Furthermore, Enoka’s waist pouch was worn in plain view on the outside of his clothing.  The routine search of such an article of luggage, requiring no patdown or other such bodily incursion, does not invoke constitutional protections.  Ramsey, 431 U.S. at 616-17.  In short, Enoka had no privacy interest with respect to the waist pouch he was wearing, at the border, when he entered this territory.  We thus conclude that the contraband seized, is admissible.

 

The defendant’s motion to suppress is denied.

 

It is so ordered.

 

**********

 



[1]  The Supreme Court has left open the question of whether the Vienna Convention actually creates judicially enforceable rights.  See Breard v. Greene, 523 U.S. 371 (1998).

[2]  A.S.C.A. §27.1002(a) specifically states that:

All persons entering or leaving American Samoa may be searched by a customs officer. . . [who] may require the owner or his agent or other person having charge or possession of any trunk, traveling bag, sack, valise or other container, or any close vehicle, to open it for inspection.

5ASR3d88


YHT, INC., Plaintiff,

 

v.

 

OXFORD/PROGRESSIVE GROUP, doing business as PROGRESSIVE INSURANCE COMPANY (PAGO PAGO), LTD.; PROGRESSIVE INSURANCE COMPANY (APIA), LTD.; OXFORD PACIFIC INSURANCE COMPANY; INSURANCE COMPANY OF THE PACIFIC; THE BOSTON GROUP;

and DOES 1-5, Defendants.

 

High Court of American Samoa

Trial Division

 

CA No. 92-00

 

May 1, 2001


 

 

[1] Pre-trial orders governing discovery, not falling within finality exception or collateral order exception, may only be challenged on appeal from final decision. Motion to reconsider order denying motion to compel discovery was denied.

 

[2] T.C.R.C.P. 26(f) authorizes court to call discovery conference.

 

[3] Although not adopting the federal rule mandating discovery conferences, Court found rule’s subjects of discussion to be addressed extremely practical as guidelines for what is anticipated at discovery conference and required that both parties’ counsel file the following before discovery conference: (a) list of subjects to be addressed by discovery; (b) proposed plan and schedule of discovery; (c) proposed limitations to be placed on discovery in addition to those already adjudicated; and (d) any other proposed orders with respect to discovery.

 

[4] All parties and their attorneys are under duty to participate in good faith in framing discovery plan.

 

[5] After discovery conference, court order will identify issues; establish plan and schedule for discovery; set limitations, if any; and determine other matters for proper management of discovery.

 

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

 

Counsel: For Plaintiff, Paul F. Miller

 For Defendants, William H. Reardon

 

ORDER ON MOTION FOR RECONSIDERATION OF ORDER DENYING MOTION TO COMPEL DISCOVERY, AND

REQUIRING A DISCOVERY CONFERENCE

 

Plaintiff YHT, Inc. (“YHT”), submitted a Motion to Compel Discovery on October 17, 2000, which was denied by this Court on February 21, 2001. On February 26, 2001, YHT then moved the Court to reconsider our denial of its motion to compel discovery, which motion was heard on April 23, 2001. We summarily deny YHT’s motion, and order a discovery conference to contain the spiraling problems regarding discovery in this case.

 

[1] In a recent decision in a different case, addressing a similar motion to reconsider submitted by YHT’s counsel, this Court explicitly ruled that pre-trial orders governing discovery are not immediately appealable. Progressive Ins. Co. v. S. Star Int’l, 5 A.S.R.3d 82, 84-85 (Trial Div. 2001).  The Court’s reasoning was founded on statutes, caselaw and legal reasoning barring interlocutory orders from appeal unless they are final or else fall within the collateral order exception.  Id.; A.S.C.A. § 43.0802.

 

The collateral order exception applies to orders that (1) conclusively resolve the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) [are] effectively unreviewable on appeal from the final judgment in the main case.”  Kim v. Am. Samoa Gov’t, 17 A.S.R.2d 193, 195 (App. Div. 1990).  The Court in Progressive found that pre-trial orders governing discovery do not fall within either the finality or collateral order exception, but rather may only be challenged on appeal from a final decision.  5 A.S.R.3d at 85.

 

Our February 21, 2001 Order Denying YHT’s Motion to Compel Discovery was not a final order, and does not fall within the collateral order exception.  YHT’s present motion to reconsider such an interim order is neither authorized nor appropriate, and, as such, is ripe for denial.

A.  Discovery  Conference

 

[2-3] Given the apparent antagonism between the attorneys and clients involved in the current case, we find it advisable to order the attorneys to appear before the court to discuss and settle discovery issues.  Our authority to call such a discovery conference is explicitly given by T.C.R.C.P. 26(f), which states:

 

At any time after commencement of an action the court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery.

 

We note that the Federal Rules of Civil Procedure have been amended to mandate such a conference, and require that four subjects be addressed during a discovery conference: (1) timing, in terms of what should be done in terms of the timing, form, or requirement for disclosures, including a statement as to when disclosures were made or will be made; (2) subjects of discovery, in terms of which subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused upon particular issues; (3) limitations on discovery, in terms of what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and (4) other orders that should be entered by the Court, such as protective orders, or pretrial conference issues. 6 James W. Moore et al., Moore’s Federal Practice § 26 (3d ed. 1999) (SP26-5 Rule); 8 Charles Alan Wright et al., Federal Practice and Procedure § 2051.1 (2d ed. 1990).  Although we by no means adopt the federal rule requiring such conferences, we find the rule’s four designated areas of discussion extremely practical for present purposes, as guidelines for what we anticipate addressing at the discovery conference.  As such, we require that both parties’ counsel file the following before the discovery conference:

 

1. A list of subjects to be addressed by discovery, either as a whole or in phases;

2. A proposed plan and schedule of discovery;

3. Proposed limitations to be placed on discovery in addition to those already adjudicated by the court; and

4. Any other proposed orders with respect to discovery.

 

[4-5] We note that, in line with T.C.R.C.P. 26(f), all parties and their attorneys are under a duty to participate in good faith in framing a discovery plan.  An order of the Court will be issued after the discovery conference:

 

tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery, if any; and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action.

 

T.C.R.C.P. 26(f).

 

Order

 

1. The motion to reconsider the order denying the motion to compel discovery is denied.

 

2. Both counsel shall submit their respective discovery conference statements on the matters set forth above to the Court by May 25, 2001. The discovery conference is scheduled on June 4, 2001.

 

It is so ordered.

 


**********

 

5ASR3d91


FONOTAGA SEVA`AETASI, Plaintiff,

 

v.

 

AMERICAN SAMOA POWER AUTHORITY, Defendant.

 

High Court of American Samoa

Trial Division

CA No. 123-00

 

May 14, 2001

 

 

[1] The doctrine of res ipsa loquitur applies when an accident’s nature is such that past experience has shown that it probably resulted from someone’s negligence and that the defendant is probably responsible.

 

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

 

[3] The doctrine of res ipsa loquitur, when applicable, merely establishes a permissive inference of negligence that the fact finder is not required to adopt.

 

[4] Evidence was insufficient to sustain inference of negligence on the part of power company where house fire started from electrical panel located on opposite side of wall where meter was located and electricity had been recently re-connected by utility.  There was nothing particularly involved, or untoward, in the utility employee’s disconnecting and reconnecting power supply which would suggest negligence.

 

[5] Power company has no duty to insure that load bearing appliances and circuit breakers on premises are turned off prior to reconnection of power supply.  It is the responsibility of utility consumers to ensure that their safety switches, circuit breakers, wiring, and all other components of their respective electrical systems are adequately designed, sized, and put in place.

 

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

 

Counsel:          For Plaintiff, William H. Reardon

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

 

Decision and Order

 

Plaintiff Fonotaga Seva`aetasi’s  (“Seva`aetasi”) home and its contents were destroyed by a fire that broke out shortly after the defendant American Samoa Power Authority (“ASPA”) had reconnected electrical supply to the premises.  ASPA had previously disconnected Seva’aetasi’s power because of delinquent utility bills.  Seva’aetasi sued, claiming ASPA’s negligence as the proximate cause of her loss.

 

Seva`aetasi’s negligence claim is twofold.  She argues that the doctrine of res ipsa loquitur applies in her case.  She reasons that her home’s electrical system had been operational problem free for many years until ASPA shut down the power and then reconnected supply.  She contends that these surrounding circumstances coupled with the occurrence of the fire shortly after reconnection, must point to some sort of negligence on ASPA’s part.  “Homes do not ordinarily burn down without someone’s negligence.”  (Pl.’s Summation 2.)

 

Seva`aetasi’s second theory of negligence is based on the claim that ASPA had a duty of care to ensure that all the “breakers were off” before reconnecting power.  Id.

 

 

1. Res Ipsa Loquitur

 

[1-3] The doctrine of res ipsa loquitur applies “when the accident’s nature is such that past experience has shown that it probably resulted from someone’s negligence and that the defendant is probably responsible.”  Lang v. Am. Samoa Gov’t, 24 A.S.R.2d 59, 61 (Trial Div. 1993).  Specifically, the doctrine “applies to an accident only under the following conditions: (1) it ordinarily does not occur without someone’s negligence, (2) it was caused by an agency or instrumentality within defendant’s exclusive control, and 3) it was not due to a voluntary action by the plaintiff.”  Id.  In the final analysis, however, res ipsa loquitur, as the Appellate Division explained:

 

[I]s no more than one form of circumstantial evidence… .  The inference of negligence to be drawn from the circumstances is left to the jury.  They are permitted, but not compelled, to find it.

 

In other words, the doctrine, when applicable, merely establishes a permissive inference of negligence which the fact finder is not required to adopt.

 

Iosia v. Nat’l Pac. Ins. Ltd., 20 A.S.R.2d 123, 124-125 (App. Div. 1992) (quoting W. Page Keeton et al., Prosser and Keaton on the Law of Torts § 40 (5th ed.  1984)).

 

[4] In the matter at bar, we find the evidence insufficient to sustain the inference of negligence sought by Seva`aetasi.  First, while the evidence suggests that the fire had started at that part of the house locating the electrical panel, with ASPA’S meter on the opposite exterior side of the wall, the evidence also showed that there was nothing particularly involved or untoward with the disconnection and reconnection of electrical power supply by ASPA’s employee.  The connection/ reconnection process simply entailed the removal of the meter (essentially a large male plug) from its outside wall mounted casing (a female receptacle); the attachment of plastic clips over two of the meter’s prongs to break the flow of current when reinserted back into the casing; and then reversal of this process to reestablish electrical flow back into the premises.  ASPA’s employee did nothing out of the ordinary with reconnection such as would demonstrate negligence.

 

Moreover, the evidence further revealed that ASPA’s employee had not put in a new or different meter.  Reconnection here involved the very same meter that Sevaaetasi’s structure had operated with in the past.  This fact runs counter to counsel’s opening submission that the fire must be attributable to a faulty meter put in place by ASPA.[1]

 

A more probable explanation of the fire may be drawn from the testimony of Mr. Fred Niedo, an electrical engineer with the Department of Public Works.  Mr. Niedo, who was called as plaintiff’s expert witness, explained that the reconnection of power to premises with heavy loads on, such as freezers, dryers, air conditioners, water heaters, etc., will result in a heavy in-rush of current to the electrical system.  This in-rush can result in an overload on the system that can in turn generate sufficient heat to destroy the integrity of the wiring insulation, and cause a fire.

 

However, Mr. Niedo also went on to say that there are, with a properly designed and wired electrical system, a “cascade” of safety features in place to meet overload hazards.  These include, a properly fused main safety switch; properly sized wire from the main to the panel board to carry overall load; and on the panel board itself, the right size of fuse, wires, circuits breakers and other components designed or sized to carry the individual loads and the overloads.

 

The circumstances here suggest that the fire was due in part to a total failure of the safety features that Mr. Hiedo had described as ordinarily expected.  How an electrical system is designed and put in place to incorporate these safety features, however, are matters within the consumer’s control and not ASPA’s.  This point was underscored in the evidence showing that the burnt structure was originally a family residence and its electrical system was presumably, therefore, designed for residential purposes.  The premises’ electrical system was at some subsequent time altered by Seva’aetasi’s former husband, Don Hardy, to accommodate a store and business office.  While this reconstruction added accordingly to the burden of the electrical system, the alterations to the system were undertaken without the prerequisite permits from the building branch.

 

Additionally, the fire would have escalated because of action unwittingly taken by a Seva’aetasi family member who initially responded to the fire by throwing a bucket of water at the apparent source of the fire, the panel.  Mr. Niedo testified that throwing water on the panel would result in a fire.  Clearly, res ipsa loquitur is inappropriate under these circumstances.

 

2.  Prerequisite Duty Of Care

 

[5] Lastly, Mr. Miedo also testified that the fire could have been avoided if the various load bearing appliances or the various circuit breakers in the premises had been turned off prior to reconnection.  To this end, plaintiff’s counsel submits that ASPA should have made sure that all the panel breakers were switched off prior to reconnection.  (P1.’s Summation 2.)  Effectively, counsel is advocating that ASPA had such a duty of care.

 

No authority was cited for this proposition, and we fail to see a basis for this contention.  What, for instance, would be the consequences of a general power outage, a not infrequent occurrence on-island?  The logical extension of this sort of argument is the requirement that ASPA would have to go about ensuring that the circuit breakers of every one of its customers are switched off before it can safely restore electrical service without fear of liability.  It takes little imagination to picture the impracticality of such a state of affairs.  In our view, overload hazards are better met by maintaining the onus with utility consumers to ensure that their safety switches, circuit breakers, wiring, and all other components of their respective electrical systems are adequately designed, sized, and put in place.[2]

 

We conclude that Seva’aetasi has failed to prove actionable negligence on ASPA’s part.  Judgment will accordingly enter in favor of the defendant.

 

It is so ordered.

 



[1] The meter, incidentally, mysteriously went missing.  The only evidence of the meter at the scene shortly after the fire were the shattered remains of the meter’s glass covering which were found inside the room housing the electrical panel.

[2] ASPA’s counsel points us to certain regulations, said to have been duly promulgated under the Administrative Procedures Act, § 4.1001 et seq., (“APA”), purporting to limit ASPA’s liability.  We were referred to an excerpt from Title 12 A.S.A.C.

   The cited regulations, however, were in fact promulgated in 1981 under the Governor’s rule making authority, under Section 6, Article IV of the Revised Constitution of American Samoa and not under the APA. See A.S.A.C. § 12.0103. These rules, which were promulgated to, among other things, set up a separate utility entity, have been ostensibly trumped by subsequent legislation enacted in 1982. See A.S.C.A.  §§ 15.0101 et seq. This legislation actually empowers the statutory entity ASPA to promulgate rules under APA.  See A.S.C.A. § 15.0102(8).

   At this time, we merely posit, but do not address, the vitality of the regulations cited to us by counsel.

5ASR3d96


PAULO MOANA, Plaintiff,

 

v.

 

PAGOFIE FIAIGOA, Defendant.

 

High Court of American Samoa

 

Trial Division

 

CA No. 114-00

 

May 23, 2001

 

 

[1] American Samoa law does not recognize a contract for the sale of real property unless it is in writing, or has been partially performed.

 

[2] The writing required by the statute of frauds may be a note or memorandum subscribed by the party to be charged.  It need not be a formal document.

 

[3] A note or memorandum documenting the sale of real property should completely evidence the contract that the parties made by giving all of the essential or material terms of the contract.

 

[4] If the parties have not reduced the essential terms of a land conveyance to writing but have partially performed the contract, A.S.C.A. § 37.0211 authorizes the court to enforce the oral contract. 

 

[5] The court has the explicit power to compel specific performance of a partially performed contract.

 

[6] To justify rescission, a breach of a contract must be so substantial and fundamental as to defeat the contract’s purpose.

 

[7] Where the parties do not agree on a specific time for performing obligations under a contract a reasonable time will be implied.

 

[8] Where seller failed, after two month’s time, to produce a written contract to document the real estate sale and instead attempted to raise the agreed upon price, seller’s breach was substantial enough to defeat the contract’s purpose and entitled purchaser to rescind contract and recover, as compensatory damages, monies paid towards purchase price and survey.

 

[9] Where, after making agreement to sell land, seller wrongfully failed to perform his side of the bargain in an expeditious manner, and instead attempted to increase purchase price, such misconduct was deliberate, reprehensible and entitled purchaser to exemplary damages.

 

Before RICHMOND, Associate .Justice, LOGAI, Chief Associate Judge, and SAGAPOLUTELE, Associate Judge.

 

Counsel:   For Plaintiff, David P. Vargas

               For Defendant, Pro Se

 

OPINION AND ORDER

Plaintiff Paulo Moana (“Moana”) brought this action to recover damages against defendant Pagofie Fiaigoa (“Pagafie”) for alleged breach of contract and fraud.  Trial was held on April 6, 2001.  Moana, his counsel, and Pagofie ware present.  The Court heard testimony and has considered the evidence.

 

Discussion

 

Facts and Contentions

 

Moana is a citizen of Samoa but a long-term resident of American Samoa.  Moana and Pagofie have known each other for a number of years, and Pagofie was aware of Moana’s citizenship.  Moana wanted to purchase land here for his home, and he heard that Pagofie was selling land located in Tafuna near where Moana’s in-laws had earlier purchased land from Pagofie.

 

Pagofie and Moana met on February 14, 2000 and made an oral agreement under which Pagofie agreed to sell to Moana, and Moana agreed to buy from Pagofie, a quarter acre parcel of land in Tafuna for $40,000.  Under the terms of the agreement, Moana paid $5,000 as a down payrnent and was to pay $500.00 by the end of each month, starting in March 2000, until the purchase price was paid in full.  Pagofie would then convey title to the land by deed to Moana as individually owned land.

 

The down payment was paid by a business check of S&T Produce Co., owned by Siufaga Fanene (“Fanene”), a gift to Moana for lengthy service as an employee of Fanene’s business.  The check was payable to Pagofie. The purpose line on the check reads: “Down for Paulo Moana’s 1/4 Acre Land.”  Pagofie was hesitant about taking a check of another’s business for this purpose, but he knew Moana’s relationship with Fanene and did accept it.

Having been so advised by Fanene, Moana told Pagofie that the agreement must be put in writing, and Pagofie agreed to have the paperwork prepared by his attorney.  Before the end of February 2001, Moana called Pagofie several times to ask about the paperwork, and Pagofie kept assuring him that it would be ready the next day.  Finally, Moana went to see Pagofie, and Pagofie told him not to worry because the paperwork would be forthcoming.  Pagofie also gave Moana permission to build a house on the land before payment of the purchase price was complete.

 

On March 27, 2000, Moana again called Pagofie, who once more assured him the paperwork would be done.  On March 28, 2000, relying on Pagofie’s word, Moana paid Pagofie the first monthly installment of $500, plus $400 for a survey of the land.  This payment of $900 was made by a cashier’s cheek payable to Pagofie.  The bank’s receipt for the check bears the notation: “From Paulo Moana $400 Land Survey $500 1st Payment.”

 

As the deadline for the April installment approached without any paperwork produced, including a survey of the land, Moana was increasingly concerned about Pagofie’s intentions.  Then, on April 26, 2000, Pagofie told Moana that the purchase price of the land would be increased by $5,000 to $45,000.  Moana refused to agree to this increase. Believing that Pagofie never intended to carry out the agreement, Moana also advised Pagofie that he no longer wanted to buy the land and demanded that Pagofie refund the $5,900 he had paid to that point. Pagofie refused to refund the monies paid, and this action was filed upon his continuing refusal to do so.

 

Based on his understanding of the change in the law in l999, Pagofie said that he thought Moana as an alien could not acquire title to land in American Samoa.[1]  He claimed, however, that he expected the title would be put in the names of Moana’s children who were born here.  Pagofie also acknowledged that the land was his family’s communal land, not his individually owned land, but according to him, he as the sa`o of the family did obtain his family’s consent to convert the land to individually owned land and consummate the transaction.  Pagofie stated that he explained both of these matters to Moana in February 2000.  Moana denied that Pagofie made any such explanations.

 

Pagofie apparently gave the funds paid by Moana to his mother and other family members to spend.  He insisted that he intended to perform the agreement, and that he is still prepared to do so.  He testified that the delay initially came about because he was still looking for an attorney to prepare the paperwork and a surveyor to survey the land.  He claimed that Moana breached the agreement by not paying the April and May installments, and that Moana confirmed the breach in June 2000 when he informed Pagofie that Fanene had promised Moana land for his home at no cost.  However, Fanene actually made this offer to Moana only about two or three months before the trial, well after the deal soured.

 

Pagofie testified that he did not return the funds paid by Moana because Moana did not truthfully promise to pay the purchase price for the land and because he, Pagofie, spent considerable time, including efforts to persuade his family to sell the land, on the proposed transaction.  He argued that he will still honor the agreement, and because Moana broke his promise to pay, he should, in any event, be permitted to retain at least 25% of the amount paid.

 

Although the parties do not dispute the existence of an oral land conveyance agreement, the agreement must fulfill certain statutory requirements to be valid.  Accordingly, we next discuss the applicability of these requirements to the agreement at issue in this case.

 

A.  Statute of Frauds

 

[1-2] American Samoa law does not recognize a contract for the sale of real property unless it is in writing, or has been partially performed. A.S.C.A. § 37.0211.  The writing prescribed by statute, commonly known as the statute of frauds, calls for “some note or memorandum . . . subscribed by the party to be charged.”  Id.  The writing need not, therefore, be a formal document.

 

[3] Nonetheless, the note or memorandum should “completely evidence the contract which the parties made by giving all of the essential or material terms of the contract.”  72 Am Jur 2d Statute of Frauds § 339 (1974).  In Cousbelis v. Alexander, the court concluded that notations on a check were sufficient to satisfy the statute of frauds.  54 N.E.2d 47, 48-49 (Mass. 1944).  The parties to the contract were the payee (seller) and drawer of the check (buyer); the seller cashed the check, which on its face noted the land’s street location, the only land owned by the seller, and the land’s square foot price.  Id.; see also Kidd v. Kidd, 393 P.2d 403, 405 (Cal. 1964) (finding decedent’s signed receipt combined with two checks totaling agreed upon purchase price satisfied the statute of frauds).

 

[4-5] On the other hand, if the parties have not reduced the essential terms of a land conveyance to writing but have partially performed the contract, A.S.C.A. § 37.0211 authorizes the Court to enforce the oral contract.  We have recognized the Court’s explicit power to compel specific performance of a partially performed contract.  Manoa v. Jennings, 21 A.S.R.2d 23, 25 (Land & Titles Div. 1992); see also Blue Pac. Mgmt. Corp. v. Paisano’s Corp., 23 A.S.R.2d 58, 62 (Trial Div. 1992).

 

Arguably, the notations on the down payment check and cashier’s check, coupled with Pagofie’s endorsement on the down payment check, are sufficient evidence of this land purchase agreement to validate the agreement for purposes of A.S.C.A. § 37.0211.  However, we need not rule on the sufficiency of the writings.  Instead, we find that based on the facts of this case, Moana’s payments constitute part performance giving him entitlement to specific performance of the contract if he still desired to purchase the land.  Understandably, however, he has elected to pursue breach of contract damages as his remedy in the present situation.

 

B.  Breach of Contract

 

[6] When a party to a contract breaches the contract, the other party may be entitled to the equitable remedy of rescission.  See Davis v. Cordell, 115 S.E.2d 649, 654 (S.C. 1950).  “Breach of a contract, to justify rescission, must be so substantial and fundamental as to defeat the purpose of the contract.” Id. at 654.

 

[7-8] In this case, the parties did not agree on a specific time for Pagofie to survey the land, and in such cases, a reasonable time will be implied. Id.  Clearly, Pagofie breached the agreement when he failed over a two-month period, a more than reasonable time, to produce a written contract to fully document the terms of the land purchase agreement and to provide a survey of the quarter acre of land involved, as Moana reasonably requested and expected.  In fact, it was conceivable from Pagofie’s delay, together with his attempt to coerce an additional $5,000 from Moana, that Pagofie did not intend to carry out his end of the bargain.  Pagofie’s breach was substantial enough to defeat the purpose of the contract entitling Moana at that point to rescind the contract and recover his damages.  Moana’s compensatory damages are $5,900, the amount of the downpayment plus the amount of the first installment and survey cost payment.

[9] Fraud is suggested by Pagofie’s foot-dragging and improper attempt to increase the purchase price after the agreement was formulated.  However, we are not persuaded that Pagofie harbored actual intent to defraud when the contract was entered.  He was, at least, eager to take advantage of an opportunity to have in hand a substantial sum of money, even though he was not prepared to perform his side of the bargain in any reasonably expeditious manner.  It appears that later on he thought that Moana had access to and could be readily manipulated to pay additional funds.  His misconduct in handling this transaction was deliberate and certainly reprehensible, and warrants assessment of $1,500 as exemplary damages.

 

Order

 

Pagofie shall pay Moana $5,900 in compensatory damages for Pagofie’s breach of the land purchase contract between Pagofie and Moana and $1,500 as exemplary damages, a total of $7,400, plus Moana’s costs incurred in this action.  The total amount of the judgment, including costs, shall bear interest at the rate of 6% per annum until the judgment is paid in full.

 

It is so ordered.

 



[1] The change in the law is not free of ambiguity.  P.L. No. 26-6 (1999) modified definitions in A.S.C.A. § 37.0201 affecting land ownership to read as follows:

(c) “Native” means a full-blooded Samoan person of Tutuila, Manua, Aunu’u, or Swains Island.

(d) “Nonnative” means any person who is not a native under subsection (c) above.

   However, because the central issue in this action concerns concerns breach of contract rather than real property ownership, we need not reach the question of the proper interpretation of the new law.

5ASR3d101


AV BINGO SUPPLIES, Plaintiff,

 

v.

 

PACIFIC RIM ENTERPRISES, and SILA POASA, Defendant.

 

High Court of American Samoa

Trial Division

 

CA No. 47-00

 

June 11, 2001

 


 

[1] In American Samoa, the court must scrutinize the evidence before a default judgment may be entered, even in the case where the amount sought in the complaint is fully liquidated.

 

[2] In motions for default judgment the court looks to direct evidence to determine whether the claimed indebtedness has been correctly calculated.

 

[3] The rate of pre-judgment interest which the law presumes, in the absence of a written stipulation by the debtor to a different permissible rate, is 6%.

 

[4] Any claim for pre-judgment interest beyond the statutorily-mandated 6% rate is usurious and unenforceable.

 

[5] Where plaintiff’s sought default judgment against individual, but evidence presented was unclear as to how such person was liable for supplies to shipped to separate business entity, court would not enter default judgment.

 

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

 

Counsel: For Plaintiff, David P. Vargas

             For Sila Poasa, Pro se

 

ORDER ON MOTION FOR DEFAULT JUDGMENT

 

This matter came on regularly for hearing upon plaintiff’s motion for default judgment.  Plaintiff appeared through counsel David P. Vargas and defendant Sila Poasa appeared pro se.  The Clerk’s file shows that defendants have been regularly served with process but have failed to answer plaintiff’s complaint within the time allowed by law.  Pursuant to T.C.R.C.P. Rule 55(a), the Clerk entered defendants’ default on May 1, 2000, and notice of these proceedings was served upon defendants on December 4, 2000, pursuant to Rule 55(b).

 

[1-2] In this jurisdiction, the court must scrutinize the evidence itself before a default judgment may be entered, even in the case where the amount sought in the complaint is fully liquidated.  Bank of Hawaii v. Ieremia, 8 A.S.R.2d 177, 178 (Trial Div. 1988); Scalise v. Gorniak, 26 AS.R.2d 85, 86 (Trial Div. 1994).  In 1986, with the amendment of T.C.R.C.P. Rule 55, the practice by which default judgments could simply be entered by the Clerk’s office, bypassing any sort of judicial assessment, was discontinued.  In these matters, therefore, the court looks to direct evidence, beyond conclusionary affidavits such as bank ledgers and the like, to determine for itself whether the claimed indebtedness has been correctly calculated.  Id.

 

On the record before us, plaintiff AV Bingo Supplies has supplied invoices and statements as supporting exhibits of its claim against defendants.  These exhibits reveal that between August 1994 and July 1995, plaintiff supplied and shipped the defendant Pacific Rim Enterprises assorted paraphernalia for running bingo games, with invoice cost totaling $62,476.25.  These exhibits, however, tell us nothing of payment history nor how the complaint amount of principal debt, $45,629.25, was arrived at.

 

At the hearing of plaintiff’s motion for default judgment, defendant Sila Poasa appeared pro se and testified.  While not contesting the indebtedness, Poasa testified that since the filing of the complaint, payments had been made to plaintiff totaling $2,000.  Plaintiff’s counsel acknowledged such payments and accordingly submitted his client’s claim in the principal amount $43,629.25.  Plaintiff will accordingly have judgment against the defendant Pacific Rim Enterprises in the sum of $43,629.25.

 

[3-4] Plaintiff further claims accrued interest on the indebtedness in the sum of $13,735.90.  The interest statement before us is conclusionary in form, as the supporting exhibits neither explain the basis for rate of interest claimed nor manner of calculation.  We accept that the debt is overdue but the rate of interest which the law presumes, in the absence of a written stipulation by the debtor to a different permissible rate, is 6%. See A.S.C.A. §28.1501(a).  Any interest claim beyond that is usurious and unenforceable.  Id.

 

Since it is unclear how plaintiff’s interest claim was arrived at, plaintiff will supply the details of its calculation.

 

[5] As to plaintiff’s prayer for default judgment against defendant Sila Poasa, this claim will be denied.  It is not clear from the exhibits received why Sila Poasa is liable on the invoices.  The bingo supplies were shipped and invoiced to Pacific Rim Enterprises, a separate entity.  (See Complaint ¶ 2.)

 

Plaintiff shall calculate judgment accordingly and provide such calculation within 10 days hereof.

 

It is so ordered.

 

5ASR3d12


ALA`IASA F. MAILEI, Appellant,

 

v.

 

PEKA TE`O, Appellees.

 

High Court of American

Appellate Division

 

AP No. 01-01

 

September 4, 2001


 

 

[1] Statutory requirement of filing an appeal within 10 days after denial of motion for new trial is mandatory.

 

Before RICHMOND, Associate Justice, WARD, Acting Associate Justice,* LOGOAI, Chief Associate Judge, and SAGAPOLUTELE, Associate Judge.

 

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

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

 

ORDER DISMISSING APPEAL

 

Appellant’s motion for new trial was denied by the Land and Titles Division on May 2, 2000. He did not file a notice of appeal until March 1, 2001.  A.S.C.A. § 43.080(b) requires that a notice of appeal must be filed within 10 days after the trial court denies a motion for new trial.  In view of the facially excessive time interval between the denial of the motion for new trial and filing of the notice of appeal, the Court scheduled a motion to dismiss the appeal sua sponte.  The motion was heard on August 24, 2001.  Both counsel were present.

 

[1] Appellant argues that we should find some way to disregard the tardy filing of the appeal to afford him an opportunity to have his day before this Court.  However, other than a vague reference to judicial discretion, he did not cite, and admits he cannot find, any authority supporting his position. The statutory requirement of filing an appeal within 10 days after denial of a motion for new trial is mandatory.  See Lualemana v. Asifoa, 17 A.S.R.2d 151, 152 (Land & Titles Div. 1989).  This Court is without authority to proceed with this appeal. The appeal is therefore dismissed.

 

It is so ordered.

 

**********


 



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

5ASR3d13


ANDERS FORSGREN, Petitioner,

 

v.

 

AMERICAN SAMOA GOVERNMENT for the

PROJECT NOTIFICATION REVIEW SYSTEM BOARD,

AMERICAN COASTAL MANAGEMENT PROGRAM,

OFFICE OF DEVELOPMENT PLANNING, and

DEPARTMENT OF COMMERCE, Respondent.

 

High Court of American Samoa

Appellate Division

 

AP No. 15-01

 

November 28, 2001

 

 

[1] Where party had moved for reconsideration of new trial before Administrative Law Judge and had also petitioned for judicial review, motion for new trial needed to be decided before judicial review could take place.

 

[2] When administrative law matter becomes ripe for review by denial of party’s motion for reconsideration or new trial, petitioner should thereafter file entire record of the administrative proceeding, including transcripts of hearings, within 30 days of request to proceed.

 

Before RICHMOND, Associate Justice, WARD, Acting Associate Justice,* and LOGOAI, Chief Associate Judge.

 

Counsel: For Petitioner, Marie A. Lafaele

 For Respondent, Martin McCarthy, Asst. Attorney General

 

ORDER DENYING MOTION FOR IMMEDIATE

REVIEW OF APPEAL PROCEDURE UNDER

ADMINISTRATIVE LAW JUDGE ACT

 

On November 19, 2001, petitioner petitioned this court for judicial review of the decision of the Administrative Law Judge (“ALJ”) in the proceeding ALJ (PRNS) No. 001-01.  On the same date, petitioner moved for immediate review of the ALJ’s interpretation of the appeal procedure under the Administrative Law Judge Act, A.S.C.A. §§ 4.6001-.0608, and the parties stipulated for a hearing on this issue.

 

[1] We deny without prejudice the request for an early hearing on the procedural issue to pursue the issue when and if we proceed with the petition for judicial review.  The process on petitioner’s motion for reconsideration or new trial, pursuant to T.C.R.C.P. 59 and A.S.C.A. § 4.0607(b), pending before the ALJ should be completed first, and then, if the motion is denied and upon petitioner’s request, we will proceed with the petition for judicial review.

 

[2] For the parties’ guidance, upon petitioner’s request to proceed with the petition for judicial review following any denial of the pending motion for reconsideration or new trial, the entire record of the administrative proceeding, including transcripts of hearings, shall be filed within 30 days of petitioner’s request to proceed.  The parties shall then file briefs in accordance with A.C.R. 31.

 

It is so ordered.


 



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

5ASR3d140


CONSTRUCTIVE SERVICES OF SAMOA, INC., Plaintiff

 

v.

 

SILA POASA and TONY’S CONSTRUCTION, Defendant.

 

High Court of American Samoa

Trial Division

 

CA No. 62-00

 

July 13, 2001


 

 

[1] Under the statutory requirements set forth in Title 30 of the American Samoa Code, corporate entities must conduct an organizational meeting of incorporators, adopt bylaws, and issue stock certificates.

 

[2] Corporations are required to prepare guidelines fixing the number of directors and the manner of their election. 

 

[3] Corporations are required to maintain a stock book containing the names of all persons who are stockholders of the corporation, their interests, the amount paid on their shares, and all transfers thereof.

 

[4] Where purported corporation had failed to conduct organizational meeting of incorporators, adopt bylaws, issue stock certificates, prepare guidelines for electing directors, and maintain accounting books or stock book, court held such business entity was not a corporation. 

 

[5] The court may issue a permanent injunction only after full and final trial on the merits has been conducted and a determination has been made that a judgment for money damages will provide an inadequate remedy.

 

[6] Where circumstances indicated that parties shared a personal and business relationship, managerial authority, and some ownership over business entity, but entity had failed to properly operate as a corporation, court could treat entity as a partnership.

 

[7] A partnership is an association of two or more persons to carry on, as co-owners, a business for profit.

 

[8] Where partners mutually agree to dissolve their partnership and to transfer their interests to one or both of them in return for assumption of certain partnership liabilities, the mutual promises of the partners constitute the consideration for the agreement.

 

[9] A partnership dissolution agreement is valid where it is the product of free and voluntary action on the part of all the partners, after a meeting of the minds, and where the agreement has the effect of settling accounts between the partners themselves.

 

[10] Where Partnership dissolution agreement divided equipment, assets, claims, and obligations of the company between the parties, designated how the office was to be divided, and occurred after twenty days of discussion, and at least four hours of direct negotiation and consideration of its terms, said agreement contained adequate consideration and was binding upon the parties.

 

[11] Injunctive relief was proper where, despite having executed agreement to dissociate himself from company, party continued to act on behalf of company and interfere with its activities.

 

[12] Where written agreement to end business relationship and divide a company was the only evidence of parties’ intents regarding allocation of the entire range of assets, liabilities, service work and resources in the company, specific performance of the agreement was proper.

 

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

 

Counsel: For Plaintiff, Paul F. Miller

             For Defendant, Katopau T. Ainu`u

 

OPINION AND ORDER

 

Plaintiff Construction Services of Samoa, Inc., (“CSS”) filed a complaint praying for a permanent injunction to (1) restrain defendants Sila Poasa (“Poasa”) and Tony’s Construction from using the assets and equipment of CSS, (2) return all assets and equipment to CSS, and (3) pay costs and attorney’s fees.  Defendants Poasa and Tony’s Construction filed and answer and counterclaim for specific performance of an agreement dated March 29, 2000 (“the agreement”), addressing, among other things, the division of assets and liabilities between CSS and Tony’s Construction.  Plaintiffs argue that the agreement is void for lack of consideration.

 

Findings

 

The evidence presented in this case consisted of the uncertain, contradictory, and overtly conflicting testimonies of Moru Mane, Sallie Mane, and Sila Poasa along with a profound lack of documentary submissions to clarify or at least mitigate the resultant confusion.  From this befuddlement, we look for the facts.

A.  The Business of CSS

 

[1-4] CSS is a company engaging in the business of construction.  Moru and Sallie Mane claim to have founded it in December of 1996.  According to their testimony, Moru Mane and his friend Peter Larsen (“Larsen”), a purported engineer who now lives in Hawaii, incorporated CSS in July of 1997.  Named on the Articles of Incorporation as original board members are Peter Larsen, Sallie Mane, and Jeanette Sili (“Sili”), daughter of defendant Sila Poasa.  Since its incorporation, CSS has failed to conduct itself as corporations are wont to do under the statutory requirements for corporate entities accorded by Title 30 of the American Samoa Code.  There was no organizational meeting of incorporators, nor bylaws adopted, nor stock certificates issued.  See A.S.C.A. §§ 30.0118, 30.0119; Donald Export Trading Co. v. Toko Groceries Distrib., Inc., CA No. 13-77, slip op. at 4 (Trial Div. 1979) (Order Denying Motions For Summary Judgment, entered May 18, 1979).  There were no guidelines fixing the number of directors or manner of their election.  See A.S.C.A. §§ 30.0140 and 30.0141.  Further, CSS failed to maintain books of account of business transactions, nor even a “stock book containing all the names of all persons who are stockholders of the corporation, their interests, the amount paid on their shares and all transfers thereof,” pursuant to A.S.C.A. § 30.0160.  Receipts and records appear to have been left in utter disarray until retroactively recorded and interpreted by accountant Victor Stanley in 1999 for tax purposes.  The corporate status of CSS was, in fact, a fiction. 

 

B.  The Involvement of Sila Poasa

 

Defendant Sila Poasa joined CSS in June of 1998 as general manager of that company, whether by board appointment or simple agreement between the Manes and himself, we cannot determine.  Previous to that time, from 1997 until about March of 1998, he worked full-time as a Safety Health Supervisor at Star-Kist cannery.  Poasa worked as a general manager for CSS for about six months, between June and January of 1999, when he became “president of the company,” a title confirmed by the Manes and Poasa in their testimonies before the court.  Again, there is no solid evidence aside from contradictory testimony to confirm whether this ascension occurred by board resolution or by simple agreement.  Thereafter, Poasa and Sallie Mane, who calls herself the “secretary-treasurer” of CSS, became dual signatories on annual tax returns and on the two checking accounts held by Bank of Hawaii in the name of CSS.  Before that time, Sallie Mane and Jeanette Sili were the two signatories on the accounts.  Both Poasa and Sallie Mane drew biweekly salaries from CSS.  It is uncertain and contested by both parties the extent to which Larsen and Sili were actually involved in CSS.  For example, Poasa claims that his daughter handled administration and letters for CSS as secretary of the company even while attending school in Hawaii, where she would, incredibly, complete payroll and fax it back. Moru and Sallie Mane, on the other hand, testify that Sili’s appointment constituted only nominal deference to their friendship with Poasa, and represent her work as sporadic, inconsistent and noncommittal.  What is certain, moreover, is that Sili and Larsen appear to have completely withdrawn from any involvement in CSS by March 2000, if not much earlier.  They were not “removed” from their directorships by any formal process, but rather seem to have simply lessened their involvement over time due to geographical circumstance. 

 

By March 2000, the principal decision-making powers of CSS resided in three persons: Moru Mane, who was unpaid and titleless ostensibly so as not to decrease disability payments from the U.S. Marine Corps for back injury; Sallie Mane, secretary and treasurer; and Sila Poasa, president and co-signatory on the CSS bank accounts.

 

C.  Ownership of CSS

 

Due to the lack of records noted above, no documents exist as to the stock ownership of CSS.  Plaintiffs did enter one document, Exhibit 1A, entitled “Initial Capitals to Start C.S.S. Operation,” but this does not evidence capitalization despite its misleading title.  It is, rather, a retroactively written list of items of uncertain meaning, including “Housing rent collected” and “Mr. Mane Reimbursement for expenses rendered.”  Unexplained, undated, and insufficiently annotated, we find it to be insufficient proof of capitalization.  We have thus only the testimonies of the Manes and Poasa to determine the ownership of CSS.  On the one hand, the Manes testify that they initially capitalized CSS with between $20,000 and $55,000 drawn from M.S.M., a sole proprietorship owned by Sallie Mane, Moru Mane’s 401K investment, and joint savings.  They further claim to have invested an additional $50,000 by December 31, 1998.  The Manes claim that Poasa invested only $250 when CSS was first incorporated, and that he contributed about $5,000 thereafter, which has been more or less repaid.  On the other hand, in addition to the undisputed initial $250, Poasa claims to have contributed $70,000 between December 10, 1997, and December 31, 1998, which was not repaid.  Without further documentation, testimony or other evidence for weighing the accuracy of these assertions, we are unable to render a specific finding of exactly the extent to which the Manes and Poasa share ownership of CSS, beyond the finding that both had something of an ownership interest in CSS through both cash and/or labor contributions.

 

D.  The Fall-Out

 

It is clear that Poasa and the Manes were close friends who entered into a business relationship that went sour.  Accounts differ as to the causes and events leading up to the deterioration of the relationship and the signing of the agreement partitioning the assets and liabilities of CSS, but in any case, by March 29, 2000 all three agreed that Poasa would leave CSS.  The Manes and Poasa deeply disagree as to how the agreement dated March 29, 2000, came about.  According to the Manes, Poasa was notified by letter and did attend a March 9, 2000 meeting to remove him from the position of president of CSS.  They state that Poasa did not agree to his removal, and in his anger, threatened to prevent CSS from obtaining government contracts.  Poasa then directed a CSS engineer to prepare an agreement, and stated that he would resign from CSS and start his own company, Tony’s Construction.

 

On or about March 29, 2000, the Manes testify that they met with Poasa at Krystal’s Restaurant at the Pago Pago International Airport.  Sila allegedly presented the agreement at that time, and begged and cried from 8:30 to 1 p.m. for Moru Mane to sign the agreement.  Moru Mane said he steadfastly refused to sign the agreement due to CSS’s liability to other vendors, but ultimately caved in due to pressure from Sallie Mane, who told him “to please do this because I didn’t want to see us part like that.”

 

Poasa contests this version of events, but his testimony is confusing and inconsistent.  At one point, he testified that the “owners” of CSS met on March 9, 2000, and again on March 22, 2000, to “iron out some of the problems we faced during that time frame,” but that at neither time was his removal as president discussed or voted upon.  At a later point, however, Poasa testified that he and the Manes discussed the break-up of the company on March 9, March 17, April 4, and April 5, 2000.

 

Poasa also testified that he negotiated the agreement with Moru Mane on March 23, 2000, at which time they agreed that, in order to maintain the friendship, they would split the company in half.  He claims to have left a draft of the agreement on Moru Mane’s desk for review on March 23, 2000.  Poasa explains that the March 29, 2000, date on the agreement was when he “finalized” the agreement for his own signature, which he left on Moru Mane’s desk on March 30, 2000.  He claims that Moru Mane “dragged” his signing until April 5, 2000, and until the end, “kept changing his mind on how to go about it.”

 

From these warring testimonies, and from the substance of the agreement, undisputedly drawn up by Poasa himself, which explicitly refers to the “departure” of Poasa and the “new” formation of Tony’s Construction, we find that the breakup and separation of Poasa from CSS had been in a process of negotiation since at least March 9, 2000.  Given the testimonies before us, and given the face of the agreement, which has handwritten, initialed modifications of the typewritten terms, as well as handwritten, initialed insertions of additional terms, it is certain that discussion occurred as to the specific terms of the agreement, whether for four hours by the Manes’ account or twelve days by Poasa’s.

 

E.  The Agreement

 

The agreement dated March 29, 2000 and uncontrovertedly signed by Moru Mane, Sallie Mane, and Poasa provides for the “division of the assets, liabilities and associated resources of [CSS], between CSS and Tony’s Construction, preceding the departure from CSS of Sila Poasa to run the newly formed company, Tony’s Construction as follows.”  (emphasis added).  The agreement then lists equipment to be distributed between the two companies, and divides responsibilities for two ongoing projects of CSS between the two companies.  The agreement designates CSS as responsible for the Poloa Village Road project, and states that the construction of an Amanave water tank for the American Samoa Power Authority (“ASPA”) would be “constructed by Tony’s Construction under CSS contract” where “all debt incurred for said project and all proceeds derived from this project will be transfer [sic] to Tony’s Construction.”  A later-inserted term, handwritten and initialed, provides that either party can use “any equipment needed to complete” either project “free of charge by either party.”

The agreement sets forth certain assets and liabilities to remain with CSS, including “all accounts currently receivable by CSS,” office furniture and fittings.  As for a shop building belonging to CSS valued by both parties at $50,000 that is built upon the property of Sila Poasa adjacent his personal residence, this was to “remain with Tony’s Construction and will use [sic] by CSS until CSS has a suitable building available for them” (italics indicate handwritten, inserted, initialed terms).

 

Thus, on its face, the agreement provides for the severance of Poasa from CSS, and lists a division of assets, liabilities and projects between the company of CSS, signed for by Moru Mane, and the company of Tony’s Construction, signed for by Poasa.

 

F.  The Aftermath of the Agreement

 

Soon after the agreement was signed, complications arose.  Tony’s Construction continued to build the Amanave water tank project with equipment it claims to have obtained from CSS according to the agreement, but encountered difficulties obtaining at least two pieces of equipment, resulting in delays and additional costs of construction.  It appears that Moru and Sallie Mane at some point failed to recognize the validity of the agreement, and thereafter refused to release the equipment described therein to Tony’s Construction, either for the Amanave project or otherwise.  Poasa, on his part, seems to have taken records from the CSS office that he refuses to return, and claims to have access to the office as part owner of the company.

 

Problems also occurred with respect to the bank accounts held by CSS, for which Sallie Mane and Poasa are co-signatories.  After the agreement was signed, Sallie Mane was unable to utilize the CSS accounts at the Bank of Hawaii.  She testifies that Poasa had put the CSS checking accounts on hold, and instructed the bank to prevent her from opening another account for CSS.  Unable to purchase materials to sustain an ongoing project or to do payroll for CSS’s workers, Sallie Mane testifies that she unsuccessfully attempted to open two more accounts under CSS with herself and Moru Mane, her husband, as signatories.  The Bank of Hawaii, according to Sallie Mane, instructed her to close the new accounts and speak with Poasa.  The Manes’ complaint, filed in the name of CSS, is largely based on the constriction of their business activity as a result of Poasa’s alleged meddling.

 

Sila Poasa’s testimony on this point is flatly self-contradictory.  At one point, he stated that he put the CSS accounts on hold on March 31, 2000 because he suspected that Moru Mane was not going to “pay and follow through” with the agreement.  At a later point, Poasa claims that the Bank of Hawaii rather than himself “froze” the CSS bank accounts.  In another instance, Poasa claims not to have known of his removal as President of CSS until March 31, 2000 when he called the bank to “find out why [his] signature had been removed.”  On the other hand, Poasa also undisputedly drafted and signed the agreement establishing “departure from CSS of Sila Poasa.”

 

Only two clear facts emerge from this testimony regarding the parties’ attempts to effectuate the agreement.  First, Sallie Mane could not utilize the CSS bank accounts without the signature of Poasa, either due to his interference or to the Mane’s failure to comply with the formal requirements for changing signatories on corporate accounts.  Second, Poasa has not yet acknowledged that he has “departed” CSS, and so may tend to conduct himself as a representative of that company.

 

Discussion

 

A.  Permanent Injunction

 

[5] CSS requests a permanent injunction against Poasa and Tony’s Construction from using its assets and equipment, and to return all of its assets and equipment.  A.S.C.A. § 43.1302 allows this Court to issue a permanent injunction only after “full and final trial on the merits”, and “determination that a judgment for money damages will inadequately remedy the complained of [sic] wrong.”  A party requesting injunctive relief must thus show that it would succeed on the merits of the case, and that money damages are an inadequate remedy.  See, e.g., Thompson v. Toluao, 24 A.S.R. 2d 127, 132 (Land & Titles Div. 1993); Intervisual Commc’n Inc. v. Volbert, 975 F. Supp. 1092, 1104 (N.D. Ill. 1997).

 

1. Success on the Merits

 

To claim the assets and equipment at issue, CSS must first prove to the court that it is the true owner of the assets and equipment currently held and used by Tony’s Construction.  This, in turn, depends on the validity of the agreement providing for the division of CSS and the transfer of those items to Tony’s Construction.

 

(a)  Dissolution of Partnership

 

[6] That the Manes and Poasa shared a personal and business relationship, managerial authority, and some ownership over CSS is certain.  That CSS substantially failed to operate as a corporation is also certain.  We now look to circumstantial evidence, and find it appropriate to consider CSS as a partnership for the purpose of interpreting the dissolution agreement.  See Johnson v. Coulter, 28 A.S.R. 218, 219 (Trial Div. 1995) (when there is no written partnership agreement between the parties the court may look to circumstantial evidence to determine the presence or absence of a partnership).

 

[7] We look to the definition of partnership offered by traditional common law, as well as by the Uniform Partnership Act, which has been adopted by all states except Louisiana, and has not yet been adopted by this Territory.  The common law definition widely used is “a contract of two or more competent persons to place their money, effects, labor, and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss in certain proportions.”  Black’s Law Dictionary 1120 (6th ed. 1990); see also 59A Am. Jur. 2d, Partnership § 3.  Although obviously the Manes and Poasa did not execute a partnership contract, but attempted to formalize CSS as an empty corporation with the intention of avoiding liability, their conduct in placing their money together for profit, and in probably withdrawing those profits without benefit to the corporation, makes them seem to this Court more a partnership than a corporation.  This is confirmed by the modern definition offered in the Uniform Partnership Act § 6(1), accepted by all common law states, which defines partnership as “[a]n association of two or more persons to carry on, as co-owners, a business for profit.”  See also Black’s Law Dictionary 1120 (6th ed. 1990).

 

In this light, the March 29, 2000, agreement between Poasa and Moru Mane, also signed by Sallie Mane, can be viewed as a dissolution agreement formed by the mutual agreement of all partners to CSS.  Such a construction is confirmed by the words of the agreement.  The title line states: “This agreement is made between Moru Mane of [CSS] and Sila Poasa, both of [CSS] and Tony’s Construction.”  Thus, in the title line, Moru Mane is recognized as a representative of CSS, and Poasa as of both CSS and Tony’s Construction.  However, the title paragraph goes on to reference the departure of Poasa from CSS, and the body of the agreement refers to Poasa as of Tony’s Construction only.  Specifically, the headings for the columns listing the division of plant and equipment refer to “CSS (Moru)” and “Tony’s Construction (Sila).”  Furthermore, the signature lines show that where Moru Mane signed after the designation “For CSS”, Poasa signed after “For Tony’s Construction.”  Poasa’s mention in the title paragraph of the agreement as “both of [CSS] and Tony’s Construction” is thus adjectival of his status before signing the agreement, and his signature as “For Tony’s Construction” indicates the legal effect of dissolving Poasa’s relationship with CSS.  We thus find, based on the explicit words of the agreement, that the intended effect of the contract was to dissolve the partnership-like business venture of CSS.

 

(b) Consideration

 

[8-10] CSS, or rather the Manes, claim that Poasa did not provide consideration for the agreement.  However, where partners mutually agree to dissolve their partnership and to transfer their interests to one or both of them in return for assumption of certain partnership liabilities, the mutual promises of the partners are the consideration for the agreement.  Pejsa v. Bridges, 213 P.2d 473, 475 (Ariz. 1950); see also John D. Calamari and Joseph M. Perillo, The Law of Contracts § 4.1 (4th ed. 1998); Restatement (Second) of Contracts § 4.1 (1981).  In Pejsa, partners entered into a dissolution agreement whereby one partner paid three other partners between $1 and $3,000 to assume all right, title, interest, claims and demands of the partnership.  213 P.2d at 474.  As in this case, the partner assuming the business from the others sued to dissolve the agreement for lack of consideration.  Id.  The court ruled there to be no failure of consideration where there was an absence of allegations of fraud, deceit or coercion in procuring the agreement of dissolution, where the agreement was the product of a “free and voluntary action on the part of all the partners after a meeting of the minds the effect of which was to dissolve the partnership in the manner agreed upon” and where the agreement had the effect of settling accounts as between the partners themselves.  Id. at 475-76.  The March 29, 2000 agreement between the Manes for CSS and Poasa for Tony’s Construction involves a much more balanced set of promises for promises than Pejsa.  It divides the equipment, assets, claims, and obligations of the company between the Manes and Poasa, and designates how the office is to be divided.  The agreement occurred after twenty days of discussion and at least four hours of direct negotiation and consideration of the terms of the agreement.  The agreement contains, therefore, mutual promises which we are bound to give credence to in this litigation.

 

(c) Coercion

 

None of the legal documents submitted claim any fraud, deceit, or coercion.  However, during testimony, the Manes implied that they were unduly coerced into signing the agreement—Sallie Mane due to Poasa’s tears, and Moru Mane due to his wife’s exhortations.  The Manes may have been moved by grief, guilt, sadness or despair, but nowhere does the evidence indicate that they were forced or otherwise limited in their clear and abiding capacities to reason and choose in entering into the agreement.  The Court adjudicates intent, not emotional motivation.   Furthermore, the Court perceives through the testimonies, that rational deliberation was indeed invested in the terms of dissolution.

 

2. Adequate Legal Remedy

 

Having consideration, the agreement is valid and enforceable.  As such, CSS’s claim for its assets and equipment, based on the invalidity of the agreement, does not succeed on the merits.  Furthermore, none of the equipment supplied, liabilities, buildings or projects claimed by CSS are non-compensable.  Indeed, at trial, CSS presented evidence as to the value of most of the materials claimed.  Since the request for injunctive relief against Poasa for use and return of these assets and equipment does not succeed on the merits, and is fully compensable in pecuniary terms, injunctive relief is therefore not available.  A.S.C.A. § 43.1302.

 

[11] As to CSS’s request for injunctive relief against Poasa for continuing to act on behalf of CSS, and for interfering with its activities, we find that this claim for relief succeeds on its merits.   A falling-out occurred between the parties, a severance agreement was reached, Poasa is no longer employed by or related to CSS, and yet he continues to represent himself as such. 

 

Money cannot relieve CSS of any damage done to CSS through Poasa’s holding himself out to third parties as an agent of CSS, where he has no actual authority to do so.  We therefore grant the permanent injunction barring Poasa from holding himself out as a representative of CSS.

B.  Specific Performance

 

[12] Poasa and Tony’s Construction counterclaim for specific performance of the agreement.  We have found the agreement to be supported by consideration and to be valid.  Specific performance is appropriate in a case such as this, where a written agreement to end a business relationship and divide a company is the only evidence of parties’ intents regarding allocation of the entire range of assets, liabilities, service work and resources in the company.  As ruled in Pejsa, “[w]hen partners dissolve the partnership relation, whatever its character, and put their agreement in writing, that writing measures the rights and obligations of the parties.”  Pejsa, 213 P.2d at 475 (citations omitted). Money damages clearly do not resolve allocation issues in the dissolution of a partnership-like business venture.  Specific performance of the agreement is therefore granted.

 

Order

 

Judgment will accordingly enter (1) permanently enjoining Poasa from holding himself out as a representative of CSS, and, (2) decreeing specific performance of the parties’ agreement dated March 29, 2000.

 

It is so ordered.

 

**********

 

5ASR3d150


KATHLEEN MASANI COX, Plaintiff,

 

v.

 

EUGENE JOSEPH PASLOV, Defendant.

 

High Court of American Samoa

Trial Division

 

DR No. 115-00

 

July 17, 2001


 

 

[1] The Parental Kidnapping Prevention Act, 28 U.S.C.A. § 1738A, was intended to preempt state and territorial law regarding the modification of child custody orders.

 

[2] The Parental Kidnapping Prevention Act requires that child a custody decree be given full faith and credit if the decree was made in a manner consistent with provisions of act.

 

[3] The Parental Kidnapping Prevention Act provides a two-part jurisdictional test in order to modify another state’s decree: (1) did rendering state lose or refuse jurisdiction, and (2) does modifying state now have jurisdiction.

 

[4] Under the Parental Kidnapping Prevention Act, a rendering court may retain jurisdiction in one of two ways: (1) by having continuing jurisdiction, or (2) by having pending jurisdiction over the case.

 

[5] The jurisdiction of a rendering court is exclusive as long as it satisfies two requirements: 1) the residence of the child or of any contestant remains in the rendering state; and 2) the rendering state has jurisdiction under its own laws. 

 

[6] During the period of “continuing jurisdiction,” other states or territories must enforce and cannot modify the initial custody determination.

 

[7] The Parental Kidnapping Prevention Act provides that a state court has exclusive jurisdiction when matter before it is pending.

 

[8] A matter is “pending” for purposes of the Parental Kidnapping Prevention Act at any point before the final custody order is made and the time for appeal has expired.

 

[9] Although enforcement action in Montana against petitioner for alleged visitation violation was pending, Montana court had previously resolved question of custody and, therefore, custody determination was no longer pending within meaning of Parental Kidnapping Prevention Act.

 

[10] The High Court of American Samoa exercises jurisdiction and modifies foreign custody decrees when the child in question is present in the territory.

 

[11] The Parental Kidnapping Prevention Act provides for four bases of jurisdiction: 1) home state jurisdiction, 2) significant connection jurisdiction, 3) emergency jurisdiction, and 4) default jurisdiction.

 

[12] The Court need not consider each of the four jurisdictional bases set forth in the Parental Kidnapping Prevention Act, and may premise its jurisdictional determination upon just one.

 

[13] Court considered evidence sufficient to establish emergency jurisdiction where respondent/father had history of drug abuse, propensity for violence, a recent pattern of hostility towards petitioner/mother, and demonstrated an inability to cope with petitioner’s plan to remarry. 

 

[14] Circumstances to consider in custody situations are that (a) children of tender years should remain together and custody given to mother; (b) mother is natural custodian of her young; and (c) there is no satisfactory substitute for mother’s love.  Other things considered are good home, congenial surroundings, and intelligent attention and direction in matters affecting health, education, growth and development of children. 

 

[15] Court concluded it would be in minor’s best interest that sole and exclusive custody be reestablished with petitioner where petitioner had been historically responsible for minor’s upbringing and day-to-day needs, had provided the child a stable and nurturing environment, had successfully reared the minor’s two older siblings, had maintained gainful employment and had evidenced more of a commitment to her parental obligations that the respondent/father.

 

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

 

Counsel: For Plaintiff, David M. Wagner

 For Defendant, Marie A. Lafaele

 

OPINION AND ORDER

 

Introduction

 

The petitioner mother Kathleen Cox (“Petitioner” or “the mother”) requests that we modify a Montana state custody decree (“Montana decree”) and designate her exclusive custodian of the six-year-old minor child (“Minor” or “the child”) of Petitioner and respondent father Eugene Joseph Paslov (“Respondent” or “the father”), who are not now married. The Montana decree modified an earlier Oregon state court parenting plan by granting custody of Minor, previously with Petitioner, to Respondent.  On November 22, 2000, Petitioner filed this motion to modify and, on December 21, 2000, served it upon Respondent.  Trial commenced on April 5, 2001, with both parties present and represented by counsel.  Both parties subsequently filed written closing arguments.  Threshold to deciding the merits of Petitioner’s request is the issue of whether we have jurisdiction to alter another state court’s custody decree. Upon careful consideration of the facts and law in this matter, we conclude that we may, and do, assert jurisdiction to modify the Montana decree, and therefore, amend that decree as set out in further detail below.

 

Facts

 

Petitioner and Respondent wed in 1991.  Petitioner’s two older children from a previous marriage, Diedre (“Diedre”) and Warren Esteron (“Warren”), lived with the couple.  Minor was born to the marriage on November 8, 1994.  Since birth, the mother has been Minor’s primary caretaker; since the parties’ separation in 1996, she has been Minor’s resident parent.  Since separation, Respondent has had very little involvement in the Minor’s day-to-day upbringing.

 

From its inception, the marriage was plagued with domestic troubles.  Significantly, the Respondent abused drugs and exhibited aggressive tendencies towards the Petitioner and her children.  Respondent admitted to using drugs “recreationally” early in the marriage but claims that he discontinued drug use in 1993 or 1994.  According to Petitioner, Respondent regularly used drugs such as “crank,” a form of speed, and cocaine at home.  She was introduced to these substances by Respondent in the first two weeks of the marriage, and herself tried drugs with Respondent.  She asserts that she has never used them since.  Respondent was not very discreet about his drug use in the marital home.  Warren testified that at the age of 11 or 12, he discovered what he now believes to be drugs in Respondent’s bedroom drawer.  Specifically, he found a plate with cocaine-like powder and cut-up straws.  At another time, Warren saw drug paraphernalia in the home, and found three packets of the same cocaine-like substance in Respondent’s bathroom drawer.

 

When Petitioner was gone on overnight work, Respondent was Minor’s caretaker.  Petitioner, who works as a flight attendant, frequently traveled interstate, which sometimes required her to “lay-over,” or rest, in a neighboring state.  On some of these occasions, Diedre and Warren would awaken at night from Minor’s cries, only to find him alone in the room he shared with Respondent.  Respondent apparently disappeared frequently at night, leaving Minor unattended.

 

Throughout their marriage, Respondent demonstrated an unpredictably violent temperament.  For example, on one occasion, when Minor was a baby and was crying, Respondent, in frustration, hovered over him in his crib, shook the bed, and yelled at him to “shut up.”  Warren attempted to help, but Respondent refused, and shut him out of the room.  Minor continued to wail.

 

In other incidents, Respondent demonstrated physical hostility.  During an intense argument when Petitioner was nine months pregnant with Minor, Respondent shoved Warren, aged 13 at the time, into a wall and grabbed him by the neck for attempting to intervene.  On at least two other occasions, police responded to complaints of domestic abuse.  Once in 1993, and again in 1995, police arrested and jailed Respondent for assaulting Petitioner.  In the 1995 incident, Respondent broke Petitioner’s wrist.

 

Soon thereafter, Petitioner and Respondent separated legally and geographically.  In 1996, Petitioner relocated to Washington with her two children and Minor.  At some point after Petitioner moved, Respondent transferred to Carson City, Nevada.

 

While living in Washington, Petitioner was able to provide for her children by continuing her work as a flight attendant.  When required to work overnight, Petitioner left Minor with Diedre and Warren, who were then in their mid-teens.  She would ensure that an adult friend supervised the children.  Although apart, Petitioner continued to send Minor to visit Respondent without incident.  Petitioner provided Minor with air transportation through her employee flight benefits, and sent him to Nevada with one of her older children as an escort.

 

On February 12, 1999, an Oregon state court simultaneously granted Petitioner and Respondent an uncontested divorce, provided Petitioner sole legal and physical custody of Minor, and adopted the parties’ agreed-upon visitation schedule (“Oregon parenting plan”).  (Ex. 7, In re the Marriage of Paslov v. Paslov, No. C96-1936 DR, slip op. at 2-3 (Or. Cir. Ct. Feb. 12, 1999).)  Specifically, the Oregon parenting plan provided Respondent with supervised visitation at least one weekend a month, one month during the summer, and alternating holidays.  Further, the plan specifically outlined the method for implementing Respondent’s visits.  Visits were to take place at Minor’s paternal grandparent’s home in Carson City, Nevada, to which Minor had to travel by air, chaperoned by Petitioner or one of her two older children.  Respondent was responsible for the cost of air transportation, and suffered to lose his parenting time if he failed to pay for Minor’s airfare.  Finally, if Respondent wished to visit with his son in the summer, he was required to notify Petitioner of his intended summer schedule no later than May 1st of each year.

 

Since the issuance of the Oregon parenting plan, Respondent visited sporadically with Minor.  In April 1999, Respondent visited with Minor for about nine to ten days.  Then, in September 1999, Petitioner sent Minor, escorted by one of her older children, to Reno, Nevada, where Respondent then lived with his parents.  Minor spent three weeks there.