T`EO LAUTI TAVAI, Plaintiff

v.

LOPATI FAU and TE`O MALOUAMAUA, Defendants

High Court of American Samoa

Land and Titles Division

LT No. 21-01

March 26, 2003

[1] The process for alienating communal land, set forth in the Alienation of Communal Land Act (A.S.C.A. §§ 37.0201 et seq.), requires not only the involvement of the Land Commission, but gubernatorial approval as well.

[2] The Registration Act (A.S.C.A. §§ 37.0101 et seq.) does not trump the Alienation of Communal Land Act (A.S.C.A. §§ 37.0201 et seq.), nor does it provide a vehicle for evading the latter.

[3] Individual could not obtain title to property as his individually-owned land by simply offering to register title with the Territorial Registrar and going through the process set forth in the Registration Act, where land was in fact communal land and had not been alienated pursuant to the Alienation of Communal Land Act.  

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

Counsel: For Plaintiff, Asaua Fuimaono

 For Defendant Lopati Fau, Fai`ivae A. Galea`i, L.P.

OPINION AND ORDER

Plaintiff Te`o Lauti Tavai offered to register with the Territorial Registrar title to certain land “Pago,” located in the village of Vailoatai, as his own individually-owned land.  Te`o’s claim was publicly posted between November 30, 2000, through January 29, 2001,[1] and it had in turn attracted the objections of Lopati Fau, now holder of the Fau title of Vailoatai, and Te`o Malouamaua.  The objectors both claimed that the land “Pago” was communal land of the Te`o family.  Lopati Fau, a member of the Te`o family, so testified.  We agree with the objectors and accordingly deny Te`o’s claim for the reasons that follow. 

We take judicial notice of this Court’s decision in Te`o v. Fau, LT No. 40-86 (Land & Titles Div. 1987), entered September 8, 1987.  The Court there awarded plaintiff, “Te`o Lauti Tavai, for himself and on behalf of the Te`o family of Vailoatai,” certain land located in the village of Vailoatai, known as “Pago.”  See id.  At the time of the case, the land Pago was the subject of a lease with the federal government, with Fau Pulemau (objector Fau Lopati’s predecessor in-title) as lessor.

The 1987 judgment held, among other things, that:

1. [T]he land known as Pago in the village of Vailoatai, American Samoa is the communal land of the Te`o family under the control of the senior matai or sa`o of the family, Teo.

2. [] Fau is a talking chief (tulafale) title of the Te`o titleholder in Vailoatai.

Id. (emphasis added); (see also Stipulation to Entry of Judgment & Judgment 1-2).  This is a final judgment, conclusive against the parties and Te`o’s present attempt to undo this final judgment by attempting to invoke the land title registration process, as set out in A.S.C.A. §§ 37.0101 et seq. (the “Registration Act”), is a futile and hopelessly ineffectual exercise.

[1-3] Te`o’s goal here, quite obviously, is to skirt the statutory restrictions against the alienation of communal lands as contained in A.S.C.A. §§ 37.0201 et seq. (the “Alienation of Communal Land Act”).  The process set out in the Alienation of Communal Land Act, regulating the alienation of communal land, requires not only the involvement of the Land Commission, to check against improvident transactions, but gubernatorial approval as well.  See generally Pen v. Lavata`i, 30 A.S.R.2d 10, 13-14 (App. Div. 1996).  But the Registration Act cannot trump the Alienation of Communal Land Act and it certainly does not provide a vehicle for evading the latter.  Otherwise, the constitutionally mandated policy of protective legislation requiring the courts to interpret statutes in a way which is protective of the Samoan custom would be rendered quite meaningless.  See Am. Samoa Rev. Const. art. I, § 3.[2]

In view of the foregoing, Te`o’s application to register title in individual ownership to land “Pago” in the village of Vailoatai is denied.  The Territorial Registrar shall, accordingly, reject such application.

It is so ordered.

**********

TEPATASI M. PUAILOA, Claimant

v.

TUITOGAMAATOE PUAILOA FANENE, LA`AU SEUI,

MA`AE TAEI, and ARCHIE SOLIAI, Counter-claimants.

________________________________

AVEA T. VA`AFUSUAGA, Intervenor/Counter-claimant

________________________________

[In re Matai Title “PUAILOA” of the Village of Nu`uuli]

High Court of American Samoa

Land and Titles Division

MT No. 05-01

May 1, 2003

[1] As in all matai title succession disputes, court is mandated to follow the four criteria set out in A.S.C.A. § 1.0409(c): (1) best hereditary right; (2) clan support; (3) forcefulness, character and personality, and knowledge of Samoan customs; and (4) value to family, village, and country.

[2] Court has resorted to one of two formulas to calculate the statutory and customary requirement of “hereditary right”: (1) direct descent from the original titleholder which may be used when family history is largely harmonius; and (2) direct descent from the nearest titleholder, which has been used by the vast majority of cases.  

[3] When evaluating forcefulness of character, court compares personal attributes and achievements demonstrating these attributes, in part, on personal observation of each candidate while on the witness stand. 

Before KRUSE, Chief Justice, SAGAPOLUTELE, Associate Judge, MAMEA, Associate Judge and TUPUIVAO, Associate Judge.

Counsel:          For Claimant, Asaua Fuimaono

For Tuitogamaatoe P. Fanene, Charles V. Ala’ilima

For La`au Seui, Arthur Ripley, Jr.

For Ma`ae Taei, Salanoa S. P. Aumoeualogo

For Archie Soliai, Isa-Lei U. Iuli, L.P.

For Avea Va`afusuaga, Tauivi Tuinei

OPINION AND ORDER

Claimant Tepatasi M. Puailoa (“Tepatasi”) filed with the Territorial Registrar his succession claim to the Puailoa matai title and, in accordance with the statute made and provided for in these cases, the Territorial Registrar publicly posted the claim between December 29, 2000 and February 28, 2001.  In due course, Tuitogamaatoe P. Fanene (“Tuitogamaatoe”), La`au Seui (“La`au”), Ma`ae Taei (“Ma`ae”), Archie Soliai (“Archie”), and Avea Va`afusuaga (“Avea”) filed their respective succession claims.  The resulting dispute, certified “irreconcilable” by the Secretary of Samoan Affairs on May 29, 2001, was eventually referred to the Land and Titles Division in accordance with A.S.C.A. § 1.0409.  The matter came on for trial January 27, 28, and 29, 2003, with all parties appearing with counsel.  At the conclusion of the evidence, and upon the filing of written final arguments, the matter was taken under advisement.

[1] As in all matai title succession disputes, the Court is mandated to follow the four criteria set out in A.S.C.A. § 1.0409(c): (1) best hereditary right; (2) clan support; (3) forcefulness, character and personality, and knowledge of Samoan customs; and (4) value to family, village, and country. 

1.   Best Hereditary Right

[2] This Court has resorted to one of two formulas to calculate the statutory and customary requirement of “hereditary right:” direct descent from the original titleholder and direct descent from the nearest titleholder.  See In re Matai Title “Mulitauaopele”, 17 A.S.R.2d 75 (Land & Titles Div. 1990).  While the former may be appropriately used where family history is largely harmonious, In re Matai Title “Misaalefua”, 1 A.S.R.3d 23, 25 (App. Div. 1997), the vast majority of cases have employed the latter, In re Matai Title “Leiato”, 3 A.S.R.2d 133, 134 (App. Div. 1986).  Here, each party has submitted his/her respective family tree.  But these have proven rather difficult to reconcile, even showing inconsistencies in detail among closely related candidates.  In circumstances such as here, where family history and genealogical understanding is contentious, the traditional formula for evaluating hereditary right, the shortest descent path to the nearest titleholder, is the overwhelmingly favored yardstick among rnatai succession candidates.  The matter before us proved to be no exception, with the candidates readily resorting to the traditional rule.

Tepatasi, Tuitogamaatoe, Avea, & Ma`ae

Tepatasi and Tuitogamaatoe, brother and sister, each claim 50% entitlement since the nearest titleholder in their ancestral line was Puailoa Tavete, their late father.  The pedigree of candidates Avea and Ma`ae show their respective degree of right as 6.25%.  The hereditary claims of these four candidates are undisputed.[1]

La`au

La`au also claims 6.25% entitlement tracing his pedigree along the same descent lines as have Tepatasi, Tuitogamaatoe, Avea, and Ma`ae.  The latter, however, strongly oppose La`au’s claim.  La`au’s genealogical claim is that Puailoa Faletutulu had another son in addition to Puailoa Vaiuli, and that being Filipo, La`au’s great-grandfather.  In support of his hereditary claim, La`au cites to recent instances where his father, orator Seui La`au, acted as family spokesman for certain Puailoa family affairs during the administration of Puailoa Tavete.  Moreover, La`au points to a past succession contest, that came before the High Court as Pua`ae`o v. Sapunu, No. 10-1935 (the “1935 succession case”), in which his paternal grandmother, Fa`alogoifo, was a signatory supporter of one the candidates named Sipunu.

The weight of the evidence suggests, however, that Faletutulu had only one son, Vaiuli, who was himself without issue.  The evidence indisputably shows that Faletutulu had two sisters, or nieces according to Avea’s gafa (genealogy), named Aioleolo and Taoa. Taoa’s line ended with Puailoa Nouata, who also passed on without issue, while Aioleolo’s children gave rise to the most recent titleholders Pua`aelo and Tavete, as well as candidates Tepatasi, Tuitogamaatoe, Avea and Ma`ae.

Notwithstanding La`au’s contentions, a person’s participation in a Samoan family fa`alavelave does not ipso facto translate conclusively into evidence of family membership through hereditary connection.  The authorities have long ago recognized that under Samoan custom, all persons who live in a Samoan family are considered family members, although not necessarily blood members.  Vaotuua Family v. Puletele, 3 A.S.R. 145, 147 (Trial Div. 1955).  Likewise, those married into a Samoan family are regarded as family members even though they are not blood members.  Asuega v. Mauga, 3 A.S.R 70, 73 (Trial Div. 1953).  However, since the enactment of A.S.C.A. § 1.0409(c), blood connection has become a pre-requisite to matai succession eligibility. 

In this matter, La`au’s father, orator Seui, referred to Sipunu on the witness stand as his mother’s “brother.” Sipunu, however, acknowledged in his pleadings that he was an “adopted” family member.  The 1935 succession case’s genealogical charts,[2] while pointing out that Puailoa Vaiuli and Sipunu were first cousins once removed, also pointed out that Vaiuli and Sipunu’s kinship connection arose outside the Puailoa family tree.  This is also the version of family history as given to Avea by her ancestors; that is, La`au’s grandmother Fa`alogoifo was kin to Faletutulu’s wife, not Faletutulu.  Finally, we note that the 1935 succession case did not go to trial; significantly, it was settled out of court after Sipunu had withdrawn his unsupported claim to the title in favor of Pua`aelo, an undisputed blood heir.

All in all, we find La`au’s hereditary connection claim to be, at best, doubtful. 

Archie

Archie claims his degree of hereditary right as 1/128 or .008%.  He singularly traces his heritage to a Puailoa Leo`o, said to be the original titleholder.  The evidence here shows that the Puailoa family’s modern history began with the admission of Puailoa into the Nu`uuli village council, and thus recited in the village fa`alupega (salutation or honorifics) and included in the village constitution, following a marriage alliance with a daughter of High Chief Soliai.  Archie’s pedigree, however, does not pursue this acknowledged and well known Soliai connection, which brought the Puailoa to the Nu`uuli village council, but rather reaches out into the realm of myth and legend, to the tabled original titleholder known simply as “Leo`o.”  The connection is tenuous.

Moreover, Archie’s position on family history with regards to the listing of prior titleholders, is, like that of a number other candidates in this matter, restricted to, or coincides with, the record of the 1935 succession case.  The 1935 succession case has listed between Leo`o and Ta`aseu, the following as Puailoa titleholders: Saumalegalu, Tevita, and Tagipuia.  This history varies markedly with the history given in the case Alo Taisi v. Puailoa, HC No. 4-1908, where the Puailoa at the time lists, under oath, the following as preceding Ta`aseu: Pulumalesama, Taligalu, Tavili, Faifa, and Taligataleoo.  (Trial tr. at 75).  This seeming confusion adds another dimension to Archie’s pedigree; and that is, its reliability in terms of detailing accurately all generations in his line assuming direct descent to the original titleholder.

Finally, A.S.C.A. § 1.0409(c) (1) talks in terms of male descendants prevailing over female descendants unless it is apparent on the evidence that “the male and female descendants are equal in families where this has been customary.”  According to Archie’s pedigree, he is descendant from the female line; but there has been no evidence here whatsoever to the effect that in the Puailoa family the male and female descendants are equally entitled.  Even if Archie’s genealogy is to be accepted, the presumption favoring the male descendants works against his hereditary entitlement to the title.

For purposes herein, we find that Tepatasi and Tuitogamaatoe prevail equally over Avea and Ma`ae, who in turn prevail equally over the claims of La`au and Archie. 

2.   Clan Support

Under this heading, the Court is required to look into “the wish of the majority or plurality of those clans of the family as customary in that family.”  A.S.C.A. § 1.0409(c)(2).  The candidates were all at sea on the issue of clan definition and their attempts at identifying the family’s customary clans.

Archie was the only candidate who attempted to define clans in the context of the pre-Nu`uuli times.  By resorting to the familiar explanation of “clan” in terms of descent lines from the issue of the first titleholder, Archie suggested that the family has two clans: Samalaulu, a female branch, and Saumalegalu, a male branch.  The problem with this contention is that it is singularly held.  There is no supporting view for the premise that the Puailoa family has customarily had a female branch from the outset.

The remaining candidates all attempted to identify the family’s clans in the post-Nu`uuli family development context.  Ma`aels view vacillated between two and one clan(s), while Avea, Tepatasx and Tuitogamaatoe suggested the evolution of two clans by default, namely Mataua and Sina, the issue of Aioleolo.[3]  La`au’s position, quite clearly on the basis of the 1935 succession case’s record, is that there were three clans: Faletutulu, Aioleolo, and Taoa.  But according to the record of the 1935 succession case, the Faletutulu and Taoa’s lines died out after Vaiuli and Nouata failed to leave issue.

Whether the Puailoa family is a one clan family or a two clan family, what is clear on the evidence is that no one candidate received the weight of family support.  The various meetings held were concluded on a note of divisiveness, with the various candidates unyielding in his/her desire to hold the title. 

We find that no candidate prevails on the issue of clan support.

3.   Forcefulness Character and Personality, an Knowledge of Samoan

      Customs

[3] Under this heading, the Court is necessarily involved in a comparative evaluation of personal attributes and achievements demonstrating these attributes.  Here the Court relies in part on personal observation of each candidate while on the witness stand.  See Asuega v. Manuma, 4 A.S.R. 616, 629 (Trial Div. 1965) (Court must weigh “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”).  At the same time, “[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). 

After careful review of the candidates’ respective backgrounds, their strengths and weaknesses, the court finds that Ma`ae prevails over the other candidates under this heading.  He is the only party with creditable matai experience: six years standing as the Ma`ae titleholder.  His responses to the judges’ questions touching on the issue of knowledge of Samoan custom bespeaks that matai experience.  Moreover, he proved to be less prone to equivocation and embellishment while he was on the witness stand.

In terms of career development, Ma`ae impressed us most.  Showing tenacity and perseverance together with a firm purpose for personal development, Ma`ae attained his college degree while an enlisted man in the armed forces--a strong statement on forcefulness and character.  After retiring from a meritorious career with the U.S Navy, with emphasis on property management, Ma`ae returned to the territory with his education and work related expertise to serve his family, church, village, and government.  Comparatively, his superior resume reflects by far the greater responsibilities entailed within the positions he holds with his Church and the number of important federal and local government commissions.

In short, Ma`ae best embodies “[l]eadership ability, honesty, education, public service, involvement in church and village affairs, and previous experience as a matai . . . which aid in meeting this criterion.”  Id.  He best fits the bill for forcefulness, character and personality, and knowledge of Samoan customs.

4.   Value to Family, Village, and Country

Under this heading we also find that Ma`ae stands out decisively from the others.  Ma`ae’s service to the country singularly stands out in terms of his past service to national government, while serving 23 years in the military, and in terms of his on-going service to the territorial government.  As previously noted, his superior resume reflects the different federal and local government commissions in which Ma`ae has participated, including serving on the U.S. Labor Department’s biennial Wage and Hour Review Board for the territory.  He continues to serve the local government as a property management specialist.

In terms of value to family and village, Ma`ae has creditable matai experience and he would not be subjected to the difficulties associated with the gender bias currently in effect with the Nu`uuli village council.  The title Puailoa is included within the village honorifics taumafaalofi and effective representation and recognition within the council will only enhance the family’s prestige and well-being within the village.  Additionally, the Puailoa family has relatively large land assets that require appropriate management and conservation skills.  (Current dealings with the family’s land tend to reveal improvident and preclusive development, an apparent reason for the large slate of candidates.)  Ma`ae is uniquely qualified in this regard. 

Furthermore, we are confident that Ma`ae is in the best position to lead and bring the family together.  With the large number of candidates contesting succession, and from our observation of the candidates and in listening to them, we find that there is an unmistakable atmosphere of distrust among the Puailoa family factions.  This state of affairs certainly has something to do with the family’s large real estate holdings; it has something to do with the family’s history with third party adverse claimants dating back to pre-American Samoa Government times; and it also has something to do with the perception of dominant use by the immediate heirs of the last titleholder.  La`au and Archie are relatively young, but their leadership potential is solidly grounded in terms of education and service to family, church, village and country.  As prospective traditional leaders, their biblical “season” will soon come.

Tepatasi and Tuitogamaatoe’s side of the family has dominated the title since the 1930s, and the fact that they were unable to bridge their differences within their own immediate circle does not bode well in terms of either being a potential family mediator/conciliator.  It is apt for a descendant of Sina to succeed.

Ma`ae’s track record and circumstances deems him best suited for leadership potential at this time.  We rate Ma`ae first on this criterion.

CONCLUSION & ORDER

Based on the foregoing, we hold that Ma`ae is qualified to hold the title Puailoa as he prevails on the third and fourth statutory criteria although preceded by Tepatasi and Tuitogamaatoe on the first.  The second criterion is discounted.

The Territorial Registrar shall, in accordance with A.S.C.A. § 1.0409 (b), register the metal title Puailoa, attached to the village of Nu`uuli, in candidate Ma`ae Taei.

It is so ordered.

**********

HARRY B. STEVENS, Plaintiff,

v.

FAUMUINA TAGISIAALI`I and MR. KO TAE SUK

aka TSK ENTERPRISES, Defendants.

High Court of American Samoa

Land and Titles

LT No. 23-01

May 2, 2003

[1] In action for eviction and damages for trespass, plaintiff has a superior claim of entitlement to the disputed land where plaintiff’s family had exclusive use and occupation of the land for generations, graves of family members and remnants of the homestead are on the land, and plaintiff currently receives rents on leases of the land.

[2] Plaintiff seeks eviction, but injunctive relief is more appropriate in action for eviction and damages for trespass.

Before KRUSE, Chief Justice, MAMEA, Associate Judge, and TUPUIVAO, Associate Judge.

Counsel:          For Plaintiff, Arthur Ripley, Jr.

 For Defendant Faumuina, Faiivae A. Galea`i, L.P

 For Defendant Ko Tae Suk, William H. Reardon

OPINION AND ORDER

This dispute concerns a parcel of land “Vaiaupa” located in the Village of Leloaloa, and more particularly described in metes and bounds, by plot map in magnetic bearings, in the Territorial Registrar’s office at Volume 1 Native Titles at pages 213-14, and containing 0.6 acres more or less.  Title to the disputed land is registered to “Henry Stevens and Kitiona.”

The disputed land, for purposes of trial, was relocated by defendant Faumuina’s witness L.P. French, a locally licensed surveyor, on a larger topography map of the vicinity based on 1991 aerial photographs of the bay area.  French was asked directly at the outset of his testimony as to whether his research and maps showed the Faumuina family’s land; he responded negatively.  Rather, his research showed that the disputed land was at one time within that area of land awarded to the Catholic Church under Court Grant 387.[1]

[1] Of significance with the physical site is that Vaiaupa abuts defendant Ko’s store, which is situated to the east of the disputed area.  The evidence shows that the land has been, at least since the date of registration, in the exclusive use and occupation of the original titleholders and their kin, followed by the use and occupation of various generations of their respective descendants.  At the present time, the land contains the remnants of a homestead’s foundations as well as graves of plaintiff’s family members.  Vaiaupa has lately been in the custody and care of plaintiff Stevens and his siblings who have rented out the land to different third parties.  Plaintiff’s family has regularly obtained rents on leases of the disputed land with third parties at a rental of $1000 per month.

Plaintiff’s family’s use of the Vaiaupa has been undisturbed, until the recent administration of defendant Faumuina Tagisiaali`i.  The latter has apparently taken the position that all land in the vicinity is logically the communal property of the Faumuina family of Leloaloa, and he has accordingly taken it upon himself to assert dominion over the disputed land, notwithstanding the continuing protests of Stevens and his siblings, by granting Ko permission to use the disputed land for parking, storage of containers, and other related commercial use.  Faumuina formalized his agreement with Ko in a writing dated March 20, 2000, purporting to issue a license over the disputed land for a period of 10 years.  While Ko used the disputed land, between December 2000 and December 2001, plaintiff and his siblings were effectively prevented from enjoyment of the land.

Faumuina’s response to numerous entreaties from plaintiff’s side, including written notices to both Faumuina and his permittee Ko, was to first demand that plaintiff prove their entitlement to him.  Plaintiff then confronted Faumuina with the registration papers from the Territorial Registrar’s office, but to no avail.  Faumuina appeared receptive only to the idea of plaintiff selling him the land so that he could live within the confines of Leloaloa village.  Moreover, efforts for an A.S.C.A. § 43.0302 resolution before the office of Samoan Affairs proved fruitless.

On December 26, 2001, plaintiff filed suit against the defendants seeking eviction and damages for trespass.  Shortly thereafter, Ko moved off the disputed land.

We conclude on the evidence that as between the parties, plaintiff has a superior claim of entitlement to the disputed land than that of Faumuina and his permittee Ko.  The latter have shown absolutely no basis whatsoever for going upon the disputed land but for an entirely unfounded assumption. Their unauthorized use of the disputed land constituted trespass.

[2] We further conclude that an award of damages in the sum of $12,000, as prayed for in the complaint,[2] has been sufficiently shown.  While plaintiff seeks eviction, the Court is of the view that injunctive relief is more appropriate under the circumstances.  Among other things, the legal remedy is inadequate and equity would avert a multiplicity of suits.

Accordingly, the judgment of the Court is as follows:

1.  Plaintiff is awarded damages in the sum of Twelve Thousand Dollars ($12,000) against the defendants and each of them jointly and severally.

2.  The defendants and each of them, together with their respective aiga, agents, servants, attorneys and all those in active concert with them are hereby enjoined and restrained from any further encroachment whatsoever upon the plaintiff’s family land “Vaiaupa,” as the same is more particularly described in the Territorial Registrar’s office at Volume 1 Native Titles at pages 213-14, and containing 0.6 acres more or less, and relocated on Exhibits “13” and “14” of the record hereof.

It is so ordered.

**********

TUIGA TUTAVAL SIALEGA, Claimant,

v.

MALAETASI MAUGA TOGAFAU, Counter-claimant.

________________________________

[In re Matai Title “SIALEGA” of the Village of Nu`uuli]

High Court of American Samoa

Land and Titles Division

MT No. 06-02

May 7, 2003

[1] In the trial of matai title cases, A.S.C.A. § 1.0409(c) requires the court to be guided by best hereditary right, wish of the clan, forcefulness of character, and value to the family.  

[2] Hereditary right, as calculated according to the traditional method, calculates degrees of relationship to the title through the shortest descent route to a past titleholder.

[3] The “Sotoa rule” which measures entitlement by evaluating descent from the original titleholder, but this rule is only workable under circumstances where family history is by and large harmonious.

[4] For purposes of determining the clan’s wishes, a “clan” is a group of people descendant from a common ancestor.

[5] When evaluating forcefulness of character, the court can look to 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.  At the same time, the court will also look to objective indices such as leadership ability, honesty, education, public service, and involvement in church and village affairs.

Before KRUSE, Chief Justice, ATIULAGI, Associate judge, MAMEA, Associate Judge, and TUPUIVAO, Associate Judge.

Counsel:            For Claimant, Asaua Fuimaono

                        For Counter-claimant, S. Salanoa Aumoeualogo

[1] Tuiga Tuiavau Sialega Togafau (“Tuiga”) filed his claim to succession with the Territorial Registrar to be registered as the holder of the matai title “Sialega” of the village of Nu`uuli.  Malaetasi. Mauga (“Malaetasi”) objected seeking succession himself.  In the trial of matai title cases, A.S.C.A. § 1.0409(c) requires the Court to be guided by the following considerations, in the priority listed:

(1) the best hereditary right, as to which the male and female descendants are equal in families where this has been customary; otherwise the male descendant prevails over the female;

(2) the wish of the majority or plurality of those clans in the family as customary in that family;

(3) the forcefulness, character and personality of the persons under consideration for the title, and their knowledge of Samoan customs; and

(4) the value of the holder of the title to the family, village, and country.

FINDINGS

1.         Hereditary Right

[2] If we calculate hereditary right according to the traditional method which the Court has employed to calculate degrees of relationship to the title, Malaetasi would prevail as he can show the shortest descent route to a past title holder, his grandfather Sialega Palepoi.  Thus his degree of hereditary right is 25%.

[3] Tuiga, however, has attempted to invoke the “Sotoa rule,” which measures entitlement by evaluating descent from the original titleholder.  See In re Matai Title “Sotoa”, 2 A.S.R.2d 15, 15 (Land & Titles Div. 1986).[1]  But the Sotoa rule is only workable under circumstances where family history is by and large harmonious. See In re Matai Title “Misaalefua”, 1 A.S.R.3d 23, 25 (App. Div. 1997).  While the parties here are agreed as to the identity of the original titleholder, Sialega Nono, they are markedly divided on the question of whether or not the first titleholder left issue.  Tuiga contends that Sialega Nono did, and that he was succeeded by his son Sialega Pa`ipa`i.  Malaetasi, on the other hand, maintains that Sialega Nono was barren and that the second titleholder Sialega Pa`ipa`i was not Sialega Nono’s son but his nephew, or the son of his sister Solagaliua.

An added difficulty with employing the Sotoa rule in this case is that Tuiga’s genealogy, as presented, leaves something to be desired. Beyond his second great-grandfather Tapega, the preceding generational steps in Tuiga’s gafa (genealogy) are nebulous. Yet these are crucial connections to the first and second titleholders Nono and Pa`ipa`i.  This would tend to suggest that his gafa, as handed down, was not very well preserved as to detail.  Therefore, applying the traditional method, Tuiga’s degree of hereditary right is, at best, 3.125%, assuming that his ancestry to Sialega Pa`ipa`i is that of third great-grandson as presented in his gafa.[2]  We find that while both parties are related to, and, therefore, entitled to succeed to the matai title Sialega, Malaetasi prevails under this heading at 25% over Tuiga’s averred 3.125% in degree of hereditary right.

2.         The Wish of the Clans

Under this heading, the Court is directed to look to the wish of the majority or plurality of those clans in the family as customary in that family. Here the parties were thoroughly confused with the notion of clans.  They both attempted to define clans in terms of descent groups from former selected titleholders and even from certain non-titleholders. To exacerbate matters, the parties varied their positions between their answers to the pretrial questionnaire and their respective responses on the witness stand.  In short, neither party had any clear idea as to how the Sialega family is defined in terms of customary clan(s).

[4] Beyond the confusion, however, and speaking of “clan” in terms of a group of people descendant from a common ancestor, see Filipo v. Maiava, 4 A.S.R. 313, 316 (Trial Div. 1962), it appears from the evidence that the Sialega family conducts its business as a single clan entity.  In its various meetings or gatherings to select a matai, the family appeared to act as a unitary and cohesive entity; there were no apparent customary groupings to speak of, and we saw no evidence whatsoever to suggest that the family conducted its business as a multi-sided entity.[3]  On the contrary, the evidence alluded to the fa`aaloalo (due deference) being given to family elders, like High Chief Pone, without reference to any specific descent group.  All in all, the evidence suggests, and we so find, that the Sialega family is by custom and tradition a single clan entity.

We further find on the evidence that the Sialega family was duly convened and met on several occasions to select a successor matai.  At these meetings, the family, which included representatives of Tuiga’s own immediate family, overwhelmingly favored the appointment of Malaetasi.  Indeed, at the conclusion of one these family meetings, the `ava cup was presented to Malaetasi.

We find that Malaetasi prevails on the criterion.

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

[5] Under this heading, the Court can look to “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.”  See Asuega v. Manuma, 4 A.S.R. 616, 629 (Trial Div. 1965); 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).  At the same time, the Court will also look to objective indices such as “[l]eadership ability, honesty, education, public service, involvement in church and village affairs” to assist in the evaluation of this criterion.  In re Matai Title “Leaeno,” 25 A.S.R.2d 4, 8 (Land & Titles Div. 1994).

We find that the parties are more or less on parity with respect to knowledge of Samoa customs.  However, as to the issue of forcefulness, character and personality, we rate Malaetasi ahead-of Tuiga.  In terms of personal factors gained from observing a candidate on the witness stand, Malaetasi better impressed us.  He was more straightforward in his responses, both on direct and cross-examination.  Tuiga, on the other hand, was not beyond embellishment and spin.[4]  Whereas Malaetasi was comfortable testifying in the language of the matai, Samoan, Tuiga was more at ease testifying in English.

In terms of personal development and achievement, Malaetasi has relatively excelled in his educational and vocational pursuits.  A lawyer by training and profession, Malaetasi has held a number of high ranking government positions, including that of Assistant Public Defender, Legislative Assistant to the Territory’s Delegate-at-large and Congressional Office in Washington D.C., District Court Judge, Attorney General, and Fono Representative for the Ituau County. Notwithstanding his history of prestigious government offices, Malaetasi’s sense of humility has been very clearly evident in the fact that he has openly rendered tautua for many, many years to his family, village, and church in the subservient, but critical, role of an untitled man.  Consistent with the old proverb, Malaetasi has earned the honor of pule (matai authority) through his tautua.

In short, Malaetasi’s personal achievement record, his candor, his willingness to render tautua, and his humble nature, speak more convincing in terms of forcefulness, character and personality.  He prevails, in our view, on this criterion.

4.         Value to Family, Village, and Country

After achieving a law degree, Malaetasi returned immediately to the territory to actively serve his family, village, church, and government.  Tuiga, on the other hand, has only recently returned to the Territory, after retiring from a career with the State of Hawaii’s Department of Public Safety.

In terms of value to family, Malaetasi has access to greater financial resources and is thus in a better position to support the demands of the matai title.  Hence he is in this regard of greater value to the family.  See Filipo v. Malaya, 4 A.S.R. 313, 317 (Trial Div. 1962).

In terms of value to country, Malaetasi has served the government in all its three branches.  He is currently serving as the Territory’s first Administrative Law Judge, a position which is appointed by the Governor and approved by the Senate.  Moreover, his value to the Territory has been very apparent with the number of government commissions which he has been asked to serve: the Real Property Management Board, the American Samoa Development Bank Board, the Scholarship Board, Capital Improvements Project Committee, as well as legal advisor to Constitutional Review Committee.  Again, his service to the American Samoa Government has been specific and direct.  Tuiga’s has been less specific and indirect--for example, his payment of federal taxes.

In our view, Malaetasi also prevails under this heading.

CONCLUSIONS & ORDER

On the foregoing, we conclude that Malaetasi is qualified to hold the title Sialega.  He prevails on hereditary considerations, as well as on the second, third, and fourth criteria specified by A.S.C.A. § 1.0409(c).

The Territorial Registrar shall, in accordance with A.S.C.A. § 1.0409(b), register the matai title Sialega, attached to the village of Nu`uu1i, in candidate Malaetasi Mauga Togafau.

It is so ordered.

**********

TUANU`UTELE SAI, Claimant

v.

SONNY LE`I THOMPSON, TIKERI N. THOMPSON,

LEANA MISIUAITA, SOFENI VA`ENA, TAGATA A.T. LE`I

and POROTESANO T. TUIOLOSEGA, Counter-claimants

________________________________

[In re Matai Title LE’I of the Village of Ofu]

High Court of American Samoa

Land and Titles Division

MT No. 03-98

June 6, 2003

[1] Where candidate demonstrated humility, maturity, thoughtfulness and respect for the family, and did not pursue his own personal ambitions or employ maneuvering, tactics, or strategy to attain matai title, but rather concentrated on advancing the family’s perceived desires, candidate was most deserving with regard to the character and personality aspects of the third criterion.

[2] A candidate who is more intimately familiar with family members and assets is in a better position to serve the family as matai.

Before KRUSE, Chief Justice, SAGAPOLUTELE, Associate Judge, MAMEA, Associate Judge, and TUPUIVAO, Associate Judge.

Counsel: For Tuanu`utele Sai, pro se

             For Sonny Le`i Thompson, Charles V. Ala`ilima

             For Tikeri N. Thompson, Afoafouvale L.S. Lutu

             For Sofeni Va`ena, pro se

             For Porotesano T. Tuiolosega, pro se

OPINION AND ORDER

Tuanu`utele Sai (“Tuanu`u”) filed his application to be registered as the holder of the matai title Le`i, attached to the village of Ofu, Manu`a.  This in turn triggered a number of objections and counter-claims, under A.S.C.A. § 1.0407; they included that of Sonny L. Thompson (“Sonny”), Tikeri N. Thompson (“Tikeri”), Sofeni Va`ena (“Va`ena”), and Porotesano T. Tuiolosega (“Porotesano”).[1]  Following unsuccessful mediation attempts before the Secretary of Samoan Affairs, in accordance with the procedure set out in A.S.C.A. § 43.0302, this litigation ensued.

A.S.C.A. § 1.0409(c) prescribes the law which the High Court must follow in determining which matai title candidate shall be the next registered holder.  The enactment reads:

In the trial of title cases, the High Court shall be guided by the following considerations, in the priority listed:

(1) the best hereditary right, as to which the male and female descendants are equal in families where this has been customary; otherwise the male descendant prevails over the female;

(2) the wish of the majority or plurality of those clans in the family as customary in that family;

(3) the forcefulness, character and personality of the persons under consideration for the title, and their knowledge of Samoan customs; and

(4) the value of the holder of the title to the family, village, and country.

1.  Hereditary Right

With respect to hereditary right, the evidence shows: that Tikeri is the son of Le`i Fereti and his degree of hereditary right is 50%; that Va`ena is the grandson of Le`i Moala and his degree of hereditary right is 25%; that candidate Tuanu`u is the great-grandson of Le`i Moala and his degree of hereditary right is 12.5%; that Porotesano Tuiolosega is the third great grandson of Le`i Isumama and his degree of hereditary right is 3.125%; and that candidate Sonny is the fourth great grandson of Le`i E`e and his degree of hereditary right is 1.56%.  It follows, therefore, that Tikeri prevails over the other candidates on this issue.

2.  Wish of The Clans

A number of Le`i family gatherings to address the matai vacancy were held in Ofu beginning with a meeting in 1994.  Shortly after the first and inconclusive family meeting, Tuanu`u bolted to the Territorial Registrar’s office and offered to register the Le`i title in his name.  Notwithstanding, the family further met on the issue and the only emergent consensus that arose at the initial series of meetings was support for either Tuanu`u or Tikeri to hold the title.  Rather than persisting with the issue until a titleholder was decided upon, the family at a meeting in 1996, merely managed to agree to let Tuanu`u and Tikeri decide between the two of them as to who would be the matai.  In effect, the family abdicated its responsibility.

Following this family resolution and after some back and forth between the two leading candidates, Tikeri was eventually offered the title by Tuanu`u.  The latter had apparently been offered the `ava cup for another vacant Ofu matai title, Sai.  Two things, however, stalled, and eventually thwarted any prospect of the Le`i title being registered in Tikeri’s name: first the counter-claims with the office of the Territorial Registrar were not immediately withdrawn, hence the dispute was legally very much alive; second, Tuanu`u’s ambitions towards the Sai title were held in abeyance because of unresolved third-party objections.

A subsequent series of the requisite mediation conferences with the Secretary of Samoan Affairs proved to be of no avail.  By letter of November 25, 1997, the Secretary certified an irreconcilable dispute, noting the convening of six meetings with the candidates and their failure to reach a settlement.  On January 7, 1988, the matter was then referred to the Land and Titles Division in accordance with A.S.C.A. § 1.0409.[2]

On the date of filing with the Court, the Clerk’s office prepared and sent out to all the parties, the Court’s Notice to File Questionnaire within 30 days, pursuant to T.C.R.L.T. 3.  The only parties who complied with the Rule 3 Notice, however, were Tuanu`u, Tagata A.T. Le`i (who has since passed away), and Tikeri.  Sonny did not get around to filing his response to Questionnaire until November 5, 2002, Porotesano on March 4, 2003, two days before trial, while Vaena filed only on March 6, 2003, the day of trial itself.  (Notwithstanding a caution contained in the Rule 3 notice to comply within the stated time frame or suffer dismissal of claim, there were, inexplicably, no adverse motions to dismiss were filed by anyone).

Ironically, and while the matter remained pending with the Court as a “disputed claim,” see A.S.C.A. § 1.0409(a), the candidates who had failed to comply with the Court’s Rule 3 notice, took it upon themselves to convene a further meeting, around July 2002, to select a matai.  Vaena testified that he had convened and presided at the meeting, and that as the presiding official, he had determined that the meeting had resulted in Sonny’s favor.

We find on the evidence that while the Le`i family had met on various occasions to discuss the appointment of a successor matai, the family failed to reach a consensus on any one of party candidates.  As previously indicated, the meetings in the late 1990s simply ended with the family effectively abandoning its responsibility to pick a matai.  At the same time, the unresolved family impasse with Tuanu`u and Tikeri was never taken back to the family for further deliberation.  To confound matters, some of the family elders who were in attendance at the meetings of 1990s had, in the meanwhile, passed on.

As to the gathering convened by Vaena in 2002, all that may be said of this meeting is that it resulted in a settlement concluded only among candidates Vaena, Sonny and then objector/claimant Leama Misiuaita.  Indeed, Leama Misiuaita withdrew his candidacy in the looming days of trial to support Sonny, while Vaena quite clearly remained in the litigation not so much for the purpose of actually vying for the title, but for the principal purpose of indicating support for Sonny and to merely establish, for the record, his entitlement.  But by the time of this so-called family meeting, the matter of matai succession was already a “disputed” issue squarely before the Court.  The Secretary of Samoan Affairs’ certification of an irreconcilable dispute, unquestionably gave the court jurisdiction over all the candidates’ “disputed claim[s].”  See Ava v. Logoai, 20 A.S.R.2d 51, 52 (Land & Titles Div. 1992).  Therefore, without the stipulation of the other remaining claimants, Tuanu`u, Tikeri, and Porotesano, to Vaena’s proposition of a family consensus in favor of Sonny, the asserted outcome of the 2002 meeting appears to ring rather hollow.

We find the 2002 meeting to be nothing less than posturing efforts, with pending litigation in mind, by parties who not only ignored the Court’s pre-trial notices but who were simply not in the assembled family’s contemplation.  Furthermore, we find that the Le`i family did not decide on any one candidate and, hence, no candidate can be said to prevail on this criterion.[3]

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

First, we are satisfied that the candidates are more or less equally versed in Samoan customs; they each live and practice it from day to day.  However, in terms of forcefulness, Tuanu`u, Sonny and Tikeri have shown greater gumption and initiative in the manner they have extended their respective educational pursuits beyond the secondary school level.  This is more so given the relative hardship of early life in Ofu.  Sonny and Tikeri went further to the collegiate level, where each acquired a sound educational foundation that has seen both with good professional careers and leadership roles.  Both have also given extensive public service.  Sonny retired with the rank of major after twenty-one years of meritorious service with the United States Air Force.  Since his return to the Territory, Sonny has worked in the private sector; however, he continues his public service with his involvement with the Territory’s various disaster/emergency related programs.  Tikeri’s career, on the other hand, is and has been with the LBJ Tropical Medical Center, the Territory’s only hospital.  He is the only nationally licensed pharmacist in American Samoa and his professional certifications have been essential towards the local hospital’s ability to purchase and dispense federally regulated medicines.  Sonny and Tikeri surpass the other candidates on the consideration of forcefulness.

[1] Under the consideration of character and personality, Tikeri impressed most.  Against the other candidates, Tikeri appeals to us as a humble, mature, and thoughtful person who has throughout this long drawn out succession ordeal, shown the greatest respect for the family.  Too often in matai succession disputes, we recurringly encounter candidate maneuvering, tactics, and strategy motivated solely with individual gain in mind, to the detriment of family preference.  For instance, a favored strategy to overcome a perceived adverse family sentiment towards one’s candidacy is the unilateral removal of the matai succession issue altogether from the family, in favor of a government resolution, by premature offers to register the title with the Territorial Registrar.  See, e.g., In re Matai Title “Olomua,” 27 A.S.R.2d 20, 21 (Land & Titles Div. 1994); In re Matai Title “Misa`alefua,” 28 A.S.R.2d 106, 109 (Land & Titles Div. 1995).  The matter at bar proved to be no exception.  When Tuanu`u offered to register the title at the outset, after the family had only met once, he thereby effectively set the family’s agenda, in terms of a slate of candidates, and accordingly fettered any further meaningful family discussion.  His action opened the door for other family members, who were not even in the family’s contemplation (Vaena unabashedly confessed that nobody supported his candidacy) to hop aboard the registration bandwagon in hope for the best.[4]  We have already alluded to posturing efforts by Vaena, Sonny, and Leama Misiuaita, to advance their concerted agenda even as the issue was before the Court.  This agenda was pursued even to the extent of Sonny offering Tikeri the inducement of communal rental income for Tikeri’s use if Tikeri would abandon his claim in favor of the latter’s succession ambitions.

In Tikeri’s case, he was beyond maneuvering, tactics, and strategy.  We are satisfied that his purpose throughout this succession process was the advancement of perceived family desire rather than the singular pursuit of his own personal ambitions.  Notwithstanding the early upstaging of the family by Tuanu`u’s unilateral and impetuous action of taking the matter to the government, Tikeri quietly persevered toward realization of the family’s 1996 mandate.  (Implementation of that expressed family desire, however, even after Tuanu`u relented, was simply not possible with the outstanding succession counter-claims of family members who were clearly outside the family’s choosing.)  In this, Tikeri showed judgment and a great deal of patience.  Comparatively, he stands out on the considerations of character and personality.  We find that Tikeri prevails under this heading.

4.  Value to Family, Village, and Country

In terms of value to the village, we rate all of the candidates to be about equal.  As to public worth, all the candidates have in their different career choices contributed materially to the general well being of the Territory; however, Sonny and Tikeri’s vocational background and experience sets them slightly ahead in this regard.  Commensurate with their respective education and training, the public service these candidates have and are rendering is, by comparison, more pronounced in the scheme of things; they each offer a unique expertise.  Tikeri’s role with the hospital’s pharmacy is crucial, just as is Sonny’s disaster related planning background and organizational acumen.

[2] With regard to the consideration of value to the family, we single out Tikeri.  Prior to his going off-island to seek his professional training, Tikeri was very much involved with his late father’s administration in the way of tautua (traditional service) to both family and matai.  He is more familiar with the family and its natural resources.  Indeed, he is currently involved with the administration and preservation of family rental income.  It follows that a candidate who is more intimately familiar with family members and assets is in the better position to serve the family as matai.  Moreover, we are persuaded that Tikeri is by his nature and general disposition the best candidate to lead the Le`i family.  We have already alluded to his strong sense of family value—his loyalty to and respect for family regard over his own personal ambitions.  With his patience and humility, Tikeri has demonstrated the sort of maturity and tofa (judgment) best suited for family leadership.

All things considered, we find that Tikeri also prevails under this fourth criterion.

Conclusion and Order

On the foregoing, we conclude that Tikeri is qualified to hold the matai title Le`i, attached to the village of Ofu, Manu`a.  He prevails on hereditary considerations, as well as on the third, and fourth criteria specified by A.S.C.A. § 1.0409(c).

The Territorial Registrar shall, in accordance with A.S.C.A. § 1.0409(b), register the matai title Le`i in candidate Tikeri N. Thompson.

It is so ordered.

**********

SALAI VAOGA and MUSI MOALELE, Plaintiffs,

v.

WILLIE WONG, Defendant.

High Court of American Samoa

Land and Titles Division

LT No. 18-02

June 9, 2003

[1] An oral agreement of the sale and purchase of land is not valid under A.S.C.A. § 37.0211.

[2] An easement of necessity over other tracts of land can be granted only if the facts reveal that the subject of the grant is an inaccessible land-locked parcel of land. 

[3] Easement of necessity doctrine does not apply where the person seeking an easement has by choice created the very obstructions on their own land that create the need for an easement.

[4] Sometimes referred to as the executed-parol-license doctrine, the creation of a servitude by estoppel arises where an owner of land permits another to use the land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked, and the user did substantially change position in reasonable reliance on that belief.

[5] Under the servitude by estoppel rule, a landowner may be estopped to deny the existence of a servitude burdening the land only if the establishment of the servitude is necessary to avoid an injustice.

[6] In applying the servitude by estoppel rule, courts should be careful not to penalize persons who engage in neighborly acts of courtesy and cooperation by permitting others to use their land.

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

Counsel:          For Plaintiffs, S. Salanoa Aumoeualogo

For Defendant, David P. Vargas

OPINION AND ORDER

In June 1988, the defendant Willie Wong and his late wife Mafa conveyed, by warranty deed, a small portion of their land in Ottoville to the plaintiff Salai Vaoga and her late husband Asuelu.  The conveyance comprised 0.088 acres, more or less, and the deed is recorded with the Territorial Registrar in Land Transfers, Volume 5, at pages 202-203.

In April 2002, the defendant erected a rock wall west of the plaintiff’s boundary line with the obvious purpose of preventing the latter’s encroachment.  Before the rock wall was built, plaintiff was using an area of defendant’s adjacent land for a cook-house, to partially locate the base for a set of concrete steps to her front door, and to facilitate the parking of vehicles next to her home.  After the rock wall was built, plaintiff instituted these proceedings.  She seeks to have the rock wall removed and to require the defendant to convey her an additional area of his adjacent land lying westward to her parcel.

Plaintiff’s theories are threefold and framed in the alternative: the first is an oral agreement between Mafa Wong and her late husband Asuelu for the sale and purchase of additional land (now encumbered by the rock wall); the second is an easement of necessity; and the third is the claim to an established irrevocable license.

1. Oral Agreement

[1] Plaintiff in her written final argument appears to have abandoned her first theory as it was not further addressed and argued.  In any event, an oral agreement of the sale and purchase of land is “not valid.”  See A.S.C.A. § 37.0211.[1]  The very obvious aim of this enactment is to address the potential for mischief that can be wrought with fact scenarios such as that before us--an oral contract for the sale and purchase of land, without specific details, alleged to have been concluded between two dead parties.

2. Easement of Necessity

[2] As to plaintiff’s second theory, an easement of necessity is only viable if the facts reveal that the subject of the grant is an inaccessible land-locked parcel of land.  See Sese v. Leota, 9 A.S.R.2d 25, 30 (Land & Titles Div. 1998) (“Where a subdivided piece of land is found to be without access to a road, an easement arises by implication over the other part or parts of the land subdivided, if such easement is strictly necessary for the beneficial use of the tract sold.”).  In addition to the evidence taken in-court, the Judges had the benefit of a site visit as well. From the evidence and from firsthand observation at the site, we find that the plaintiff’s parcel of land is not land-locked.  There is unobstructed access to plaintiff’s land.  Her problem is that her small lot is substantially blanketed by her home, which has quite obviously been extended over time.  There is very little room left for anything else that might be done on her land, let alone provide parking space.  Indeed, the steps leading up to her home’s front entrance actually encroaches on defendant’s land.  Moreover, the only natural entry-point for ingress onto plaintiff’s parcel from the access road is blocked by her late husband’s concrete tomb.  Thus, what is really being sought here is not an easement of necessity, but an easement of convenience.  In short, plaintiff desires more land from the defendant so that she and her invitees can park vehicles right next to her house, albeit outside her boundary line.

[3] But the dimensions of plaintiff’s house, and the location of her husband’s tomb were not of the defendant’s doing.  We fail to see how it is that plaintiff’s choices, as to what is done on her land, may somehow then give rise to a dominant/servient tenement relationship between her parcel and her grantor’s remaining land.  The implied easement of necessity doctrine simply does not apply on the facts before us.

3. Irrevocable License

[4-6] The theory here seems to be equity based, suggesting the creation of a servitude by estoppel.  Sometimes referred to as the executed-parol-license doctrine, the creation of a servitude by estoppel arises where an:

owner [of land] permit[s] another to use that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked, and the user did substantially change position in reasonable reliance on that belief.

Restatement (Third) of Property § 2.10(1) (2000).  Under this rule, a landowner may be estopped to deny the existence of a servitude burdening the land only if the establishment of the servitude is necessary to avoid an injustice.  See id. at Comment e.  But at the same time, “courts should be careful not to penalize persons who engage in neighborly acts of courtesy and cooperation by permitting others to use their land.”  Id.

Plaintiff contends that she acquired some sort of irrevocable license to use defendant’s adjacent land, based on her past use of his land to locate an umukuka (cook-house), plant a line of coconut trees and a breadfruit tree, as well as her belief that the defendant would at some future time sell her more land.  Additionally, she argues that her family had expended a great deal of money on improvements to the area, including leveling, carting in loads of cinders, and laying down old purse-seiner fish netting to check erosion.

We confirm from our site visit that the leveling, cinder filling, and laying of fish netting as claimed by plaintiff and her family were very evidently related to the actual defined access way that traverses over defendant’s land from the public roadway toward plaintiff’s parcel.  But plaintiff’s use of this defined access way is not at issue nor contested by the defendant.

Apparently, what plaintiff appears to be canvassing is the novel idea that improvements to the access way can somehow be extended as grounds to burden an adjacent area of the grantor’s land beyond the access way, There is no basis in law or equity for this remarkable contention. Alternatively, if plaintiff is arguing that her setting up of the umukuka and her planting of a breadfruit as well as a few coconut trees qualifies as a “substantial change in position” to invoke the servitude by estoppel rule, she is sorely stretching the limits of credulity.

Judgment must enter in favor of the defendant.

It is so ordered.

**********

BILLY JOE LARSON, a minor, by BILL LARSON,

his guardian ad litem, Plaintiff,

v.

RAY McMOORE and SESE McMOORE, Defendants.

________________________________

PEARLITA CANDY FUAVAI, Intervenor/Defendant.

High Court of American Samoa

Land and Titles Division

LT No. 12-01

July 17, 2003

[1] “Next friend” is a term that was developed at common law, usually for a person designated to prosecute a civil action on a plaintiff minor’s behalf, while a “guardian ad litem” referred to a person appointed to present a defendant minor’s defense.  However, in current practice and in American Samoa, the term “guardian ad litem” is used whether the minor is a party plaintiff or defendant.

[2] Where constructed rock wall encroached on property and diverted traffic upon property, owner of rock wall was liable for trespass.

[3] One is subject to liability to another for trespass if he enters land in the possession of the other, or causes a thing or a third person to do so.

[4] An irrevocable license, sometimes referred to as an easement by estoppel, arises where an owner or occupier of land permits another to use that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked, and the user did substantially change position in reasonable reliance on that belief.

[5] Whether or not to issue a mandatory injunction for removal of an encroachment, when the encroachment was not intentionally erected on another’s property, is within the Court’s discretion. 

[6] When an encroachment is unintentional, the Court must balance the hardship to the defendants against the benefit to the plaintiff; if the former is great and the latter is slight, the court will ordinarily leave the plaintiff to his remedy at law.

[7] Where rock wall prevented plaintiffs from fully exercising their rights to the enjoyment of their lands, diverting traffic upon one plot and rendering nugatory rights-of-way, an injunction directing removal of the wall was appropriate.

[8] Actual physical interference with the use and enjoyment of another’s land constitutes the most common type of nuisance and is properly subject to the issuance of a permanent injunction.

[9] A continuing trespass that can be abated is properly eliminated by injunctive relief.

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

Counsel:          For Plaintiff, Jeffrey Waller and Marshall Ashley

 For Defendants, Tauivi Tuinei and Arthur Ripley, Jr.    

 For Intervenor/Defendant, Afoa L. Su`esu`e Lutu

OPINION AND ORDER

This action concerns removal of a rock wall that allegedly blocks a right of way and diverts entrants across land owned by plaintiff Billy Joe Larson (“Billy Joe”), a minor, to reach other land.  Defendants Ray McMoore (“Ray”) and Sese McMoore (“Sese”) (together “the McMoores”) admit that they constructed the rock wall, but deny that the right of way exists and claim that the rock wall is entirely on their land.  Even though the lands involved are individually-owned lands and the issue did not require the Secretary of Samoan Affairs’ involvement under A.S.C.A. § 43.0302, upon the request of Bill Larson (“Larson”), Billy Joe’s adoptive father, the Secretary informally mediated the issue, but without success.   Larson then filed this action as Billy Joe’s “next friend,” without judicial appointment.

[1] “Next friend” is a term that was developed at common law, usually for a person designated to prosecute a civil action on a plaintiff minor’s behalf, while a “guardian ad litem” referred to a person appointed to present a defendant minor’s defense.  See 1 California Civil Procedure Before Trial § 19.1 (3d ed. 1990).  In current practice, however, the term “guardian ad litem” is more commonly understood and used whether the minor is a party plaintiff or defendant, id., and is the usual designation in this jurisdiction.  Both terms are still viable, provided the representative in this capacity is judicially appointed.  T.C.R.C.P. 17(c).  We therefore directed Billy Joe’s counsel to have Larson appointed by the Court as Billy Joe’s formal representative in this action, preferably as Billy Joe’s guardian ad litem.  This was done in due course.

Discussion

A.  Factual Background          

Four subdivided lots are involved.[1]  The lots are within a larger parcel of land, in Ili`ili, American Samoa, originally owned by Ione Fe`a (“Fe`a”) as his individually-owned land.  The portion of the larger parcel at issue is cone-shaped with the apex at the north end.  For purposes of this discussion, we designate the lots by number.  Lot 1 encompasses the apex and is owned by Intervenor/Defendant Pearlita Candy Fuavai (“Fuavai”).  Fuavai was not originally made a party to this action.  After the trial, the Court added Fuavai as a necessary party for full and proper adjudication of the issues, as she is owner of land accessed by crossing Billy Joe’s land with the rock wall in place.  Lot 2 is the second lot southwest down the left side.  Sese owns Lot 2.  Lot 3 is the first lot southeast down the right side of the cone.  Billy Joe is the beneficial owner of Lot 3.  Lot 4 lies between Lots 2 and 3 south of Lot 1.  Ray, Sese, or the McMoores hold the title to Lot 4, informally in trust for the McMoore’s grandchildren.

During the planning for the subdivision of the larger parcel, in 1989 and 1990, Fe`a instructed the surveyor to provide for rights of way (“ROWs” when plural and “ROW” when singular) to ingress and egress the lots.  Legal descriptions of these ROWs, however, were not officially recorded with the Territorial Registrar.  Nevertheless, the evidence, based on the registered deeds and subsequent surveys, affirmed the existence of the ROWs, intended for the benefit and enjoyment of all the adjoining landowners.  We designate the relevant ROWs by letter.  ROW A lies between Billy Joe’s Lot 3 and the McMoores’ in-trust Lot 4, abuts with Sese’s Lot 2 and ROW C at its north end, and is 15’ wide.  Ray was instrumental in developing and still assists in maintaining ROW A, even though the McMoores can access Lot 2 and Lot 5 without using ROW A.  ROW B lies between Lot 1 and Billy Joe’s Lot 3, would provide access from the end of ROW A to Lot 1, and is also 15’ wide.  ROW C lies between Lot 1 and Sese’s Lot 2, extends north from the end of ROW A, and is 7.5’ wide.[2]  The McMoores profess to no knowledge of the existence of ROW B and ROW C.

In 1990, Fe`a conveyed approximately seven acres of the larger parcel, in two separate transactions of three acres and four acres, to Fuga Teleso (“Fuga”).  Lot 3 lies within the three-acre transaction.  In 1990, Fuga conveyed Lot 3 to Eletise M. Wolman (“Eletise”).  In 1994, Eletise conveyed Lot 3 to Senovefa Pritt (“Senovefa”).  Eletise and Senvoefa are native Samoans entitled to own land in American Samoa; their husbands, Lewis Wolman (“Lewis”) and Ray Pritt, are nonnatives and are not authorized to acquire title to individually-owned land in the territory.  A.S.C.A. § 37.0204(b).  In 2000, Senovefa conveyed Lot 3 to Billy Joe, with Margie Faaita holding title as trustee until Billy Joe reaches age 18. 

Also in 1990, Fe`a conveyed Lot 1 to Fuavai.  This transaction was recorded with the Territorial Registrar.  The evidence initially suggested that Lot 1 was later subdivided into two unrecorded lots, now separately occupied.  After Fuavai was joined as a necessary party and further evidence was introduced, it became clear that Fuavai did not subdivide Lot 1, the present separate occupants of portions of Lot 1 are trespassers, and Fuavai timely objected to their occupancy and plans, if necessary, to take formal action to evict these occupants.    

In 1991, Fe`a conveyed Lot 2 to Sese.  It is unclear under the evidence whether Ray, Sese, or the McMoores hold the title to Lot 4, or the year when this title was acquired (though clearly some time after the 1991 conveyance to Sese but before the trial of this action).  Though also unclear, it appears that Fuga was the grantor of the Lot 4 transaction, as he owned the major portion of the larger parcel after his two acquisitions from Fe`a in 1990.[3]

At the time Fe`a conveyed Lot 2 to Sese, or shortly after, a meeting on site was held.  The attendees included Lewis representing his wife Eletise, and Ray for himself and his wife Sese, Fuga, and Sina Fe`a (“Sina”) representing her father Fe`a.  Sina handled most of Fe`a’s land transactions.  Neither Fuavai nor her representative was present.  The McMoores had recently had Lot 2 resurveyed.  They understood that the northeast boundary of Lot 2 immediately abutted the southwest boundary of Lot 1, thus encompassing ROW C, and that the southeast boundary of Lot 1 immediately abutted the northwest boundary of Billy Joe’s Lot 3, thus encompassing ROW B.  The attendees, Lewis included, discussed access to Lot 1 from the north end of ROW A, and agreed to permit use of a strip along the northwest boundary of Lot 3, then owned by Eletise, for such access.            

In 1994, the McMoores constructed the rock wall Billy Joe wants removed.  The rock wall begins on the southeast boundary of Lot 2 and extends from there across the south end of ROW C to the southwest corner of ROW B.  Because of the rock wall’s positioning, persons are prevented from entering ROW B from ROW A and must use the stretch of Lot 3 permitted by Lewis to access Lot 1. 

B.  Legal Analysis

Based on the evidence, there is no legal basis that allows the rock wall to remain standing.

[2-4] The rock wall is not situated entirely on Sese’s Lot 2.  Instead, it physically encroaches on the 7.5’ ROW C and cuts off access to ROW B while diverting traffic across Billy Joe’s Lot 3.  By both encroaching on ROW C and causing others to stray onto Lot 3, the McMoores are committing a trespass by their rock wall.   See Letuli v. Le`i, 22 A.S.R.2d 77, 82 (Lands and Titles Div. 1992); Restatement (Second) of Torts § 158 (1965) (“One is subject to liability to another for trespass [if he] enters land in the possession of the other, or causes a thing or a third person to do so”).[4]

[5-6] Whether or not to issue a mandatory injunction for removal of an encroachment, when the encroachment was not intentionally erected on another’s property, is within our discretion.  See Whitlock v. Hilander Foods, Inc., 720 N.E.2d 302, 307 (Ill. App. Ct. 1999) (no balancing if encroachment was deliberate); Ridgway v. TTnT Dev. Corp., 26 S.W.3d 428, 433 (Mo. Ct. App. 2000) (same); Annotation, Mandatory injunction to compel removal of encroachments by adjoining landowner, 28 A.L.R.2d 679 § 8 (1953) (hereinafter “Annotation”).  We do not find that the McMoores intentionally erected the rock wall outside Sese’s Lot 2 on ROW C; instead, they were simply mistaken about the property line.  Thus, we must “balance the hardship to the defendant[s] against the benefit to the plaintiff; if the former is great and the latter is slight, the court will ordinarily leave the plaintiff to his remedy at law.”  Whitlock, 720 N.E.2d at 307; Annotation at § 6.

In this case, we find that the balance tips in favor of removal.  Though the cost of the removal of the wall is not expressly in evidence, it will be relatively nominal, even done by inexpensive self-help, and the hardship to Fuavai and Billy Joe wins out.  As of now, Fuavai is not able to fully exercise her rights to the enjoyment of her Lot 1.  The rock wall renders nugatory ROW B and ROW C, which were intended as access to Lot 1.  Instead, the wall forces Fuavai to enter Lot 1 by crossing Lot 3.  Moreover, the 7.5’ encroachment on ROW C cannot be considered slight.  But see Whitlock, 720 N.E.2d at 307-08; Generalow v. Steinberger, 517 N.Y.S.2d 22, 24 (1987).  Additionally, Billy Joe is injured because parties entering Lot 1 will continue to use his Lot 3.  Unless the rock wall comes down, the trespass on Lot 3 will be permanent, also depriving Billy Jo of the lawful enjoyment of his land.  See Thompson v. Toluao, 24 A.S.R.2d 127, 132-33 (Land and Titles Div. 1993) (“Actual physical interference with the use and enjoyment of another’s land constitutes the most common type of nuisance and is properly subject to the issuance of a permanent injunction”); Letuli, 22 A.S.R.2d at 86 (“continuing trespass that can be abated is properly eliminated by injunctive relief”); A.S.C.A. § 43.1302.

Order

The McMoores shall remove the rock wall from ROW C.  Removal shall be made within a reasonable time, not to exceed 90 days. 

It is so ordered.

**********

TUANA`ITAU TUIA, for himself and Members of the TUANA`ITAU FAMILY,

Plaintiffs/Counterdefendants,

v.

NU`U LEOMITI and Members of the LEOMITI FAMILY, Defendants/Counterclaimants/

Cross-Claimants,

v.

TOLUAO SEUTA`ATIA and Members of the TOLUAO FAMILY, Cross-Defendants.

______________________________

FILIPELE LEIU LEOMITI, for himself as Senior Matai and on behalf of the LEOMITI FAMILY, Plaintiffs,

v.

SEUTAATIA TOLUAO, Defendant.

______________________________

MINA THOMPSON and MOANANU VA, for themselves

and on behalf of the MOANANU FAMILY, Intervenors/Objectors.

High Court of American Samoa

Land and Titles Division

LT No. 19-98

LT No. 19-95

October 1, 2003

[1] Where surveyor’s testimony depicted surveyed plots as different areas of land, court nonetheless determined that the same land was at issue and did so based upon the facts that boundary configurations were nearly identical, that plots were of substantially the same acreage and, most importantly, the underlying facts and issues determined in prior litigation showed them to be the same.

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

Counsel:             For Defendants/Counterclaimants/Cross-Claimants Nu`u Leomiti, and Leomiti Family, and Plaintiffs Filipele Leiu Leomiti and Leomiti Family, Arthur Ripley, Jr.

                           For Plaintiffs/Counterdefendants Tuana`itau Tuia and Tuana`itau Family, and Cross-Defendant/Defendant Seutaatia Toluao and Cross-Defendants Toluao Family, S. Salanoa Aumoeualogo

                          For Intervenors/Objectors Mina Thompson, Moananu Va, and Moananu Family, Katopau T. Ainu`u

OPINION AND ORDER

In Toluao v. Haleck, LT No. 40-80, slip op. (Land & Titles Div. Apr. 13, 1983) (“LT No. 40-80”), this Court divided a surveyed plot of land into three separate parcels, each parcel owned by a distinct family as communal land.[1]  Determination of the exact location of the communal land awarded to the three families is at the essence of the present consolidated actions.

Procedural Summary

On April 10, 1995, Plaintiffs Filipele Leiu Leomiti (“Filipele”) and Leomiti Family (“Leomiti family”) filed LT No. 19-95 against Defendant Seutaatia Toluao (“Toluao”) for declaration of the land determined to be the Leomiti family’s communal land in LT No. 40-80.

On December 17, 1998, P1aintiffs Tuana`itau Tuia (“Tuana`itau”) and Tuana`itau Family (“Tuana`itau family”) filed LT No. 19-98 against Defendants Nu`u Leomiti (“Nu`u”) and Leomiti Family to enjoin them from trespassing on the land determined to be the Tuana`itau family’s communal land in LT No. 40-80.  On January 27, 1999, Nu`u and the Leomiti family counterclaimed to enjoin Tuana`itau and the Tuana`itau family from trespassing on the land determined to be the Leomiti family’s communal land in LT No. 40-80.  On February 26, 1999, the cross-claim of Nu`u and the Leomiti family was filed, joining Toluao and the Toluao family as parties.

Additionally, on February 26, 1999, LT No. 19-95 and LT No. 19-98 were consolidated.  On June 11, 1999, the intervention of Intervenors Mina Thompson (“Thompson”), Moananu Va (“Moananu”), and Moananu Family (“Moananu family”) was authorized.

Several pretrial orders were issued to maintain the peace among the parties and to facilitate survey retracing of the land each family claims to own as a result of the decision in LT No. 40-80.

After numerous continuances, trial took place during portions of nine days, beginning on February 13, 2003 and concluding on March 1, 2003. Counsel and representatives of the Leomiti, Tuana`itau, Toluao, and Monananu families were present throughout the trial proceedings.

Discussion

A.  Location of the Land at Issue

All parties to this action presently recognize “Lemauga” as the name of the land at issue (“the land”) in LT No. 40-80.  The land is located in the vicinity of a mountain ridge, having an elevation of approximately 1,183 feet at its highest point.  The village center of Pava`ia`i lies in the plain below the southeast side of the ridge.  The village center of A`oloau lies atop the higher mountain to the northwest of the ridge.

The exact location of the land was the subject of extended technical and detailed testimony of Lawrence P. French (“French”), an expert professional surveyor, taken during the Leomiti family’s case-in-chief and in rebuttal.  French opined that the survey of approximately 13.5 acres of the land in evidence in the LT No. 40-80 decision actually contained approximately 13.62 acres (“Plot A”) and was located mostly on the westerly slope of the ridge.  French further opined that the subsequent survey of approximately 1774 acres in evidence in the sequel decision to LT No. 40-80 placed the 17.74 acres mostly on the easterly slope of the ridge.  See generally Leomiti v. Toluao, 11 A.S.R.2d 49 (Land & Titles Div. 1989) (“LT No. 35-82/LT No. 10-83”).  Discussed in detail below, as a result of the decision in LT No. 35-82/LT No. 10-83, the 17.74 acre parcel became approximately 13.66 acres, adjusted to approximately 13.574 acres (“Plot B”).

French pointed out numerous significant errors and, in his opinion, unprofessional work in the preparation of the surveys used in LT No. 40-80 and LT No. 35-82/LT No. 10-83.[2]  He also depicted his retrace of both surveys in several single exhibits.  Two of them, Exhibits No. 7 and No. 8, showed the relative locations of Plot A and Plot B (together “the plots”), based on French’s survey work before trial.  Exhibit No. 7 shows the plots without land elevation contour lines.  Exhibit No. 8 shows the plots with contour lines.  The third one, Exhibit No. 40, shows refined locations of the contoured plots, based on additional information acquired by French during the trial.

[1] French has produced the most accurate depictions of the surveyed locations of Plot A and Plot B.  However, for the reasons discussed below, we find that the plots are the same area of land.  Being within the correctly located survey presented in LT No. 35-82/LT No. 10-83, Plot B is in reality the land divided by the Court in LT No. 40-80.

First, significant physical characteristics support this finding. The boundary configurations of Plot A and Plot B are substantially identical. The two plots also contain approximately the same acreage.  Plot A contains approximately 13.62 acres.  Plot B contains approximately 13.574 acres.  Next, and most important, the underlying facts and the issues determined in the prior related litigation fully support this finding. These facts include, but are not limited to: the relative location of the land to a construction cinder site, the gross location of the 1995 Leomiti survey land registration, and the adjudicated land ownership of the westerly slope of the ridge.  In the following discussion, Plot B refers to the land.

B.  LT No. 40-80

The Court decided LT No. 40-80 on April 13, 1983.  In LT No. 40-80, Sasagi Toluao Vaofusi commenced the action to permanently enjoin Otto V. Haleck (“Haleck”) from trespassing on her family’s communal land.  By counterclaim, intervention, and other pretrial proceedings, the Leomiti, Tuana`itau, and Toluao families, all of Pava`ia`i, properly became represented parties.  The Court held that the entire parcel was communal land of the three families.  Based on the Haleck survey offered for registration and then in evidence, the Court divided the approximately 13.5 acres into three parts—about two acres at the southwesterly end to the Toluao family, five and one-half acres at the northeasterly end to the Leomiti family, and six acres in between to the Tuana`itau family.

The real underlying issue at stake was control of the construction cinder sites on the easterly or Pava`ia`i side of the ridgeline.  Cinders for construction projects have been extensively excavated and sold for construction projects on the easterly slope of the ridge immediately below the ridgeline before and since LT No. 40-80 was commenced and decided.

C.  LT No. 35-82/LT No. 10-83

The Court decided LT No. 35-82/LT No. 10-83 on May 22, 1989.[3]  Both actions were land registration cases that dealt with overlapping proposals.  LT No. 35-82 concerned the offer on the behalf of the Leomiti family to register as the family’s communal land its survey of the approximately 17.74 acre parcel.  The case also involved objections on behalf of the Tuana`itau and Toluao families, among others.  The parties’ settlement of the issues in LT No. 35-82 before the trial of LT No. 10-83 was incorporated in the Court’s decision dealing with both cases.  In essence, the Court authorized registration of the two acres by the Toluao family and of the six acres by the Tuana`itau family as the Court awarded in LT No. 40-80.  The Leomiti family was allowed to register the remaining land, estimated by the Court to be between 11 and 12 acres, less approximately 4.08 acres adjudicated as the Lefotu family’s communal land in LT No. 10-83 and an overlapping area of slightly less than two acres at the southwest corner of the Leomiti survey stipulated by the Leomiti family to be the Tuana`itau family’s land.  The Court specifically found that the Leomiti survey at issue in LT No. 35-82 “included a large part of the Haleck survey” at issue in LT No. 40-80 and illustrated the three-way division on its own drawing.  See Leomiti, 11 A.S.R.2d at 50, n.1.  This drawing showed most of the surveyed land on the westerly slope of the ridge.  Id. (Ex. 1 in the case file).  However, it is abundantly clear that the land divided into three portions by the Court in LT No. 40-80 was for the most part actually located on the easterly slope of the ridge where the cinder excavation was taking place.

The Leomiti family eventually acted on the Court’s authorization in LT No. 40-80 and specifically in LT No. 35-82/LT No. 10-83.  Upon Leomiti family’s application, the Territorial Registrar issued the certificate of registration for the Leomiti family’s portion on July 14, 1995.  The registration was predicated on the Court’s decision in LT No, 40-80.  However, it was generally consistent with the Leomiti family’s survey in evidence in LT No. 35-82/LT No. 10-83.  The application contained another survey, done in 1994, showing the Leomiti family’s portion to be approximately 5.218 acres substantially located on the easterly slope of the ridge.[4]  The Tuana`itau family acted somewhat more prudently by proposing registration of its portion in 1985, using a survey done that year, showing the area of the Tuana`itau family’s portion to be approximately 6.14 acres.  The Tuana`itau family’s application was met with numerous objections by the Leomiti, Toluao, and Lefotu families, among others, and to this day has remained dormant and progressed no further.  To our knowledge, the Toluao family has never attempted to register its portion despite the Court’s authorization.

LT No. 10-83 concerned the offer by Lefotu Tuilesu (“Lefotu”), on behalf of the Lefotu family of A`oloau, to register as the family’s communal land approximately 4.08 acres adjacent to public road from Pava`ia`i to A`oloau, on the easterly slope of the ridge, called “Tafaga” by the Lefotu family, over objections on behalf of the Leomiti, Tuana`itau, and Toluao families, among others. Lefotu proposed registration of land located within the approximately 17.74 acres proposed for registration by the Leomiti family.

By the decision of May 22, 1989, in LT No. 35-82/LT No. 10-83, the Court awarded the 4.08 acres claimed for the Lefotu family as communal land.  On June 8, 1989, the Territorial Registrar issued the certificate of registration of the 4.08 acres as the Lefotu family’s communal land.  This mathematically left, at face value, approximately 5.66 acres to the Leomiti family as its communal land (17.74 acres less the Lefotu family’s 4.08 acres, the Tuana`itau family’s six acres, and the Toluao family’s two acres).  However, according to French’s determination, the actual area awarded to the Lefotu family in LT No. 35-82/LT No. 10-83 was approximately 4.166 acres, which we accept as the most accurate surveyed area.  Moreover, on December 4, 1985, without objection, Lefotu previously had registered as his individually owned land approximately 0.66 of an acre (0.657 of an acre by French’s calculation) immediately adjacent to the west side of the 4.166 acre parcel, which he also called “Tafaga.”  Thus, the Leomiti’s portion of the land, Plot B as reduced, is approximately 4.917 acres (17.74 acres less the Lefotu family’s 4.166 acres and Lefotu’s 0.657 of an acre, the Tuana`itau family’s six acres, and the Toluao family’s two acres)

D.  LT No. 29-86/LT No. 41-86/LT No. 12-87

Lualemana v. Atualevao, 16 A.S.R.2d 34 (Land & Titles Div. 1990) and 17 A.S.R.2d 151 (Land & Titles Div. 1990) (“LT No. 29-86/LT No. 41-86/LT No. 12-87”) was decided on August 6, 1990.  Certain aspects and other matters in these consolidated cases are significant for purposes of our decision in the present cases, because of their relation to a portion of the land at issue.

The three actions began with Lualemana E. Faoa (“Lualemana”), the principal matai of the Village of A`asu, seeking to prevent Atualevao Sosene Asifoa (“Asifoa”) and Lefotu, the same matai involved LT No. 35-82/LT No. 10-83, from occupying Lualemana’s lands in A`asu.  Other neighbors got involved because the village centers of A`asu and A`oloau are adjacent to each other atop the mountain northwesterly of the ridge involved in the present actions.  A.U. Fuimaono (“Fuimaono”), the principal matai of A`oloau, and the A`oloau Village Council asserted that the land at issue was actually in A`oloau.

Fuimaono and the Council also offered for registration as the A`oloau Village’s communal land some 420 acres of land.  Lualemana, for his family and A`asu, and Tuitele K.A. Le`oso for the Village of Leone filed administrative objections pertaining to portions of the A`oloau survey.  In due course, the controversy was referred to the Court for judicial resolution.  The eastern boundary of the 420-acre A`oloau survey ran along, and at some points on the easterly side, of the ridge.  Toluao, Tuana`itau and other matais, for themselves and Pava`ia`i, were allowed to intervene, even though they had failed to make a timely administrative objection to the A`oloau registration offer.  They asserted that the westerly side of the ridge was land belonging to Pava`ia`i families.  In response, Fuimaono alleged that Toluao had only recently occupied and destroyed crops on land owned by various A`oloau families within the A`oloau survey area.

Finally, others completed the roster of participants for the trial.  The Utu family of A`oloau intervened to protect its land claim within the area claimed by Toluao.  Several matai calling themselves the “Aiga Atiulagi” of the Village of Malaeloa also contested a portion of the A`oloau survey.

The A`oloau and Pava`ia`i parties to the three consolidated cases and to the present actions appear to agree that “Lago” is the general name of a large area on the westerly side of the ridge.  In dealing with the issues pertaining to this portion of the land within the A`oloau survey, the Court recognized that one powerful chief after another apparently dominated this part of the island of Tutuila during ancient times, and that current generations in both A`oloau and Pava`ia`i relish memories of more extended boundaries of their village confines.  Lualemana, 16 A.S.R.2d at 38 (citing Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383 (Trial Div. 1963)).  The Court found, however, that the A`oloau people began to continuously occupy and cultivate “Lago” at some time after 1946, without displacing people from Pava`ia`i or elsewhere.  Any traditional Pava`ia`i use of the area during an earlier era was probably occasional and was, in any event, insufficient to defeat the later claim of the A`oloau people.  Id. at 38-39 (citing Lualemana v. Brown, 3 A.S.R. 348, 352-53 (Trial Div. 1958)).  The Court therefore held that land with “Lago” on the westerly side of the ridge was owned by A`oloau people and presumptively by A`oloau families in accordance with Samoan customary land ownership.  Lualemana, 16 A.S.R.2d at 39.[5]

The Court in LT No. 29-86/LT No. 4l-86/LT No. 12-87 also specifically observed, and pointedly for present purposes, that the small area within the A`oloau survey on the easterly side of the ridge was just above the cinder pit areas held to be the Tuana`itau family’s and Toluao family’s communal lands, and above the adjacent and nearby lands held to be the Leomiti family’s and Lefotu family’s communal lands in LT No. 35-82/LT No. 10-83.  Id.  The Court also noted that it had insufficient evidence before it to determine any overlaps between the A`oloau survey and the adjudicated communal lands of these four families.  Id.[6]

In LT No. 29-86/LT No. 41-86/LT No. 12-87, the Utu family of A`oloau claimed as its communal land approximately 2.076 acres (as retraced by French), designated as “Logo.”  The 2.076 acres were located on the westerly slope of the ridge within the larger area generally known as “Lago” and within both the A`oloau and Pava`ia`i surveys then at issue. The Utu family intervened because the Toluao family was cultivating this area.  Lefotu claimed that the Utu survey encroached upon other land he had registered, and by stipulation, the Court did not adjudicate the Utu-Lefotu issue.  However, having determined that “Lago” on the westerly side of the ridge was property of A`oloau families, the Court did enjoin Toluao from further occupancy and cultivation of  “Lago” on the westerly side, including the Utu family’s claimed land.  Therefore, the Utu family’s claim pertains to an area outside of Plot B, the correct location of the land actually adjudicated in LT No. 40-80 and confirmed in LT No. 35-82/LT No. 10-83.  The Utu family’s claimed land is largely within Plot A, determined by French in the present actions to be the location of the Haleck survey used in LT No. 40-80.

Two other parcels within “Lago” on the westerly slope of the ridge are involved in the present actions.  Moananu had one parcel, named “Saiaulama” and containing approximately 1.5 acres, surveyed as the communal land of the Moananu family of A`oloau.  This parcel is again largely within Plot A of French’s retrace.  While we lack any evidence of its registration as yet, we note that “Saiaulama” is located entirely outside of Plot B, the true location of the land, as adjudicated in LT No. 40-80 and confirmed in LT No. 35-82/LT No. 10-83.

Moananu and Thompson had the second of these two other parcels within “Lago” on the westerly slope of the ridge surveyed as their individually owned land.  Moananu is the sa`o (head chief) of the Moananu family.  Thompson is Moananu’s sister and lives on this parcel. This parcel, named “Saiaulama-Fita” and containing approximately 2.803 acres, was registered on May 18, 1992, without objection.  Their action was consistent with the Court’s August 6, 1990 decision in LT No. 29-86/LT No. 41-86/LT No. 12-87.  “Saiaulama-Fita” is largely located outside of Plot E, the true location of the land, as adjudicated in LT No. 40-80 and confirmed in LT No. 35-82/LT No. 10-83.  This brings us to several outstanding survey issues that are apparently still loose ends to full closure of the controversies at issue.

E.  Outstanding Survey Issues

Refined surveys of the three parcels within Plot B need to be prepared in accordance with the division from the decision in LT No. 40-80.  The two internal boundaries between the three parcels must be determined. The end result must give: (1) the Toluao family approximately two acres at the southwesterly end of Plot B; (2) the Tuana`itau family approximately six acres immediately adjacent to the Toluao parcel; and (3) the balance of the acreage at the northeasterly end to the Leomiti family.

The Leomiti family’s parcel appears to need further survey refinement at the north end.  The Leomiti family’s survey of approximately 5.218 acres registered on July 14, 1995, attempts, it seems, to coincide with the boundaries between the Leomiti family’s parcel and the small, peculiar portion of the Moananu/Thompson parcel jutting out of the main area to the southeast.  However, we cannot reach any certain conclusion on this surmise based on the surveys presently in evidence.  It also appears that both the Leomiti family 5.218 acre survey and the Moananu/Thompson 2.803 acre survey registered on May 18, 1992, may not take into account, at least correctly, the Lefotu 0.657 of an acre survey registered earlier on December 4, 1985.

F.  Entitlement to Relief

The Leomiti and Tuana`itau families, and incidentally, the Toluao family are entitled to determinations of their respective communal land parcels within Plot B.  The Leomiti family with respect to its communal land within Plot B, Moananu and Thompson with respect to their individually owned land, and incidentally, Lefotu with respect to his individually owned land, are entitled to determination of the boundaries between these three parcels of land.  The determinations shall be consistent with the findings of fact discussed above.

Until completion of the necessary survey work defining the boundaries, the Court can neither adjudicate final determinations nor authorize the accompanying registrations.  The Court will also rule on the prayers for permanent injunctions and trespass damages in the final order.

Order

1. Plot B is the land actually adjudicated and divided into three parcels in LT No. 40-80: approximately two acres owned by the Toluao family as communal land; approximately six acres owned by the Tuana`itau family as communal land; and the remaining area, approximately five and one-half acres, owned by the Leomiti family as communal land, subject to refinement of the boundaries of this parcel, after the surveyor’s further consideration, with the individually owned lands belonging to Moananu and Thompson and to Lefotu.

2. The parties shall have 30 days from the entry of this order to agree on a surveyor, the division of costs, and other necessary conditions for the additional survey of the parcels at issue within and adjoining Plot B, and to advise the Court of their agreement on these matters.  Should the parties fail to reach an agreement, the Court will hold a hearing to appoint a surveyor and apportion costs.

3. The existing preliminary injunctions shall remain in full force and effect until further order of the Court.

It is so ordered.

**********

DOUGLASS CRANE (MIKE) KNEUBUHL, MARGARET K. LANDRIGAN, and ALFRED JAMES PRITCHARD KNEUBUHL, As Trustees and Beneficiaries of the Kneubuhl Trust, Plaintiffs,

v.

LILIAN ALA`I and FRANCES OPELLE, Defendants.

________________________________

GILIAN ROBIN KNEUBUHL ROUSH, Intervenor.

High Court of American Samoa

Land and Titles Division

LT No. 22-01

October 3, 2003

[1] It is well-established that in order to demonstrate standing, one must show: (1) injury in fact, by which we mean an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, by which we mean that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and ( 3) a likelihood that the injury will be redressed by a favorable decision, by which we mean that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.  These elements are the irreducible minimum required by the Constitution.

[2] Under A.S.C.A. § 43.1101, a person is entitled to declaratory relief if he is “interested under a deed, will or other written, or under a contract, or . . . desires a declaration of his rights or duties with respect to another, or in respect to, in, over or upon property.” 

[3] In litigation involving a trust, beneficiaries have standing to protect their rights and interests.

[4] Under A.S.C.A. § 37.0205, the Legislature has carved out an exception to the restrictions on land alienation.

[5] Under A.S.C.A. § 37.0205, a Samoan can create a trust for the benefit of a son or daughter, “in view of legal marriage with a nonnative, or for his son or daughter already married to a nonnative, or for any of the issue of any such marriage.” 

[6] In a trust, trustees hold the legal title to the trust property while the beneficiaries hold the equitable interest.

[7] A trust does not fail merely because the trustee is incapable of taking title to the property.

[8] A party waived its right to challenge an agreement when it acquiesces transactions made pursuant to the agreement.

[9] Acquiescence consists of assent by words or conduct on which the other party relies.

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

Counsel:          For Plaintiffs, Jeffrey Waller

For Defendant Lilian Ala’i, David A. Vargas

For Defendant Frances Opelle, pro se

For Intervenor, pro se

Plaintiffs Douglass Crane (Mike) Kneubuhl (“Douglass”), Margaret K. Landrigan (“Margaret”), and Alfred James Pritchard Kneubuhl (“Alfred”) brought this action to have a lease of trust land by Defendant Francis Opelle (“Francis”) to Defendant Lilian Ala`I (“Lilian”) declared void or voidable.  Gilian Robin Kneubuhl Roush (“Gilian”) intervened to challenge Douglass’s standing to sue.

UNDERLYING FACTS

On August 15, 1960, Adeline Pritchard Kneubuhl (“Adeline”) transferred several parcels of her individually owned land in American Samoa in trust (“Kneubuhl Trust”) to William Robert Opelle (“William”), as trustee, with her children Frances K. Opelle (“Frances”), Benjamin F. Kneubuhl, Jr. (“Benjamin”), John Alexander Kneubuhl (“John”), Douglass, Margaret, and Alfred as equal beneficiaries.[1]  The Kneubuhl Trust was recorded with the Territorial Registrar on August 24, 1960.  Effective on September 30, 1969, all parties to the Kneubuhl Trust agreed to partition the beneficial interests in particular trust land among the six beneficiaries (“Partition Agreement”).  Specifically, the Partition Agreement 1) divided the parcel of the land “being portions of Olo, Tagaua`a, Puapua, Lesea and Aso To`elau” among the trust beneficiaries and 2) conveyed part of a portion of the trust land known as “Malaloa” to Frances.  The Partition Agreement was recorded with the Territorial Registrar, but not until July 10, 1995. 

On October 31, 1974, all parties, John excluded, attempted to again modify the trust (“Modification Agreement”).[2]  The Agreement purported to give Frances exclusive rights to use a portion of the trust called “Malaloa” and appoint her as successor trustee over that portion.  In addition, the Modification Agreement instructed William to “appoint each beneficiary as a successor trustee over that portion of the corpus of the trust called “Olo” as described in the Partition Agreement.  William also was to appoint Alfred as the successor trustee for the remaining portion of the property held in trust.

Also in 1974, five of the six beneficiaries, John excluded, signed a Land Planning Agreement pertaining to contiguous parcels within the partitioned trust land known as “Olo.”  The Land Planning Agreement contained the following relevant provisions: 1) reserved the area for single-family homes within minimum sites of 50,000 square feet; 2) required written approval of a majority of the trustees for any development of the land; 3) required approval of a majority of the trustees for any rental of any portion of the land or improvements on the land to anyone not a trustee; and 4) limited any rental agreement to no more than a one-year term.  The Land Planning Agreement has not been recorded with the Territorial Registrar.

On December 31, 1979, Frances leased to Priscilla Moors Muench (“Priscilla”) and Lawrence R. Moran (“Lawrence”) approximately 1.6 acres (approximately 69,600 square feet) of the “Olo” trust land partitioned to Frances for a term of 35 years, commencing upon completion of construction of a residence on the leased land or June 30, 1980, whichever occurred first.  This lease agreement (“Lease Agreement”) was recorded with the Territorial Registrar on March 24, 1980.

Under the Lease Agreement, Priscilla and Lawrence retained title to their improvements on the leased land.  However, the Lease Agreement gave Frances the right to purchase the improvements, at depreciated value at the time of acquisition, within five years after the demise of Priscilla and Lawrence.  Both Priscilla and Lawrence were deceased as of May 13, 1984.

On November 19, 1984, Frances assigned to Suhayl Ala`i (“Suhayl”) her right to purchase the improvements, and on April 16, 1985, this Court authorized the administrators of Lawrence’s estate to sell the improvements to Suhayl.  On December 11, 1986, the Lease Agreement with certain amendments was transferred to Suhayl as lessee (“Lease Transfer”).  The Lease Transfer amended amended the Lease Agreement to grant Suhayl the option to renew the Lease Agreement for another term of 30 years.  The improvement purchase provision was also revised to provide that Suhayl’s successors become the lessees upon his death and that Frances is obligated to purchase the improvements, at fair market value, should either Suhayl’s executor elect to terminate the Lease Agreement or should the Lease Agreement terminate before the lease term expires.  The Lease Transfer was recorded with the Territorial Registrar on December 12, 1986.

Suhayl died in 1995.  Lilian, his surviving spouse, inherited the leasehold under the Lease Agreement as an asset of the estate pursuant to the Court’s distribution order.  On April 25, 1997, the Lease Agreement was amended to formally substitute Lilian as the lessee (“Lease Amendment”).  The Lease Amendment has not been recorded with the Territorial Registrar.

Plaintiffs seek to declare the Lease Agreement, Lease Transfer, and Lease Amendment void or voidable because they have not been approved by a majority of the trustees as required by the Land Planning Agreement.

Other facts pertaining to particular issues will be set forth in the discussion below.

DISCUSSION

A. Standing to Sue

Gilian specifically challenges Douglass’s standing to sue, while Lilian challenges the standing of all Plaintiffs to sue.  Gilian argues that Douglass transferred his interest in the Olo property to the other beneficiaries as part of a 1982 settlement agreement and, therefore, has no standing to bring the instant action.  Lilian argues that Plaintiffs do not have standing because they do not constitute a majority of trustees or

beneficiaries.

[1] It is well established that in order to establish standing a party must demonstrate the following three things:

(1) ‘injury in fact,’ by which we mean an invasion of a legally protected interest that is ‘(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical;’ (2) a causal relationship between the injury and the challenged conduct, by which we mean that the injury ‘fairly can be traced to the challenged action of the defendant,’ and has not resulted ‘from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, by which we mean that the ‘prospect of obtaining relief from the injury as a result of a favorable ruling’ is not ‘too speculative.’  These elements are the ‘irreducible minimum’ required by the Constitution.

Mulitauaopele v. Togafau, 26 A.S.R.2d 52, 53-54 (Trial Div. 1994) (citing Ne. Fla. Chapter of the Ass’n Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 663-64 (1993)) (internal citations omitted).

[2] In this case, Plaintiffs are seeking declaratory relief, specifically that a lease be declared void or voidable.  Under A.S.C.A. § 43.1101, a person is entitled to relief if he is “interested under a deed, will or other written, or under a contract, or . . . desires a declaration of his rights or duties with respect to another, or in respect to, in, over or upon property.”  We find that Plaintiffs have standing to seek declaratory relief.

Initially, with respect to Gilian’s challenge of Douglass’s standing, it is important to describe the circumstances surrounding the aforementioned settlement agreement.  In June 1982, in order to resolve several underlying litigations, all the trust beneficiaries executed a settlement agreement (“Settlement Agreement”), which among other things, redistributed certain interests in the Kneubuhl Trust.  Specifically, Douglass transferred all of his interest in the properties known as “Satala” and “Olo” to John, Benjamin, Margaret, and Alfred in equal parts.

Gilian contends that by relinquishing his rights to Olo in the Settlement Agreement, Douglass has no standing to maintain this lawsuit.  In essence, Gilian suggests that the Olo property constitutes a separate subtrust, one in which Douglass has no interest as trustee or beneficiary.

Yet, none of the documentary evidence (the Kneubuhl Trust, the Partition Agreement, the Modification Agreement, the Land Planning Agreement, or the Settlement Agreement) leads us to reach this conclusion.  Although some of these documents partition the interests in portions of the Kneubuhl Trust, void is any evidence of an intention to create multiple subtrusts.  Notably, all of the documents refer to the trust in the singular form.  See generally 76 Am. Jur. 2d Trusts § 27 (1992) (noting that “the particular words of the instrument creating such trust or trusts must be examined to determine the creator’s purpose”).  Absent any evidence that Adeline intended to create multiple trusts or    subtrusts, we find that the Kneubuhl Trust constitutes one trust.  As a beneficiary to the Kneubuhl Trust, we find that Douglass has standing to maintain this action.

[3] Lilian has challenged the standing of all of the Plaintiffs to bring the instant action.  Lilian argues that there must be a majority of trustees or beneficiaries in order to bring an action regarding the trust.  We disagree. As beneficiaries to the Kneubuhl Trust, Margaret, Douglass, and Alfred each have standing to protect their rights and interests.[3]  See, e.g., Mountain Top Condo. Ass’n v. Stabbert, 72 F.3d 361, 367 (3d Cir. 1995) (noting that “beneficiaries have a property interest in the trust res that is enforceable either in law or in equity”); Restatement (Second) of Trusts §§ 198-99 (1959).

Moreover, should Lilian’s argument be based on the Land Planning Agreement, it still is untenable.  The Land Planning Agreement purports to impose restrictions on the development of the Olo land and requires majority agreement for various actions.  Notably absent is any requirement that a majority must agree in order to bring a legal action regarding the property.  As such, we hold that Plaintiffs have standing to maintain the instant action.

B. Legal Status of the Trustees/Beneficiaries

Underlying this action is the legal status of the Knuebuhl Trust (and its trustees and beneficiaries) in light of the restrictions on the alienation of land to non-Samoans.  Plaintiffs conceded that none of the current trustees or beneficiaries has 50% Samoan blood.  A.S.C.A. § 37.0204(b) mandates:

It is prohibited to alienate any lands except freehold lands to any person who has less than one-half native blood, and if a person has any nonnative blood whatever, it is prohibited to alienate any native lands to such person unless he was born in American Samoa, is a descendant of a Samoan family, lives with Samoans as a Samoan, lived in American Samoa for more than 5 years and has officially declared his intention of making American Samoa his home for life.

The validity of the restrictions on the alienation of Samoan lands has been affirmed time and time again by this Court.  See generally Craddick Dev., Inc. v. Craddick, 2 A.S.R.3d 20 (App. Div. 1998); Craddick v. Territorial Registrar of Am. Samoa, 1 A.S.R.2d 10 (App. Div. 1980); Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 117 (Trial Div. 1995); Haleck v. Lee, 4 A.S.R. 519 (Trial Div. 1964).  It is undisputed that the Kneubuhl Trust beneficiaries and trustees do not meet this requirement.

[4-5] However, the Legislature has carved out an exception to the restrictions on land alienation.  Under A.S.C.A. § 37.0205, a Samoan can create a trust for the benefit of a son or daughter, “in view of legal marriage with a nonnative, or for his son or daughter already married to a nonnative, or for any of the issue of any such marriage.”  It was under this exception that this Court previously held the Kneubuhl Trust valid.  Kneubuhl v. Kneubuhl, LT No. 12-80, slip op. at 5-6, 9 (Land & Titles Div. Mar. 24, 1982) (Order Granting Partial Summary Judgment).  We agree with Chief Justice Miyamoto’s holding that that the Kneubuhl Trust meets the statutory exception to A.S.C.A. § 37.0204(b) and find that the Kneubuhl Trust beneficiaries are allowed to hold equitable interest in the trust land as beneficiaries. 

[6] In the previous Kneubuhl case, the Court instructed the parties that they could not be trustees to the Kneubuhl Trust.  Id. at 3 (“Although the modification agreements attempt to transfer Opelle’s interest as trustee to the settlor’s children and to appoint them as successor trustees, this he  could not do.”).  This is because the trustees hold the legal title to the trust property while the beneficiaries hold the equitable interest.  See In re Estate of Flake, 71 P.3d 589, 594 (Utah 2003); Coon v. City and County of Hawaii, 47 P.3d 348, 375 (Haw. 2002); see generally Restatement (Second) of Trusts § 99 cmt. b (1959).  It is undisputed that the Kneubuhl Trust beneficiaries are not capable of holding legal title to land in American Samoa.  However, contrary to this Court’s finding in 1982 and contrary to American Samoa law, the Kneubuhl beneficiaries have continued to hold themselves out as “trustees” of the Kneubuhl Trust.  This they cannot do.

[7] However, the Kneubuhl Trust does not fail for want of a trustee.[4]  A trust does not fail merely because the trustee is “incapable of taking title to the property.”  See generally Restatement (Second) of Trusts § 32(2) cmt. j (1959); 76 Am. Jur. 2d Trusts § 250 (“A trust will never fail for want of a trustee.”).  In order to comply with the law, William must still appoint a new trustee that is agreed upon by a majority of the beneficiaries, and that trustee must be capable of holding legal title to land under the laws of American Samoa.

Douglass, Margaret and Alfred seek a declaration that the Lease Agreement, Lease Transfer, and Lease Amendment are void or voidable because they have not been approved by a majority of the trustees as purportedly required by the Land Planning Agreement.

[8] Lilian asserts that Plaintiffs are barred from maintaining this action on the grounds of waiver, estoppel, and laches.  While there appears to be some merit to each of these affirmative defenses, Plaintiffs have clearly waived their right to challenge the Lease Agreement, Lease Transfer, and Lease Amendment.

[9] Here, Plaintiffs acquiesced when Frances leased the land to Pricillia and Lawrence and later when she transferred the lease to Suhayl and then Lilian.  “Acquiescence consists of assent by words or conduct on which the other party relies.”  Hazard Coal Corp. v. Ky. W. Va. Gas Co., 311 F.3d 733, 740 (6th Cir. 2002). 

When a party with full knowledge, or at least with sufficient notice or means of knowledge, of his rights, and of all the material facts, freely does what amounts to a recognition of the transaction as existing, or acts in a manner inconsistent with its repudiation, or lies by for a considerable time and knowingly permits the other party to deal with the subject matter under the belief that the transaction has been recognized or freely abstains for a considerable length of time from impeaching it, so that the other party is thereby reasonably induced to suppose that it is recognized, there is acquiescence and the transaction, although originally impeachable, becomes unimpeachable in equity . . . .

Id. at 740-41 (quoting J. Pomeroy, 2 Equity Jurisprudence § 965 (5th ed. 1941)).

Plaintiffs do not deny that they have known about these agreements for many years.  The Lease Agreement was entered in 1979, the Lease Transfer in 1986, and the Lease Amendment in 1997.  Two of these agreements were registered shortly after their execution with the Territorial Registrar.  Moreover, paragraph thirteen of the Settlement Agreement implicitly validates the Lease Agreement by explicitly allowing Lawrence to remain at Olo under the same conditions.  Plaintiffs, along with Frances, Benjamin and John, were all parties to the Settlement Agreement, and the Settlement Agreement was approved by this Court.  See In re Estate of Lena Pritchard Kneubuhl, PR No. 08-80 (Probate Div. July 16, 1982) (Stipulation and Order).  This demonstrates acquiescence in, and possibly ratification, of the Lease Agreement.[5]  Certainly, Frances and Lilian have relied on Plaintiffs’ acquiescence in assuming the Lease Agreement, Lease Transfer, and Lease Amendment were valid instruments.  Plaintiffs cannot complain now.  Accordingly, we hold that Plaintiffs have waived their right to challenge the validity of the Lease Agreement, Lease Transfer and Lease Amendment.

ORDER

1.  William shall appoint a successor trustee to the Kneubuhl Trust who is capable of holding legal title to land under the laws of American Samoa and is acceptable to a majority of the beneficiaries.  If William is unavailable or unwilling to perform this duty, a majority of the beneficiaries shall appoint a qualified successor trustee.

2.  Plaintiffs have waived their right to challenge the validity of the Lease Agreement, Lease Transfer, and Lease Amendment.  As between the parties to this action, including Frances, the Lease Agreement, Lease Transfer, and Lease Amendment remain in full force and effect.

3.  There being on statutory or contractual basis, request for attorney’s fees is denied.  However, she is entitled to recover her other costs of suit from Plaintiffs.

4.  Lilian’s cross-claims are rendered moot.

It is so ordered.

**********

FAATAMAALI`I PRITCHARD as Administrator of the ESTATE of FUIAVAILIILI WILLIAM PRITCHARD, Plaintiff,

v.

All testate and intestate successors of FRANK PRITCHARD, JR., and FRANK W. PRITCHARD, SR., deceased, and DOES 1-10, Defendants.

________________________________

All testate and intestate successors of

FRANK PRICTCHARD, JR., Plaintiffs,

v.

ESTATE OF FUIAVAILIILI WILLIAM PRITCHARD,

and DOES 1-10, Defendants.

High Court of American Samoa

Land and Titles Division

LT No. 27-95

LT No. 36-95

October 7, 2003

[1] A valid registered land title is conclusive evidence to the world that the registered titleholder owns the land. 

[2] A land title registration is presumptively valid.

[3] Where questions existed as to whether deceased had properly registered land, but heirs did not dispute that deceased had held land as his individually-owned land, Court would treat land as individually-owned property of deceased for purposes of intestate succession and quiet title action amongst heirs, but without prejudice to parties outside of action who might assert claim to land. 

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

Counsel:          For Faatamaali`i Pritchard and Estate of Fuiavailiili William Pritchard, Charles V. Ala`ilima

 For all testate and intestate successors of Frank Pritchard, Jr. and Frank W. Pritchard, Sr., pro se

OPINION AND ORDER

This action came regularly for trial on September 11, 2003.  Counsel for Faatamaali`i Pritchard and Estate of Fuiavialiili William Pritchard (together “William” or “William’s Estate”) was present.  Some successors of Frank Pritchard, Jr. (“Frank, Jr.” or “Frank, Jr.’s Successors”) and Frank W. Pritchard, Sr. (“Frank, Sr.” or “Frank, Sr.’s Successors”) were present.  However, though they were afforded ample opportunity to retain another attorney during several months immediately preceding the trial, none of Frank, Jr.’s and Frank, Sr.’s Successors did so, and none of them participated in the trial.  In this context, the principal consequence of a judgment in these actions will be to provide guidance regarding the lands at issue for the administration and distribution of the estates of William and Frank, Jr., and perhaps Frank, Sr. as well.

Ultimate Issues

In 1995, William’s Estate commenced LT No. 27-95 against Frank, Jr. and Frank, Sr.’s Successors to quiet title in the name of William’s Estate and Frank, Jr. to a portion of land known as Fuamete, consisting of approximately of approximately 4.614 acres (“4.614 acre parcel”), in Leone, American Samoa, and to quiet title in name of William’s Estate another portion of Fuamete, consisting of approximately 12.51 acres (“12.51 acre parcel”).

A short time later in the same year, Frank, Jr. countered with LT No. 36-95 against William’s Estate to nullify the registration of the 12.51 acre parcel, quiet title to this parcel in the name of Frank, Jr. and his siblings, and to enjoin William’s Estate and heirs from alienating this parcel.  

On December 4, 1995, we denied Frank, Jr.’s application for a preliminary injunction in LT No. 36-95 and consolidated the two actions.  Frank, Jr. died while the actions were pending, and all of his testate and intestate successors were added as parties in both actions.  On August 19, 2003, we denied the motion of William’s Estate for summary judgment to adjudicate the title to the 4.614 acre parcel as William’s and Frank, Jr.’s individually-owned land, jointly held by them as tenants in common, and to approve a proposed partition of this parcel between William’s Estate and Frank, Jr.’s Successors as the immediate consequence.  The denial was principally based on factual issues pertaining to the appropriateness of the proposed distribution of this parcel.  The actions then proceeded to trial.

The ultimate issues, then, in order to proceed in a systematic manner with the inheritance of the two parcels, are: (1) the validity of the two registrations, (2) ownership of the two parcels, and (3) the propriety of the proposed partition of the 4.614 acre parcel.   

Discussion

1.  The 4.614 Acre Parcel

[1] William and Frank, Jr. were brothers and are deceased.  William died intestate and, apparently, Frank, Jr. likewise.  Frank, Sr. was their father and also, apparently, died intestate.  On July 2, 1964, the Registrar of Titles registered the 4.614 acre parcel as William’s and Frank, Jr.’s individually-owned land.  The Territorial Registrar issued the Certificate of Registration on September 11, 1987, with an effective retroactive date of July 2, 1964.  A valid registered land title is conclusive evidence to the world that the registered titleholder owns the land.  Lualemana v. Atualevao, 16 A.S.R.2d 34, 40 (Land & Titles Div. 1990).  The Territorial Registrar’s file in evidence on this registration shows that the requirements of the registration process in effect in 1964 were strictly followed.  The registration of the 4.614 acre parcel was and is valid and, therefore, we find that preceding their respective deaths, William and Frank, Jr. owned this parcel as individually-owned land, jointly held as tenants in common. 

In order to facilitate inheritance of this parcel, William’s Estate has had the original survey retraced and divided two equal lots, Lot 1 at the West end and Lot 2 at the East end, as shown in Exhibits No. 3 and No. 4 in evidence.  William’s Estate proposes that Lot 1 be partitioned for inheritance by Frank Jr.’s successors and that Lot 2 be partitioned and included in William’s Estate for inheritance by his heirs.  The boundary between the two equally sized lots is positioned to maintain improvements that belonged to Frank, Jr. and his family members on Lot 1 and maintain improvements that belonged to William and his family on Lot 2.  We find that the proposed partition of the 4.614 acre parcel into Lot 1 and Lot 2 provides for an equitable distribution by inheritance of the parcel.

Accordingly, Lot 2 is properly an asset of William’s Estate for purposes of ultimate distribution to his heirs, and Lot 1 is properly an asset of Frank, Jr.’s estate for ultimate distribution to Frank, Jr.’s Successors. 

2.  The 12.51 Acre Parcel

[2] The Territorial Registrar registered the 12.51 acre parcel as William’s individually owned land on May 2, 1990.  A land title registration is presumptively valid.  Ifopo v. Siatu`u, 12 A.S.R.2d 24, 27-28 (Land & Titles Div. 1989).  However, unlike the registration of the 4.614 acre parcel, the record of this registration in the Territorial Registrar’s file in evidence raises questions about the registration process.      

First, the Surveyor and Pulenu`u Certificate, dated October 28, 1980, was purportedly signed by “Atofau” as the pulenu`u of Leone.  While the records of the Secretary of Samoan Affairs in evidence show that Punaloa Atofau was the pulenu`u in 1990, the records also show that Toilolo Iereneo held that position when the survey was actually conducted in 1980.  Second, the affidavit of the Territorial Registrar’s notice posting does not clearly indicate that the notice was posted at two public places in Leone, as required by law in 1990.   

[3] Accordingly, we hold that the registration of the 12.51 acre parcel did not and does not provide conclusive notice of ownership to the world.  Nonetheless, the apparent deficiencies in the registration process do not of themselves override actual ownership.  Te`o v. Sotoa, 5 A.S.R.2d 90, 97-98 (Trial Div. 1987).  The evidence presented shows that William owned the land as individually-owned land.  Neither Frank, Jr.’s nor Frank Sr.’s Successors offered any contradictory evidence.  Therefore, we find that William owned the 12.51 acre parcel as individually-owned land, and that this parcel is also properly included in William’s Estate for purposes of further administration and prospective distribution to his heirs. 

There are indications in other actions pending before this Court that persons outside of the Pritchard family have claims to ownership of this parcel or to portions of it.  Therefore, this determination is without prejudice to the determination of any ownership rights to this parcel by persons outside of the Pritchard family.    

Order

1. The title registration of the 4.614 acre parcel as William’s and Frank, Jr.’s individually-owned land, jointly held by them as tenants in common, is valid and conclusive evidence to the world of their joint ownership.  This parcel is partitioned, as shown in Exhibits No. 3 and No. 4 in evidence, into Lot 1 now owned by Frank, Jr.’s estate to be inherited apparently by Frank, Jr.’s Successors, and Lot 2 now owned by William’s Estate to be inherited by his heirs.

2. The title registration of the 12.51 acre parcel as William’s individually-owned land is not effective as notice to the world of his ownership.  However, as between the parties to this action, William owned this parcel as his individually-owned land, and the parcel is now owned by William’s Estate to be inherited by his heirs.  This holding is, however, without prejudice to persons outside of the Pritchard family to contest the ownership of this parcel.  

It is so ordered.

*********

SAINILA P. FANENE, Plaintiff,

v.

AISA IAKOPO VAONA, Defendant.

High Court of American Samoa

Land and Titles Division

LT No. 10-02

October 10, 2003

[1] A family member cannot sell communal family land and a house upon it, nor only the house, there being no agreement to separate the existence of house from the land. 

[2] Where plaintiff misrepresented that the house and surrounding land were for sale and that he had the legal ability to sell them, he clearly defrauded defendant.

[3] Due to the plaintiff’s fraudulent conduct during a purported sale of land, defendant is entitled to return of amounts paid, reimbursement for repairs to the property, and an award of punitive damages. 

[4] Claim of emotional distress denied where defendant continued to occupy house that was subject of threats of destruction. 

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

Counsel:          For Plaintiff, Faiivae A. Galea`i, L.P.

                        For Defendant, Asaua Fuimaono

OPINION AND ORDER

The Court intentionally delayed issuing a formal decision in this action in light of continuing representations of counsel for Plaintiff Sainila P. Fanene (“Fanene”) at the close of and following trial that settlement discussions were ongoing and would likely bear fruit.  As of this time, however, it is apparent that settlement has not been and will not be reached.

Discussion

Fanene filed this action to evict Defendant Aisa Iakopo Vaona (“Vaona”) from Fanene’s house on land called “Lelulu” in Nu`uuli, American Samoa.  The eviction remedy was premised on Vaona’s alleged failure to pay the balance of the agreed purchase price for sale of the house to Vaona.  Fanene also sought recovery of the rental value, alleged to be $350.00 per month based on the rent paid by a tenant prior to the sale at issue, for the period of Vaona’s occupancy of the house.

Vaona denied Fanene’s allegations and counterclaimed for refund of the purchase price, reimbursement of her expenditures for repairs and remodeling, damages for emotional distress, and punitive damages.

Findings of Fact

We find the following as the ultimate facts of this dispute.  In May of 1997, Vaona was residing in the U.S. mainland.  She wanted to purchase a house and underlying land in American Samoa in contemplation of permanently returning here in the near future.  She learned of Fanene’s advertisement in the May 22, 1997 Samoa News of the house for sale.  Vaona talked to Fanene by telephone and agreed with his asking price of $15,000, with an immediate down payment of $5,000 to hold the property, subject to her inspection of its condition.  On May 27, 1997, after a relative confirmed the acceptable condition of the house, Vaona paid Fanene $5,000 by cashier’s check sent by certified mail.

Vaona returned to American Samoa and, on or about September 1, 1997, she paid Fanene the $10,000 balance with another cashier’s check.  She believed that she had then paid for the house and underlying land in full and asked for the documents needed to transfer ownership to her.  She thought that there may be a problem when Fanene told her that title registration had not been completed.  Nonetheless, Vaona moved into the house and, based on the receipts in evidence, she spent $707.68 on repairing and remodeling the house.

Vaona continued to ask Fanene for the necessary title transfer documents, but he kept putting off delivery of these documents.  Fanene then demanded that Vaona pay an additional $10,000, claiming that they had agreed to a sales price of $25,000.  Vaona refused to pay the additional amount.  Fanene accompanied some of his repeated demands for the additional $10,000 with such inappropriate statements as threatening to demolish the house by burning or other means.  Other members of Fanene’s family made similar destruction threats if the additional $10,000 was not paid.  Vaona feared that the threats would be carried out, but she continued to live in the house.

Finally, about three years after Vaona took possession of the house, Fanene advised Vaona that she was only buying the house, as the underlying land was not for sale.  This was the last straw for her.  Exasperated, Vaona demanded that Fanene return the $15,000 she paid to him.  Fanene refused and, when Vaona remained in possession, he commenced this eviction action.

[1] The land is the Fanene family’s communal land.  Fanene could neither sell the land and house, nor only the house, there being no agreement to separate the existence of house from the land.  He produced a general power of attorney, signed by the Fanene family’s sa`o on August 15, 1997, which purported to give him authority to do all things necessary to carry out the Fanene family’s communal affairs, specifically including the sa`o’s obligations.  Even if this power of attorney is construed to potentially give Fanene authority to enter transactions concerning the Fanene family’s communal land or houses on the land, there is no evidence that Fanene ever took any of the necessary legal steps either to separate the house from the land or to alienate the land by going through the required legal process of first obtaining the Land Commission’s review and recommendation and the Governor’s approval.

Conclusions

[2-3] Fanene misrepresented that the house and surrounding land were for sale and that he had the legal ability to sell them.  In short, he clearly defrauded Vaona of the $15,000 she paid him for the house and, she thought, the underlying land.  Because of Fanene’s fraudulent conduct, Vaona is entitled to have Fanene refund the $15,000 she paid to him.  Fanene’s intentional tort justifies an award of punitive damages.  We assess punitive damages at $5,000.

Vaona is also entitled to reimbursement of her documented expenditures of $707.68 for repairing and remodeling the house.

[4] However, based on Vaona’s continuing occupancy of the house, even at the time of the trial, we conclude that the threats made by Fanene and other Fanene family member to Vaona did not cause her any substantial emotional distress.  We deny her recovery of any damages on this claim. However, further harassment of this or a similar nature remains probable, and Vaona’s award of damages, set forth above, will inadequately remedy this potential.  Therefore, Fanene and his family members should be permanently enjoined from engaging in such conduct.

Our findings and conclusions preclude any recovery of rent by Fanene during Vaona’s occupancy of the house.  However, if Vaona is still in possession, she may remain in the house for the time being but must vacate the house as soon as Fanene pays the judgment in full.  Alternatively, if Fanene produces and Vaona accepts a valid deed conveying the house and underlying land to her, she may indefinitely remain in possession as the owner of the house and land.

Order

1.  Fanene recovers nothing against Vaona on his complaint.

2. Vaona shall recover from Fanene $15,000 to refund the funds fraudulently extracted from her, plus $5,000 as punitive damages, and $707.68 as reimbursement of her documented expenditures on repairing and remodeling, for a total of $20,707.68.  Payment shall be made in full to the Clerk of the Court within 120 days after entry of this judgment.

If full payment is not made within 120 days, Fanene shall pay, in addition, post-judgment interest at the rate of 6% per annum on the unpaid balance of judgment, accruing from the judgment entry the judgment is paid in full.

3.  If Vaona still occupies the house, she shall vacate the house as soon as Fanene pays the judgment in full.  Alternatively, if Fanene produces and Vaona accepts a valid deed conveying the house and underlying land to her, she may indefinitely remain in possession as the owner of the house and land.

4.  Fanene, his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, including Fanene’s family members, are permanently enjoined from harassing, annoying, molesting, threatening in any manner, or otherwise disturbing the peace of Vaona.

It is so ordered.

**********

MICHAEL PULU, Plaintiff,

v.

PULU F. TALALOTU and WINNIE SU`APAIA, Defendants.

High Court of American Samoa

Land and Titles Division

LT No. 27-02

October 20, 2003

[1] The court will not substitute its judgment for that of the senior matai, absent a clear abuse of discretion. 

[2] The general rule is that a sa`o has the authority to make decisions about family land.

[3] The conveyance of a house as a gift needs to meet three criteria: (1) that the donor intended to orally convey the house to the donee; (2) that the donor delivered the house to the donee; and (3) that the donee accepted the house.

[4] The intention of the donor may be expressed in words, actions, or a combination thereof, and may be inferred from the surrounding facts and circumstances, including the relationship of the parties.

[5] A donor may make a gift of encumbered property in which the donee agrees to discharge the indebtedness or the donor may agree to pay off the indebtedness but he is not bound to pay off the indebtedness unless there is evidence that he intended to pay it.

[6] If a donee receives encumbered property from the donor along with the obligation to pay the debt encumbering the property and a third party satisfies the debt, donee must reimburse the third party for the amount of the debt.

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

Counsel:          For Plaintiff, Marie A. Lafaele

For Defendants, Katopau T. Ainu`u

OPINION AND ORDER

On January 15, 2002, Defendant Winnie Su`apaia (“Winnie”) sought to register a separation agreement (“Separation Agreement”) regarding a house located on the Pulu family’s land.  The Separation Agreement was executed between Winnie and Defendant Pulu F. Talalotu (“Pulu”), the sa`o of the Pulu family.  Plaintiff Michael Pulu (“Michael”) timely filed his objection to the registration of the Separation Agreement. 

In accordance with A.S.C.A. § 43.0302, this matter was referred to the Secretary of Samoan Affairs.  However, after two hearings the parties were unable to resolve their differences.  Accordingly, the dispute was referred to this Court under A.S.C.A. § 3.0208(b)(2).  Trial was held on July 7-9, 2003.  All parties and counsel were present.

I.          FACTS AND CONTENTIONS

In 1974, Toe To`oto`o (“Toe”), a member of the Pulu family, constructed the disputed house on the Pulu family’s communal land named “Fitiuli” in Pago Pago.  Toe testified that the family sa`o then in office signed an agreement to separate the house from the land.  She claimed that she lost her copy of the separation agreement to hurricane Ofa in 1990 and that the registered agreement was no longer available at the Territorial Registrar’s Office. 

We believe that Toe did obtain a separation agreement.  The statutory authorization of separation agreements essentially facilitates loans for home construction on communal land.  Toe spent more than $50,000 on building the house and, though not expressly said, probably financed at least a portion of this substantial amount for the project.  In any event, she believed that a separation agreement was necessary for the house construction.  The separation agreement would also have facilitated Toe’s sale of the house to her cousin, Dave Pulu (“Dave”).  No family member has ever objected to this sale. 

In 1993, Dave purchased the house from Toe for $24,000.[1]  Dave and Toe verbally agreed that payments would be made in monthly installments of $1,000.  However, Toe did not enforce the agreement to make monthly payments but, rather, allowed Dave to skip payments until he was financially able to make them.  Dave passed away in November of 2001.  At the time of Dave’s death, there was an outstanding balance of $1,000 on the house.  Michael, Dave’s son, paid Toe this balance on December 11, 2001, a very short time later.

Winnie currently resides in this house with her family.  Previously, Winnie and her family lived in California.  In 1998, Winnie decided to move back to American Samoa at the insistence of Dave, her brother or at least half-brother.  According to Winnie, Dave promised her that he would give her a house if she returned to live in American Samoa and assist in his business here.  Winnie claims upon her return to American Samoa, Dave gave to her the house which is the subject of this litigation.  Winnie lived in the house, apparently without incident, until Dave passed away in November of 2001.

At some point after Dave’s death, Winnie sought a Separation Agreement from Pulu with respect to the house.  Pulu testified that prior to Dave’s death, Dave told him he had given the house to Winnie.  Pulu did not consult with Toe or Michael prior to signing the Separation Agreement.  Winnie and Pulu executed the Separation Agreement on January 15, 2002, and Winnie offered it for registration with the Territorial Registrar the same day. 

Michael objects to the Separation Agreement.  He claims the Separation Agreement is invalid because Dave could not give Winnie the house when he still owed Toe $1,000.  Michael also claims that Pulu’s decision is invalid because Pulu never consulted with him or Toe prior to signing the Separation Agreement.  Michael argues that if the Separation Agreement is upheld, he should receive payment from Winnie for expenses he incurred in 1994 when he and his brothers remodeled the house.[2]

II.         DISCUSSION AND CONCLUSIONS

[1-2] As an initial matter, “the court’s role in intra family disputes is a review one.  The court will not substitute its judgment for that of the senior matai, absent a clear abuse of discretion.”  Toleafoa v. Imo, 7 A.S.R.2d 117, 124 (Land & Titles Div. 1988); see also Malala v. Temu, 11 A.S.R.2d 137, 142 (Land & Titles Div. 1989) (‘‘Courts will not interfere with the decisions of a sa`o unless they are arbitrary, capricious, illegal, or abusive of discretion.”).  “[T]he general rule [is] that a sa`o has the authority to make decisions about family land.”  Malala, 11 A.S.R.2d at 142.  We see no reason to disturb Pulu’s decision in this case.

Michael seeks to invalidate the Separation Agreement because Pulu did not consult with him or with Toe prior to executing the agreement and because he believes Pulu mistakenly found that Dave gave the house to Winnie.  We see no reason to disturb Pulu’s decision to execute the Separation Agreement even though he did not consult with Michael and Toe.  “[T]he obligation of a sa`o to discuss family decisions with family members cannot be reduced to a formula.”  Id.  In this case, the fact that Pulu did not consult with Toe or Michael prior to executing the Separation Agreement is not a reason to render the Separation Agreement invalid.

[3] Pulu’s understanding that Dave gave the house to Winnie is a reasonable one.  The conveyance of the house as a gift needs to meet three criteria: (1) that Dave intended to orally convey the house to Winnie; (2) that Dave delivered the house to Winnie; and (3) that Winnie accepted the house.  See, e.g., No. 95-011, 1997 WL 33480216, *3 (N. Mar. I. July 25, 1997); 38 Am. Jur. 2d Gifts § 19 (1999).  In this case, these three requirements are met.

[4] The evidence demonstrates that Dave intended to give the house to Winnie.  “The intention of the donor may be expressed in words, actions, or a combination thereof, and may be inferred from the surrounding facts and circumstances, including the relationship of the parties.”  38 Am. Jur. 2d Gifts § 19 (1999).  Dave told Winnie that he would give her a house to live in if she moved from California to American Samoa.  She and her husband completely uprooted their lives in California out of respect for her brother Dave’s insistence that she return here to assist in his business and in reliance on Dave’s promise to provide them with a place to live.  Winnie’s testimony is credible.

Dave clearly delivered the house to Winnie and she accepted possession. Winnie moved into the house upon her arrival in American Samoa and has been living in the house for several years.  See generally 38 Am. Jur. 2d Gifts §§ 22, 33 (1999).  Accordingly, we find that Dave gave the house to Winnie.

[5] Michael argues that Dave could not give Winnie the house because he still owed Toe $1,000.  We disagree.  “A grantor may make a gift of encumbered property.”  Kiel v. Brinkman, 668 S.W.2d 926, 929 (Tex. App. 1984) (finding a conveyance of land to be a gift even though an unpaid mortgage existed on the property); see also Foley v. Allen, 170 F.2d 434, 437 (5th Cir. 1948) (“We are aware of no rule or principle that prevents the donor from making a valid gift of personal property that is subject to a lien.”).  In fact, “[a] donor may make a gift of encumbered property in which the donee agrees to discharge the indebtedness” or the donor may “agree to pay off the indebtedness but he is not bound to pay off the indebtedness unless there is evidence that he intended to pay it.”  Estate of Kuenstler v. Trevino, 836 S.W.2d 715, 717-18 (Tex. App. 1982).  Accordingly, Dave gave Winnie the house in spite of the one outstanding payment owed to Toe.

[6] There is no evidence on whether Winnie and Dave had any agreement on who was responsible to pay Toe the final payment. Dave continued to make payments on the purchase price after Winnie occupied the house.  However, absent sufficient evidence that Dave intended to have his estate or any of his sons to pay any balance owed to Toe after his death, we hold that Winnie received received the house as a gift along with the obligation to pay Toe the final payment.  See, e.g., id. at 718.  As such, Winnie shall reimburse Michael the $1,000 final payment.  See generally Restatement of Restitution §§ 1, 43 cmt. d (1937).

Michael also seeks to recover from Winnie the cost of materials and labor he allegedly incurred when he worked on the house in 1994.  This he cannot do.  Winnie was not even living in the house at the time Michael claims he incurred these expenses.  At that time, Dave, as the sole owner of the house, would have received the benefit of this work.  Any recovery Michael could potentially collect for this work could only be obtained from Dave.

III.       Order

1. Winnie owns the house Dave gave to her.  The Territorial Registrar shall register the Separation Agreement, dated January 2001, by and between Pulu, as the landowner, and Winnie, as the house owner.

2. Michael is denied recovery from Winnie of the cost of materials he and his brothers installed in the house.  However, Winnie is required to reimburse $1,000 to Michael for the final house payment.

3. Defendants’ request for attorney’s fees is denied.  However, they are entitled to recover other costs of suit from Michael, and Winnie may credit her share of the costs against the $1,000 she is obligated to pay Michael.

It is so ordered.

**********

HC LIUFAU for himself and members of the LIUFAU FAMILY, Plaintiffs

v.

TC TUFAGA OF AUA and TAGISIAALII FAUMUINA, Defendants

High Court of American Samoa

Land and Titles Division

LT No. 07-03

LT No. 23-90

LT No. 1418-74

LT No. 1412-74

November 10, 2003

[1] The best evidence of land ownership in American Samoa is actual occupation with a claim of ownership. 

[2] Possession of real property is the best evidence of ownership and carries with it the presumption of ownership.

[3] A mere claim to land without accompanied use or occupation is insufficient to acquire title thereof.

[4] Where testimony of village elders clearly demonstrated use and occupation of property, historically, by one family over that of rival family, court found that land should be registered in name of family with such occupation and usage. 

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

Counsel:          For Plaintiffs, Marie A. Lafaele

                        For Defendants, Asaua Fuimaono

OPINION AND ORDER

Historical Background

This is an enduring dispute, spanning generations, between the Liufau family and the Tufaga family of Aua over an area of land in the village bisected by the main east-west highway.  The disputed area is claimed by the former as being a part of land “Leasi,” communal property of the Liufau family, while the Tufaga family claims it as being a part of “Feagai,” communal property of the Tufaga family.

1. 1903 Litigation

The parties’ respective predecessors were earlier before the court in 1903 when Tufaga Fa`aso`oso`o and two other matai of Aua village filed suit against Liufau Mativa “claiming ownership to six pieces of land situated in the village of Aua and held in possession of Liufau Mativa of the same place.”  Tufaga v. Liufau, 1 A.S.R. 184, 185 (Trial Div. 1909) (hereafter the “1903 case”).  Unfortunately for posterity, “[n]o plans were filed but the names of the different pieces [of land] were given as Vaitulitai, Vaituliuta, Leasi, Alele, Lesolo, and Taufusi.”  Id. (emphasis provided).  Although the 1903 case was decided in favor of the Liufau family, we have today, exactly 100 years later, a quarrel between the parties over the physical location of Leasi.  This location dispute has been pending since 1973.

2. Post-1903

From files with the Clerk’s office, we find that the parties’ predecessors had apparently managed to coexist harmoniously until Tufaga Faafua (“Faafua”) offered a Separation Agreement in May 1972 on land he claimed as “Matautu-Feagai.”  Liufau Unutoa Sonoma (“Unutoa”) objected claiming that Faafua had encroached on the Liufau family land Leasi.  The dispute was referred to the Land and Titles Division and given the docket number LT No. 1279-72.

Apparently, while this Separation Agreement matter was pending, Unutoa commissioned a survey of the area, calling it Leasi, which he offered for registration as the communal property of the Liufau family on November 15, 1973.  Evidently, nobody objected to Unutoa’s offer and, consequently, he filed an application with the Land and Titles Division to register his offer.  See In re Land Leasi, LT No. 1412-74.

 
Then, on January 10, 1974, Tufaga also offered for registration his surveyed claim of the land, calling it “Feagai,” and claiming it as his family’s communal land.  The result was overlapping surveys before the Territorial Registrar.  Tufaga’s offer, however, was timely objected to by Unutoa who claimed that Tufaga’s survey encroached on his family’s land Leasi.  This dispute was also referred to the Land and Titles Division.  See Liufau v. Tufaga, LT No. 1418-74.  These matters were eventually consolidated.

We next see that the American Samoa Government (“ASG”) intervened to, as it turns out, mistakenly claim an interest in the shoreline area on the seaward side of the road depicted in both Unutoa’s and Faafua’s respective surveys.  Nonetheless, the Court, because of ASG’s claim,[1] denied both the Liufau and Tufaga families’ registration offers, as well as Tufaga’s Separation Agreement offer, finding that neither party had proven “a clear right to the entire tract offered.”  Liufau v. Tufaga, LT Nos. 1279-72, 1412-74, 1418-74, slip op. at 2 (Land & Titles Div. Dec. 30, 1976).

Following this, both Unutoa and Faafua filed new trial motions; however, while these motions were pending, ASG discovered its mistaken assertion of ownership to the disputed area and moved, ironically on April 1, 1977, to withdraw “on the ground that subsequent evidence . . . has come to our attention clearly indicat[ing] the Government has no interest, except a right of way easement, on the land in question.”  The motion was granted and with ASG out of the case, the remaining parties Unutoa and Faafua stipulated in open court on February 6, 1978, “to reopen” the registration matters.  These matters have since languished and remained pending.

In 1990, a Tufaga family member, Tagisiaalii Faumuina, began bulldozing inside the disputed area.  This action in turn spawned yet another file with the Clerk’s office, see Liufau v. Tufaga, LT No. 23-90.  This case resulted in a preliminary injunction against both families from any further activity on the disputed land.  However, Unutoa passed away that same year and LT No. 23-90 was forgotten until a new generation of family members, as well as another succession of legal advisers, entered the picture.  Shortly after Unutoa’s death, Faafua’s successor Tufaga Tavita (“Tavita”), commissioned yet another, and enlarged, survey of Feagai (the “1990 survey”).  This time, the survey separately described the area seaward of the highway that ASG had once claimed and subsequently withdrawn from.  This 1990 survey was also offered by Tavita for registration, and this offer was objected to by a Liufau family member, Fagamalama Liufau Fuaalau, on behalf of the Liufau family.  This new dispute eventually found its way to the Land and Titles Division on April 16, 2003, and was assigned the docket number LT No. 07-03.  In the meantime, Unutoa’s son Tanielu had, in 1999, succeeded his father to the Liufau title, while the Tufaga title, left vacant with the passing of Tavita, was succeeded by the present Tufaga Sapati.

These matters finally came to the forefront again after the incumbent Liufau began to build earlier this year within the disputed land area.  Following a show cause hearing, Liufau stipulated to stopping his construction work pending final disposition by the Court, and these matters were placed for expedited trial.

Trial was held August 11-14, 2003.  Following a subsequent site visit to the disputed area and the filing of the parties’ written final arguments thereafter, these consolidated matters were taken under advisement.

Discussion

[1-2] As with all these disputes, the best evidence of land ownership in American Samoa is “[a]ctual occupation with a claim of ownership.”  Lualemana v. Atualevao, 16 A.S.R.2d 34, 43 (Land & Titles Div. 1990). Possession of real property is the best evidence of ownership and carries with it the presumption of ownership.  Tuato`o v. Taua`a, 17 A.S.R.2d 163, 166 (App. Div. 1990); see also Muagututi`a v. Savea, 4 A.S.R. 483, 485 (Trial Div. 1964); Soliai v. Lagafua, 2 A.S.R. 436, 438 (Trial Div. 1949); Fa`ataliga v. Fano, 2 A.S.R. 376, 337 (Trial Div. 1948).  Indeed, in Tufaga v. Liufau, 1 A.S.R. at 186, the Liufau family’s claim to land ownership, coupled with their actual possession of the disputed lands, prevailed over the Tufaga, Sao, and Maulupe families’ mere claims to ownership based solely on tradition without any “solid foundation of fact.”

1. Findings

In assessing both parties’ opposing versions of the evidence, we find that Liufau’s claim to ownership and actual occupation is better corroborated by credible independent sources.  The disputed area today is in large part a relatively flat area nestled up against the face of a sheer rock cliff that quite clearly was, as testified to by surveyor Lawrence French, the result of a massive quarrying and excavation operation in the past.  The cliff drops suddenly from a hilly mountainous bush area that ascends steeply inland.  Judging from the topography exhibits presented and from our observation of an area adjacent to and outside of the excavation cut, it appears that the excavated area had also descended to sea level following the surrounding contours of the hillside.

Chief Ponausuia Lusi Fale, who is seventy years of age and a life-long resident of Aua except for a fifteen year off-island stint with the United States Navy, testified that he was well familiar with the disputed site having grown up in the area, and having harvested crops, cut firewood, and worked on the disputed site with three of Liufau Tausolia’s children Veni, Siela and Satini; that the land was known as Leasi and was owned by Liufau; and that his family is located immediately to the Pago side of Leasi.  Ponausuia further testified that the area had greatly changed after the Navy Seabees had dynamited and excavated Leasi during the second world war, in order to provide fill for a repair base in Atu`u where the canneries are presently located.  Ponausuia also testified that the main east-west highway that used to run along the shoreline was subsequently moved further inland such as to traverse Leasi.  This relocation of the road occurred shortly after a fatal landslide that not only destroyed certain structures used by the Mormon Church, but also killed the faifeau (pastor) and others including a relative of Chief Sao.  Ponausuia placed the location of the then Mormon compound at between 50 to 100 feet from the location of Liufau Tanielu’s present disputed construction site.  According to Ponausuia, the slide did not affect Leasi.

Ponausuia’s testimony regarding the excavation and the relocation of the main highway was corroborated by seventy-seven year old Chief Saoimanulua Solosolo (“Sao”).  Sao, whose predecessor-in-title was a party to the 1903 case that awarded Leasi to Liufau, testified that he too was familiar with the disputed area which he knew to be Liufau’s land Leasi.  Additionally, Sao’s testimony was in accord with Ponausuia’s as to the location of the early Mormon Church compound, which he placed to the east of Leasi on an area of land he estimated to be about an acre.  Sao also testified as to the occurrence of a severe landslide around 1944 that not only swept away the structures used by the Mormon Church, but also took the lives of his sister and others.  Sao likewise affirmed that following the landslide, the coastal road was moved inland bisecting Leasi.

The documentary exhibits received into evidence further revealed that the Liufau family received compensation from the United States Government for crop and other property damage claims on Leasi caused by the war effort.  From ASG’s archives came corroborative proof relating to property damage claims made and filed by Liufau Tausolia and Unutoa before the War Claims Commission.  These exhibits attest to Liufau’s claim for crop destruction, attributed to the “See Bees,” on two acres of Liufau family land referred to as Asi and a 40 x 1600 square yard area of Vaituliuta.  Liufau’s testimony was that “Asi” and “Leasi” are one and the same reference, and that the land Leasi derived its name from Asi trees that grew on the elevated slopes of the land.  Moreover, these war claims exhibits present and added dimension of credibility to Liufau’s position over Tufaga’s.  The latter would have us believe that Leasi’s seaward side boundary-line runs approximately atop the excavated area.  If we accept this, then we must also accept that the war effort included some sort of defense activity up on “two acres” of steep, hilly and elevated terrain.  We would also have to accept that the Liufau family had at least “two acres” of compensable food crops growing among the Asi forest on hillside.  We find such a state of affairs to be unlikely.

Liufau further testified that the various six tracts of land awarded in the 1903-case were all connected, pointing out that two of these tracts, Vaituliuta and Vaitulitai, were located next to Leasi, with the latter two circumscribing what Tufaga now claims as Feagai.  According to Liufau family history, they had long ago relinquished claim to Feagai following a grant of the land by Liufau Mativa to a female family member who haled from either Leone or Se`etaga.  Liufau’s father Unutoa had related to him that the relinquished area was surveyed by the Meredith family and that the area surveyed was less than an acre in size.  With that family history, the Liufau family has left the Tufaga family’s use of the circumscribed area undisturbed.

Liufau further testified that while growing up in the village during the 1950s, his family had fenced-in the excavated, and disputed, area for use as a piggery enclosure.  He further testified that between the pig fence and the road, his family maintained their banana plantations while to the seaward side of the present highway, his grandmother Leutu had openly maintained a sugar cane grove for roof thatching and that subsequently, his father had authorized the building of the village’s first longboat shed in the area.  This testimony was not controverted.

By comparison, the Tufaga family’s claim to the overlap area lacks any of the hallmarks of use and occupation, as was established for the Liufau family by independent credible testimony from elderly matai of the village and by documentary exhibits attesting to the Liufau family’s assertion of ownership interests in dealings with the United States Government.  Contrast Tagisiaali`i’s opposing testimony on behalf of the Tufaga family, to Liufau’s recollections of life growing up in the area.  Unlike Liufau, Tagisiaali`i was not raised in the village of Aua.

Moreover, we find the Tufaga family’s claim to the seaward side of the road, as reflected in their 1990 resurvey, to be tentative and uncertain; being rather deferential toward ASG that had thirteen years earlier, in 1977, unconditionally abandoned any claim to the area.  Contrast the Liufau family’s claim to this area; it has not only remained unequivocal throughout, but the claim is coupled with credible evidence of actual use and occupation.

[3-4] As cases have long established, a mere claim to land without accompanied use or occupation is insufficient to acquire title thereof.  Ilaoa v. Toilolo, 1 A.S.R. 602, 604 (Trial Div. 1938); Soliai, 2 A.S.R. at 438.  Like the 1903 case, we also find that Tufaga family’s claim to the overlap is without “solid foundation of fact.”  See Tufaga, 1 A.S.R. at 186.  What the credible independent corroborative evidence has shown with regards to the Tufaga family’s interests is that they lie east of the disputed land area.  As borne out by the testimony of village elders, the extent of the Tufaga family’s use and occupation in the vicinity was concentrated outside of the overlap within an area approximating an acre.  This Tufaga area was the early location of the Mormon Church in the village of Aua.

Conclusions

On the foregoing, we are satisfied that the evidence preponderates in favor of the Liufau family’s claim and, therefore, conclude that the disputed overlap area is a part of the land Leasi, belonging to the Liufau family.  Title may be registered accordingly to the Liufau family.

It is so ordered.

**********

TCW SPECIAL CREDITS, a California General Partnership, as Agent and Nominee, Plaintiff/Appellant,

v.

F/V KASSANDRA Z, OFFICIAL NO. 653391, HER ENGINES, NETS, FURNITURE, etc., In Rem KASSANDRA FISHING COMPANY, INC.; a Commonwealth of the Northern Mariana Islands corporation, In Personam, Defendants.

______________________________

MICHAEL DATIN, et al., Plaintiffs-In-Intervention/Appellees,

v.

M/V KASSANDRA Z, OFFICIAL NO. 654491, HER ENGINES, NETS, FURNITURE, etc., In Rem, et al., Defendants.

______________________________

AND RELATED CLAIMS

High Court of American Samoa

Appellate Division

AP No. 05-00,

AP No. 09-00

March 4, 2003

[1] An appellate court reviews questions of law de novo but may not set aside the findings of fact of the Trial Division unless they are clearly erroneous. 

[2] A trial court finding of fact is clearly erroneous when “the entire record produces the definite and firm conviction that the court below committed a mistake, according particular weight to the trial judge’s assessment of conflicting and ambiguous facts.” 

[3] The purpose of the portion of statutory wages awarded under 46 U.S.C. § 11107 that is more than what the seaman would have received had his fishing agreement been valid is designed to punish ship owners who illegally engage seamen.

[4] Historically, the purpose of the requirement of a written shipping articles agreement under 46 U.S.C. § 11107 was to protect seamen from exploitation and mistreatment, while its modern purpose is to avoid disputes about wages and other terms and conditions of employment.

[5] Punitive damages cannot be recovered against a vessel. 

[6] Statutory wages awarded under 46 U.S.C. § 11107 are not punitive damages since the statute merely substitutes for an oral fishing agreement and calls for the rate of wages that are to be paid. 

[7] Statutory wages awarded under 46 U.S.C. § 11107 give rise to preferred maritime liens that are recoverable in rem and are granted the highest priority after in custodia legis costs. 

[8] In contrast to 46 U.S.C. § 10313(g), 46 U.S.C. § 11107 has no language limiting recovery of penalty wages only as against the vessel’s master or owner and therefore permits recovery in rem against the sale proceeds of a fishing vessel.

[9] Party was not an “innocent lienholder” and should have known the applicable law even if industry practice was contrary to the law.

[10] Courts cannot change what is clear on the face of the statute.

[11] Operation of 46 U.S.C. § 11107 is automatic, rendering oral agreements between a crew and the employer void and awarding statutory wages, regardless of whether the employer made partial payment of wages on the agreements’ terms.

[12] Laches is an equitable doctrine that bars an action where there has been an unreasonable delay in bringing the suit, and the other party has been prejudiced as a result of the delay. 

[13] A wronged seaman is entitled to recover the higher of either the wages he orally agreed to, or the higher rate of wages that could be earned by a seaman at the port of hire who has the same rating (rank, job classification, duties and ability) as the complainant.

[14] A court examines the totality of the circumstances in determining whether a seaman has demonstrated that he or she is comparable to another seaman for purposes of 46 U.S.C. § 11107.

[15] To prevail in a civil action, a party must make the required showing by a preponderance of the evidence. 

[16] The trial court’s finding that crew members, other than ordinary deckhands, were “interchangeable” with crew members of other ships and fleets without reference to their rank, job classification, duties and abilities was clearly erroneous in light of the crew’s burden of proving its case by a preponderance of the evidence and the lack of facts that would support such a finding.

[17] The doctrine of quantum meruit awards a plaintiff an amount equal to the value of the benefit he has provided to protect against the unjust enrichment of the beneficiary.

[18] Under quantum meruit, crew entitled to the value of the benefit they conferred upon their vessel and its owners where crew was instrumental in keeping the vessel in working order even though the imminent voyage never materialized because the vessel maintained a higher price upon judicial sale than would have been realized if the vessel were run-down.

[19] Calculation of crew’s recovery in quantum meruit for maintaining a vessel before a voyage that never occurs is the actual value of the benefit conferred, not the hypothetical benefit that might have accrued had the ship taken the voyage.

[20] American Samoa law allows in rem recovery against a vessel of a quantum meruit award.

Before RICHMOND, Associate Justice; WALLACE,* Acting Associate Justice; MOLLWAY,** Acting Associate Justice; MAMEA, Associate Judge; TUPUIVAO, Associate Judge.

Counsel:          Craig Miller and Barry I. Rose for Plaintiff/Appellant TCW Special Credits

                        William H. Reardon and William L. Banning for

                        Michael Datin, et al., Plaintiffs-In-Intervention/Appellees

OPINION AND ORDER

TCW Special Credits (“TCW”) appeals from a judgment of the Trial Division holding that following its foreclosure of a preferred ship mortgage on the F/V Kassandra Z (Kassandra Z), TCW must pay Michael Datin, et al., Kassandra Z’s crew, statutory wages under 46 U.S.C. § 11107 and quantum meruit damages because the chip’s former owner failed to do so prior to the arrest of the ship in 1996.  The crew also appealed and cross-appealed.  The Trial Division had jurisdiction over this action pursuant to A.S.C.A. § 3.0208(a).  We have jurisdiction over these timely appeals pursuant to A.S.C.A. § 3.0208(c).  We affirm in part, reverse in part, and remand to the Trial Division for further proceedings.

I.

The Kassandra Z was part of a family of eleven tuna seiners owned by the Zuanich family who operated out of various ports, including American Samoa, Guam, New Zealand, and San Diego, California.  The Zuanich family began to experience financial difficulty in 1995.  Seeking relief, the Kassandra Z Fishing Co., Inc., one of the companies owned by the Zuanich family_, granted a preferred ship mortgage to TCW secured against its vessel, the Kassandra Z.  On July 2, 1996, TCW filed a foreclosure action against the Kassandra Z in the Trial Division and had the vessel arrested by the High Court Marshal.  The crew members on board were removed from the ship, and most were repatriated to their homeland in Croatia.

Thereafter, the crew members intervened in the foreclosure action, alleging that they were owed unpaid wages for two full voyages, as well as “short checks”—adjustments in pay based on the cannery’s final calculation of the haul to be canned—left unpaid from other trips. Because the crew members were never given written fishing agreements as required by 46 U.S.C. § 10601 they asserted they were entitled to statutory wages under 46 U.S.C. § 11107.  Section 11107 provides that “[a]n engagement of a seaman contrary to a law of the United States is void.  A seaman so engaged . . . is entitled to recover the highest rate of wages at the port from which the seaman was engaged or the amount agreed to be given the seaman at the time of engagement, whichever is higher.”  46 U.S.C. § 11107.

Following a three-day trial the Trial Division awarded judgment for the crew in the amount of $713,623.14.  The Court determined the amount of the award based upon unpaid wages under Section 11107 for two trips, wages for the time the crew spent waiting in port for what was to be the final voyage of the ship, prejudgment interest, and other costs.  Both sides moved for reconsideration of portions of the Trial Division’s decision, and the Court issued a second order, holding that Section 11107 wages for the short checks were available, and adjusting the crew’s award to $1,396,155.55.

On appeal, TCW argues that the wages awarded to the crew under 46 U.S.C. § 11107 are really “penalties” that cannot be recovered in rem with priority over TCW’s preferred ship mortgage.  It also argues that the Trial Division erred in awarding wages under Section 11107 for the “short checks” that were never paid.  TCW alleges that the Trial Division erred in allowing the crew to prove the rate of wages to which they were entitled under Section 11101 by a “prima facie” showing only.  Finally, it asserts that the Trial Division erred in awarding any wages for the crew’s in-port waiting time for the final journey that never happened.  The crew argues on cross-appeal that the court erred in requiring the crew to prove any comparability under Section 11107.  They assert that instead they should receive the highest wage paid to “any seaman” on board the ship.  In the alternative, they suggest that the Trial Division should have used a rating system as suggested by the Court of Appeals for the Ninth Circuit in TCW Special Credits v. Chloe Z Fishing Co., 129 F.3d 1330 (9th Cir. 1997).

II.

One preliminary matter deserves attention.  Long after briefing had closed and just weeks before oral argument, the crew filed what it styled a “supplemental brief,” which urged that under the unpublished decision in TCW Special Credits v. Barandiaran, 238 F.3d 431 (Table), 2000 WL 1277939 (9th Cir. Sept. 8, 2000), the Trial Division additionally erred in ruling that the Kassandra Z’s Master and Fish Captain were not entitled to wages under Section 11107.  The Court of Appeals for the Ninth Circuit does not ordinarily allow citation to unpublished decisions.  Ninth Circuit Rule 36-3(b).  The crew does not provide a reason why we should consider a decision the authoring court does not deem to be of precedential authority.

However, we need not decide this issue.  We conclude the crew’s claim in its “supplemental brief” is jurisdictionally barred.  While parties may direct our attention to legal authority established subsequent to briefing, they are not free to raise new arguments not addressed in their briefs.  The crew did not raise this issue in either their appellee’s brief or their cross-appeal brief.  Therefore, the “supplemental brief” does not meet the ten-day time limitation for filing a notice to appeal, A.C.R. 4(a).  Because the deadline for filing a notice of appeal is jurisdictional, A.S.C.A. § 43.0802(b), Taulaga v. Patea, 17 A.S.R.2d 34, 35 (App. Div. 1990), we will not address this issue.

III.

[1-2] We review questions of law de novo.  Anderson v Vaivao, 21 A.S.R.2d 95, 98 (App. Div. 1992).  We may not set aside the findings of fact of the Trial Division unless they are clearly erroneous.  A.S.C.A. § 43.0801(b); Anderson, 21 A.S.R.2d at 98.  A finding is clearly erroneous when “the entire record produces the definite and firm conviction that the court below committed a mistake,” according particular weight to the trial judge’s assessment of conflicting and ambiguous facts.”  E.W. Truck & Equip. Co. v. Coulter, 20 A.S.R.2d 88, 92 (App. Div. 1992).

With this in mind, we turn first to whether the Trial Division erred in concluding that the statutory wages it awarded the crew for unpaid trips under 46 U.S.C. § 11107 were recoverable in rem against the Kassandra Z and with a preferred lien status over TCW’s ship mortgage.

[3-4] TCW urges us to call these statutory wages “penalties” or “punitive damages,” and asserts that we should hold that they are not recoverable in rem with priority over TCW’s preferred ship mortgage.  TCW correctly points out that the purpose of the portion of statutory wages awarded under Section 11107 that is more than what the seaman would have received had his fishing agreement been valid is designed to punish ship owners who illegally engage seamen.  Seattle-First Nat’l Bank v. St. Elias Ocean Prods., Inc., 98 F.3d 1195, 1198 (9th Cir. 1996).  Historically, the purpose of the requirement of a written shipping articles agreement was to protect seamen from exploitation and mistreatment, Sylvis v. Rouge Steel Co., 873 F.2d 122, 125 (6th Cir. 1989), while its modern purpose is to avoid disputes about wages and other terms and conditions of employment precisely like the one in this lawsuit.  Id.  As such, the “punishment” for violation of this requirement is that the ship is answerable to the crew for a rate that may be higher than what they invalidly agreed to in the first place.

[5-6] We understand that punitive damages cannot be recovered against a vessel.  Hunley v. Ace Mar. Corp., 927 F.2d 493, 496 (9th Cir. 1991).  Nonetheless, statutory wages awarded under Section 11107 are not punitive damages.  The statute expressly states that the seaman illegally engaged “is entitled to recover the highest rate of wages at the port from which the seaman was engaged or the amount agreed . . . whichever is higher.”  46 U.S.C. § 11107 (emphasis added).  The statute therefore substitutes for the oral agreement, and calls for the rate of wages that are to be paid.  Thus, the amount awarded under Section 11107 is not a “punitive damages” award—it rather represents wages owed at a rate statutorily set.  Courts have long held this to be the case.  See West Winds, Inc. v. M.V. Reso1ute, 720 F.2d 1097, 1103 n.4 (9th Cir. 1993) (citing to predecessor statutes discussed in Collie v. Fergusson, 281 U.S. 52, 54 (1930) and Gerber v. Spencer, 278 F. 886, 889 (9th Cir. 1922)); Buckley v. Oceanic S.S. Co., 5 F.2d 545, 546 (9th Cir. 1925) (predecessor statute).

[7] Statutory wages awarded under 46 U.S.C. § 11107 give rise to preferred maritime liens that are recoverable in rem.  46 U.S.C. § 31301(5)(D); Seattle-First Nat’l Bank v. Conaway, 95 F.3d 1195, 1198-99 (9th Cir. 1995).  This is so because, as the Supreme Court recognized early in American history, a ship is liable in rem for the unpaid wages of a Seaman.  The John G. Stevens, 170 U.S. 113, 119 (1898).  Moreover, seamen’s wage liens have always been granted the highest priority after in custodia legis costs.  Key Bank of Wash. v. S. Comfort, 106 F.3d 1441, 1443-44 (9th Cir. 1997); Kesselring v. F/T Arctic Hero, 30 F.3d 1123, 1125-26 (9th Cir. 1994).  The Ship Mortgage Act also makes clear that liens for wages of the crew have priority over preferred ship mortgages.  46 U.S.C. § 31326(b)(1).

[8] TCW urges us to adopt the holding of the Fifth Circuit in Governor & Co. of Bank of Scotland v. Sabay, 211 F.3d 261, 275 (5th Cir. 2000), and apply it here.  Sabay held that penalty wages awarded under 46 U.S.C. § 10313(g) are not recoverable in rem against the sale proceeds of a fishing vessel.  Id. at 275.  However, the plain language of Section 10313(g), with which Sabay dealt, makes the holding in that case inapplicable to the case before us.  Section 10313(g) states that when the master does not pay each seaman the balance of wages due “without sufficient cause, the master or owner shall pay to the seaman 2 days’ wages for each day payment is delayed.”  45 U.S.C. § 10313(g) (emphasis added).  The Fifth Circuit interpreted this statute’s plain language to “preclude . . . enforcement of the penalty wages liens at issue against the sale proceeds.  The statute imposes liability for such wages only on the vessel master or owner.  Sabay, 211 F.3d at 275.  Because the sale proceeds were insufficient to satisfy all of the liens against the vessel, the owner no longer had an interest in those proceeds; therefore the lien could not be enforced against proceeds in which the owner no longer had an interest.  Id. at 275-76.  Sabay is inapplicable to this case, where Section 11107 has no language limiting recovery only as against the vessel’s master or owner.

[9] TCW’s final argument is that it is an “innocent lienholder” and shouldn’t have to pay the crew’s wages under Section 11107.  But when TCW secured its mortgage on the Kassandra Z, the statutes at issue in this case, 46 U.S.C. § 10601 and 45 U.S.C. § 11107, were already law.  Commercial Wishing Industry Vessel Safety Act of 1988, Pub. L. 100-424, § 6(a), 102 Stat. 1591 (codified as 46 U.S.C. § 10601); Act of Aug. 25, 1983, Pub. L. 99-89, 97 Stat. 580 (codified as 46 U.S.C. § 11107).  The relevant cases, West Winds, 720 F.2d at 1103 n.4 (holding that Section 11107 wages are wages and not punitive damages) and The John G. Stevens. 170 U.S. at 119 (holding that “as long as a plank of the ship remains, the sailor is entitled, against all other persons, to the proceeds as a security for his wages”) had long been decided.  When TCW secured the mortgage on the Kassandra Z, it should have been aware of what the law was, even if, as it asserts, it was standard practice in the fishing industry to operate without written fishing agreements.  Indeed, compared to fishermen, mortgagees like TCW are in a better position to demand that vessel owners make written agreements with their seamen through covenants in the mortgage contract.

We therefore hold that the Trial Division did not err in awarding the statutory wages to the crew under Section 11107’s preferred status over TCW’s ship mortgage.

IV.

We next deal with TCW’s challenge to the Trial Division’s decision to award approximately $600,000 under 46 U.S.C. § 11107 for unpaid wages owed on certain “short checks” unpaid at the time of the vessel’s arrest.  It is standard practice in the tuna fishing industry to pay crew wages in two installments: the first is a substantial payment of 90-95% of the wages owed based on the estimated weight of the fish off-loaded; the second is for the remaining 5-10%, known as a “short check,” which is calculated after the cannery determines the quantity of “rejects.”  Short checks typically are issued within a few weeks after the catch is off-loaded; however, the owners of the Kassandra Z never paid crew members their short checks for nine of the twenty-six fishing trips they made.  TCW argues that the Trial Division erred in awarding statutory wages for these missing short checks.  TCW’s argument is based upon three contentions: (1) the seamen were “fully paid” for the nine trips in question; (2) permitting the recovery of statutory wages would be unfair and would cause dire consequences to the fishing industry; and (3) the crew’s claims are barred by the equitable doctrine of laches.

As for TCW’s first contention, the Trial Division found that the crew members were not fully paid for these trips.  We hold the finding was not clearly erroneous.  That they received the first payment of 90-95% does not mean they were “fully paid.”

[10-11] The “unfairness” argument, based upon the crew recovering more wages than they would have had their fishing agreements been valid, is addressed to the wrong forum.  We cannot change what is clear on the face of the statute.  Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992); Griffin v Oceanic Contractors, Inc., 458 U.S. 564, 570 (1982).  The statutory-language here is unambiguous: statutory wages are awarded any time there is an unlawful engagement of a seaman.  46 U.S.C. § 11107.  Operation of Section 11107 is automatic because it renders “engagement of a seaman contrary to the law of the United States . . . void.”  Id.  As the Trial Division observed, “A void contract is a legal nullity, and cannot serve as the basis for equitable estoppel.  In the event that the oral agreements between the [c]rew and [the Kassandra Z Fishing Company] were void, partial payment on their terms does not constitute a bar to the recovery of statutory wages under 46 U.S.C. § 11107.”  TCW Special Credits, Inc. v F/V Kassandra Z, 4 A.S.R.3d 154, 164-65 (Trial Div. 2000).  The crew members are entitled to statutory wages for those trips, regardless of whether they had already been paid a majority of their wages.  The result of the Trial Division considering the old trips for which the crew admittedly was mostly paid is a consequence of the plain language of the statute.  Such seemingly harsh consequences are precisely directed by the statute at forcing compliance with Section 10601.  Thus, TCW should direct this argument to Congress.

[12] TCW’s third assertion is that the crew’s claims for statutory wages on these prior trips are barred by laches.  Laches is an equitable doctrine that bars an action where there has been an unreasonable delay in bringing the suit, and the other party has been prejudiced as a result of the delay.  Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 533 (1956); Sandvik v. Alaska Packers Ass’n, 609 F.2d 969, 971 (9th Cir. 1979).  Given a proper use, claims involving old trips already mostly paid for might cause application of the doctrine of lathes to mitigate the harsh consequences of the automatic operation of Section 11107.  But TCW only argues that if any of the crew members had raised their claims for wages under Section 11107 earlier, the issue would have been resolved right away.  But with no record support, it would be difficult to conclude that such claims would have been resolved with any speed, given the fact that the owners of the Kassandra Z had repeatedly failed to pay the crew what they were owed under the invalid oral agreements.  Furthermore, TCW has not made an express claim of undue delay or prejudice, nor has it made a record of any prompt payment.  The best that TCW has been able to suggest is that if the crew members had raised their Section 11107 claims before the foreclosure action, perhaps the vessel’s owners would have paid them.  This is an allegation, not proof, and there is no basis upon which we could hold that the action of the crew members as to these nine trips is barred by laches.

V.

[13-14] TCW next challenges the “light burden” of proof to which the Trial Division held the crew when it came to determining the amount of wages to which the crew was entitled for its unpaid voyages and short checks under Section 11107.  The Trial Division decided that the crew need only make what it called a “prima facie” showing that an individual seaman was comparable to another seaman who made a higher wage at the port where the seamen were employed.  The Court borrowed the comparability requirement from the Court of Appeals for the Ninth Circuit’s holding in Chloe Z, 129 F.3d at 133, that “a wronged seaman is entitled to recover the higher of either the wages he orally agreed to, or the higher rate of wages that could be earned by a seaman at the port of hire who has the same rating as the complainant.”  “Rating” refers to the seaman’s “rank, job classification, duties and ability.”  Id. at 1331.  We hold that Chloe Z properly states the rule.  In most cases, it requires that seamen seeking statutory wages under Section 11107 prove that the wage rate they claim is a rate derived from the salary of a seaman with the same rank, job classification, duties and ability.  However, these considerations are not exclusive.  We examine the totality of the circumstances in determining whether a seaman has demonstrated that he or she is comparable to another seaman for purposes of Section 11107.  The Trial Division accepted a “prima facie” showing as making out the crew’s claim of comparability.

[15] To prevail in a civil action, a party must make the required showing by a preponderance of the evidence.  Tuia Suasuai v. Salave`a, 3 A.S.R.2d 1 (Lands & Titles Div. 1986).  Here we are called upon to determine whether the Trial Division erred when it allowed crew members to demonstrate the applicable wage rate by merely submitting rosters.  Those rosters listed various crewmen with job labels such as “deckhand” or “seaman” and the corresponding person with the same label who was earning the most money elsewhere in the Zuanich fleet.  However, the Trial Division made extensive findings of fact that the wage rate for ordinary deckhands in the Zuanich fleet was determined largely by intangible factors such as loyalty to a captain or even nepotism, rather than factors such as rank, job classification, duties or ability.  TCW has not proven these findings to be clearly erroneous, and therefore, the findings must be accepted.  The Court’s findings of fact suggest that deckhands were not generally comparable because their wages depended not on identifiable factors like rank, job classification, duties or ability, but rather on intangibles such as personality or relationship to the Fish Captain.  As the Court found:

There are indeed significant distinctions in the rate of wages offered deckhands, not only from one ship to another, but even on a single trip of a single vessel.  Certainly the reasons for these differences were based at least in part on issues such as ability and seniority. . . . At the same time, the facts established at trial also demonstrate that most deckhands performed substantially the same day-to-day tasks, including stacking nets and cork, standing watch, sorting fish, painting, and other such duties not requiring any particular expertise or training . . . . The method of hiring replacement deckhands is particularly illustrative of the interchangeable nature of these workers . . . . [Fish Captain Gojko] Milisic would simply put in a call to have someone flown out from Croatia, or would hire any available seaman off the docks, regardless of whether the deckhand to be replaced happened to have served in a specialized role such as spotting fish or driving the skiff . . . . [I]n his words, the deckhands were “[j]ust . . . laborer[s]” and needed “no license, no skill.” . . . . While we find that experience and abilities may have played a small role in [determining wages], as discussed above, the evidence indicates that the more critical contributing factors were significantly less tangible.  For example, Fish Captain Milisic testified that, among other things, he might pay one seaman more than another because “I like the guy” or because he’s not “a trouble maker” . . . Total experience as a seaman might be marginally relevant to wages, but loyalty to a particu1ar captain appears to be much more significant.

TCW Special Credits, Inc. v. F/V Kassandra Z, 163 3 A.S.R.3d 163, 170-71 (Trial Div. 1999).

Because TCW has provided us no basis upon which to conclude that this finding dealing with ordinary deckhands aboard the Kassandra Z is clearly erroneous, there is no basis for requiring proof in addition to the rosters of the crew.  We affirm the Trial Division’s decision with respect to those deckhand crew members because the Trial Division made specific findings of fact that the Chloe factors of rank, job classification, duties and ability played only a small role in determining the deckhands’ wages.

We now turn to the other members of the crew.  The Trial Division constructed its overall “prima facie” case mechanism after considering the purpose of Section 11107 and the historical position of seamen in the fishing industry.  The Trial Division placed a “light burden” on the crew for proving comparability based upon concerns about the ability of seamen to search out and identify someone from their port who has the same duties and skills as he, and the seaman’s traditional role as a “ward . . . of admiralty.”  TCW, 3 A.S.R.3d at 171.  The Trial Division concluded that requiring complicated methods of proof would thwart the primary purpose of Section 21107: to provide “a quick and efficient means by which wronged seamen can get the wages owed to them.”  Id.  Instead, the Court decided it would be better to place the heavier burden of rebutting prima facie comparability on the vessel’s owner, who would have better access to the personnel in his fleet.  Id. at 172.  In addition, the Court pointed out that burdens of production and proof in admiralty claims are generally relatively minimal.  Id. at 171 (citing Comeaux v, T.L. James & Co., 702 F.2d 1023, 1024 (5th Cir. 1983) (seaman’s burden of proving cause in Jones Act cases is “featherweight”); Yelverton v. Mobile Labs, Inc., 782 F.2d 555, 558 (5th Cir. 1986) (“A seaman’s burden of production in establishing the value of his maintenance is feather light.”)).

[16] Nonetheless, we disagree with the Trial Division that crew members in this case, other than ordinary deckhands, are entitled to recover the wage of the highest paid Zuanich fleet employee with the same job label such as “assistant engineer” or “fish captain” based on crew rosters alone.  These terms are too general; the Trial Division made no finding of fact that such generalities were reflective of the actual computation of these crew members’ wages.  To the contrary, the Court stated “[t]here appears to be little debate that for the most established positions aboard a tuna boat captain, engineers, helicopter pilots, deck boss, cook, etc.), these factors [rank, job classification, duties and ability] will, by definition, all be [capable of comparison] from boat to boat and from fleet to fleet.”  TCW, 3 A.S.R.3d at 169.  Therefore, the Court’s determination that “each member of the [c]rew is [equal] to his counterparts throughout the Zuanich fleet, within the meaning of the Ninth Circuit’s decision in Chloe Z,” id. at 173, is clearly erroneous in light of the crew’s burden of proving its case by a preponderance of the evidence and the lack of facts that would support the finding that crew members, other than ordinary deckhands, were “interchangeable” without reference to their rank, job classification, duties and abilities.  Instead, it would have been helpful, for example, if these crew members had correlated themselves to someone in the fleet with the same rank, job classification, duties and ability (whether contained in his job description or not).  This is not too much of a burden on these crew members in light of the monetary import of entitlement to statutory wages under Section 11107.

On cross-appeal, the crew members argue for a literal reading of the statute and a conclusion that they are entitled to whatever the highest wage rate is at the port at issue, regardless of what kind of job that person holds.  Section 11101 is ambiguous as to exactly whose wages at the port in question should be used as a substitute for the seaman engaged without fishing articles.  It says “the highest rate of wages at the port from which the seaman was engaged or the amount agreed . . . whichever is higher.”  The crew’s reading, however, is patently absurd, as the phrase “whichever is higher” would have no meaning: someone at the port (e.g., the chief executive officer of a shipping company, etc.) will always have a wage higher than the one a crew member was promised as a seaman.  In any event such a holding is foreclosed by Chloe Z, 125 F.3d 1333.

Therefore, we reverse the Trial Division’s ruling other than the deckhands, that the crew’s prima facie showing of comparability proved their case by a preponderance of the evidence.

VI.

[17] Finally, TCW argues that the Trial Division erred in awarding the crew wages for the time they spent waiting in port for what was to be the Kassandra Z’s final voyage before the ship’s arrest.  The Trial Division awarded fourteen crew members wages for the period of November 21, 1996 through July 2, 1996, the time between the end of the 215th trip and the time the Kassandra Z was arrested.  The Trial Division awarded wages based on the doctrine of quantum meruit, which awards a plaintiff an amount equal to the value of the benefit he has provided to protect against the unjust enrichment of the beneficiary. Restatement (Second) of Contracts § 370 (1981).

[18] TCW argues that tuna fishermen are not ordinarily paid wages for in-port wait time, and that there was little or no work performed by the crew during this period.  Whether fishermen are ordinarily paid wages for time spent waiting in port is irrelevant to the question whether the crew can recover in quantum meruit for the value of the benefit they conferred upon the Kassandra Z and its owners.  Moreover, the Trial Division found that “the [c]rew was indeed active in maintaining the vessel and preparing it for its next fishing voyage.”  TCW, 3 A.S.R.3d at 179. The Trial Division found that the crew was instrumental in keeping the vessel in working order, which was valuable even if the imminent voyage never materialized because it maintained a higher price upon judicial sale of the vessel than would have been realized if the vessel were run-down.  This finding is not clearly erroneous, and thus we hold that it was not error for the Trial Division to award recovery in quantum meruit for in-port waiting time.

[19] We next turn to the method the Court used in calculating the quantum meruit damages owed to the crew.  The Court multiplied 43 days (the number spent waiting) by an “average daily catch” (as if the crew had been fishing), which it found to he 14427 tons; and multiplied this amount (619.93 tons) by the rate it determined to be the highest rate of wages paid to a comparable “seaman.”  Id. at 185.  This calculation cannot be correct because quantum meruit is an award based on the actual value of the benefit conferred, not the hypothetical benefit that might have accrued (catching a certain tonnage of fish) had the ship taken a last voyage.  Furthermore, the statutory wage provision of Section 11107 (highest rate of wages at the port of engagement) cannot come into play in the calculation of an award for benefits conferred during the in-port waiting time.  Section 10601 (whose violation results in an award of statutory wages under Section 11107) provides that a written fishing agreement shall be made “before proceeding on a voyage.”  46 U.S.C. § 10601.  The Kassandra Z did not “proceed on a voyage” after Trip 26 (the last before the ship was arrested), so Section 10601 could not have been violated, nor Section 11107 implicated.  We therefore reverse the Trial Division’s decision regarding the method of calculating the quantum meruit award, with direction to find facts and make a calculation of the benefit conferred upon the Kassandra Z by the crew’s efforts in those 43 days.

[20] TCW argues that even if quantum meruit recovery is warranted, it cannot be awarded in rem against the sale proceeds of the ship.  However, American Samoa law allows in rem recovery against a vessel of a quantum meruit award.  Zuguin v. M/V Captain M.J. Souza, 23 A.S.R.2d 7, 10 (Trial Div. 1992).  Zuguin permitted a helicopter pilot engaged to prepare a ship for a voyage to recover in quantum meruit in an in rem proceeding against the vessel where the mechanic had quit prior to the planned voyage.  Id. at 10-11.  We therefore hold that the Trial Division may allow in rem recovery of the quantum meruit award.

VII.

In summary, we affirm the Trial Division’s award of wages under Section 11107 for ordinary deckhands, the grant of priority to these wages over TCW’s preferred ship mortgage, and the allowance in rem award of quantum meruit damages for services performed while the Kassandra Z was in harbor. 

We reverse the Trial Division’s decision allowing the crew, other than the ordinary deckhands, to prove comparability by prima facie showing only, and its method of calculating the quantum meruit recovery owed to the crew for in-port waiting time. 

We remand for the Court to conduct such further hearings as the Trial Division wishes in keeping with our decision.  No costs.

It is so ordered.                        

**********

ALAMOANA MULITAUAOPELE, Appellant,

v.

AMERICAN SAMOA GOVERNMENT, Appellee.

High Court of American Samoa

Appellate Division

AP No. 09-01

November 3, 2003

[1] Expert testimony is admissible only if it is both relevant and reliable.

[2] The presiding judge’s role in ensuring the reliability and relevancy of expert testimony extends to all expert testimony.

[3] Reliability of a specific scientific theory or technique may be determined by all or some of certain specific factors, including testing, peer review, error rates, and acceptance in the relevant scientific community.

[4] The Daubert test for reliability of a specific scientific theory or technique is flexible, and the list of specific factors neither necessarily nor exclusively applies to all experts or in every case.

[5] A trial court has broad discretion concerning the admissibility or exclusion of expert testimony, and its action will be sustained unless it is shown to be manifestly erroneous.

[6] Drug courier profile evidence is a somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics.

[7] T.C.R.Ev. 403 mandates the exclusion of evidence when its probative value is substantially outweighed by its unfair prejudicial effect.

[8] Drug courier profile evidence is not always improper, and the court does not abuse its discretion in allowing such evidence to rebut a defendant’s claim that he or she does not fit the typical drug courier profile, or to establish a modus operandi in complex cases.

[9] T.C.R.Ev. 704 does not contain the prohibition against expert testimony in a criminal case as to whether a defendant had the mental state constituting an element of the offense charged, American Samoa’s rules do not open the door to all expert testimony on the ultimate issue of a defendant’s guilt.

[10] T.C.R.Ev. 704 allows expert testimony in the form of an opinion or inference only when it is otherwise admissible.

[11] A trial court’s errors require reversal unless it is more probable than not that the prejudice resulting from the error did not materially affect the verdict. T.C.R.C.P. 52(a).

[12] T.C.R.Ev. 704 does not prohibit experts from testifying as to ultimate issues, but allowing an expert witness provide an opinion that the accused used a co-defendant’s weaknesses when the expert could provide no proper foundation for his opinion was an error that was not harmless, and was improper and prejudicial evidence by the expert that the accused was, in fact, guilty.

Before KRUSE, Chief Justice, WALLACE,* Acting Associate Justice, MOLLWAY,** Acting Associate Justice, MAMEA, Associate Judge, TUPUIVAO, Associate Judge.

Counsel:  For Defendant-Appellant, Tautai A.F. Fa`alevao and Curtis E. Sherwood

  For Plaintiff-Appellee American Samoa Government, Fiti A. Sunia

OPINION AND ORDER

Introduction

The defendant-appellant, Alamoana Mulitauaopele (“Mulitauaopele”), was charged in a two-count information with unlawful possession of methamphetamine and cocaine.  After a jury trial, Mulitauaopele was convicted on both counts and sentenced to two consecutive ten-year terms of imprisonment.

Mulitauaopele appealed, arguing that: 1) the admission of expert testimony by Captain Va`aomala K. Sunia (‘Sunia”) was improper; 2) the imposition of two consecutive ten-year terms was improper; 3) the two consecutive ten-year terms amounted to cruel and/or unusual punishment; and 4) the government failed to produce sufficient evidence at trial to support the convictions.

Because Sunia improperly provided an opinion that was tantamount to saying that Mulitauaopele was guilty, and because that opinion lacked an admissible foundation, we reverse Mulitauaopele’s convictions.

 Background

A.  The Evidence Regarding Drug Trafficking.

Mulitauaopele asked fifteen-year-old Pio Vitolio, Jr. (“Vitolio”), to take a trip to buy drugs and bring them back to American Samoa. Mulitauaopele made all of the preparations for the trip.  He got Vitolio a birth certificate and a certificate of identity and paid for Vitolio’s airline ticket in cash.  Mulitauaopele gave Vitolio two envelopes containing money and told Vitolio to carry them.  Mulitauaopele flew with Vitolio to Honolulu, Hawaii, and then to Los Angeles, California.

In Los Angeles, they purchased a substance containing Methamphetamine.  On their way back to American Samoa, they stopped in Honolulu, where Mulitauaopele made a phone call and then went out to pay for some cocaine.  He told Vitolio to stay at a house and wait for two men to bring the cocaine.

Mulitauaopele and Vitolio then returned to the Honolulu airport separately.  Vitolio was carrying the drugs--one bag of methamphetamine and two bags of cocaine.  He had gotten a ride back to the Honolulu airport from the men who had given him the cocaine. Vitolio got to the airport so late that the plane had left the gate without him and had to be called back so that he could board.

Mulitauaopele and Vitolio met in the bathroom after they arrived at the airport in Pago Pago.  Mulitauaopele told Vitolio to follow him. They then went to the baggage area, picked up Mulitauaopele’s bags, and walked to the customs area.

Mulitauaopele and Vitolio handed Territorial Custom Inspector Patrick Tuvale (“Tuvale”) a single customs declaration form.  When Tuvale asked why only one form was being used for two people, Mulitauaopele answered that Vitolio did not know how to complete the form.  Tuvale asked about the bags and Mulitauaopele told him that the bags belonged to Mulitauaopele, but that Vitolio’s clothes were in one of them.  Tuvale then asked whether they were visiting American Samoa.  Mulitauaopele affirmed that they were “visiting.”  Tuvale noticed that Vitolio’s certificate of identity had been issued three days earlier in American Samoa, suggesting that Vitolio was not just visiting American Samoa. Tuvale was also suspicious because Mulitauaopele had been answering the questions put to Vitolio, and because Vitolio appeared nervous. Tuva1e therefore directed a “one hundred percent search” of both Mulitauaopele and Vitolio.  Authorities found two bags of cocaine and one bag of methamphetamine on Vitolio.

At trial, Vitolio, who was cooperating with the government, testified that Mulitauaopele had recruited him and directed his actions.

B.  Sunia’s Expert Testimony

The government offered Sunia, a police captain, as “an expert witness in the area of controlled substance imvestigation including the street value of drugs and the methods of drug smuggling.”  The government says it needed Sunia to explain to the jury how Mulitauaopele could “possess” drugs when the drugs were being carried by someone else, a procedure called “muling.”

Sunia testified that there were three kinds of “muling operations.”  The third type involved a “vulnerable mule,” usually an unemployed person acting out of fear, or a pregnant or young person.  Sunia said his observations of the witnesses, the testimony of the witnesses, and other evidence led him to conclude, in light of his training and experience, that the “operation” was consistent with a “muling operation” using a “vulnerable mule.”  Sunia recapped the evidence, referring to Tuvale’s testimony that Vitolio had appeared nervous and that Mulitauaopele had answered all questions asked of him and Vitolio.  Sunia noted that Vitolio had testified that all travel documents and tickets were obtained for him and that he had been brought to the airport at the last minute by the men who gave him drugs.  Sunia then opined that Vitolio “appears to be a person who was very—who was persuaded early into accepting what was offered to him.”  Sunia concluded that “[t]hey used this kid’s weaknesses, his ignorance of what’s surrounding him.  He was just following instructions.”

Analysis

A.        Sunia’s Expert Testimony Regarding Methods of Drug Smuggling was Admissible Under Ru1e 702

Rule 702 of the American Samoa Rules of Evidence provides for the admission of expert testimony when “scientific, technical, or other specialized knowledge will assist the trier of fact.”  In such situations, “a witness qualified as an expert by knowledge, skill, experience, training, or education may testify … in the form of an opinion or otherwise.”  Id.  The starting point for determining whether any expert testimony is admissible is first finding that it is relevant and reliable.

[1-2] In Daubert v. Merrell Dow Pharm., Inc., 50 U.S. 579, 589 (1993), the Supreme Court focused on the admissibility of scientific expert testimony.  Under Rule 702 of the Federal Rules of Evidence, which at the time was identical to American Samoa’s present Rule 702, the court found that expert testimony is admissible only if it is both relevant and reliable.  In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 146 (1999), the Court explained that the presiding judge’s role in ensuring the reliability and relevancy of expert testimony extends to all expert testimony.[1]

[3-4] Daubert outlined specific factors, such as testing, peer review, error rates, and acceptance in the relevant scientific community, some or all of which might assist in determining the reliability of a particular scientific theory or technique.  Daubert, 309 U.S. at 593-94.  The Daubert test is “flexible,” and the “list of specific factors neither necessarily nor exclusively applies to all experts or in every case.  Rather, the law grants a [trial] court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.”  Kumho, 526 U.S. at 141.  Under Rule 702, Daubert, and Kumho, Sunia’s testimony was admissible only if he was qualified as an expert and his testimony was reliable and relevant, and would assist the trier of fact.

In United States v. Mendoza-Paz, 286 F.3d 1104, 1112-13 (9th Cir. 2002), the Ninth Circuit held that the trial court did not err in qualifying an expert to give testimony regarding the value of seized marijuana.  Although Mendoza-Paz did not explicitly discuss Rule 702, it concluded that the Daubert/Kumho test for reliability was satisfied because the valuation expert testified that he had investigated illegal narcotics trafficking for eleven years and had participated in seminars on methods and techniques of drug trafficking organizations.  He further testified that he learned about the value of illegal narcotics through his experience working with intelligence databases, in-house intelligence agents, confidential informants, defendants he debriefed, and cooperating defendants.

Just as the Ninth Circuit concluded in Mendoza-Paz, we conclude that the Daubert/Kumho test for reliability was satisfied here as to Sunia’s expertise in the area of the methods of drug smuggling.  Sunia testified that he had spent eight of his fifteen years as a law enforcement officer involved, at least in part, in the investigation and detection of controlled substances.  For four of those eight years, Sunia’s primary focus was controlled substances investigations.  Additionally, Sunia had been in charge of the vice and. narcotics division of the police department for about a year to a year and a half.  Sunia testified that he attended training sessions “on how drugs are being used by gangs in L.A.”  He further testified that he participated in undercover drug investigations.  Through this experience, Sunia testified, he had become fami1iar with the way methamphetamine and cocaine were smuggled.  Accordingly, Sunia’s expert testimony on the methods of drug smuggling was admissible.

B.  Sunia’s Testimony Went Beyond Admissible Expert Testimony

[5] “A trial court has broad discretion concerning the admissibility or exclusion of expert testimony, and its action will be sustained unless its action is shown to be manifestly erroneous.”  EW Truck & Equip Co. v. Coulter, 20 A.S.R.2d 88, 92 (App. Div. 1992).  Although Sunia’s testimony satisfied Rule 702, Mulitauaopele argues that it amounted to improper drug courier profile evidence that should not have been admitted.  We agree.

[6] Drug courier profile evidence is a “somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics.”  United States v. Lui, 941 F.2d 844, 847 (9th Cir. 1991) (quoting Reid v. Ga., 448 U.S. 438, 440 (1979) (per curiam)).  Sunia testified that Vitolio fit the “vulnerable mule” description because Vitolio was young and nervous and let Mulitauaopele answer questions and fill out the declaration form.  This was drug courier profile evidence.[2]

[7] The Ninth Circuit has “denounced the use of drug courier profile evidence as substantive evidence of a defendant’s innocence or guilt.” Lui, 941 F.2d at 647.  Drug courier profiles are “inherently prejudicial because of the potential they have for including innocent citizens as profiled drug couriers.”  Id. at 847 (quoting United States v. Hernandez-Cuartas, 717 F.2d 552, 555 (11th Cir. 1983)).  Accordingly, the Ninth Circuit has cautioned that drug courier profile evidence should not be used to prove a defendant’s guilt.  Lui, 941 F.2d at 847.  The unfair prejudicial effect of such profile evidence far outweighs its probative value and therefore the profile evidence should be excluded.  See United States v. Lim, 984 F.2d 331, 335 (9th Dir. 1993).  In short, such profile evidence may be excluded under T.C.R.Ev. 403, which mandates exclusion of evidence when its probative value is substantially outweighed by its unfair prejudicial effect.

Other circuits agree that drug profile evidence should not be used as substantive evidence.  In United States. v Williams, 957 F.2d 1238 (5th Cir. 1992), the Fifth Circuit noted:

 
While the government may introduce evidence that the defendant exhibited individual behaviors that make up the profile, it is something entirely different to tell the jury that all the behaviors together fit a law enforcement mode: of a drug courier.  Despite the wide latitude district judges have in determining whether evidence is more probative than prejudicial, in our view the probative value of a drug courier profile is so low in relation to its prejudicial effect that its admission is error.

Id. at 1242 (internal citation omitted); accord United States v. Jones, 913 F.2d 174, 177 (4th Cir. 1990) (stating that it is improper to use expert testimony as substantive evidence to show that the defendant fits a profile and, therefore, must have intended to distribute drugs); United States v. Carter, 901 F.2d 683, 694 (8th Cir. 1990) (“Drug courier profiles are investigative tools, not evidence of guilt.  The admission of a profile into evidence is inherently prejudicial and can easily influence a jury into thinking that the defendant is guilty.  Drug courier profiles are not to be admitted as substantive evidence of guilt.”) (internal quotation marks and citation omitted); see also Commonwealth v. Poitras, 777 N.E.2d 647, 650-51 (Mass. App. Ct. 2002) (reversing a sexual assault conviction because an expert improperly testified as to a profile typically found in child sex abuse cases, and noting the prejudice to defendant because guilt or innocence turned on the complainant’s credibility and the jury might have found that the defendant fit the profile).

 
[8] Drug courier profile evidence, however, is not always improper.  For example, a court does not abuse its discretion in allowing such evidence to rebut a defendant’s claim that he or she does not fit the typical drug courier profile.  See United States v. Beltron-Rios, 878 F.2d 1208, 212-13 (9th Cir. 1989).  It may also be used to establish a modus operandi in complex cases.  United States v. Klimavicius-Viloria, 144 F.3d 1249, 1259 (9th Cir. 1998); Lui, 941 F.2d at 848 (recognizing that drug courier profile evidence may be allowed in complex drug-smuggling conspiracy cases).  The present case does not involve either exception.  Sunia provided a drug courier profile when he testified that Vitolio fit the “vulnerable mule” description because he was young and nervous, and because Mulitauaopele answered all of the questions put to Vitolio and filled out the declaration form for him.  This case is very much like Lim.

In Lim, the trial court allowed an agent to testify regarding the drug courier “shotgun” profile, in which the “shotgun” carries no drugs, instead traveling with a “mule” who carries the drugs.  Lim, 984 F.2d at 334. Noting that the expert testimony was not presented to rebut testimony by the defendant, the Ninth Circuit then determined that there was “nothing complex about this conspiracy.”  Id. at 335.  In Lim, the drug courier “shotgun” profile was applied to “two innocuous bits of evidence concerning Lim - the fact that he was engaging in domestic travel and was not carrying drugs.”  Id.  Lim noted that the prejudicial effect of the “shotgun” profile far outweighed its probative value. Accordingly, Lim held that the drug courier profile was improperly used as substantive evidence of guilt.  Id.

Here, the unfair prejudicial effect of the drug courier profile evidence substantially outweighed its probative value, as it merely explained a relatively simple crime.  The evidence should have been excluded under Rule 403 and the court committed a manifest error by admitting it. Accordingly, we conclude that the trial court abused its discretion in allowing Sunia to testify that Vitolio fit the profile of a vulnerable mule.

C.         Sunia Improperly Testified That Mulitauaopele Used Vitalio’s Weaknesses

[9-10] Sunia’s testimony went beyond the improper profile evidence. Sunia opined that Mulitauaopele had used Vitolio’s weaknesses.  This was tantamount to saying not just that Vitolio fit a profile but that Mulitauaopele was guilty.  This opinion was also inadmissible.  Although T.C.R.Ev. 704 does not contain the prohibition in Fed. R. Evid. Rule 704(b) against expert testimony in a criminal case as to whether a defendant had the mental state constituting an element of the offense charged, American Samoa’s rules do not open the door to all expert testimony on the ultimate issue of a defendant’s guilt.  Rule 704 allows expert testimony “in the form of an opinion or inference” only when it is “otherwise admissible.”  T.C.R.Ev. 704.

Although Sunia was qualified to provide expert testimony as to methods of drug smuggling, Sunia’s opinion that Mulitauaopele was actually using Vitolio’s weaknesses to smuggle drugs was based on improper drug courier profile evidence that was not admissible.[3]  Of course, an expert’s opinion may be based on inadmissible facts or data under Rule 703.  Here, however, Sunia’s opinion as to Mulitauaopele’s use of Vitolio’s weakness was so completely intertwined with and dependent on Sunia’s drug courier profile testimony that the inadmissibility of the profile evidence left Sunia with nothing to present to the jury in support of his opinion as to Mulitauaopele’s use of Vitolio.  Without the inadmissible drug courier profile evidence, his opinion was an unadorned and unexplained statement that Mulitauaopele was guilty. Such a statement would not assist the jury and so was inadmissible under Rule 702, which permits expert testimony if it “will assist the trier of fact to understand the evidence or to determine a fact in issue.”  Moreover, the opinion as to guilt ran afoul of Rule 403, which provides for exclusion of evidence when its probative value is substantially outweighed by its unfair prejudicial effect.  A bald, unsupported opinion as to guilt is highly prejudicial and totally lacking in probative value. Sunia’s opinion that Mulitauaopele was using Vitolio’s weaknesses to smuggle drugs should have been excluded.

D.        Allowing Sunia to Testify that Mulitauaopele was Using Vitolio’s Weaknesses to Smuggle Drugs Was Not Harmless Error

[11] The trial court’s errors in allowing Sunia to provide drug courier profile evidence and opine that Mulitauaopele was using Vitolio’s weaknesses to smuggle drugs require reversal of Mulitauaopele’s convictions unless they were harmless.  See Lui, 941 F.2d at 848 (unless there is “a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is not required”) (quoting Schneble v. Fla., 405 U.S. 427, 432 (1972)); United States v. Binder, 769 F.2d 595, 601-02 (9th Cir. 1985) (erroneous admission of expert testimony is reversible when it more probably than not materially affected the verdict) (citing United States v. Valle-Valdez, 554 F.2d 911, 916 (9th Cir. 1977)).  In other words, reversal is required unless “it is more probable than not that the prejudice resulting from the error did not materially affect the verdict.”  Lim, 984 F.2d at 335; Lui, 941 F.2d at 848; see also T.C.R.C.P. 52(a) (“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”).

[12] Although T.C.R.Ev. 704 does not prohibit experts from testifying as to ultimate issues, we hold that allowing Sunia to provide an opinion that Mulitauaopele used Vitolio’s weaknesses when Sunia could provide no proper foundation for his opinion was an error that was not harmless.  Sunia’s testimony that Mulitauaopele was using Vitolio’s weaknesses to smuggle drugs was improper and prejudicial evidence by a police expert that Mulitauaopele was, in fact, guilty.  Under these circumstances, we cannot conclude that it is more probable than not that Sunia’s testimony did not materially affect the verdict.

Our conclusion that admission of Sunia’s opinion as to Mulitauaopele’s guilt was reversible error makes it unnecessary for us to decide whether the error in admitting drug courier profile evidence, standing alone, was reversible error.  As the record clearly contains sufficient evidence to permit conviction even without any of Sunia’s testimony, we are not persuaded by Mulitauaopele that his convictions should be reversed based on insufficient evidence.  However, we cannot say that the jury would probably have found Mulitauaopele guilty absent Sunia’s opinion as to guilt.  It is difficult to conceive of expert testimony that is more prejudicial and less probative than an opinion by a law enforcement expert, unsupported by anything permitted by court rules, that a defendant is guilty.  The judgment against Mulitauaopele is reversed and this case is remanded for a new trial.[4]

It is so ordered.

______________________________

KRUSE, Chief Justice, Concurring:

I agree with the portion of the lead opinion, authored by Acting Associate Justice Mollway, concerning the inadmissibility of the drug courier profile evidence.  In my view, that alone is enough to warrant a new trial.  Thus, I do not find it necessary to explore other improprieties with Captain Sunia’s testimony, though many aspects of it were troubling.1  As the lead opinion amply demonstrates this profile evidence was unfairly prejudicial and thus substantially outweighed its probative value.  The trial court abused its discretion in admitting it.

Finding error, the next question is whether or not it was harmless. Compare United States v. Pinnigorii, 96 F.3d 1132, 1143 (9th Cir. 1996) (harmless error ana1ysis applied to classic trial error such as improper admission of evidence) and T.C.R.Cr.P. 52(a), with U.S. v. Burt, 143 F.3d 1215, 1217 (Plain error analysis typically reserved for forfeited errors) and T.C.R.Cr.P. 52(b).  Under a harmless error standard, “if the evidence presented at trial is ambiguous, even a relatively minor error requires reversal.”  United States v. Smart, 9 F.3d 1379, 1386 (D.C.Cir. 1996) (citing O’Neal v. McAninch, 514 U.S. 432 (1995)).  “We must reverse . . . unless it is more probable than not that the error did not materially affect the verdict.”  United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997).

Here, the government’s case without the profile evidence was at best ambiguous and open to reasonably differing interpretations.  But see United States v. Lim, 984 F.2d 331, 335 (9th Cir. 1993); United States v. Williams, 957 F.2d. 1238, 1242-43 (5th Cir. 1992); United States v. Quigley, 890 F.2d 1019, 1024 (8th Cir. 1989).  Essentially, the prosecution’s evidence was the self-serving testimony of Vitolio, bolstered by Sunia’s improper testimony.  Additionally, the trial judge did not give any limiting instructions, either during Sunia’s testimony or before jury deliberation.  Thus, absent any physical evidence tying the defendant to the drugs—which is typical in a case of constructive possession—the verdict turned entirely on the credibility of the witnesses, spcifical1y Vitolio’s.  See generally United States v. Gartmon, 146 F.3d 1015, 1026 (D.C. Cir. 1998) (quoting United States v. North, 910 F.2d 843, 895 (D.C. Cir. 1990) (defendant’s entitlement to a new trial depends on the “closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error”).  The admission of the profile evidence, therefore, did, more probably than not, materially affect the verdict.

I therefore concur with the lead opinion’s result, requiring a new trial, and express no view as to the scope of T.C.R.Ev. 702-705.

______________________________

WALLACE, Acting Associate Justice, dissenting:

I understand the concerns expressed by the majority and am not unsympathetic.  However, as an appellate court, our responsibilities are governed by certain limits critical to the smooth operation of the justice system.  Three of those cause me to dissent.  First, we are limited to the lower court’s factual record.  A second limit is the standard of review: here, abuse of discretion.  The standard of review is important not only because it is sometimes dispositive to the outcome of the appeal, but also because it traces the proper distribution of judicial power between the trial and appellate courts.  The third limit is the law applicable to the case before us.  Because I disagree with the majority in these critical areas, I am unable to join in the majority disposition.

I.

I start with the issue of the drug courier profile evidence.  The majority concludes:

[T]he unfair prejudicial effect of the drug courier profile evidence substantially outweighed its probative value, as it merely explained a relatively simple crime.  The evidence should have been excluded under Rule 403 and the court committed a manifest error by admitting it.  Accordingly, we conclude that the trial court abused its discretion in allowing Sunia to testify that Vitolio fit the profile of a vulnerable mule.

Majority Opinion, page 12.  Here I disagree with the majority’s understanding of the law.  While recognizing that the question is whether the evidence’s unfair prejudicial effect substantially outweighed its probative value, T.C.R.Ev. 403; accord Fed. R. Evid. 403, the majority fails to identify how the evidence’s prejudicial effect is unfair, and how it substantially outweighs its probative value.  Indeed, there is no showing that there was any unfair prejudice at all, much less that it substantially outweighed the evidence’s probative value.

But that is not all.  The majority articulated the correct standard of review, abuse of discretion, but it failed to apply this standard in any meaningful sense.  “A trial court has broad discretion concerning the admissibility or exclusion of expert testimony.”  EW Truck & Equip. Co. v. Coulter, 20 A.S.R.2d 88, 92 (1992).  To be of concern to the appellate court, the trial court must have abused its discretion.  United States v. Hanna, 293 F.3d 1080, 1085 (9th Cir, 2002); United States v. VonWillie, 59 F.3d 922, 928 (9th Cir. 1995) (stating that there is no difference between the “abuse of discretion” standard and the “manifestly erroneous” standard, and adopting the former characterization); United States v. Rahm, 993 F.2d 1405, 1409-l0 (9th Cir. 1993) (same).  In effect, the majority determined what the trial court should have done, but the appellate court cannot substitute its judgment for the lower court’s. United States v. McMullen, 98 F.3d 1155, 1159 (9th Or, 1996).  Under an abuse of discretion standard, an error is not enough.  The trial court’s evidentiary rulings may be reversed only if there is abuse of discretion, which has been defined as “a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.”  Wing v. Asarco, Inc., 114 F.3d 986, 988 (9th Cir. 1997) (emphasis added, internal quotation marks omitted). Reversal is possible only “when the appellate court is convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances.” Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000).

I would have difficulty holding there was trial court error in admitting the evidence at issue. Certainly, then, applying the law and the applicable standard of review, as I must, I cannot conclude that the trial court abused its discretion.  The majority cites United States v. Lim, 984 F.2d 331 (9th Cir. 1993), United States v. Lui, 941 F.2d 844 (9th Cir. 1991), United States v. Jones, 913 F.2d 174, 177 (4th Cir. 1990), United States v. Carter, 901 F.2d 683, 684 (8th Cir. 1990), and Commonwealth v. Poitras, 774 N.E.2d 647, 650-51 (Mass. App. Ct. 2002), but this case is significantly different.  Unlike Lim, Lui, Jones, Carter, and Poitras, Sunia did not opine that the defendant fit the drug courier profile.  This is not “a case in which the government attempted to establish the defendant’s guilt by showing that he has the same characteristics as a drug courier.” Cf. Jones, 913 F.2d at 177.  Instead, the officer opined that Mulitauaopele’s alleged accomplice, Vitolio, fit the drug courier profile.  Considering that Vitolio himself testified that he was a “mule” (drug courier), there was no unfair prejudicial effect.  Unlike the cases the majority cites, the drug courier profile was not used as substantive evidence of the defendant’s guilt, but only of Vitolio’s guilt.  Put another way, as the majority recognizes, drug courier profiles are “inherently prejudicial because of the potential they have for including innocent citizens as profiled drug couriers.” Lui, 941 F.2d at 847 (internal quotation marks omitted).  This unfair prejudice is suffered by the person profiled, Vitolio.  Mulitauaopele suffers no unfair prejudice, and he cannot complain of Vitolio’s harm.

The majority’s citation of Poitras is doubly ironic because, in that child abuse case, the court permitted profile evidence of child abuse victims. 774 N.E.2d at 649-50.  The appellate court held that the trial court abused its discretion only when it admitted an opinion that the defendant fit the profile of child abusers.  Id. at 650. The prejudicial effect was improper because the jury might conclude that, because the defendant fit the profile, he is more likely to have committed the crime.  Id.  There is no such unfair prejudice here, where the profile is of the accomplice, not the defendant.  Just as the trial court in Poitras did not abuse its discretion in permitting profile evidence of child abuse victims, the trial court here did not abuse its discretion in permitting profile evidence of the accomplice.  The analysis in Poitras, a case relied on by the majority, demonstrates why the majority is wrong in its holding.

II.

The majority holds that because “Sunia opined that Mulitauaopele had used Vitolio’s weaknesses,” this was “tantamount to saying ... that Mulitauaopele was guilty.”  I read the record differently.  Sunia never opined that Mulitauaopele used Vitolio’s weaknesses.  Instead, Sunia opined that “they” used Vitolio’s weaknesses.  The majority just assumes, with no basis in the record, that Sunia meant “Mulitauaopele” when he said “they.”  I cannot agree with the majority’s description of the record.

But, even assuming that Sunia said what the majority claims, I disagree that his opinion is “tantamount” to saying that Mulitauaopele was guilty. Sunia did not state Mulitauaopele was guilty.  Sunia did not even necessarily imply guilt.  Mulitauaopele could use Vitolio’s weakness and yet not be guilty of drug possession.  Suppose, for instance, that Mulitauaopele mistakenly thought that he was using Vitolio to smuggle Russian diamonds or Cuban cigars instead of illegal drugs.  In that case, Mulitauaopele would have used Vitolio’s weaknesses, but he is not guilty of unlawful possession of drugs.  Under the majority’s reasoning, anytime an expert gives an opinion that tends to show that the defendant is guilty, i.e., every time an expert’s opinion is relevant—a necessary precondition to it being admissible at all—the expert is somehow giving an opinion that the defendant is guilty.

III.

So far, I have disagreed with the majority’s conclusion that Sunia’s opinion that Mulitauaopele (or “they”) used Vitolio’s weakness was inadmissible because the opinion was based on improper drug courier profile evidence.  But even assuming for the sake of argument that drug courier profile evidence would be improper in this case, the majority’s conclusion still does not follow.

First, Sunia’s opinion was based not on profile evidence, but on the officers’ firsthand observations that Vitolio was weak.  This is not profile evidence, and it is not inadmissible just because other drug couriers tend to act similarly.  Sunia’s opinion was properly based on the officers’ observations that Vitolio did not answer the questions put to him, he was fifteen years old, he appeared nervous, all his travel arrangements were made by another, his airline ticket was paid for by another, he let another fill out his declaration form, etc.  Sunia’s opinion that Mulitauaopele used Vitolio’s weakness was not based at all on any drug courier profile.  It does not matter how other mules act.  All that mattered, as far as Sunia’s opinion was concerned, was what Mulitauaopele (or “they”) did, and how Vitolio acted.

Second, even if Sunia’s opinion was based entirely on an inadmissible drug courier profile, his opinion is nonetheless admissible under the rules of evidence.  T.C.R.Ev. 702 governs the admissibility of expert opinions, and nowhere is there a requirement that the basis of the opinion be admissible.  As the majority opinion observes but does not apply, T.C.R.Ev. 703 permits an expert’s opinion to be based on inadmissible facts or data.  According to Rule 705, the basis need not be disclosed.  T.C.R.Ev. 705 (stating that the “expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise” or unless the basis is elicited on cross-examination).  Under the applicable rules of evidence, an expert may give, what the majority calls, an “unadorned” and “unexplained” opinion.  The majority opinion fails to follow the rules of evidence.  This I cannot do.

IV.

Because I disagree with the majority’s reading of the record, its failure to apply the appropriate standard of appellate review meaningfully, and its understanding of applicable law, I must dissent.  I would affirm the conviction.

AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.