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8ASR3d

8ASR3d

De Guzman v. Fiamalua


[1] In a small claims dispute, a party can bring an action before the District Court and then appeal the judgment to the High Court within five days, or else the District Court’s judgment is final. A small claims action appealed to the Trial Division of the High Court results in a trial de novo, without any weight or reference given to the District Court trial below.

 

[2] If a plaintiff cannot prove by a preponderance of the evidence the elements of his claim, the court will not issue a judgment in favor of the plaintiff. Preponderance means more probable than not.

 

[3] In a civil action, under the preponderance of the evidence standard, when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

 

[4] On equal showings of evidence in a “he-said, she-said” dispute over an oral agreement, the court will rule in favor of the defendant.

Tuli'au v. Tuiasina


Complaints which fall short of the plausibility standard are subject to dismissal under T.C.R.C.P. 12(b)(6) unless the court lacks the subject matter jurisdiction to hear a complaint, in which case dismissal under T.C.R.C.P. 12(b)(1) is appropriate

A former or current government employee who wishes to challenge his employment-termination must bring such a dispute before the Office of the Administrative Law Judge (“OALJ”) in the first instance; that office has primary jurisdiction over such disputes. From the OALJ, a disaffected party may then seek judicial review, not at the Trial Division level but before the Appellate Division. A.S.C.A. § 4.0604 (b) & (h).

Any claim premised on the American Samoa Government’s failure to renew a professional license are matters beyond the scope of the Trial Division’s subject matter jurisdiction. A.S.C.A. § 31.1006 explicitly requires that “[a]ll proceedings respecting the...refusal, suspension, revocation, or modification of a [medical practitioner’s] license issued by the [Regulatory Health] Board, and judicial review thereof, must be in accordance with the provisions of the Administrative Procedures Act set forth in 4.1001 et seq.”

If the substance of a plaintiff’s claims hinges on whether the government wrongfully terminated the plaintiff’s employment, a decision the Office of the Administrative Law Judge (“OALJ”) renders, the form of plaintiff’s complaint as one lying in tort under the Government Tort Liability Act, A.S.C.A. §§ 43.1201, et seq., will not stand. The proper venue for such a dispute lies with the OALJ.


YHT, Inc. v. Progressive Ins


 

 

 

YHT, INC., an American Samoa corporation, Appellant,

 

v.

 

PROGRESSIVE INSURANCE COMPANY,

 

(Pago Pago), et. al., Appellee.

 

High Court of American Samoa

 

Appellate Division

 

AP No. 19-03

 

February 19, 2004

 

[1] Motions for an extension of time should be filed before rather than after a deadline has passed.

 

[2] This Court has been especially careful not to grant extensions that would cause the hearing of an appeal to be delayed from one appellate session to the next.

 

Before KRUSE, Chief Justice.

 

Counsel: For Appellant, Paul F. Miller

 

For Appellee, William H. Reardon

 

ORDER DENYING MOTION TO EXTEND

 

TIME AND GRANTING MOTION TO DISMISS

 

The trial court’s decision from which this appeal was taken was rendered on July 18, 2003. On October 17, 2003, the trial court denied Appellant YHT, Inc.’s (“YHT”) motion for reconsideration or new trial. On October 23, 2003, YHT filed its notice of appeal. On January 14, 2004, YHT filed a motion for a thirty-day extension of time in which to file its brief and to designate the record. Appellee Progressive Insurance Company (“Progressive”) opposed the motion to extend time and moved to dismiss YHT’s appeal under Appellate Court Rules 10(b)(5) and 31(c). For the reasons stated below, we deny YHT’s motion for an extension of time and grant Progressive’s motion to dismiss under Appellate Court Rule 31(c).

 

On January 14, 2004, YHT filed its motion for an extension of time claiming that a mail delay prevented its attorney from preparing the brief. According to YHT, the trial transcripts were served on its attorney (via his court mailbox) on December 3, 2003. However, YHT’s attorney was located in Grand Junction, Colorado and claims that during this time 3

 

there was a delay in mail service from American Samoa to Colorado because of the “holiday flight schedules and flights being cancelled because of weather conditions.” Because of this alleged delay, YHT seeks an extra thirty days in which to file its brief.1

 

Progressive opposes the motion, arguing that YHT failed to comply with Appellate Court Rule 10(b) regarding the record on appeal, and therefore, failed to perfect its appeal. Progressive also argues that even assuming YHT met the requirements of Rule 10(b), it still failed to timely move for an extension of time and failed to serve Progressive with its motion. Progressive also argues that it will suffer prejudice if YHT’s motion for an extension of time is granted because the extension will prevent the appeal from being heard at the upcoming April appellate session. Progressive makes its motion to dismiss the appeal using many of the same arguments.

 

[1] Assuming YHT complied with Rule 10(b) regarding the trial transcript and that it was served with the transcript on December 3, 2003 (as indicated by YHT’s counsel), its brief was due on January 12, 2004.2 A.C.R. 31(a). However, YHT did not move for an extension of time until January 14, 2004, after the deadline had already passed. YHT makes no attempt to excuse or even acknowledge its failure to request an extension prior to the filing deadline. Motions for an extension of time should be filed before rather than after a deadline has passed. See Hawaiian Airlines v. Am. Samoa Gov’t, 11 A.S.R.2d 116, 117 (App. Div. 1989); Leota v. Sese, 10 A.S.R.2d 155, 157 (App. Div. 1989). Moreover, YHT failed to serve Progressive with its motion and made no attempt to excuse its failure to follow the Appellate Court Rules. A.C.R. 27(a). YHT’s motion to extend the deadline for the filing of its brief is untimely and, therefore, denied.

 

[2] Even if YHT made a timely motion for an extension of time in which to file its brief, it would have still been denied. Any extension will delay the appeal until the next appellate session. This Court “has been

 

1 Even though the transcripts were served on YHT’s counsel on December 3, 2003, they were not sent to him in Colorado until December 17, 2003. At this same time, the client case file was sent to YHT’s attorney in Colorado. YHT does not explain why there was a two week delay in sending the packages off-island nor does it explain why the client case file (a file its counsel says he “needed to properly prepare” the brief) was not sent at an earlier date. If YHT’s counsel wants to practice from Colorado, he is expected to practice with the sort of diligence required to effectively represent his clients. See, e.g., Kaho v. Ron Pritchard Ground Servs., Inc., 4 A.S.R.2d 40, 45 (Trial Div. 1987).

 

2 Even assuming YHT’s counsel was not served with the transcript until December 4, 2003, the brief would have been due on January 13, 2004.

 

4

 

especially careful not to grant extensions that would cause the hearing of an appeal to be delayed from one annual appellate session to the next.” Alaimalo v. Sivia, 17 A.S.R.2d 25, 28 (App. Div. 1990).

 

Additionally, because YHT has failed to file a timely brief in accordance with Appellate Court Rule 31(a), its appeal is dismissed pursuant to Appellate Court Rule 31(c).3

 

Order

 

1. Appellant’s motion for an extension of time in which to file its brief is denied.

 

2. Appellee’s motion to dismiss the appeal under Appellate Court Rule 31(c) is granted.

 

It is so ordered.

 

**********

 

3 Although Progressive’s arguments regarding YHT’s failure to comply with Appellate Court Rule 10(b) have merit, the appeal can be independently dismissed under Appellate Court Rule 31(c). Under Rule 31(c) one judge of the appellate panel may dismiss the appeal when the appellant fails to file a brief; however, a dismissal under Rule 10(b)(5) must be by the appellate panel. See, e.g., Opapo v. Puailoa, 17 A.S.R.2d 30, 31 (App. Div.

 

Williams v. Steffany


 

ALO LUPEMATASILA WILLIAMS, Plaintiff,

 

v.

 

CARL STEFFANY and ISABEL STEFFANY, Defendants.

 

High Court of American Samoa

 

Land and Titles Division

 

LT No. 10-98

 

August 1, 2002

 

[1] Under A.S.C.A. § 41.1309, the sa`o is the only person authorized to bring injunctive actions on behalf of a Samoan family.

 

[2] Where a dispute over communal lands involves factional rivalry and, therefore, pule, the court will grant a preliminary injunction to maintain the status quo even if the action is not brought by the sa`o.

 

[3] The Attorney General does not have jurisdiction to direct the registration of a matai title over the objection of the Territorial Registrar.

 

[4] Just because the Territorial Registrar’s office has, in practice, functioned administratively under the supervision of the Attorney General, it does not follow that the Attorney General may thereby assume the statutory authority specifically vested by the Fono in the Registrar.

 

[5] A.S.C.A. § 4.1104, gives the Territorial Registrar, not the Attorney General, the authority to reject registration attempts appearing “to be illegal or not entitled under the law to be registered, filed or recorded.” In the matai registration process, the Registrar, and not the Attorney General, is charged with maintaining the title register, A.S.C.A. § 1.0401, and may register successors to vacant titles.

 

[6] When the Attorney General unilaterally asserted jurisdiction and ordered registration, he intruded on the court’s statutorily mandated authority to resolve the dispute. Such action is an impermissible extension of executive power in derogation of not only the court’s judicial function but the legislature’s law making function as well.

 

[7] The law of this Territory regulates matai titles. Any matai title bestowed on any person contrary to the provisions of Title 1, Chapter 4 of the American Samoa Code Annotated may not in any way be recognized.

 

 

 

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

 

Counsel: For Plaintiff, Katopau T. Ainu`u

 

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

 

ORDER DISMISSING COMPLAINT AND DISSOLVING PRELIMINARY INJUNCTION

 

The parties are members of the Alo family of Fagasa. Plaintiff Alo Lupematasila Williams (“Williams”) holds himself out as the sa`o (senior matai) of the Alo family and has filed suit seeking injunctive relief to enjoin the defendants Carl Steffany and Elizabeth Steffany (the “Steffanys”) from certain activity, preparatory to building, on communal lands of the Alo family.

 

[1-2] On November 4, 1998, both parties appeared with counsel at a hearing on Williams’s motion for preliminary injunction. An issue arose at the interlocutory hearing as to the Williams’s status as sa`o, and, therefore, his standing to sue. Under A.S.C.A. § 41.1309, the sa`o is the only person authorized to bring injunctive actions on behalf of a Samoan family. However, we granted a preliminary injunction to maintain the status quo and exhorted the parties to talk, noting that the dispute appeared to have little, if any, to do with the Steffanys’ entitlement to the land, but all to do with factional rivalry and, therefore, pule.

 

The parties however returned to court, apparently unable to resolve anything through discussion. The Steffanys filed a motion to not only dissolve the interlocutory injunction issued by the court but to also dismiss the complaint on the contention that Williams lacked § 41.1309 standing to sue in the capacity of sa`o. They argue that the registration of the Alo title in Williams’ name was procured unlawfully, at the direction of the Attorney General, over the objection of the Registrar. The Registrar had thus initially attempted to deny Williams’ registration application not satisfied as to Williams’ eligibility to hold a matai title in American Samoa, since he was born in Western Samoa.1 Williams 1 A.S.C.A. § 1.0403(b) requires, among other things, that a claimant to

 

a matai title “must have been born on American soil.” This substantive

 

requirement has been upheld, US nationality through naturalization

 

notwithstanding, in In re Matai Title “I`aulualo,” 10 A.S.R.2d 116;

 

recons den. 10 A.S.R.2d 155 (Land & Titles Div. 1994); aff’d In re

 

Matai Title “I`aulualo,” AP No. 06-94 (App. Div. 1995). See also In re

 

Matai Title “Patea,” 25 A.S.R.2d 139 (Land & Titles Div. 1994); In re

 

Matai Title “Mulitauaopele,” MT No. 04-94 (Land & Titles Div. 1996).

 

 

 

apparently went directly to the Attorney General who intervened and demanded the Registrar to register the Alo title in Williams’ name.2

 

The Steffany’s argue that the Attorney General overstepped the bounds of his authority in overruling the Registrar’s decision to deny Williams’ matai registration application. Williams, on the other hand, contends that since the Registrar’s office is a part of the Department of Legal Affairs, the Registrar is therefore under the competence of the Attorney General, who is the director of that department. He argues that the Attorney General as the head of the department had the authority to direct registration accordingly, notwithstanding the Registrar’s contrary position on the matter.

 

Discussion

 

[3-4] We hold that the Attorney General had no jurisdiction to direct the registration of the matai title Alo in Williams’ name, over the objection of the Registrar. Statutorily, the Registrar does not appear to be a part of the Department of Legal Affairs nor under the sort of supervisory authority necessarily claimed by the Attorney General. Just because the Registrar’s office has, in practice, functioned administratively under the supervision of the Attorney General, it does not follow that the Attorney General may thereby assume the statutory authority specifically vested by the Fono in the Registrar.

 

Both the Department of Legal Affairs and the Territorial Registrar’s office were separately created by statute, A.S.C.A. § 4.0301 and A.S.C.A. § 4.0325 respectively. Being separately created at the same level of lawmaking and within the same chapter of the code, we fail to see why the Department of Legal Affairs should therefore occupy an encompassing or more primary role to that of the Registrar, Williams’s allusion to cabinet positions notwithstanding.

 

[5] Additionally, we could not find any source, whether within the American Samoa Code Annotated or the American Samoa Administrative Code, which places the Registrar within or under the authority of the Department of Legal Affairs. Rather, the Fono has clearly proscribed the Registrar’s role and duties under Title 4, Chapter 11 of the American Samoa Code Annotated, A.S.C.A. §§ 4.1101, et seq., and, more specifically in the context of matai title registration, under

 

2 The Registrar also alluded to other instances of intervention by the

 

Attorney General resulting the registration of multiple holders to a single

 

matai title and the addition of new titles to the register despite the

 

mandate of A.S.C.A. § 1.0401(b) closing the matai register as of 1

 

January 1969 and prohibiting the future adding of titles not previously

 

registered.

 

 

 

Title 4, Chapter 4, A.S.C.A. §§ 1.0401, et seq. The role is not that of mere “rubber stamp.” Among other things, A.S.C.A. § 4.1104, gives the Registrar, not the Attorney General, the authority to reject registration attempts appearing “to be illegal or not entitled under the law to be registered, filed or recorded.” In the matai registration process, the Registrar, and not the Attorney General, is charged with maintaining the title register, A.S.C.A. § 1.0401, and may register successors to vacant titles. See A.S.C.A. § 1.0405-0408. In the course of this process, the Registrar “if not satisfied with the validity of information offered in the petition,” may require further information from the petitioner. A.S.C.A. § 1.0405(c). In addition, conditions the public advertisement of a succession claim upon “the territorial registrar [being first] satisfied [that] the claim, certificate, and petition are in proper form.” A.S.C.A. § 1.0406. There is no mention of the Attorney General in either chapter 11 or chapter 4 of Title 4.

 

[6] Furthermore, the statutory scheme clearly intends for disputes regarding matai registration to proceed directly from the Registrar to the High Court. A.S.C.A. § 4.1106 unambiguously provides that anyone taking issue with a decision of the Registrar can at any time apply to the High Court for “redress.” In addition, § 4.1106 also states that “the Registrar . . . may at any time, apply to the High Court for direction.” Likewise, with the matai registration process, A.S.C.A. § 1.0409 provides that “[t]he High Court shall hear and determine any disputed claim.” Thus, when the Attorney General unilaterally asserted jurisdiction and ordered registration in this case, he intruded on the court’s statutorily mandated authority to resolve the dispute. Such action is an impermissible extension of executive power in derogation of not only the court’s judicial function but the legislature’s law making function as well.

 

[7] Matai titles are regulated by law. A.S.C.A. §§ 1.0401-0414; In re Matai Title “Mulitauaopele,” MT No. 04-94 (Land & Titles Div. Feb. 6, 1996). The registration of the Alo title in Williams’ name was not in accordance with law. “[A]ny matai title bestowed on any person contrary to the provisions of [chapter 4] may not in any way be recognized.” A.S.C.A. ‘ 1.0413 (emphasis added). We accordingly conclude that Williams does not have § 41.1309 standing to sue in the capacity of sa`o.

 

Order

 

For reasons given, we grant the motion to dismiss and dissolve the interlocutory injunction heretofore entered.

 

It is so ordered.

 

Tuitasi v. Toluao_1


 

VAIULA TEETAI TUITASI, FALESELAU FALEAFAGA TUITASI, and TUITASI PISAINA FAAMASNI, on behalf of himself and the TUITASI FAMILY, Plaintiffs,

 

v.

 

TOLUAO SAUTA`ATIA, on behalf of himself and Members of the TOLUAO FAMILY, JOHN PURVIS, EFVJ TRUCKING CO., JOHN EMANUEL PU`E, and DOES I-V, Defendants.

 

___________________________________

 

TUILEFANO VAELA`A and MALAOTA LAFI, Intervenors.

 

High Court of American Samoa

 

Land and Titles Division

 

LT No. 06-04

 

April 14, 2004

 

[1] Where there were serious issues regarding ownership of the land that required further in-depth consideration and that provided a reasonable expectation of the plaintiffs’ ultimate success, there was a “substantial likelihood” that the plaintiffs would prevail at trial on their requested permanent injunction, and the court accordingly granted the plaintiffs’ request for a preliminary injunction.

 

[2] Where the defendants’ actions had caused, and if left unrestrained would continue to cause, permanent and irreplaceable damage to the disputed land to the plaintiffs’ serious detriment, the court granted the plaintiffs’ request for a preliminary injunction.

 

Before RICHMOND, Associate Justice, SAGAPOLUTELE, Associate Judge, and MAMEA, Associate Judge. 258

 

Counsel: For Plaintiffs, Marie A. Lafaele

 

For Defendants, S. Salanoa Aumoeualogo

 

For Intervenors, Isa-Lei Iuli, L.P.

 

PRELIMINARY INJUNCTION AND

 

ORDER GRANTING MOTION TO INTERVENE

 

I. Preliminary Injunction Application

 

Plaintiffs’ application for a preliminary injunction was heard on March 31 and April 2, 2004. On April 12, 2004, the Court inspected the land area at issue, located on the mountain and slopes below, north of the village proper of Malaeloa, American Samoa, and named “Taloamamao” by Plaintiffs. Both counsel were present throughout the hearing and during the inspection.

 

[1] We find under the evidence that there are serious issues regarding ownership of the land at issue that require further in-depth consideration and provide a reasonable expectation of Plaintiffs’ ultimate success. We therefore conclude, on the basis of this finding, that there is a substantial likelihood that Plaintiffs will prevail at trial on the merits and a permanent injunction will be issued against Defendants. A.S.C.A. § 43.1301(j)(1); see Samoa Aviation Inc. v. Bendall, 28 A.S.R.2d 101, 103-104 (Trial Div. 1995).

 

[2] We also find that cinder excavation from the disputed land by and under the direction of Defendants has caused, and if continued in the immediate future without restraint will further cause, permanent and irreplaceable damage to the disputed land, and possibly to adjacent land down the mountainside, to Plaintiffs’ serious detriment. We therefore conclude that great or irreparable injury will result to Plaintiffs before a full and final trial can be held on whether a permanent injunction should issue. A.S.C.A. § 43.1301(j)(2); see Bendall, 28 A.S.R.2d at 103, 105.

 

Accordingly, the sufficient grounds required by A.S.C.A. § 43.1301(j) for issuance of a preliminary injunction are present.

 

II. Intervention Application

 

On April 12, 2004, Intervenors moved to intervene in this action and were present at the site inspection. While at this location, through counsel, we inquired and received Plaintiffs’ and Defendants’ consent to allow the proposed intervention without a formal hearing.

 

Order

 

1. While this action is pending, or until further order of the Court, 259

 

Defendants, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, are enjoined from mining, excavating, processing, or removing rocks, dirt, any other natural materials, or planted trees or crops from the land Plaintiffs have identified by the name “Taloamamao.”

 

2. The motion to intervene is granted.

 

It is so ordered.

 

Tuitasi v. Toluao


 

VAIULA TEETAI TUITASI, FALESELAU FALEAFAGA TUITASI, and TUITASI PISAINA FAAMASNI, on behalf of himself and the TUITASI FAMILY, Plaintiffs,

 

v.

 

TOLUAO SAUTA`ATIA, on behalf of himself and Members of the TOLUAO FAMILY, JOHN PURVIS, EFVJ TRUCKING CO., JOHN EMANUEL PU`E, and DOES I-V, Defendants.

 

High Court of American Samoa

 

Land and Titles Division

 

LT No. 06-04

 

May 26, 2004

 

[1] Where defendants failed to comply with a temporary restraining order, the court found them in contempt and ordered them to pay fines, as well as the plaintiff’s attorney’s fees and costs incurred in prosecuting the contempt application.

 

 

 

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

 

Counsel: For Plaintiffs, Marie A. Lafaele

 

For Defendants Toluao Seuta`atia and Members of the Toluao Family, S. Salanoa Aumoeualogo

 

For Defendants John Purvis, EFVJ Trucking Co., and John

 

Emanuel Pu`e, Pro se

 

JUDGMENT OF CONTEMPT

 

The order made on April 15, 2004, requiring Defendants to show cause why they should not be held in contempt of court for violation of the temporary restraining order (“TRO”) entered in this action on March 17, 2004, against Defendants Toluao Seuta`atia and Toluao Family, and the three TROs respectively entered on March 19, 2004 against Defendants John Purvis, EFVJ Trucking Co., and John Emanuel Pu`e came regularly for hearing on May 20, 2004. Plaintiff Vaiula Teetai Tuitasi and his counsel were present. Defendant Toluao Seuta`atia and his counsel were also present. Defendants John Purvis, EFVJ Trucking Co. and John Emanuel Po`e were not present. All Defendants were duly served with notice of the order to show cause hearing on May 10, 2004.

 

The Court, having heard testimony and considered the evidence, finds:

 

1. The TRO entered on March 17, 2004, and the three TROs entered on March 19, 2004, were duly issued and entered.

 

2. At all times after the TROs were respectively served on all Defendants, they have had notice and knowledge of the TRO pertaining to them. The TROs against Defendants John Purvis, EFVJ Trucking Co., and John Emanuel Pu`e were first served on March 19, 2004. The TRO against Defendants Toluao Seuta`atia and Toluao Family was served on March 24, 2004.

 

3. At all times since the TROs were served on the Defendants, they have respectively had, and now have, the ability to comply with the TRO pertaining to them.

 

4. All Defendants have failed to comply with the TRO pertaining to them in the following particulars.

 

Each of the four TROs temporarily prohibits the respectively applicable Defendant: (a) “[f]rom mining, excavating, processing, [or] removing rocks, dirt or any natural materials” from the land alleged to be the Tuitasi family’s communal land located on the mountain slope behind Plaintiff Vaiula Teetai Tuitasi’s home in the village of Malaeola; and (b)

 

 

 

“[f]rom authorizing or permitting any other person(s) to excavate, process, or remove rocks, dirt, or any other natural materials” from the same land.

 

The land at issue is also communally claimed by the Defendant Toluao Family.

 

On March 30, 2004, Plaintiff Vaiula Teetai Tuitasi inspected the land. On April 6, 2004, while tending to his plantation below the land at issue, he heard noise sounding like a loader and other large equipment coming from the area, and then saw the loader placing dirt into trucks, which hauled away the loaded dirt. No people were present, nor any operations going on, when he arrived at the area later in the day. However, he observed differences in the conditions on April 6 from conditions existing on March 30, 2004. The same generator was there on both dates. The loader operating on April 6 was not there on March 30. The generator was connected to the loader on April 6. Rocks not on the screen on March 30 were there to be crushed on April 6. Fresh tire marks were on fresh dirt adjacent to the screen on April 6. No one other than Defendant Toluao Seuta`atia authorized removal of material from the area at issue, and no one other than Defendants John Purvis, EFVJ Trucking Co., and John Emanuel Pu`e have removed material from the area at issue throughout the entire time frame encompassed by the complaint and contempt application.

 

[1] Clearly, all the Defendants failed to comply with the TRO applicable to them during the period from March 30 to April 6, 2004. Defendant Toluao, for himself and Defendant Toluao Family, authorized the excavation and crushing of rocks on and the removal of dirt from the land at issue. Defendants John Purvis, EFVJ Trucking Co., and John Emanuel Pu`e, who is an officer of EFVJ Trucking Co., carried out the authorized excavation and crushing of rocks and the removal of dirt from the land.

 

5. In failing to comply with the TRO applicable to them, the Defendants acted willfully and contemptuously.

 

Order

 

1. All Defendants are in contempt of this Court and shall be punished for their contempt by payment of fines as follows: (a) Defendants Toluao Sau`ta`atia and the Toluao Family are jointly and severally fined $1,000.00; (b) Defendant John Purvis is fined $1,000.00; and (c) Defendants John Emanuel Pu`e and EFVJ Trucking Co., are jointly and severally fined $1,000.00. All three fines shall be paid to the Clerk of the Court not later than June 15, 2004.

 

 

 

2. Attorney’s fees and costs incurred for prosecuting this contempt application shall be directly paid to Plaintiff’s counsel, also not later than June 15, 2004, as follows: (a) Defendants Toluao Seuta`atia and the Toluao Family shall jointly and severally pay $250.00; (b) Defendant John Purvis shall pay $250.00; and (c) Defendants John Emanuel Pu`e and EFVJ Trucking Co. shall jointly and severally pay $250.00.

 

3. Because the evidence clearly shows that the individually named Defendants are acting in concert regarding the prohibited removal of materials from the land at issue, Defendants Toluao Seuta`atia, John Purvis, and John Emanuel Pu`e shall appear before the Court on June 18, 2004, at 9:00 a.m., for a further hearing to determine if they are in compliance with this order and on how the Court will deal with any deficiency in the payment of the imposed fines and assessed attorney’s fees and costs. All three individually named Defendants shall appear at that time and place without further order, notice or subpoena, and regardless of whether he has paid the fine imposed on him in paragraph 1 above or the attorney’s fees and costs assessed against him in paragraph 2 above.

 

It is so ordered.

 

Tuiolosega v. Full Gospel Church of Ofu


 

LUCY M. TUIOLOSEGA and ALOALO OLO, for themselves

 

and on behalf of the LEUI family, Plaintiffs,

 

v.

 

FULL GOSPEL CHURCH OF OFU, PATI VAEAO,

 

and JOHN DOE aka UIKISONE, Defendants.

 

High Court of American Samoa

 

Land and Titles Division

 

LT No. 04-04

 

March 15, 2004

 

[1] A.S.C.A. § 43.1401(j) sets forth the sufficient grounds necessary for the issuance of a preliminary injunction.

 

[2] Where the defendant’s ability to build upon communal land was based upon a lease entered into with the purported sa`o, but the lessor was in fact not the sa`o, and where the parties to the lease failed to submit it to the Land Commission or obtain gubernatorial approval, the Court determined the objectors to the lease would likely prevail at trial.

 

[3] Court considered construction of large, permanent church building upon land where entitlement to build was very tenuous was sufficient to constitute a great or irreparable injury that could be enjoined.

 

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

 

Counsel: For Plaintiffs, Robert K. Maez

 

For Defendants, Afa Ripley, Jr.

 

 

 

ORDER GRANTING MOTION

 

FOR PRELIMINARY INJUNCTION

 

Plaintiffs Lucy M. Tuiolosega and Aloalo Olo are blood members of the Leui family of Ofu, Manu`a. The defendant First Samoan Full Gospel Pentecostal Church (the “Church”) is currently building a church on communal land of the Leui family known as “Auma.” Plaintiffs seek to enjoin the Church’s construction activity.

 

The Church’s point of contact with Leui family land holdings is Fo`inu`u P. Folauo`o (“Folauo`o”) who is also a member of the Leui family and who holds himself out as the sa`o (senior matai) of the Leui family. In this assumed capacity, Folauo`o has attempted to grant the Church a leasehold on Auma where the construction activity complained of is being undertaken.1

 

The basis of Folauo`o’s claim to being the current sa`o, and hence to pule (titular authority) over family lands, is a photocopy of a certificate purportedly issued by the Territorial Registrar’s office on September 14, 1992. Folauo`o testified that the said certificate was issued to him by the Territorial Registrar pursuant to a court decision in a case with the docket number MT No. 03-80. Plaintiffs, who vigorously oppose Folauo`o’s secession claim, maintain that the family’s matai title is vacant, and has been vacant since the last registered title holder, Leui Vaoesea, died on or about 1989.

 

[1] In these matters, we are guided by A.S.C.A. § 43.1401(j), which sets out the requirement of “sufficient grounds” for the issuance of a preliminary injunction. These are:

 

(1) there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and

 

(2) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue.

 

1 The Church had earlier attempted to erect on the same location in the mid-

 

1970s when Folauo`o’s father, then the Leui titleholder, gave the Church

 

permission to build. The construction was apparently aborted following a

 

successful petition to the Land and Titles Division by the Leui family to

 

remove Folauo`o’s father from the family’s title. See In re Matai Title

 

“Leui,” LT No. 1576-75 (Land & Titles Div. 1976), aff’d Leui v. Leui, AP

 

No. 8-76 (App. Div. 1977).

 

 

 

I. Likelihood of Success on Merits

 

[2] On the issue of likelihood of prevailing on the merits, we conclude in favor of Plaintiffs and against the Church. The legitimacy of the latter’s claim is based on the legitimacy of Folauo`o’s claim to being sa`o of the Leui family. That claim is without any credible foundation. First, the court case upon which Folauo`o bases his claim, MT No. 03-80, does not award anyone the matai title Leui, let alone Folauo`o. Rather, we find therein an order by the presiding justice attempting to remove the Leui title from Vaoesea through default proceedings, upon petition of Folauo`o and others. See Folauo`o v. Leui, MT No. 03-80 (Land & Titles Div. 1980).2 Second, the Territorial Registrar took the stand and testified that she has no record whatsoever of matai succession proceedings in her office evidencing Folauo`o’s claim to being the registered holder of the Leui title. Cf. A.S.C.A. § 1.0401 et seq. Folauo`o is accordingly without pule to lease Leui land to the Church.

 

Moreover, even if Folauo`o’s claim to having succeeded the Leui title is to be believed, which it is not, the lease instrument upon which the Church has based its entitlement to the land “Auma” is hopelessly invalid for failure to comply with the provisions of the statute governing the alienation of communal land. See A.S.C.A. § 37.0201 et seq. (requiring consideration by the Land Commission and gubernatorial approval of any lease of communal land).

 

On the foregoing, we find that Plaintiffs are likely to prevail at trial.

 

II. Great or Irreparable Injury

 

[3] On the issue of irreparable harm, we find, on the basis of the evidence before us, the Church’s chances of winning are next to nothing. To allow a large permanent structure (a church building) to be erected upon the land on the basis of the Church’s very tenuous claim to entitlement, presents the sort of harm that ought to be enjoined.3

 

2 The validity of this order is not without question as the law in 1980

 

required, inter alia, that “[a]ll controversies relating to matai title shall be

 

heard by three associate judges and decided by majority vote.” See 5

 

A.S.C. § 408(e). Moreover, the case file does not contain the mandatory

 

and prerequisite “certificate of irreconcilable dispute” from the Secretary of

 

Samoan Affairs which is required to be filed with Clerk “[b]efore any

 

action relating to controversies over . . . matai titles may be commenced in

 

the land and titles division.” See A.S.C. § 1002.

 

3 Counsel for the Church argues for the absence of irreparable harm to

 

Plaintiffs, contending that the church building could be either removed or

 

the parties can settle should Plaintiffs prevail. But this is the irreparable

 

aspect to Plaintiffs’ claim; that is, being forced to enter into a settlement

 

 

 

We find that the equities weigh in favor of Plaintiffs on the issue of irreparable harm.

 

We conclude that Plaintiffs have shown sufficient grounds, and accordingly, their application for a preliminary injunction is granted. Accordingly, IT IS HEREBY ORDERED, that Defendants, their agents, employees, servants, relatives, attorneys and all those in active concert or participation with them, be and are HEREBY ENJOINED from constructing any building or structure upon Leui family land known as Auma, located in the Village of Ofu, Manu`a, being that land more particularly described in Exhibit 4, Land Use Permit and Application, made a part of the record herein.

 

**********

 

after prevailing on the merits, given the intervening encumbrance to the

 

land in the way of a large permanent structure.

 

Tuana`itau v. Leomiti


 

TUANA`ITAU TUIA, for himself and Member of the TUANA`ITAU FAMILY, Plaintiffs/Counter-Defendants,

 

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 LETU LEOMITI, for Himself as Senior Matai and on behalf of the LEOMITI FAMILY, Plaintiffs,

 

v.

 

SEUTATIA TOLUAO, Defendant.

 

___________________________________

 

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

 

___________________________________

 

LEFOTU TUILESU, Necessary Party.

 

High Court of American Samoa

 

Land and Titles Division

 

LT No. 19-98

 

LT No. 19-95

 

April 5, 2004

 

[1] Where the court was unable to resolve, on the evidence presented, potentially conflicting overlaps of land parcels owned by the parties, the court appointed a surveyor and left open its final decision pending completion of additional survey work.

 

[2] Where complete relief could not be accorded without the presence of someone who was not a party to the action, and where that person’s ability to protect his land interest would be practically impaired by deciding the case without him, the court joined him as a necessary party under T.C.R.C.P. 19(a).

 

 

 

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/Counter-Defendants Tuana`itau Tuia and

 

Tuana`itau Family, and Cross-Defendants Toluao Seuta`ata

 

and Toluao Family, S. Salanoa Aumoeualogo

 

For Intervenors/Objectors Mina Thompson, Moananu Va, and

 

Moananu Family, Katopau T. Ainu`u

 

For Necessary Party Lefotu Tuilesu, Pro se

 

ORDER APPOINTING SURVEYOR

 

The Court’s opinion and order in these consolidated actions was entered on October 1, 2003. The decision necessarily left outstanding certain survey issues. The parties were given 30 days to agree upon a surveyor, division of costs, and other necessary conditions for the additional survey work. In due course, we were advised that the parties were unable to reach an agreement on these matters. We therefore scheduled and, on March 25, 2004, held a hearing to appoint an appraiser. All counsel were present.

 

[1] The basic issue determined by the October 1 decision was the location of a parcel of land—adjudicated and divided into three parts, respectively owned as communal land by the Toluao, Tuana`itau, and Leomiti families, in LT No. 40-80—which was necessitated by faulty original survey work. We held that the parcel designated as Plot B in the October 1 decision was the land actually adjudicated in the earlier case. We could not precisely divide Plot B into the three adjudicated parcels—approximately two acres owned by the Toluao family, approximately six acres owned by the Tuana`itau family, and the remaining area, approximately five and one-half acres, owned by the Leomiti family—without additional survey of the internal boundaries based on the surveyed perimeter of Plot B. We therefore left the division open pending completion of this additional survey work.

 

[2] Likewise, we were unable to resolve on the evidence presented potentially conflicting overlaps at the northern end of the Leomiti portion of Plot B with the registered surveys of the neighboring Moananu/Thompson 2.803 acres and 0.657 of an acre of land individually owned by Lefotu Tuilesu (“Lefotu”) without additional survey work. We therefore also left this determination open pending completion of this work. Lefotu is not a party to these actions. Now, he is a necessary party for the reasons specifically set forth in T.C.R.C.P. 19(a), that is, without Lefotu’s joinder: (a) complete relief cannot be 

 

accorded with only the present parties; and (b) his ability to protect his land interest is practically impaired. Lefotu will therefore be joined at a necessary party to adjudicate the open issues.

 

The licensed surveyor most familiar with the entire area and the issues involved in these actions is Lawrence P. French (“French”), the surveyor who established the location of Plot B. Although French was employed by the Leomiti family to support its claims, his professionalism as a surveyor will override any advocacy role he undertook in this capacity. He is quite capable of neutrally and objectively performing the post-trial surveying required by the Court, and we fully expect him to expertly provide the additional information we need to determine the open issues.

 

Order

 

1. Lefotu is joined as a necessary party to the full adjudication of any open issues. The Marshal of the Court shall deliver personal service of a copy of this order on him.

 

2. French is appointed to survey, based on Plot B’s outer boundaries, the actual boundaries within Plot B between the three internal parcels owned by the Toluao, Tauana`itau, and Leomiti families, sized in accordance with the Court’s decision in LT No. 40-80, and at the northern end of the Leomiti parcel the actual external boundaries, whether or not the lands overlap, of the Leomiti parcel and the registered Moananu/Thompson 2.803 acre and Lefotu 0.657 of an acre parcels. French shall complete this additional survey work within 180 days of the entry of this order, unless the Court grants a requested extension of this deadline.

 

3. Upon receiving French’s additional survey work, the Court will schedule a hearing to establish the further proceedings that may be necessary to resolve any open issues then revealed.

 

4. French shall submit to the Court a statement of his professional fees and expenses incurred in carrying out this order. The statement shall include a breakdown of the fees and expenses between: (a) the survey of the internal boundaries of the three parcels within Plot B; and (b) the survey of boundaries of the Leomiti parcel and the adjoining Moananu/Thompson and Lefotu parcels at the northern end of the Leomiti parcel. The Court will then approve the amount of the fees and costs to be paid and equitably apportion payment of the approved amount among the parties after a hearing on the issue.

 

5. All parties shall fully cooperate with French in his surveying endeavors. They, their officers, agents, servants, employees, and attorneys, and those persons in active concert and/or participation with them, including all members of their respective families, are enjoined 257

 

from preventing or in any other manner interfering with French while he performs in compliance with this order his surveying duties, whether in the field or elsewhere.

 

It is so ordered.

 

Timu v. McMoore


TIMU LEVALE by and on Behalf of the TIMU FAMILY, Plaintiffs,

 

v.

 

RAY McMOORE, SESE McMOORE, and IOANE FE’AFE’AGA ENE, Defendants.

 

High Court of American Samoa

 

Trial Division

 

LT No. 20-93

 

July 6, 1993

 

[1] Notice of proposed land title registration must be published in a local newspaper at least once each 30 days during the notice period. A.S.C.A. § 37.0103(a).

 

[2] The title registration record is facially deficient where the affidavit of posting notice of proposed land title registration affirmatively shows only a single posting in the village in which the property is located. The law requires that notice be posted at two public places in the village.

 

[3] The filing of a certificate of irreconcilable dispute, issued by the Secretary of Samoan Affairs or his deputy, is a jurisdictional prerequisite for actions involving land. A.S.C.A. § 43.0302.

 

[4] Land title registration proceedings, conducted in full compliance with A.S.C.A. §§ 37.0101-37.0104, would afford all persons alleging competing ownership interests in the land the opportunity to establish their interests and facilitate ultimate resolution of the ownership issue.

 

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

 

Counsel: For Plaintiffs, Asaua Fuimaono

 

For Defendants Ray McMoore and Sese McMoore, Togiola T.A. Tulafono

 

For Defendant Ioane Fe’afe’aga Ene, Albert Mailo

 

ORDERS DENYING PRELIMINARY INJUNCTION

 

AND STAYING ACTION

 

Plaintiff’s application for a preliminary injunction came regularly on June 10, 1993 for hearing. The court, having heard testimony and considered the evidence, makes the following findings, conclusions and 285

 

orders.

 

FINDINGS OF FACT

 

Plaintiff Timu Tavale (“Timu”) brought this action to quiet title to approximately 3.5 acres of land in the village of Ili’ili, American Samoa, as the Timu family’s communal land, known as “Fala Toga.” He is seeking a preliminary injunction prohibiting: (1) defendant Ioane Fe’afe’aga Ene (“Fe’afe’aga”) from any further alienation of any portion of this land; and (2) defendants Ray McMoore and Sese McMoore (collectively “the McMoores”) from making any further improvements on the land.

 

Fe’afe’aga claims initial ownership and title registration, on March 22, 1990, of approximately 8.37 acres of land as his individually owned land, known as “Tualepipi,” which encompasses the area claimed by Timu. Fe’afe’aga and the McMoores clam Sese McMoore’s ownership, by Fe’afe’aga’s conveyance to her on May 30, 1991, of approximately 2.206 acres of this land, within the same area claimed by Timu. The McMoores have virtually completed construction of a large, two-story house on this parcel. Apparently, Fe’afe’aga conveyed additional subdivided parcels of the 8.37 acres to other persons, who are not presently parties to this action. These additional parcels may or may not be wholly or partially within the area claimed by Timu.

 

Fe’afe’aga began the process for title registration of the land in October 1989. On March 19, 1990, two persons filed an objection to the registration with the territorial registrar. On March 20, 1990, the Acting Territorial Registrar referred the controversy to the Secretary of Samoan Affairs for dispute resolution proceedings. However, after the objections were withdrawn on March 19, 1990, the registrar issued the certificate of registration on March 22, 1990, to Fe’afe’aga as his individually owned land.

 

The affidavit of posting of the notice for proposed registration of land was executed on March 12, 1990, seven days before the stated end, on March 19, 1990, of the notice period. The affidavit showed that the notice was posted on the bulletin board at the administration building, which is also the courthouse on the village of Fagatogo, and on one telephone pole in the village of Ili’ili. The notice for proposed registration of land was not published in a local newspaper. Notarized statements by the pulenu’u, newspaper, and clerk of courts, each certifying that the required notice had been given, were not provided to the territorial registrar.

 

Timu has lived in Hawaii for the past 30 years. He plans to return permanently to American Samoa when he retires later this year. His sisters living in American Samoa have kept him informed about Timu 286

 

family matters here. However, he declares that he was not actually aware of Fe’afe’aga’s title registration and the McMoore’s house until he recently discovered that the land claimed by him had been largely cleared of crops and the McMoore’s house was on it. He also states that Timu family members lived on this land, at least until he relocated to Hawaii, and before since have extensively cultivated the land until it was recently cleared. He asserts that the fence along part of the boundary of the registered land incorrectly defines the border between Sagapolu and Fe’afe’aga family lands. He insists that the lands in this immediate area belong communally either to his family, the Sagapolu family, or the Fuga family, and that none are owned by Fe’afe’aga or his family. Fe’afe’aga and the McMoores dispute Timu’s claim to senior mataiship and assert that the matai title Letuli controls Timu family lands.

 

No certificate of irreconcilable dispute has been filed in this action.

 

CONCLUSIONS OF LAW

 

[1] Notice of proposed land title registration must be published in a local newspaper at least once each 30 days during the notice period. A.S.C.A. § 37.0103(a), as amended by Public Law No. 20-61, approved on August 26, 1988, and Public Law No. 21-1, approved on March 16, 1989. The same two public laws also added the requisite, as new A.S.C.A. § 37.0103(c), that the registrant shall provide to the territorial registrar notarized certificates by the pulenu’u, newspaper, and clerk of courts stating that the required notices have been given. Having been enacted by a two-thirds vote of the entire membership of both houses of the Legislature of American Samoa and signed by the Governor at two successive legislative sessions, the necessity of newspaper publication and notice certifications as part of the title registration process effectively became law on May 22, 1989, 60 days after the close of the First Regular Session of the Twenty-First Legislature. See Rev. Am. Samoa Const. art. I, § 3, art. II, §§ 9, 19. Since none of these essential conditions to title registration were met, Fe’afe’aga’s title registration in 1990 is void. Ifopo v. Siatu’u, 12 A.S.R.2d 24, 28 (App. Div. 1989); Faleafine v. Suapilimai, 7 A.S.R.2d 108, 113 (Land & Titles Div. 1988); see Sosene v. Laualemaga, AP No. 20-90, slip op. (App. Div. Jun. 8, 1992).

 

[2] The title registration record is also facially deficient in that the affidavit of posting affirmatively showed only a single posting in the village of Ili’ili and, thus, a failure to post at two public places in the village. Sosene, supra. Further, the affidavit of posting was subscribed before the end of the 60-day notice and, thus, was prepared without the subscriber’s personal knowledge. Vaimaona v. Tuitasi, 18 A.S.R.2d 88, 95 (App. Div. 1991).

 

287

 

The issue of land ownership is not resolved by setting aside Fe’afe’aga’a defective title registration. The 8.37 acres or portions of it may be communally owned by the Fe’afe’aga family, Timu family, Sagapolu family, Fuga family, Letuli family, or other families, or individually owned by Fe’afe’aga, Sese McMoore, or other persons. This ownership will be the ultimate issue at trial.

 

Meanwhile, a preliminary injunction will not be issued. On balance, the far greater harm before trial falls on Fe’afe’aga and the McMoores. The evidence presented so far has indicated that they have relied on Fe’afe’aga’s title registration in good faith. The McMoore’s new house on the land at issue is large and costly. The harm to the Timu family’s use of the land is not irreparable. Thus, Timu has not met the burden of showing great or irreparable injury to him or his family before a full and final trial can be fairly held on whether a permanent injunction should issue. The showing is essential to issuance of a preliminary injunction under A.S.C.A. § 43.1301(j)(2). Since this element is not present, it is unnecessary to analyze the other imperative basis for a preliminary injunction, the applicant’s substantial likelihood of prevailing at trial.

 

[3] However, a stay of further proceedings in this action, except for appropriate interim orders under A.S.C.A. § 43.0304, is necessary or appropriate for two reasons. First, the filing in this action of a certificate of irreconcilable dispute, issued by the Secretary of Samoan Affairs or his deputy, is a jurisdictional prerequisite. A.S.C.A. § 43.0302; see Moeisogi v. Faleafine, 5 A.S.R.2d 131, 132-33 (Land & Titles Div. 1987).

 

[4] Second, land title registration proceedings, conducted in full compliance with A.S.C.A. §§ 37.0101-37.0104, would afford all persons alleging competing ownership interests in the land the opportunity to establish their interests and facilitate ultimate resolution of the ownership issue. See Olo v. Tulisua, 6 A.S.R.2d 86, 89 (Land & Titles Div. 1987).

 

ORDERS

 

The application for a preliminary injunction is denied. Further proceedings in this action are stayed, except for essential interim orders, pending; (1) filing of a properly issued certificate of irreconcilable dispute and (2) completion of properly conducted land title registration proceedings.

 

It is so ordered.

 

Tilo v. Danielson_1


 

ELIGA TILO and VASAGA TILO for the TILO FAMILY, EUGENE B. PALYO and LAFOAINA F. PALYO, Claimants,

 

v.

 

VA`AILEPU`A O.H. DANIELSON, Objector.

 

___________________________________

 

PONAUSUIA LUSI FALE, Intervenor.

 

High Court of American Samoa

 

Land and Titles Division

 

LT No. 18-93

 

May 7, 2004

 

[1] The decision whether to grant a motion for reconsideration or new trial is left to the broad discretion of the trial court.

 

[2] A motion for reconsideration or new trial should be based on a manifest mistake of fact or error of law, and the court should find substantial reasons before setting aside a judgment.

 

[3] While each member of a family has the right to live on his or her family’s communal land, the sa`o of the family retains the authority to make decisions regarding the communal land.

 

[4] Where the sa`o of the family was not a party to the case, the court refused to make any decision affecting his rights or liabilities, and left to the sa`o the decision of who could live in the house at issue.

 

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

 

Counsel: For Claimants Eugene B. Palyo and Lafoaina F. Palyo,

 

S. Salanoa Aumoeualogo

 

For Intervenor, Arthur Ripley, Jr.

 

ORDER DENYING MOTION

 

FOR NEW TRIAL

 

Claimants Eugene B. Palyo and Lafoaina F. Palyo (collectively “the Palyos”) sought to register a separation agreement signed by Eliga Tilo, sa`o of the Tilo family, regarding a house on Liufau family land. Va`ailepu`a O.H. Danielson objected to the separation agreement

 

 

 

claiming the house was on Tufaga family land. Later, Ponausuia Lusi Fale (“Ponausuia”), Lafoaina Palyo’s brother and current occupant of the house, intervened in the action. The Palyos sought recovery from Ponausuia and his son, Mark, for rental payments. We found the separation agreement between the Palyos and Eliga Tilo was null and void and denied the Palyos’ request for rental payments. The Palyos timely moved for a new trial. For the following reasons, we deny the Palyos’ motion for a new trial.

 

Standard of Review

 

[1-2] The decision whether to grant a motion for a new trial or reconsideration is left to the broad discretion of the trial court. 12 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 59.13[3][a] (3d ed. 1999). “[A] motion for new trial in a nonjury case should be based on a manifest mistake of fact or error of law; the court should find substantial reasons before setting aside a judgment.” Id.; see also American Samoa Gov’t v. S. Pac. Island Air Sys., Inc., 28 A.S.R.2d 170, 171 (Trial Div. 1995).

 

Discussion

 

The Palyos contend that the separation agreement signed between them and Eliga Tilo, the sa`o of the Tilo family, is valid. However, we found that Eliga Tilo could only sign agreements regarding Liufau family land when the Liufau title was vacant and, according to Liufau Tanielu Sonoma (“Tanielu”), the present sa`o, only then after a meeting was held to approve the agreement. No evidence established that either of these conditions were fulfilled; Liufau Filipo held the title when the separation agreement was entered. Therefore, we found the separation agreement between the Palyos and Eliga Tilo was invalid. Tilo v. Danielson, 8 A.S.R.3d 211 (Land & Titles Div. 2004). We see no reason to disturb this finding and reject this argument as grounds for a new trial.

 

Likewise, we reject the Palyos’ argument that we placed too much weight on an affidavit submitted by Tanielu. As indicated in the Opinion, the parties agreed that Tanielu’s filed statements, whether obtained by way of deposition or affidavit, would be considered as evidence. 8 A.S.R.3d at 213. We carefully considered all of the evidence presented in this matter, including Tanielu’s affidavit.

 

[3-4] The Palyos argue that even if the separation agreement is void, as family members they still have a right to live on the communal land in the house they built. While each member of a family has the right to live on his or her family’s communal land, the sa`o of the family retains the authority to make decisions regarding the communal lands. See Seventh Day Adventist Church of American Samoa v. Maneafaiga, 23 A.S.R.2d 265

 

150, 154-55 (Land & Titles Div. 1993). As we indicated in our Opinion, the current sa`o of the Liufau family is not a party to this case. We cannot make any decision affecting his rights or liabilities unless he is a party. The decision of whether or not the Palyos can live in the house must be made by the sa`o of the Liufau family. We are sympathetic to the Palyos’ situation and expect that Tanielu, as the current sa`o of the Liufau family, will consider all of the Palyos’ contributions to the house in making his decision. See 8 A.S.R.3d at 215. Indeed, if Tanielu makes a decision regarding the house that the Palyos consider to be arbitrary and capricious, their appropriate course of action is to seek recovery from him.

 

Order

 

The Palyos’ motion for a new trial is denied.

 

It is so ordered.

 

Tilo v. Danielson


ELIGA TILO and VASAGA TILO for the TILO FAMILY,

 

EUGENE B. PALYO and LAFOAINA F. PALYO, Claimants,

 

v.

 

VA`AILEPU`A O.H. DANIELSON, Objector.

 

________________________________

 

PONAUSUIA LUSI FALE, Intervenor.

 

High Court of American Samoa

 

Land and Titles Division

 

LT No. 18-93

 

January 29, 2004

 

[1] The senior matai in charge of communal lands belonging to his family is the appropriate person to enter into separation agreements.

 

[2] A lesser matai cannot enter into a separation agreement concerning communal land unless the senor matai title is vacant and a meeting is held to approve the agreement.

 

[3] Absent a valid separation agreement or other authority, parties without control over communal land cannot enter into a lease agreement concerning the land.

 

[4] Without a valid separation agreement separating a house from communal land, parties lacking control over the communal land cannot receive rental payments for the house.

 

[5] Where a party is prevented from occupying a house, they are entitled to remove furnishings and other removable personal property that they contributed.

 

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

 

Counsel: For Claimants Eliga Tilo and Vasaga Tilo for the Tilo Family,

 

Tauivi Tuinei

 

For Claimants Eugene B. Palyo and Lafoaina F. Palyo, S.

 

Salanoa Aumoeualogo

 

For Objector Va`ailepu`a O.H. Danielson and the Tufaga

 

Family, Asaua Fuimaono

 

For Intervenor, Arthur Ripley, Jr.

 

OPINION AND ORDER

 

Procedural History

 

The parties seek resolution of long-standing issues pertaining to the offer to register a certain separation agreement. The agreement was signed on July 8, 1992, by the Claimants Eliga Tilo (“Eliga”), then the sa`o (“head chief”) in control of his family’s communal land, and Eugene B. Palyo (“Eugene”) and Lafoaina F. Palyo (“Lafoaina”) (together “the Palyos”), as family members. Eliga was registered as the Tilo titleholder on November 23, 1948.1 The agreement purported to separate a house claimed by the Palyos (“the house at issue”) from the Tilo family’s communal land in the village of Aua (“the land at issue”), pursuant to A.S.C.A. §§ 37.1501-1506. The agreement named the land “Amauto.” The Tilo family is now represented by Claimant Vasaga Tilo (“Vasaga”), the present family sa`o. Vasaga was registered as the Tilo titleholder on June 14, 1999. He will therefore be formally added as a party to this action at this time.

 

On the same date, the separation agreement was offered for registration, and the Territorial Registrar initiated the required 30-day notice period. Objector Va`ailepu`a O.H. Danielson (“Va`ailepu`a”) timely objected to the proposed registration. Va`ailepu`a acted on behalf of himself and, pursuant to a 1992 power of attorney, Tufaga Sapati Niumatalolo (“Tufaga”), sa`o of the Tufaga family. Va`ailepu`a claimed that “Amouto,” apparently the more common variant of the spelling “Amauto,” is the Tufaga family’s communal land, gifted to his ancestor in the Tufaga family, which has long recognized that the property belongs to him and his heirs. The gift was included in the ifoga (“forgiveness ceremony”) after a serious altercation with a Tilo family member. The dispute over the separation agreement was referred for judicial resolution upon the Secretary of Samoan Affairs’ issuance of the jurisdictional certificate of irreconcilable dispute after unsuccessful mediation proceedings, under A.S.C.A. § 43.0302.

 

On April 12, 1993, after the controversy was transferred to the Court for resolution, Va`ailepu`a filed his required statement of the case, calling it a “Petition for Quiet Title.” He reiterated his position outlined above. It also now appears (see discussion infra) that he was principally opposing Eliga’s facial attempt to separate a structure for the Palyos located on the Tufaga family’s communal land named Amouto. This action then remained dormant until 2002.

 

1 We take judicial notice, on our own motion, of the Territorial

 

Registrar’s matai title register for Aua, as the official public record of

 

information relevant to the issues in this case.

 

 

 

On October 10, 2002, the Court permitted Intervenor Ponausuia Lusi Fale (“Ponausuia”) to join the action. Ponausuia, the sa`o of the Ponausuia family, also objected to the separation agreement. He and Lafoaina are siblings. However, he claimed that the house was originally constructed and owned by their parents on communal land of the Ponausuia family, known as “Amouto,” not the Tilo family. A certificate of irreconcilable dispute was issued for this controversy between the Palyos and Ponausuia prior to his intervention. Ponausuia’s intervention also prompted Vasaga to file a statement of the Tilo family’s claim on October 10, 2002. Eventually, on March 10, 2003, the Palyos filed their separate statement of the case.

 

Then, on March 27, 2003, the Palyos moved for relief against Ponausuia and his son Mark Fale, as occupants of the house at issue. Specifically, the Palyos sought either payment of both accrued rent and rent due in the future, or payment of accrued rent and removal from the premises, and to have the funds deposited in the Court’s Registry pending the action’s determination. At the motion hearing on April 15, 2003, the Court deferred ruling on the rent issue until the trial and scheduled the trial to begin on April 21, 2003.

 

The trial went forward on April 21 and 22, 2003. The Court accepted the parties’ agreement to initially take evidence pertaining only to the house at issue, specifically ownership and rent issues, and to postpone the trial on the ownership of the land at issue. However, after receiving the evidence on the house at issue, the Court deferred deciding the ownership and rent issues until the trial on the ownership of the land at issue was also completed. The further trial was scheduled on June 25-27, 2003, was continued to August 14-15, 2003, and actually reconvened on August 15. On August 15, the parties informed the Court that they had settled and presented their stipulations on the ownership of the land at issue. The parties also agreed that relevant statements of Liufau Tanielu Sonoma (“Tanielu”), the present Liufau family’s sa`o, if obtained by way of either deposition or affidavit and filed, would be considered as evidence in the case.

 

Discussion

 

I. The Land at Issue

 

On August 15, 2003, the parties stipulated to certain facts regarding the land at issue, and we find accordingly.

 

The land at issue, on which the house at issue is located, is a portion of the Liufau family’s communal land, known as “Mapu.”2 The land at 2 The Palyos and Ponausuia claim that the decision in Liufau v. Siautafa,

 

 

 

issue borders a stream. The immediately adjacent land on the other side of the stream is the Tufaga family’s communal land, known as Amouto. This adjacent land was given to the Tufaga family as part of the ifoga following an altercation many years ago in which a member of the extended Liufau family spilled the blood of a member of the Tufaga family. See Tufaga v. Liufau, 1 A.S.R. 184, 186 (Land & Titles Div. 1909). The portion of Amouto across the stream is separate and distinct from Mapu, the land at issue. Clearly, once Va`ailepu`a understood that the separation agreement for the house at issue does not affect the Tufaga family’s communal land Amouto, he had nothing at stake in the present controversy and effectively withdrew his objection to the separation agreement.

 

On August 15, the parties also stipulated that the members of the Liufau and Tilo families are together one family. In Tanielu’s affidavit filed on September 5, 2003, he confirmed this family unity and added that the Ponausuia family is also related to the Liufau family. On August 15, the parties further stipulated that the holder of the Tilo title has authority to handle transactions concerning the Liufau family’s communal lands in the absence of the Liufau titleholder. Tanielu, however, maintains that the Tilo titleholder is the second ranking matai (“chief”) of the Liufau family and can permit use of Liufau communal land only when the Liufau title is vacant and the proposed use is discussed and approved at a meeting of Liufau matai and other family members.

 

Tanielu was registered as the Liufau titleholder on June 7, 1999. His predecessor was Liufau Filipo (“Filipo”). Filipo was registered as the Liufau titleholder on March 25, 1981, and died on February 4, 1995.3 Filipo was a Senator in the Legislature of American Samoa and had been a longtime resident of the territory at the time of his death. The Liufau title was vacant for approximately four years between the reigns of Filipo and Tanielu. However, Filipo held the Liufau title, and was not in any sense absent as the titleholder in 1992 when Eliga and the Palyos entered the separation agreement at issue pertaining to the Liufau communal land at issue.

 

LT No. 8-76, aff’d AP No. 3-79, held that the land at issue is the Liufau

 

family’s communal land, with res judicata impact on the present case.

 

We would normally take judicial notice of this case to determine its

 

bearing, if any, on the case at hand. However, neither the trial court’s

 

decision nor the appellate court’s decision is present in the disrupted, and

 

perhaps looted, case files. We cannot, therefore, make use of the LT No.

 

8-76 and AP No. 3-79 decisions for purposes of determining the present

 

case. It does not matter, however, in light of the stipulation, joined by all

 

parties, during the trial proceedings on August 15, 2003.

 

3 We take judicial notice of Filipo’s death certificate.

 

 

 

II. The House at Issue

 

The house at issue on the land at issue is approximately 55 feet wide and, including front and back porches, 78 feet long. The width side of the house runs approximately parallel with and is situated approximately 40 feet from the northerly or mountain side of the main public road in Aua.

 

Lafoaina’s parents constructed the original house on this site. In 1981, after Eugene retired from the U.S. Marine Corps, the Palyos moved to American Samoa and resided in the existing house of Lafoaina’s parents, with the parents’ permission, for several years. By 1991, the house needed extensive renovation, and the Palyos began to undertake aspects of this project. From 1996 to 1998, after the separation agreement at issue was signed and Va`ailepu`a objected to its registration in 1992, the Palyos essentially rebuilt the house, expending approximately $40,000, and put in new furniture and furnishings, costing them approximately $10,000. The completely renovated house is now the house at issue.

 

Eugene is an ordained faife`au (“minister”). For the last several years, he has been the pastor of a church in Malaeimi, a village substantially removed from Aua, and beginning in 1995, the Palyos have lived in a residence provided by and nearer to this church. Hence, the Palyos decided to rent the house at issue to another until Eugene retired from his ministry. They rented the house at issue to Mark Fale (“Mark”), Ponausuia’s son. The Palyos, as the landlord, and Mark, as the tenant, signed the Rental Agreement on September 12, 2000. The agreement does not expressly state a lease term, but read as a whole, the tenancy is a month-to-month. The stated rent is $350.00 per month, payable on the 15th day of each month, beginning September 15, 2000. Mark paid the rent only for the first three months and nothing since then. The amount of unpaid rent was $11,550 at the conclusion of the trial on August 15, 2003.

 

Ponausuia considers any house located approximately where his parents first constructed their house on the land at issue to be his parents’ home. Ponausuia maintains that he and his immediately family members have as much right to live in the existing house rent free as does his sister Lafoaina. Ponausuia resided outside of American Samoa at the time the Rental Agreement was entered. However, he learned of the agreement and instructed Mark to stop paying the rent. Ponausuia and his wife returned to American Samoa in 2002. They moved into and, with Mark, have since lived in the house at issue.

 

III. Analysis of the Legal Issues

 

On July 8, 1992, the Palyos and Eliga signed a separation agreement seeking to separate the house at issue from the Tilo family’s communal 215

 

land. Ponausuia, who currently resides in the house, intervened claiming an interest in the house at issue. We find the separation agreement is invalid because Eliga was not authorized to execute it as the house at issue is actually on the Liufau family’s communal land.

 

[1-2] Under A.S.C.A. § 37.1502(a), “[t]he senior matai in charge of communal lands belonging to his family” has the authority to enter into separation agreements. See also A.S.C.A. § 37.1503 (“[T]he agreement shall be executed on behalf of the owners of the land by the matai of the family.”). Since the house is located on the Liufau family land, the senior matai in charge of these lands was the appropriate person to execute the separation agreement. However, Eliga, the registered Tilo titleholder, signed the agreement. According to Tanielu, Eliga, as the second ranking matai, could not sign the separation agreement unless the Liufau title was vacant and a meeting was held to approve the agreement. Neither of these conditions was met as of the time of signing of the separation agreement at issue. Contrary to the assertions made in the Palyos’ closing argument, at the time of the execution of the agreement, Filipo held the Liufau title. Moreover, there is no evidence that a meeting was ever held to discuss and approve the agreement. Because Eliga was not entitled to enter into this transaction regarding Liufau family lands, the separation agreement between the Palyos and Eliga is invalid.4

 

[3] The Palyos also seek unpaid rent payments from Mark and Ponausuia for their use of the house. Mark is not a party to this case and therefore, the Palyos may not recover against him. In any event, the Palyos purported to lease the house to Mark prior to a determination regarding the separation agreement. The Palyos, absent a valid separation agreement or any other authority, do not have a valid lease with Mark. Fagasoaia v. Fanene, 17 A.S.R.2d 91, 94 (Land & Titles Div. 1990) (finding no lease existed when “[t]he people who signed the documents purporting to create various contract and/or property rights in these buildings had no authority to do so.”).

 

[4] Likewise, the Palyos cannot obtain rental payments from Ponausuia. Without a valid separation agreement, the house is simply not the Palyos to lease. Although Ponausuia’s occupancy of the house seems grossly unfair, this issue is not for us to decide. This decision is presently best left to Tanielu as the Liufau titleholder. In deciding how to allocate the house at issue, we encourage Tanielu to take into account the history of the house and note that the house has been occupied by Lafoaina and Ponausuia’s family for many years. We also encourage Tanielu to consider the time, effort and expense the Palyos have devoted to 4 We need not decide whether the agreement is also invalid because it

 

described the land as “Amouto” rather than “Mapu.”

 

 

 

remodeling the house. Should Tanielu decide not to allow the Palyos to live in the house, we strongly encourage him to offer them compensation for the improvements they have made on the house.5

 

[5] As a final matter, the Palyos claim the house contains $10,000 worth of furniture and furnishings, which they contributed to the house after the remodeling. If Tanielu does not allow the Palyos to occupy the house, the Palyos are entitled to remove the furniture and furnishings and any of their other removable personal property from the house. See Leomiti v. Pu’efua, 27 A.S.R.2d 150, 154 (Land & Titles Div. 1995).

 

Order

 

1. The July 8, 1992 separation agreement entered into between Eliga Tilo and the Palyos is null and void.

 

2. The Palyos are not entitled to any rental payments from Ponausuia or Mark.

 

3. The Palyos are entitled to remove any of their furniture, furnishings, and other removable personal property from the house.

 

It is so ordered.

 

**********

 

5 Any attempt by the Palyos to recover the value of the improvements to

 

the house would be against the Liufau family. However, since no one

 

from the Liufau family is a party to this action, we decline to express any

 

opinion on the merits of such an action.

 

Su`a v. Progressive Ins


 

SILIAGA SU`A, as guardian ad litem for TA`ATU SU`A, a minor, Plaintiff

 

v.

 

PROGRESSIVE INSURANCE COMPANY (PAGO PAGO) and TUSI FA`ATASIGA, Defendants

 

High Court of American Samoa

 

Trial Division

 

CA No. 25-02

 

January 23, 2004

 

[1] Summary judgment is appropriate when the pleadings and other supporting documents show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. T.C.R.C.P. 56(c). The party seeking summary judgment bears the burden of showing there is no genuine issue of material fact. The non-moving party must then affirmatively show there is a genuine issue for trial. The non-moving party may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial. T.C.R.C.P. 56(e). In considering the motion, all inferences are construed in a light most favorable to the non-moving party.

 

[2] Under A.S.C.A. § 43.0126, minors have one year from the termination of such disability within which to commence any action, regardless of any otherwise applicable limitation period.

 

[3] The appointment of a guardian ad litem terminates a minor’s disability and begins the running of the one-year statute of limitations of A.S.C.A. § 43.0126.

 

[4] Attorneys are responsible for familiarizing themselves with local rules and procedures before practicing in this Court.

 

[5] Plaintiff’s attorney’s mistaken and unjustified belief that the appointment of a guardian ad litem initiated a personal injury suit against the defendants would not serve as a defense to the plaintiff’s failure to file a claim within the applicable statute of limitations.

 

[6] Equitable estoppel can sometimes prevent the application of a statute of limitations.

 

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[7] Pending negotiations during the period of a statute of limitations, conducted in good faith with a view to ultimate compromise, are not by themselves sufficient to establish an estoppel.

 

[8] Where the plaintiff failed to allege, or provide evidence, that the defendants had engaged in settlement negotiations in bad faith, the defendants would not be estopped from asserting a statute of limitations defense.

 

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

 

Counsel: For Plaintiff, Tauivi Tuinei

 

For Defendants, Jeff Waller

 

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

 

Defendants Progressive Insurance Company (Pago Pago) Limited (“Progressive”), John Tausaga (“Tausaga”), and Tusi Fa`atasiga (“Fa`atasiga”) (collectively “Defendants”) move, pursuant to T.C.R.C.P. 56(c), for summary judgment on the claims of Plaintiff Siliaga Su`a (“Siliaga”). Siliaga brings this action as guardian ad litem for her minor child, Ta`atu Su`a (“Ta`atu”). For the reasons stated below, we grant the motion.

 

Factual Background

 

In June 1999, Ta`atu, a minor, was struck and injured by a mini aiga bus in the Tafuna area. The bus was owned by Fa`atasiga, driven by Tausaga, and insured by Progressive.

 

On October 7, 1999, this Court appointed Siliaga as guardian ad litem for Ta`atu in order “to pursue his claim for injuries he received from an automobile accident.”1 Rather than file the complaint immediately, Siliaga delayed filing her complaint until March 27, 2002.

 

Standard of Review

 

[1] Summary judgment is appropriate when the pleadings and other

 

1 Defendants filed but withdrew a previous motion for summary judgment in order to confirm that the Court order appointing Siliaga as guardian ad litem was designed to protect her son’s interests resulting from the June 1999 accident. The parties do not dispute that the Court’s appointment in October of 1999 was, in fact, to protect Ta`atu’s interests resulting from this accident. (See, e.g., Pl.’s Opp’n. at 2-4; Defs.’ Mem. in Supp. of Summ. J. at 3, Ex. A.)

 

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supporting documents “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. 56(c). The party seeking summary judgment bears the burden of showing there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

 

The non-moving party must then affirmatively show there is a genuine issue for trial. Id. at 324. Under T.C.R.C.P. 56(e), the non-moving party “may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” In considering the motion, “all inferences are construed in a light most favorable to the non-moving party.” American Samoa Power Auth. v. Nat’l Pac. Ins. Co., 30 A.S.R.2d 145, 146-47 (Trial Div. 1996); see also Pal Air Int’l, Inc. v. Porter, 30 A.S.R.2d 104, 105 (Trial Div. 1996).

 

Discussion

 

[2-3] Defendants argue that the statute of limitations expired on Siliaga’s claim in October 2000, one year after she was appointed guardian ad litem for Ta`atu.2 We agree. According to A.S.C.A. § 43.0126, “[m]inors . . . shall have 1 year from after the termination of such disability within which to commence any action regardless of any otherwise applicable limitation period.” In Pasesa v. Laumatia, 28 A.S.R.2d 37 (Trial Div. 1995), we found that the appointment of a guardian ad litem terminates the minor’s disability for the purposes of the statute of limitations. Id. at 42. We reached this conclusion after carefully analyzing and distinguishing the statutes of several other jurisdictions. Id. at 39-42.

 

Thus, in this case, the one year statute of limitations began to run on October 7, 1999, when Siliaga was appointed guardian ad litem to

 

2 Defendants failed to raise the statute of limitations as an affirmative defense in their answer. However, Plaintiff failed to argue that Defendants forfeited the defense by excluding it from their answer. Under these circumstances, we find it appropriate to allow Defendants’ statute of limitations defense. See, e.g., Grant v. Preferred Research, Inc., 885 F.2d 795, 797-98 (11th Cir. 1989) (finding the statute of limitations defense was not forfeited because it was raised in a motion for summary judgment and plaintiff was not prejudiced by delay); Emmons v. S. Pac. Transp. Co., 701 F.2d 1112, 1118 (5th Cir. 1983) (allowing statute of limitations to be raised at trial when it was not included in the pre-trial order, when the plaintiff failed to object to its introduction at trial). In any event, Defendants could seek leave to amend their answer to include the defense. We see no reason to delay the motion when Plaintiff has not suffered any prejudice nor argued that Defendants forfeited the defense.

 

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protect Ta`atu’s interests relating to the accident. Siliaga’s March 27, 2002 filing of the complaint is undoubtedly outside the limitations period. Accordingly, Defendants’ motion for summary judgment should be granted.

 

Plaintiff does put forth two arguments in an attempt to excuse her dilatory filing. First, Plaintiff argues that she thought a personal injury action had been initiated when she was appointed guardian ad litem. She argues that she was unaware that it was necessary to file a separate complaint. (Pl.’s Opp’n at 2-3.) In support of this contention, her previous attorney, Salanoa Aumoeualogo (“Salanoa”), in his affidavit states,

 

[t]hat at the time I filed the petition for appointment of a guardian ad litem, I was under the belief that that was the beginning of the civil action in [sic] behalf of the minor child. I was not aware of any rule or law which allows for a separate case in [sic] behalf of a minor child. I truly thought that the filing for a guardian ad litem was indeed the beginning of legal action in [sic] behalf of a minor child.

 

(Salanoa Aff. at 5, Oct. 2, 2003; see also Id. at  9 (“I am not aware of any law or rules that would allow for a separate filing of a petition to appoint a guardian ad litem from a petition to file [sic] action in [sic] behalf of an injured child.”)) Plaintiff argues that she filed her complaint only after settlement discussions with the Defendants failed, “thinking all along that this matter had bee [sic] previously filed with the court when a guardian ad litem was appointed.” (Pl.’s Opp’n at 3.)

 

[4-5] Plaintiff’s attorneys are responsible for familiarizing themselves with the local rules and procedures before practicing in this Court. It is inconceivable that Plaintiff’s former attorney thought that Plaintiff’s appointment as guardian ad litem initiated a personal injury suit against the Defendants. Likewise, it is incredible that Plaintiff’s current attorney put this argument forth in the response to Defendants’ motion for summary judgment as a valid, supportable legal submission. The language of the order appointing Siliaga as guardian ad litem indicated that the appointment was made so Siliaga could “pursue [Ta`atu’s] claim for injuries he received from an automobile accident.” In addition, the petition for appointment did not list the parties or the claims or meet the basic requirements necessary to initiate a legal action under the Trial Court Rules of Civil Procedure.3 Plaintiff’s attorney’s unjustifiable failure to follow these rules is no excuse for the tardy filing of Ta`atu’s

 

3 The rules provide, among other things, that “[a] civil action is commenced by filing a complaint with the court.” T.C.R.C.P. 2. 107

 

claims.

 

Moreover, Plaintiff’s excuse that her former attorney thought the appointment of the guardian actually initiated the filing of the personal injury action makes no sense in light of the fact that Plaintiff eventually did file a lawsuit against the Defendants. Why would Plaintiff file another lawsuit regarding the same claims if she legitimately thought the action was already pending in this Court? Plaintiff does not even attempt to explain this inconsistency. Plaintiff’s first argument has no merit.

 

[6] Plaintiff’s second argument for why the statute of limitations should not bar Ta`atu’s claims is equally unpersuasive. Plaintiff argues that the Defendants should be equitably estopped from asserting the statute of limitations defense because they “misled plaintiffs [sic] into believing that settlement was a reality and that there would be no trial of this matter.” (Pl.’s Opp’n at 4.) Equitable estoppel can sometimes prevent the application of the statute of limitations. See, e.g., Archuleta v. City of Rawlins, 942 P.2d 404, 405 (Wyo. 1997).

 

[7-8] Plaintiff cites Archuleta and Turner v. Turner, 582 P.2d 600 (Wyo. 1978), as support for this argument. Notably, in both of these cases, summary judgment was granted for the defendants because the courts found equitable estoppel did not apply to preclude the statute of limitations defense. Archuleta, 942 P.2d at 406; Turner, 582 P.2d at 603. In Turner, the Court noted, “the mere pendency of negotiations during the period of a statute of limitations, which are conducted in good faith with a view to ultimate compromise, is not of itself sufficient to establish an estoppel.” 582 P.2d at 603. Plaintiff’s allegations that Defendants engaged in settlement negotiations does not indicate that Defendants acted in bad faith.4 Absent any evidence that Defendants acted in bad faith, Defendants are allowed to assert the statute of limitations defense.5

 

Unfortunately, the victim in this case is the minor Ta`atu. His rights were not adequately protected. Although Ta`atu can no longer pursue this action against these Defendants, perhaps he can find relief elsewhere.

 

4 Plaintiff argues that discovery took place before the filing of the complaint. Plaintiff has offered no evidence of formal discovery or deposition prior to the filing of the complaint. In any event, Defendants’ request for documents or other discovery does not excuse Plaintiff’s failure to file within the statute of limitations.

 

5 In fact, we encourage parties to settle their claims out of court. Punishing the Defendants for engaging in good-faith settlement negotiations is counterproductive. 108

 

Order

 

Defendants’ motion for summary judgment is granted.

 

It is so ordered.

 

outhern Star Int’l, Inc v. Progressive Ins. Co


 

SOUTHERN STAR INTERNATIONAL, INC. dba HONG KONG RESTAURANT, KENNY and HELEN YOUNG, Defendants/Appellants.

 

v.

 

PROGRESSIVE INSURANCE COMPANY (PAGO PAGO), Plantiff/Appellee, and

 

AINOAMA FATA dba NOFO’S STORE,

 

Cross-Defendant/ Appellee,

 

High Court of American Samoa

 

Appellate Division

 

AP No. 11-02

 

June 28, 2004

 

[1] The appellate court reviews a trial court’s factual determinations for clear error, and questions of law or mixed questions of law and fact de novo. A finding is clearly erroneous when the entire record produces the definite and firm conviction that the court below committed a mistake. In de novo review, the appellate court must review the record in light of its own independent judgment without giving special weight to the prior decision.

 

[2] Under A.S.C.A. § 29.1522(a), every interest in property of such a nature that a contemplated peril might directly damage the insured, is such an insurable interest. A mere contingent or expectant interest in anything not founded upon an actual right to or in the thing, nor upon any valid contract for it, is not insurable.

 

[3] An insurance policy is subject to the same rules of construction as any other contract. If an insurance contract is unambiguous, a court must follow the prescriptions of the policy as written, and need look no further in resolving any disputes. If a policy is found to be ambiguous, however, a court should undertake further inquiry to determine the intent of the parties.

 

[4] An insurance contract may be reformed to reflect the actual intent of both parties, and it may be reformed after a loss has occurred. However, reformation is an extraordinary remedy, to be used only when there is mutual mistake or unilateral mistake coupled with actual or equitable fraud by the non-erring party.

 

77

 

[5] A mutual mistake of fact occurs where the parties to an agreement have a common intention, but the written contract erroneously reflects that intention due to a mistake on the part of both parties in writing the agreement.

 

[6] A contract will not be reformed on information that a party knew or should have known, absent an actual, mutual intent to agree on that information.

 

[7] Under A.S.C.A. § 29.1577, an insurer’s liability is governed by the terms of the policy.

 

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, TASHIMA,** Acting Associate Justice, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Associate Judge.

 

Counsel: For Appellants, Paul F. Miller

 

For Appellee Fata, Katopau T. Ainu’u

 

For Appellee Progressive Insurance Co., Roy J.D. Hall, Jr.

 

OPINION

 

Southern Star International, Inc., dba Hong Kong Restaurant (hereinafter “SSI”) and Kenny and Helen Young (“Youngs”), appeal from the Trial Division’s judgment granting Appellee Ainoama Fata (“Fata”) $100,000 under a Progressive fire/material insurance policy on a building Fata owned. The Youngs leased Fata’s building and used it as a restaurant. Appellee Progressive Insurance’s (“Progressive”) policy covered the building and its contents, which were destroyed when a restaurant employee negligently caused a fire.

 

Appellants allege that they are entitled to the policy proceeds as well as additional damages resulting from Progressive’s alleged bad faith in paying on the policy. In total, Appellants seek $200,000 in damages. For the reasons stated below, we affirm in part and reverse in part.

 

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of Interior.

 

** Honorable A. Wallace Tashima, Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of Interior.

 

78

 

Background

 

The facts are substantially undisputed. Fata owned a building in the village of Nu`uuli, on land under the pule of High Chief Falemalama Vaesa`u (“Falemalama”). Fata leased the building to the Youngs to use in the operation of the Hong Kong Restaurant. The Youngs also lived in and operated the Nu`uuli Store in a building owned or leased by them and located next to the restaurant. A third, smaller building was leased by the Youngs and used as a fast-food outlet. All three of the buildings in which the Youngs had insurable interest were covered by “Policy 720,” issued by Progressive, the named plaintiff. The first named defendant, SSI, is a Samoan corporation organized and controlled by the Youngs for the lawful purpose, as found by the Trial Division, of sponsoring aliens who could be employed as help in the Hong Kong Restaurant. The trial court found that SSI was the alter ego of the Youngs, and was so treated by the agents of Progressive, which insured the restaurant premises.

 

The only insurance contract directly at issue here is the portion of Policy 720 covering the restaurant building. Progressive offered, and the Youngs accepted, coverage amounting to $100,000 for the restaurant building, $50,000 for the restaurant building’s contents, and $150,000 for the adjacent building housing the Nu`uuli Store. These terms remained basically consistent through the various documents Progressive issued; however, there was no consistency in the named insureds listed on each of the documents. A written quote delivered to the Youngs by Progressive underwriter Tavita Taumua on May 18, 1999, addressed the Youngs. After the Youngs agreed to the quote, Taumua issued an insurance proposal (“Proposal”), detailing the coverage underwritten. SSI and the Youngs were listed as co-applicants on the Proposal and Falemalama, not Fata, was erroneously listed as the building’s owner. On June 2, 1999, Progressive issued a certificate of insurance (“Certificate”), which named SSI as the sole insured. The Certificate also referenced the Proposal as the controlling descriptive document. Three weeks later, Progressive issued a summary of coverage, which again named the SSI as the sole insured party.

 

On August 11, 1999, a fire, started in the restaurant, razed the restaurant building down to its concrete foundation, slab, and part of a wall. The fire consumed the furnishings and equipment of the restaurant, for which loss Progressive paid SSI in response to a written claim. The fire also caused collateral damage to the Nu`uuli Store. Progressive agreed to pay a claim for that loss. But when the Youngs and the Progressive adjusters failed to agree on the amount of the loss of the restaurant building, trouble entered the previously amiable adjustment process. Fata, meanwhile, filed a claim to be recognized as the building owner and named as a loss payee.

 

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The Youngs wanted the face amount of the $100,000 policy, which exceeded by more than $30,000 the amount that Progressive was then willing to pay. Eventually, after an abortive attempt to settle all remaining claims for $64,300, Progressive paid this sum into court and filed this interpleader action, naming all the contending parties and others that were later deleted from the case. Fata cross-claimed against SSI and the Youngs for indemnification consistent with the terms of the building lease.

 

After a three-day trial, the trial court ordered Progressive to pay $100,000 to Fata, on the theory that SSI had no insurable interest in the restaurant building, and that Fata was entitled to full indemnification from the Youngs.1

 

Standard of Review

 

[1] The appellate court reviews a trial court’s factual determinations for clear error, and questions of law or mixed questions of law and fact de novo. Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992). “A finding is ‘clearly erroneous’ when the entire record produces the definite and firm conviction that the court below committed a mistake.” E.W. Truck & Equip. Co. v. Coulter, 20 A.S.R.2d 88, 92 (App. Div. 1992). “In de novo review, the appellate court must review the record in light of its own independent judgment without giving special weight to the prior decision.” Amerika Samoa Bank v. Pacific Reliant Indus., 20 A.S.R.2d 102, 107 (App. Div. 1992).

 

Discussion

 

I. SSI’s Insurable Interest

 

[2] A.S.C.A. § 29.1522(a) states:

 

Every interest in property . . . of such a nature that a contemplated peril might directly damage the insured, is an insurable interest. A mere contingent or expectant interest in anything, not founded upon an actual right to or in the thing, nor upon any valid contract for it, is not insurable.

 

Following the statute, the record compels the conclusion that SSI had an insurable interest in the restaurant building. According to Kenny

 

1 Without consulting Fata, and allegedly at the direction of Falemalama, the Youngs have since had the remains of the restaurant building removed. The Youngs then built a larger structure on the same property, and entered into a twenty-year lease with Falemalama.

 

80

 

Young’s uncontested testimony, SSI owned and operated the restaurant business. Although the trial court deemed it significant that the Youngs established SSI exclusively to “serve as an immigration conduit” for the restaurant, it matters not for what purpose SSI was formed, so long as it owned the restaurant business. As the owner, it sustained a direct loss when the restaurant had to stop operating because of the fire. As indicated on the Proposal, SSI and the Youngs are the named insureds on Policy 720 and both SSI and the Youngs had insurable interests in the restaurant building.

 

II. Reformation of the Policy

 

[3-4] An insurance policy is subject to the same rules of construction as any other contract. Plaza Dep’t Store v. Duchnak, 26 A.S.R.2d 106, 108-09 (Trial Div. 1994). If an insurance contract is unambiguous, a court must “follow the prescriptions of the policy as written, and need look no further in resolving any disputes.” Asifoa v. Nat’l Pac. Ins. Co., 26 A.S.R.2d 24, 25-26 (Trial Div. 1994). If a policy is found to be ambiguous, however, a court should undertake further inquiry to determine the intent of the parties. Id. at 26. An insurance contract may be reformed to reflect the actual intent of both parties, and it may be reformed after a loss has occurred. Plaza, 26 A.S.R.2d at 109. However, reformation is an “extraordinary remedy,” to be used only when there is mutual mistake or unilateral mistake coupled with actual or equitable fraud by the non-erring party. Mutual of Omaha Ins. Co. v. Russell, 402 F.2d 339, 344 (10th Cir. 1968).

 

In this case, the controlling descriptive document was the Proposal, which listed the Youngs and SSI as co-applicants and Falemalama as building owner. There is an ambiguity within the Certificate, which lists only SSI as a named insured. However, as the trial court pointed out, the Certificate cites the Proposal as “more particularly describ[ing]” the insurance coverage. Contrary to Progressive’s contention, the Proposal reflects the intent of the parties to name the Youngs and SSI as named insureds.

 

[5] Additionally, the mutual mistake resulting in Falemalama’s name appearing on the Proposal compels us to affirm the trial court’s reformation of the insurance agreement to conform to the fact that Fata owned the building. “A mutual mistake of fact occurs where the parties to an agreement have a common intention, but the written contract erroneously reflects that intention due to a mistake on the part of both parties in writing the agreement.” American Samoa Power Auth. v. Nat’l Pac. Ins. Co., 30 A.S.R.2d 145, 147 (Tr. Div. 1996) (quoting Newsom v. Starkey, 541 S.W.2d 468, 472 (Tex. 1976)). Here the parties clearly intended to include the name of the building owner, and erred in naming Falemalama instead of Fata.

 

81

 

[6] However, the trial court erred in reforming the insurance policy to list Fata as a loss payee. Reformation must reflect the “actual intent” of the parties. Plaza, 26 A.S.R.2d at 109. Neither the Certificate nor the Proposal indicate that there was any discussion or agreement on listing a loss payee. Although Progressive contends that it would have listed Fata as the loss payee had it known that she was the building owner, a contract will not be reformed on information that a party knew or should have known, absent an actual, mutual intent to agree on that information. See Hanover Ins. Co. v. Am. Eng’g Co., 105 F.3d 306, 311 (6th Cir. 1997) (citing 3 ARTHUR L. CORBIN, CORBIN ON CONTRACTS § 614, at 723 (1950)) (“[T]he requirement of actual intent by both parties is black letter law in most jurisdictions.”). The trial court erred in this regard.

 

Policy 720 is deemed to be reformed to reflect that Fata is the building owner, but there was no mutual intent to list the building owner as a named insured or a loss payee. Fata recovers by reason of indemnity, not by reason of being a named insured. Fata had a cross-claim, and judicial economy is advanced by affirming the trial court’s equitable reformation to implement the indemnity rights created in Fata’s lease to the Youngs.

 

III. A.S.C.A. § 29.1577 Claim

 

[7] The Appellants argue that the trial court erred in denying their claim for damages under A.S.C.A. § 29.1577, a statute penalizing insurers who fail to pay on a policy within the time specified for covering a loss.2 Although the Appellants argue correctly that A.S.C.A. § 29.1577 is a strict liability statute requiring no proof of bad faith, Paisano’s Corp. v. Nat’l Pac. Ins., 30 A.S.R.2d 139, 141 (Trial Div. 1996), Progressive’s liability was not triggered in this case. The statute makes clear that an insurer’s liability is governed by the terms of the policy. See A.S.C.A. § 29.1577. The trial court noted, and the Appellants do not dispute, that the Youngs failed to submit a written demand as required under the terms of the policy.

 

IV. Tort Claim

 

The Appellants contend that Progressive breached its duty of good faith in adjusting their claims. Specifically, they argue that Progressive had a duty to inform Appellants about a comprehensive general liability policy

 

2 “In all cases where loss occurs and the insurer liable therefor fails to pay the same within the time specified in the policy, after demand made therefor, the insurer is liable to pay the holder of the policy, in addition to the amount of such loss, 12% damages upon the amount of the loss, together with all reasonable attorneys fees . . . .” A.S.C.A. § 29.1577.

 

82

 

and about the extent of the damage done to a second building near the restaurant building.

 

It appears from the trial court’s opinion that the Appellants failed to raise these arguments below. Instead, the Appellants’ bad faith argument seems to have rested on allegations that Progressive improperly delayed in paying for the restaurant building loss and that it purposefully hired an assessor who would report an unreasonably low estimate of the loss to the restaurant building. Appellants may not raise new theories of liability for the first time on appeal. Ill. Graphics Co. v. Nickum, 159 Ill. 2d 469, 490 (1994) (There is a “general waiver rule that a party may not raise a theory in support of the claim for the first time on appeal.”) (citation omitted). We affirm the trial court’s denial of Appellants’ tort claim.

 

V. Indemnification

 

Appellants assert that Fata breached her duty to mitigate damages by bringing a breach of contract claim against the Youngs instead of bringing a claim against Progressive. This assertion is without merit. Indeed, before Progressive filed its interpleader with the court, Fata submitted a claim to Progressive, only seeking indemnification from the Youngs after this action began.

 

VI. Amount of Award

 

Progressive objects to the trial court’s determination that the restaurant building was a total loss after the fire. There is no clear error in the trial court’s factual determination that the building was a total loss, and we affirm. See A.S.C.A. § 43.0801(b).

 

Conclusion

 

We disapprove of part of the trial court’s holdings. SSI had an insurable interest under Policy 720, and the trial court erred in reforming the policy to include Fata as a loss payee. However, these errors were harmless as they did not affect the ultimate order. We affirm the trial court’s rejection of the Appellants’ statutory and tort claims alleging bad faith practices by Progressive. We affirm the court’s holding that the Youngs must indemnify Fata for the loss of the building. We also affirm the order issuing the $64,300 deposited by Progressive to Fata and directing Progressive to pay Fata an additional $35,700.

 

AFFIRMED.

 

It is so ordered.

 

Senate Select Investigation Comm. v. Tuiteleapaga


 

THE SENATE SELECT INVESTIGATION COMMITTEE, Petitioner,

 

v.

 

TUITELEAPAGA PESE IOANE FUE, MIKA KELEMETE,

 

and FITI SUNIA, Respondents.

 

High Court of American Samoa

 

Trial Division

 

CA No. 25-04

 

May 24, 2004

 

[1] Similar to the role of federal courts in deciding cases involving contempt of Congress, the High Court of American Samoa is empowered to determine whether persons acted in contempt of one or both houses of the Fono, or their investigating committees.

 

[2] The High Court must ensure that respondents receive sufficient due process before being punished criminally for contempt of the Legislature. 153

 

[3] The High Court of American Samoa construes petitions from the Legislature for contempt, evolving out of legislative committee activities, as orders to show cause why a respondent should not be ordered to testify before the committee and suffer civil penalties.

 

[4] Under A.S.C.A. § 2.1016, a person commits contempt of an investigating committee by: (1) failing to comply with a subpoena or by refusing to testify; (2) refusing to answer any relevant question or to furnish relevant subpoenaed documents; (3) committing any other act or offense against an investigating committee that would constitute contempt against the Legislature or either House.

 

[5] A.S.C.A. § 2.0105 defines the acts constituting contempt against the Legislature as: (1) arresting or procuring the arrest of a member or officer of the Legislature; (2) committing disorderly conduct in the immediate view of the Legislature that interrupts proceedings; (3) refusing to be examined as a witness in a legislative proceeding; or (4) giving or offering a bribe to a legislator or attempting to influence a legislator’s vote.

 

[6] Because the Legislature specifically listed the acts and offenses that constitute contempt of legislative bodies in A.S.C.A. §§ 2.0105 and 2.1016, the Court is precluded from relying on other grounds to grant legislative contempt petitions.

 

[7] To exercise subpoena power, a legislative committee requires the authorization of the Legislature or either House to conduct investigations.

 

[8] All subpoenas issued by legislative committees must be for inquiries within the scope of their authorized investigations.

 

[9] In American Samoa, if a legislative committee fails to adopt procedural rules, a subpoenaed witness can refuse the committee’s subpoena.

 

[10] A.S.C.A. § 2.1004 requires legislative committees to adopt procedural rules beyond the statutorily imposed procedure.

 

[11] In order to comply with A.S.C.A. § 2.1004, a legislative committee’s procedural rules must have at least one procedural provision beyond the statutorily imposed procedure.

 

[12] The Court can neither dictate to a legislative committee the substance of the procedural rules it may adopt nor hypothesize about which rules it may have adopted.

 

154

 

[13] Where the Commissioner of Public Safety and Warden failed to appear before the legislative committee but did not do so deliberately, the Court declined to cite them with contempt.

 

[14] Depending on the circumstances, the Court may accept or reject an excuse for absence or tardiness in appearing for a proceeding.

 

[15] When the Court finds that a person was reasonably unaware or believed in good faith that he had no obligation to appear, the Court will not find the person in contempt.

 

[16] Where the Commissioner and Warden reasonably believed that the legislative committee’s hearing was cancelled and therefore did not appear, the Court considered the mistake reasonable and would not cite either for contempt of the Legislature.

 

[17] As part of the executive branch, the Attorney General represents the interests of the American Samoa Government in litigation.

 

[18] Under A.S.C.A. § 46.1220, the Attorney General is required to prosecute all criminal cases.

 

[19] The Legislature has broad authority to investigate in support of its legislative function.

 

[20] A criminal investigation or on-going criminal proceeding does not divest the Legislature of power to inquire into a particular matter.

 

[21] After a fruitful investigation, a legislative committee may forward its findings to the Attorney General, who has the discretion to investigate further or initiate prosecution.

 

[22] The Legislature may investigate the nonfeasance and misfeasance of the Attorney General.

 

[23] In extreme cases, American Samoa law provides for the appointment of an independent prosecutor when a legislative investigation discovers potentially criminal behavior of the Attorney General that warrants further investigation or prosecution.

 

[24] Where the Attorney General advised government employees not to respond to the Legislature’s subpoenas, he nonetheless could not be held in contempt of the Legislature as none of the grounds cited in the petition constituted contempt under the law: the Attorney General had not refused to comply with a subpoena or refused to answer, nor had he arrested anyone, committed disorderly conduct, refused examination, or bribed or influenced a legislator.

 

155

 

[25] Following the advice of one’s attorney is not a defense to contempt.

 

[26] At legislative hearings, a counsel’s role is limited to advising the witness as to his rights.

 

[27] The Legislature can initiate the process of having the Attorney General cited for an ethical violation or investigated by an independent prosecutor for offenses against the administration of justice.

 

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

 

Counsel: For Petitioner, Tauivi Tuinei and Robert K. Maez

 

For Respondents, Marc S. Roy, Assistant Attorney General

 

OPINION AND ORDER

 

Petitioner Senate Select Investigation Committee (“SSIC”) requests this Court to cite and punish each respondent for contempt of the Senate. Petitioner also seeks an order for two respondents, Commissioner Tuiteleapaga Pese Ioane Fue of the Department of Public Safety (“Commissioner”) and Warden Mika Kelemete of the Tafuna Correctional Facility (“Warden”), to appear before the SSIC and answer questions of the SSIC. Further, the SSIC requests us to direct respondent American Samoa Attorney General Fiti Sunia (“Attorney General”) not to interfere with SSIC proceedings and not to advise potential witnesses to disregard SSIC subpoenas. For the reasons below, we deny the petition.

 

Findings of Fact

 

American Samoa Senate Resolution 28-12 established the SSIC as a legislative investigating committee on July 17, 2003. (Pet’r Application for Citation of Contempt and Compl. (Pet.) Ex. A.) Serving subpoenas on January 30, 2004, the SSIC directed the Commissioner and Warden to appear before the committee. The heading of the subpoenas notified the recipients of the scope of the SSIC investigation, namely to investigate “[abuse and misuse of government funds and the waste and abuse of government resources within the department of public safety].” (Pet. Ex. C, D.) A radio news bulletin, not in evidence, allegedly reported that the SSIC chairman stated that the SSIC issued the subpoenas to investigate a killing at the Tafuna Correctional Facility. Morning News (KHJ radio broadcast, Jan. 30, 2004). On February 5, 2004, after the Commissioner and Warden failed to comply with the subpoenas, the SSIC agreed to apply to the whole Senate for a citation of contempt against the Commissioner and Warden. 156

 

The SSIC introduced and the Senate passed American Samoa Senate Resolution 28-22 to initiate contempt proceedings against the Commissioner and Warden in the Senate Committee of the Whole on February 9, 2004. (Pet. Ex. E.) Two days later, the Commissioner and Warden appeared before the Senate Committee of the Whole represented by the Attorney General. After a reading of the application for a contempt citation, the Attorney General objected to the hearing and the committee agreed to a continuance.

 

Prior to the hearing, the Attorney General had advised the Development Bank of American Samoa, the Director of Human Resources, the Airport Manager, and the Retirement Fund Board and Director not to respond to SSIC subpoenas. On February 12, 2004, the Chairman of the SSIC sent a letter to the Attorney General giving notification that the SSIC considered his advice to the Development Bank of American Samoa concerning SSIC subpoenas to be contemptuous.

 

The Senate’s Committee of the Whole agreed to recall the Commissioner and Warden to show cause why they should not be found in contempt of the Senate for failure to appear before the SSIC. The Chairman of the Senate Committee of the Whole sent a letter to notify the Commissioner and Warden of the hearing. In response, the Attorney General informed the committee Chairman that the Commissioner and Warden would not appear.

 

As scheduled, the Senate Committee of the Whole convened on March 9, 2004, to conduct the show cause hearing. The Commissioner and Warden failed to appear. The committee learned of the Attorney General’s response for the Commissioner and Warden and took notice of the Attorney General’s advice concerning other SSIC subpoenas. With a unanimous vote, the committee agreed to forward to the whole Senate a contempt citation application against the Attorney General.

 

The Senate recessed on March 12, 2004, without deciding whether to approve the contempt citation against the Attorney General. As an interim committee, the SSIC submitted this application to the High Court pursuant to A.S.C.A. § 2.1016(b) and the SSIC committee rules.

 

Discussion

 

I. Judicial Determination of Contempt of Legislature

 

[1-3] Similar to the role of federal courts in deciding statutory contempt of Congress, we are making a determination for the Legislature whether persons acted in contempt of its investigating committee.1 See 2 U.S.C. 1A.S.C.A. § 2.1016 provides that contempt of an investigating committee

 

157

 

§ 192 (1997). Courts have held that judicial determinations under the federal contempt statute, carrying criminal penalties, have certain safeguards required of criminal proceedings. Quinn v. United States, 349 U.S. 155, 165 (1955). Likewise ensuring that respondents receive sufficient due process before being punished criminally pursuant to A.S.C.A. § 2.1018(a), we construe petitions from the Legislature for contempt, evolving out of legislative committee activities such as in the case before us, “to show cause why the respondent should not be ordered to testify before the committee and to suffer civil penalties, including possible future contempt citations, in the event he were to refuse.” Senate Select Investigative Comm. v. Horning, 3 A.S.R.2d 14, 17 (Trial Div. 1986).

 

[4-6] American Samoa law identifies the specific acts which constitute contempt of investigating committees. Under A.S.C.A. § 2.1016, a person commits contempt of an investigating committee by: (1) failing to comply with a subpoena or by refusing to testify; (2) refusing to answer any relevant question or to furnish relevant subpoenaed documents; (3) committing “any other act or offence against an investigating committee” that would constitute contempt against the Legislature or either House. Section 2.0105 defines the acts constituting contempt against the Legislature as: (1) arresting or procuring the arrest of a member or officer of the Legislature; (2) committing disorderly conduct in the immediate view of the Legislature that interrupts proceedings; (3) refusing to be examined as a witness in a legislative proceeding; or (4) giving or offering a bribe to a legislator or attempting to influence a legislator’s vote. Defining contempt to include acts involving either the Senate or the House, the language of § 2.0105 broadly defines contempt of the Legislature, either House, or a legislative committee. See A.S.C.A. §§ 2.0105(a)(1)-(4). By specifically listing the acts and offenses which constitute contempt of legislative bodies, these two statutory provisions preclude the court from relying on other grounds to grant legislative contempt petitions. See Vessel Fijian Swift v. High Court of American Samoa, 4 A.S.R. 983, 993 (App. Div. 1975) (holding that “it is a general principle of statutory interpretation that the mention of one thing implies the exclusion of another”).

 

II. SSIC’s Authority to Subpeona the Comissioner and Warden

 

[7-9] To exercise subpoena power, a committee requires the authorization of the Legislature or either House to conduct investigations. See A.S.C.A. § 2.1003; Barenblatt v. United States, 360 “shall be considered as though the alleged contempt had been committed

 

in or against the entire House or Houses of the Legislature.” Here, as

 

prayed for by the SSIC, we consider the alleged contempt as committed

 

against the Senate.

 

158

 

U.S. 109, 116-123 (1959). All subpoenas issued by committees must be for inquiries within the scope of authorized investigations. Id. In American Samoa, if a committee fails to adopt procedural rules, a subpoenaed witness can refuse the committee’s subpoena. A.S.C.A. §§ 2.1004, 2.1018; Horning, 3 A.S.R.2d at 20.

 

The SSIC issued legitimate subpoenas to the Commissioner and Warden. Pursuant to American Samoa Senate Resolution 28-12 and A.S.C.A. § 2.1003, the SSIC has investigatory power to issue subpoenas. Properly granted by the Senate, SSIC investigative authority is not impaired by overlap with the authority of other committees.

 

The SSIC inquiry that prompted the two subpoenas was within the scope of the SSIC’s authority. The SSIC has the authority to “[review government operations and its financial condition and to investigate illegal and corrupt policies, procedures and practices and activities within all departments and agencies of the American Samoan Government].” (Pet. Ex. A at 2.) The two subpoenas related to an inquiry into whether the Department of Public Safety’s administration of, or policies and procedures for, the Territorial Correctional Facility constituted waste and abuse of government resources or funds. (Pet. A Ex. C, D.) Occurring under the Commissioner’s and Warden’s supervision, even a more narrow inquiry into a killing at the Territorial Correctional Facility sufficiently touches on potentially illegal and corrupt government operations to fall within SSIC authority.

 

[10-12] Contending that the procedural rules adopted by the SSIC copy almost verbatim the statutory procedures binding on committees, the Commissioner and Warden argue that the SSIC adopted insufficient procedural rules, rendering the SSIC subpoenas invalid. (Pet. Ex. B.) See Horning, 3 A.S.R.2d at 19-20. Finding the SSIC procedural rules sufficient, we disagree. In Horning, the Senate adopted procedural rules for a committee by reference, resolving that “the Senate adopts the procedural provisions of Title 2, Chapter 10 as [the committee’s] rules governing the conduct of its hearings.” S. Res. 51, 19 Leg., 3rd Sess. (Am. Samoa 1986); Horning, 3 A.S.R.2d at 19. The court held these rules inadequate because A.S.C.A. § 2.1004 requires committees to adopt procedural rules beyond statutorily imposed procedure. Horning, 3 A.S.R.2d at 19-20. Here, the rules comply with the statute by having at least one procedural provision beyond statutorily imposed procedure. The SSIC adopted a full text of procedural rules that provided for six members, one member more than the five member minimum required by A.S.C.A. § 2.1006. (Pet. Ex. B at 1.) Finding the rules minimally compliant with A.S.C.A. § 2.1004, we will not require the SSIC to adopt additional procedural rules, because “the Court can neither dictate to the committee the substance of the rules it may adopt nor hypothesize which rules it may have adopted.” Horning, 3 A.S.R.2d at 19. 159

 

III. Commisioner and Warden

 

[13] The SSIC requests a contempt citation against the Commissioner and the Warden for failure to comply with the SSIC February 5, 2004 subpoena.2 It is undisputed that the Commissioner and Warden failed to appear before the SSIC. Finding that the Commissioner and Warden did not act deliberately, we decline to cite them with contempt.

 

[14-15] Depending on the circumstances, we may accept or reject an excuse for absence or tardiness in appearing for a proceeding. See 17 AM. JUR. 2D Contempt § 91 (1990). When we find that a person was reasonably unaware or believed in good faith that he had no obligation to appear, we will not find the person in contempt. See id.

 

[16] A misunderstanding about the cancellation of the February 5, 2004 hearing led to the absences. We find the testimony credible that the Commissioner and Warden considered the hearing cancelled and mistakenly missed it. Nafanua Lealofi, the Commissioner’s secretary, testified that she received a call from the Governor’s office to notify the Commissioner of the hearing’s cancellation. As a representative of the Governor, the caller was sufficiently reliable for the Commissioner to consider the hearing cancelled. Mika Kelemete, who works for the Warden, testified that the Commissioner called to inform the Warden that the hearing was cancelled. Providing more evidence of a mistake, the Commissioner testified that after the hearing he contacted the SSIC chairman to explain the miscommunication. Reasonably mistaken that the hearing was cancelled, the Commissioner and Warden did not deliberately flaunt the SSIC subpoena. We do not find either government official in contempt of the Legislature.

 

IV. Attorney General

 

[17-18] As part of the executive branch, the Attorney General represents the interests of the American Samoa Government in litigation. Under A.S.C.A. § 46.1220, the “Attorney General shall prosecute all criminal cases.” Lacking a complete set of position-defining statutes, the Attorney General performs additional functions under executive guidance similar to those defined for the United States Attorney General under federal law. See 28 U.S.C. §§ 501-530D (2004). The Attorney General defends government agencies in litigation, and advises heads of executive departments and agencies on questions of law concerning department administration. See id. at §§ 512, 514, 516.

 

2 The petition does not request a contempt citation for the failure of the

 

Commissioner and Warden to appear before the Senate Committee of the

 

Whole on March 9, 2004.

 

160

 

[19-21] In support of its legislative function, the Legislature has broad authority to investigate. See Quinn, 349 U.S. at 160-161; McGrain v. Daugherty, 273 U.S. 135, 179-180 (1927). A criminal investigation or on-going criminal proceeding does not divest the Legislature of power to inquire into a particular matter. McGrain, 273 U.S. at 179-180; Hutchenson v. U.S., 369 U.S. 599, 613 (1962). After a fruitful investigation, a committee may forward its findings to the Attorney General, who has the discretion to investigate further or initiate prosecution.

 

[22-23] Despite sharing a common interest in eliminating crime, the Legislature and the Attorney General occasionally find themselves in adverse positions because of legislative investigations into illegal or corrupt government activity. As in this case, the Attorney General may provide advice to government witnesses who receive subpoenas from legislative investigating committees. The interests of the Legislature and Attorney General may also be adverse when the Legislature investigates the Attorney General. For example, the Legislature can investigate the “nonfeasance and misfeasance” of the Attorney General. See McGrain, 273 U.S. at 151, 179-180 (holding that a Congressional committee can investigate the failure United States Attorney General to prosecute); H.R. REP. NO. 105-728, at 20-25 (1998) (discussing a Congressional investigation into United States Attorney General’s failure to appoint an independent counsel). At the federal level, Congress and the United States Attorney General often resolve conflicts through negotiation. When Congress must resort to exercising its contempt power, it usually does so to compel appearance or the production of documents. Id., at 1-2 (1998) (citing United States Attorney General Janet Reno with contempt for failure to produce papers relevant to why she did not appoint an independent counsel). In extreme cases, American Samoa law provides for the appointment of an independent prosecutor when a legislative investigation discovers potentially criminal behavior of the Attorney General that warrants further investigation or prosecution. See A.S.C.A. §§ 4.0801-4.0817.

 

The SSIC petitions us to cite the Attorney General with contempt for advising witnesses not to comply with subpoenas. The SSIC contends that the Attorney General’s advice constitutes: (1) interference with the Senate Committee of the Whole’s hearing scheduled on March 9, 2004, by directing witnesses not appear as ordered;3 (2) interference with the subpoena powers of the SSIC by advising witnesses not to comply with the SSIC’s subpoenas; (3) interference with the legislative process in the

 

3 It is debatable whether the SSIC has standing to bring a petition for

 

contempt for acts done in alleged contempt of the Senate Committee of

 

the Whole. Deciding this case on other grounds, we decline to rule on

 

the issue here.

 

161

 

administration of justice by attempting to discredit the SSIC; (4) tampering with witnesses before the Senate Committee of the Whole and the SSIC; (5) obstruction of the legislative process by purposely obstructing, impairing, and hindering the Senate Committee of the Whole and the SSIC; and (6) obstruction of justice.4

 

[24] However, we deny the petition to cite the Attorney General because none of the grounds for contempt in the petition constitute contempt of the Senate or the SSIC as defined by the American Samoa Code. The Attorney General has not refused to comply with a subpoena or refused to answer. A.S.C.A. §§ 2.1016(1), 2.1016(2). We cannot cite the Attorney General under A.S.C.A. § 2.1016(3), because he did not commit an act or offense that amounts to contempt under A.S.C.A. § 2.0105. The Attorney General has not arrested anyone within the meaning of the statute, committed disorderly conduct, refused examination, or bribed or influenced a legislator. See A.S.C.A. § 2.0105; BLACK’S LAW DICTIONARY 422 (5th ed. 1979) (defining disorderly conduct).

 

[25-27] While not contemptuous on the grounds argued in this petition, the Attorney General’s interference with legislative investigations raises concerns. Besides initiating contempt proceedings against the Attorney General, the Legislature has other legal tools that may be available to protect its investigations. Regardless of attorney advice, the Legislature can cite a non-compliant subpoenaed person for contempt. See United States v. Remini, 967 F.2d 754, 757 (2d Cir. 1992) (holding that advice of attorney is not a defense against contempt). At hearings, a legislative committee can enforce a statutory provision that a “counsel’s role is limited to advising the witness as to his rights.” A.S.C.A. § 2.1011. The Legislature can expand the definition of contempt of Legislature under the law. See, e.g., Alaska Stat. § 09.50.010 (2003). In addition, the Legislature can initiate the process of having the Attorney General cited for an ethical violation or investigated by an independent prosecutor for offenses against the administration of justice. See MODEL RULES OF PROF’L CONDUCT R. 3.5 (2002); A.S.C.A. §§ 46.4601-46.4638.

 

Conclusion and Order

 

We deny the petition to cite the Commissioner and Warden for contempt. As they did not deliberately fail to comply with the subpoena, we do not direct them to appear before the SSIC. Should the Commissioner and Warden fail to comply with another properly issued subpoena, the SSIC may proceed with further contempt proceedings.

 

4 Concentrating only on the disruption caused by the Attorney General’s

 

advice, the petition does not request a contempt citation for other

 

potentially contemptuous acts of the Attorney General.

 

162

 

We deny the petition to cite the Attorney General in contempt of Legislature, because the Attorney General did not commit any punishable contemptuous acts.

 

It is so ordered.

 

Satele v. Williams


TUPUOLA SATELE, for himself and on behalf of the TUPUOLA FAMILY, Plaintiffs,

 

v.

 

SU`ESU`EMANOGI WILLIAMS, MARY WILLIAMS, and

 

DOES 1-10, Defendants.

 

______________________________

 

TUPUOLA SATELE for the TUPUOLA FAMILY, Claimants,

 

v.

 

TU`ULAUPUA MARY, ENELIKO JR. KELETI, NOFOA ALO STEFFANY, PALOA LUPEOMATASILA, JANOI JOHN WILLIAMS, SINGER MOORE, LEVEL NAUFAHU, FA`ATUPUNU`U J.W., LEAO H. WILLIAMS, and TONY WILLIAMS, Objectors.

 

High Court of American Samoa

 

Land and Titles Division

 

LT No. 07-94

 

LT No. 12-95

 

June 14, 2004

 

[1] Orders denying T.C.R.C.P. 60(b) motions are final and appealable. To appeal a judgment, A.S.C.A. § 43.0802 requires a party to file a motion for new trial within 10 days after the date of entry of the judgment or order appealed from.

 

[2] After a T.C.R.C.P. 60(b) motion is denied, a party may not simply file a second T.C.R.C.P. 60(b) motion on the same grounds in lieu of an appeal. Permitting consideration of the second T.C.R.C.P. 60(b) motion would inappropriately allow the movant to resurrect the expired time period in which to appeal the denial of the first motion.

 

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

 

Counsel: For Plaintiffs/Claimants, Asaua Fuimaono

 

For Defendants/Objectors, Robert K. Maez

 

 

 

ORDER DENYING MOTION FOR RECONSIDERATION

 

On February 20, 2004, we denied Defendants/Objectors (“the Williams family”) motion for relief from judgment and for a new trial under T.C.R.C.P. 60(b). The Williams family moved for reconsideration of our decision on March 1, 2004. We deny the motion for reconsideration because it is effectively a second T.C.R.C.P. 60(b) motion on the same grounds as a prior T.C.R.C.P. 60(b) motion.

 

[1] Orders denying T.C.R.C.P. 60(b) motions are final and appealable. Gulf Coast Fans, Inc. v. Midwest Electronics Importers, 740 F.2d 1499, 1507 (11th Cir. 1984); 12 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 60.68 (3D ED. 1999). To appeal a judgment, A.S.C.A. § 43.0802 requires a party to file a motion for new trial “within 10 days after the date of entry of the judgment or order appealed form.” A.C.R. 4.

 

[2] After we deny a T.C.R.C.P. 60(b) motion, “a party may not simply file a second Rule 60(b) motion on the same grounds in lieu of an appeal.” Latham v. Wells Fargo Bank, 987 F.2d 1199, 1204 (5th Cir. 1993); see 12 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 60.69 (3D ED. 1999). Permitting consideration of the second T.C.R.C.P. 60(b) motion would inappropriately allow the movant to “resurrect the . . . expired time period in which to appeal the denial of the first motion.” Latham, 987 F.2d at 1204.

 

We find that the Williams family’s motion for reconsideration is a second T.C.R.C.P. 60(b) motion based on the same grounds as the previous T.C.R.C.P. 60(b) motion. First, the motion does not seek a new trial within the 10-day time limit required for an appeal. Second, the Williams family fails to advance any argument beyond what they asserted in their first T.C.R.C.P. 60(b) motion. Here, they argue under T.C.R.C.P. 60(b)(6) that Counsel Salanoa’s actions constituted ineffective assistance of counsel. In their first T.C.R.C.P. 60(b) motion, they made this argument. (Def./Obj. mot. for new trial or relief from judgment at 4.) We considered the argument on the grounds of T.C.R.C.P. 60(b)(4) and 60(b)(6). Tupuola v. Williams, LT No. 7-94, slip op. at 4-5 (Land and Titles Div. Feb. 20, 2004).

 

Accordingly, the redundant reconsideration motion is properly denied.

 

Order

 

1. The motion of Defendants/Objectors for reconsideration is denied.

 

2. Defendants/Objectors shall vacate Plaintiffs/Claimants’ communal land on June 15, 2004, in accordance with the Court’s bench orders issued on March 1, 2004, and confirmed on March 23, 2004.

 

It is so ordered.

 

RDL Inc. v. Am. Samoa Cmty. College


RDL, INC.,/CIDA, INC., dba PACIFIC DESIGN BUILD COLLABORATIVE, Plaintiffs,

v.

AMERICAN SAMOA COMMUNITY COLLEGE, Defendant.

High Court of American Samoa

Trial Division

CA No. 113-01

April 15, 2002

1 In a nutshell, it looks like the services of a qualified surveyor might be

in order to assist the court in resolving the dispute as to situs. Indeed,

Alai`asa had resorted to calling a surveyor in Alai`asa v. Te`o, 5

A.S.R.3d 266 (Land & Titles Div. 2001), a matter not unlike the one

now before us in factual issues.

 

[1] In a motion for summary judgment the Court must assume the truth of the evidence presented by the non-moving party and draw from the evidence the inferences most favorable to the non-moving party.

[2] Where a contract requires notice before a party can withhold payment for deficiencies, and there is a factual dispute as to whether this notice was given, the court cannot grant partial summary judgment to the defendant as to the legitimacy of withholding a payment under the contract.

[3] On a motion for summary judgment, it does not matter whether the weight of the evidence eventually supports the non-moving party’s position. What matters is that the non-moving party can point to some evidence to support its position(s).

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

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

For Defendant, Paul F. Miller

ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT

In part, this case involves alleged breach of contract on the part of defendant for failure to make a payment to plaintiff. Defendant’s response is that plaintiff first breached the contract thus freeing defendant of the obligation to make the payment in question. Defendant filed for partial summary judgment concerning this payment, alleging that there is no issue as to any material fact as to whether plaintiff breached first, further arguing that judgment should be given in favor of defendant.

Standard of Review

[1] In a motion for summary judgment the Court must assume the truth of the evidence presented by the non-moving party and draw from the evidence the inferences most favorable to the non-moving party. Plaza Department Store, Inc. v. Duchnak, 26 A.S.R. 2d 82, 83 (Trial Div. 1994); Lokan v. Lokan, 6 A.S.R. 2d 44 (Trial Div. 1987); D. Gokal & Co., Ltd. v. Daily Shoppers Inc., et al., 13 A.S.R. 2d 11, 12 (Trial Div. 1989). Summary judgment is only appropriate when no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Plaza Dep’t Store at 83; T.C.R.C.P. 56(c).

Discussion

 

Defendant’s motion makes four allegations of breach of contract on the part of plaintiff. The allegations include: a failure by plaintiff to obtain a general contractors license; a failure by plaintiff to obtain a performance bond; and a failure by plaintiff to maintain construction plans on the job site. Defendant claims a contractual right to withhold any payments due as a result of plaintiff’s alleged breaches. The contract itself outlines the basis for withholding payments, including a notice requirement giving parties an opportunity to correct alleged deficiencies.

[2] Before delving into the four alleged breaches, we first note that there is a factual dispute as to whether defendant gave plaintiff sufficient notice of its intent to withhold payment, in this case what has been referred to as “Payment #4.” Defendant claims that notice was sent by facsimile to plaintiff at the end of August, 2001, while plaintiff denies receiving such notice. Plaintiff does admit to receiving notice of the three alleged deficiencies in early August, but plaintiff also puts forth evidence that a good faith effort was made to correct the deficiencies well before defendant’s alleged notice of withholding payment date. The exact meaning of this earlier notice remains in dispute. As the contract requires notice before a party can withhold payment for deficiencies, and there is a factual dispute as to whether this notice was given, this court cannot grant partial summary judgment to the defendant as to the legitimacy of its withholding Payment #4.

As to the specific allegations of deficiencies constituting breach, the plaintiff has introduced evidence that indicates factual dispute in each case. Plaintiff flatly disagrees with defendant’s allegation that construction plans were not maintained on the job site. Plaintiff has presented evidence that a general contractor’s license was posted at the job site before defendant’s alleged notice of intent to withhold payment. Finally, plaintiff points to the contract itself in response to the alleged deficiency of failing to obtain bonding, obtaining a personal surety, as plaintiff has presented evidence that it has done, is described in the contract as an alternative to bonding. Plaintiff also argues that negotiations between the parties had been taking place to find a mutually beneficial alternative to bonding.

[3] Whether the weight of the evidence eventually supports plaintiff’s positions on these issues is one thing. What matters for the time being is that plaintiff can point to some evidence to support its positions. As noted, the legal standard for summary judgment requires the court to consider the evidence in the light most favorable to the non-moving party. We find that there are genuine issues as to material facts and conclude therefore that the defendant is not entitled to judgment as a matter of law.

 

Order

The motion is denied.

It is so ordered.

Pulu v. Su`apaia


 

MICHAEL PULU, Plaintiff,

 

v.

 

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

 

High Court of American Samoa

 

Land & Titles Division

 

LT No. 27-02

 

February 2, 2004

 

[1] The decision whether to grant a motion for reconsideration or new trial is left to the broad discretion of the trial court.

 

[2] A motion for reconsideration or new trial should be based on a manifest mistake of fact or error of law, and the court should find substantial reasons before setting aside a judgment.

 

[3] Where an issue was thoroughly litigated by both parties without objection at trial and in the closing briefs, a party seeking reconsideration could not rely on the opposing parties’ failure to raise the issue as an affirmative defense in their pleadings.

 

[4] While a sa`o should consult with family members in accordance with family custom, a failure to consult does not alone provide a basis for the court to invalidate a sa`o’s otherwise legitimate decisions.

 

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

 

Counsel: For Plaintiff, Marie A. Lafaele

 

For Defendants, Katopau T. Ainu`u

 

ORDER DENYING MOTION FOR

 

RECONSIDERATION OR NEW TRIAL

 

Plaintiff Michael Pulu (“Michael”) timely objected to the registration of a separation agreement between Defendants Winnie Su`apaia (“Winnie”) and Pulu F. Talalotu (“Pulu”) regarding a house on the Pulu family’s land. Michael also sought recovery from Winnie for the cost of labor and materials he allegedly incurred while working on the house in 1994. We ordered the Territorial Registrar to register the separation agreement and denied Michael’s request for recovery. Michael now brings this 230

 

motion for reconsideration or new trial arguing six points of error.1

 

Standard of Review

 

[1-2] The decision whether to grant a motion for a new trial or reconsideration is left to the broad discretion of the trial court. 12 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 59.13[3][a] (3d ed. 1999). “[A] motion for new trial in a nonjury case should be based on a manifest mistake of fact or error of law; the court should find substantial reasons before setting aside a judgment.” Id.; see also American Samoa Gov’t v. S. Pac. Island Air Sys., Inc., 28 A.S.R.2d 170, 171 (Trial Div. 1995). For the reasons discussed below, we deny Michael’s motion.

 

Discussion

 

Michael’s first argument is that we failed to make an explicit finding of fact regarding whether he or his brothers co-owned the home with their father, Dave Pulu (“Dave”). Although we may not have stated it explicitly enough for Michael, our opinion makes clear that we found Dave to be the sole owner of the house after he purchased it from Toe To`oto`o (“Toe”). Pulu v. Pulu, 7 A.S.R.3d 289 (Land & Titles Div. 2003). We see no reason to disturb this finding of fact and reject this argument as grounds for reconsideration or a new trial.

 

Most of Michael’s other arguments for reconsideration or new trial fail as a result of this finding. For example, Michael’s second argument is 1 Michael claims he is bringing his motion under T.C.R.C.P. 60(b) but

 

styles it as a “Motion for Reconsideration and/or New Trial,” which

 

indicates it is actually a Rule 59 motion. Moreover, the motion was

 

brought within the time limit required by T.C.R.C.P. 59. The distinction

 

between these two rules is important:

 

One of the major differences between new trial motions and

 

Rule 60(b) motions is that a motion for a new trial suspends

 

the finality of the judgment and the time for the filing of an

 

appeal from the judgment. In contrast, filing of a timely Rule

 

60(b) motion does not affect the finality of a judgment or

 

suspend its operation. Similarly, a timely Rule 60(b) motion

 

does not toll the running of the time for filing an appeal.

 

6 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 60.03[3]

 

(3d ed. 1999). Since Michael’s motion was brought within the 10 days

 

required under T.C.R.C.P. 59, we will consider it under this rule rather

 

than under Rule 60(b). See Helm v. Resolution Trust Corp., 43 F.3d

 

1163, 1166-67 (7th Cir. 1995) (using the time of filing to control under

 

which rule the motion is considered in order to “reduce the confusion

 

often caused when movants haphazardly title and characterize motions”).

 

 

 

that we violated A.S.C.A. § 40.0202 regarding the succession of real property because Michael had an interest in his father’s estate, which had not been probated. However, since we found that Dave owned the house individually and that he gave the house to Winnie prior to his death, Michael had no interest in the house. The house belongs to Winnie, and A.S.C.A. § 40.0202 has no bearing on the house at issue. Thus, Michael’s second argument fails to provide grounds for reconsideration or a new trial.

 

[3] Michael’s next argument is that the Defendants failed to raise the issue that the house was a gift from Dave as an affirmative defense in their pleadings and, therefore, he was denied due process in responding to this issue.2 Even assuming that Defendants should have raised the gift issue as an affirmative defense, Michael certainly cannot complain now. The issue was thoroughly litigated by both parties without objection at trial and in the closing briefs. See, e.g., 61A AM. JUR. 2D Pleading § 377 (1999); 2 MOORE’S FEDERAL PRACTICE § 8.07[3]. Moreover, in their answer, Defendants denied Michael’s allegation in his complaint that “Dave Pulu did not dispose of the subject matter house to Winnie Su`apaia by way of gift, sale or otherwise.” (Defs.’ Answer at ¶16.) We reject Michael’s third argument as grounds for reconsideration or a new trial.

 

Michael’s fourth argument is that the Defendants should be held liable for costs and labor he allegedly incurred in repairing the house. He bases this claim in part on “a pre-existing right of ownership of [his] to the house.” Again, we disagree. Based on the evidence presented, we believe that Dave was the sole owner of the house before he transferred his interest to Winnie. In addition, as we mentioned in our October 20, 2003 Opinion & Order, any recovery of these costs, incurred over nine years ago, should be from Dave not Winnie.3 Pulu, 7 A.S.R.3d at 293. We reject Michael’s fourth argument as grounds for reconsideration or a new trial.

 

In Michael’s fifth argument, he argues that we erred in refusing to disturb Pulu’s decision to execute the separation agreement. Michael claims that Pulu failed to consult with him and with Toe prior to executing the separation agreement and claims they should have been 2 Michael includes in the heading for this argument (but does not argue

 

in the text), that he was “unduly prejudiced by the surprise admission of

 

hearsay evidence.” This is just plain wrong. We relied on Winnie’s

 

impressions and testimony regarding Dave’s actions, all non-hearsay

 

evidence, in reaching our conclusions. This is clearly evident in our

 

opinion. Pulu, 7 A.S.R.3d at 291-292.

 

3 For this reason, whether Michael had sufficient evidence to establish

 

his expenses is immaterial.

 

 

 

consulted with because they each had an interest in the house. Again, this argument relies on Michael’s assertion that he co-owned the house. We disagree. The house was Dave’s alone, and Dave gave the house to Winnie. We see no reason to disturb Pulu’s decision.

 

In any event, as we indicated in our Opinion & Order, “[c]ourts will not interfere with the decisions of a sa`o unless they are arbitrary, capricious, illegal, or abusive of discretion.” Malala v. Temu, 11 A.S.R.2d 137, 142 (Land & Titles Div. 1989). We do not believe Pulu’s decision was “arbitrary, capricious, illegal or abusive of discretion.” Id.

 

[4] Moreover, while we agree with Michael that the sa`o should consult with family members in accordance with family custom, a failure to consult does not alone provide a basis for the Court to invalidate a sa`o’s otherwise legitimate decision. The Fono has provided a statutory scheme regulating separation agreements. A.S.C.A. §§ 37.1501-.06. Nowhere in this statutory scheme is there a requirement that the sa`o consult with the family prior to executing the agreement. See id. We decline to impose such a requirement now. See, e.g., Vaimaona v. Tuitasi, 18 A.S.R.2d 88, 90-93 (App. Div. 1991) (declining to impose a family consultation requirement when a sa`o alienates land because the Fono did not include it in the statutory scheme as a requirement).

 

Michael’s final argument is that the separation agreement could not transfer title because a previous separation agreement already existed on the house. We made clear in our opinion that a new separation agreement should be registered due to the fact that Toe’s original separation agreement could not be located. Pulu, 7 A.S.R.3d at 290. This does not change the fact that Dave gave the house to Winnie but merely provides Winnie with some record protection of her ownership. This argument fails as grounds for reconsideration or a new trial. All of Michael’s arguments fall far short of the standard for reconsideration or a new trial.

 

Order

 

Michael’s motion for reconsideration or new trial is denied.

 

It is so ordered.

 

Paslov v. Cox


 

EUGENE JOSEPH PASLOV, DR. EUGENE and SUSAN PASLOV, Plaintiffs,

 

v.

 

KATHLEEN MASANI COX, Defendant.

 

High Court of American Samoa

 

Trial Division

 

CA No. 37-03

 

May 19, 2004

 

[1] In deciding a motion for judgment on the pleadings, the same standard is used as that for determining a motion brought pursuant to T.C.R.C.P. 12(b)(6).

 

[2] In reviewing a motion under T.C.R.C.P. 12(c), the court may consider any of the pleadings, including the complaint, the answer, and any written instruments attached to them, as well as matters of judicial notice.

 

[3] A motion for judgment on the pleadings should not be granted unless it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief.

 

[4] An order given by a different court that did not comply with the Parental Kidnapping and Prevention Act does not meet the standard for full faith and credit.

 

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

 

Counsel: For Plaintiffs, Asaua Fuimaono

 

For Defendant, David M. Wagner

 

ORDER GRANTING MOTION FOR

 

JUDGMENT ON THE PLEADINGS

 

Plaintiffs Eugene Joseph Paslov (“Eugene”), Dr. Eugene Paslov, and Susan Paslov seek enforcement of a July 22, 2002 Montana state custody order regarding the custody of Eugene’s minor son. The child’s mother, Kathleen Cox (“Kathleen”), opposes the petition and moves for judgment on the pleadings. For the reasons stated below, we grant Kathleen’s motion. 146

 

Standard of Review

 

[1-3] In deciding a motion for judgment on the pleadings, the same standard is used as that for determining a motion brought pursuant to T.C.R.C.P. 12(b)(6). GATX Leasing Corp. v. Nat’l Union Fire Ins. Co., 64 F.3d 1112, 1114 (7th Cir. 1995). In reviewing a motion under T.C.R.C.P. 12(c), “the court may consider any of the pleadings, including the complaint, the answer, and any written instruments attached to them,” as well as matters of judicial notice. 2 JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE §§ 12.38, 12.34[2] (3d ed. 1999). A motion for judgment on the pleadings “should not be granted unless it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief.” Hentosh v. Herman M. Finch Univ. of Health Sciences, 167 F.3d 1170, 1173 (7th Cir. 1999) (citations omitted).

 

Discussion

 

This is not the first time Eugene and Kathleen have been before this court regarding the custody of their minor child. Indeed, on July 17, 2001, we entered an order modifying an earlier Montana state custody decree and designating Kathleen as the exclusive custodian of the minor child.1 Cox v. Paslov, 5 A.S.R.3d 150 (Trial Div. 2001). In that order, after careful consideration of the facts and law, we determined that the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (“PKPA”), required that we give the Montana decree full faith and credit. Cox, at 158. We also determined that we had jurisdiction to modify the Montana decree. Id. at 162. Eugene moved for reconsideration but later withdrew his motion, thereby forgoing his right to appeal our decision.2

 

Instead, Eugene, along with his parents, Dr. Eugene and Susan Paslov, moved in the Montana court to enforce the previous Montana custody decree (which had been superseded by our July 17, 2001 Order) and moved for grandparent visitation rights. Judge Ted L. Mizner of the Montana Third Judicial District Court of Powell County (“Judge Mizner”) granted the motions claiming the Montana court still had jurisdiction over the parties and the subject matter. July 22, 2002 Order at 2-3. Judge Mizner rejected our July 17, 2001 Order without providing any comprehensive analysis of jurisdiction under the PKPA. Eugene and his parents now seek to enforce Judge Mizner’s July 22, 2002 Order.

 

1 Our July 17, 2001 Order provides a detailed factual and legal analysis.

 

We take judicial notice of that order for the purposes of making the

 

current determination.

 

2 We take judicial notice of Eugene=s August 2, 2001 Motion for

 

Reconsideration and of his August 27, 2001 Motion to Withdraw

 

Reconsideration.

 

147

 

As we thoroughly discussed in our July 17, 2001 Order, the Montana court had neither “continuing jurisdiction” nor “pending jurisdiction” over custody as contemplated under the PKPA. Cox, at 159-161. We found Montana did not have “continuing jurisdiction” under the PKPA because the minor child, Kathleen, and Eugene no longer resided in Montana. Id. at 160. Finding that the Montana court no longer had “continuing jurisdiction,” we next analyzed whether the Montana court had “pending jurisdiction.” Id. at 160-161. In our order, we found Montana had made a final custody determination on September 11, 2000, transferring the minor’s custody to Eugene. Id. at 160. Judge Mizner claims the Montana court never lost jurisdiction because an enforcement action against Kathleen was pending in Montana. July 22, 2002 Order at 2. However, we specifically found that there was no action pending in the Montana courts that affected a custody determination as that term is used under the PKPA. Cox, at 161. We found that Judge Mizner had made his final custody determination and any action pending at the time was wholly separate from a custody determination. Id. Because Montana had neither “continuing” nor “pending” jurisdiction, we found Montana had lost jurisdiction. Id.

 

After determining Montana had lost jurisdiction, we undertook a comprehensive analysis of whether we had jurisdiction under the PKPA and determined that we did, in fact, have jurisdiction under PKPA. Id. at 161-162. Judge Mizner mischaracterizes our order claiming by its reasoning we are allowed to review any other jurisdiction’s custody determination if the parties are present in American Samoa. July 22, 2002 Order at 2. In reading our decision, it is readily apparent that we went to great lengths to comply with the PKPA’s mandate.

 

[4] We believe Judge Mizner’s reading of our July 17, 2001 Order and the PKPA was flawed. We find that his July 22, 2002 Order purporting to enforce the earlier Montana decree (which had been superseded by our July 17, 2001 Order) and to modify the earlier Montana decree to grant grandparents’ rights is invalid. We have no obligation to give an order that was made inconsistently with the PKPA full faith and credit and, indeed, refuse to do so.3 See, e.g., Thompson v. Thompson, 484 U.S. 174, 175-76 (1988); In the Matter of Smith, 549 So.2d 103, 104 (Ala. Ct. App. 1989).

 

3 Because the Montana order fails to comply with the PKPA, we are not

 

required to give it full faith and credit as a foreign judgment as that term

 

is defined in section 43.1702 of the American Samoa Code Annotated.

 

A.S.C.A. § 43.1702 (“In this chapter, “foreign judgment” means any

 

judgment, decree or order of a court of the United States or of any other

 

court which is entitled to full faith and credit in this Territory.”).

 

148

 

Order

 

Kathleen’s motion for judgment on the pleadings is granted.

 

It is so ordered.

 

Niupulusu v. American Samoa Gov’t


 

NE`EMIA NIUPULUSU, Defendant/Appellant,

 

v.

 

AMERICAN SAMOA GOVERNMENT, Appellee.

 

High Court of American Samoa

 

Appellate Division

 

AP No. 02-02

 

June 28, 2004

 

[1] Under A.S.C.A. § 46.1303, the court may order a mental examination of a defendant upon motion of the defendant or the government, or upon the court’s own motion, at any time before judgment. A.S.C.A. § 46.1304(b) states: “Unless otherwise specified by the court, the scope of the examination pertains to whether: (1) the defendant is mentally competent to stand trial; and (2) the defendant was sane at the time of the commission of the criminal act charged.” Under American Samoa law, persons are presumed to be sane and mentally competent. A.S.C.A. § 46.1306(a).

 

[2] Evidentiary rulings are reviewed for an abuse of discretion. Even where the ruling was incorrect, the conviction will not be reversed unless a substantial right of the party is affected. T.C.R.Ev. 103(a).

 

[3] Hearsay is an out-of-court statement offered for the truth of the matter asserted. T.C.R.Ev. 801(c). However, a statement is not hearsay where it is “made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” T.C.R.Ev. 803(4).

 

[4] Although the identity of the perpetrator generally does not fit within the hearsay exception, a child victim’s statements about the identity of the perpetrator are admissible under the medical treatment exception when they are made for the purposes of medical diagnosis and treatment. Because sexual abuse can inflict psychological and emotional injuries, as well as physical injury, the course of treatment may be dictated by whether the perpetrator is a relative of the victim.

 

[5] Sufficient evidence exists if, viewing the evidence in a light most favorable to the government, and drawing all reasonable inferences in 68

 

favor of the jury’s verdict, a reasonable jury could have found all elements of the offense beyond a reasonable doubt.

 

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, TASHIMA,** Acting Associate Justice, LOGOAI, Chief Associate Judge, and TAPOPO, Associate Judge.

 

Counsel: For Appellant, Bentley C. Adams, III, Assistant Public

 

Defender

 

For Appellee, Frederick J. O’Brien, Assistant Attorney General

 

OPINION AND ORDER

 

Defendant Ne`emia Niupulusu was convicted by a jury of inappropriately touching his daughter, and he appeals. He challenges three rulings by the Trial Division: (1) the denial of a court ordered mental examination of the defendant; (2) the admission of testimony under a hearsay exception; and (3) the denial of a motion to dismiss each count of the indictment for lack of sufficient evidence.

 

Background

 

On March 19, 2001, Defendant’s wife, Tofoi Niupulusu (“Tofoi”), reported to police that Defendant had molested their ten-year old daughter (“victim” or “daughter”). (Trial Tr. at 54.) Defendant was arrested the next day (Resp. to Def.’s Mot. for New Trial at 2), and charged with three counts of Child Molestation and three counts of Incest for conduct occurring on or about January 1, 2001, sometime during the month of February 2001, and March 2, 2001. (Trial Tr. at 5-7.)

 

Before trial, defense counsel filed a motion requesting “a mental examination of the appellant by a psychiatrist or other person medically or otherwise qualified to give an opinion of the appellant’s mental condition to determine whether the appellant is mentally competent to stand trial and whether the appellant was sane at the time of the commission of the criminal acts charged in the . . . information.” (Appellant’s Br. at 4.) In support, defense counsel argued at a hearing on the motion that the victim had told him that defendant had exhibited bizarre behavior such as walking around, yelling and screaming. (Arraignment Transcript (“Arr. Tr.”) at 4.) Defense counsel also argued

 

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of Interior.

 

** Honorable A. Wallace Tashima, Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of Interior.

 

69

 

that Defendant currently receives Social Security benefits because of his mental condition. (Arr. Tr. at 3-4.) Defense counsel acknowledged that defendant had been found competent to stand trial by a psychiatric nurse, Maelega Amani, R.N., whom the government claims was the only mental health care professional at the LBJ Hospital following the retirement of Dr. Malaefou Elisaia. (Resp. to Def.’s Mot. for New Trial at 2.) The Trial Division denied the motion, ruling that Defendant did not show he was unable to assist in his defense. Niupulusu v. American Samoa Gov’t, CR No. 19-01, Order denying Motion for Mental Examination at 3 (Trial Div.).

 

Defendant also filed a pretrial motion in limine to exclude testimony of Dr. Ianeta Timoteo, an OB/GYN resident who had examined the child at the behest of police, that the child had identified her father as the perpetrator. (Trial Tr. at 16.) The motion alleged that the testimony did not fit the hearsay exception for statements made to a physician because the identity of the perpetrator was not relevant for diagnosis or treatment. (Id. at 17.) The Trial Division denied the motion. (Id.)

 

At trial, the government called four witnesses: the victim; Tofoi; Defendant’s son Ne`emia Sonny Niupulusu Jr. (“Sonny”); and Dr. Timoteo. Defendant’s daughter testified that on the afternoon of January 1, 2001, while she watched television with her brother, Defendant fondled her vagina. (Trial Tr. at 35.) Later that night, while she, her siblings and her mother slept in an adjacent house on the property, she said that Defendant touched the inside of her vagina with his hand. (Id. at 36, 47.) She also testified that Defendant had touched her in February (Id. at 37), and that she told her mother about the touching in mid-March, when her mother had asked her to report if “someone does a bad thing to [her].” (Id. at 38.) She also said that after Defendant’s arrest he spoke to her twice about her upcoming testimony, saying “to come and say this is all a lie.” (Id. at 49.) On cross-examination, however, she testified that they had slept in the adjacent house, rather than the main house, because “[defendant] and my mother argued when he was asked why he did this to me.” (Id. at 48.)

 

Tofoi said that she asked her daughter about any improper touching after overhearing Defendant talk about “Noah and Abraham” and say “it’s best for the father to go to his own daughter instead of a different person because he would shoot that person.” (Trial Tr. at 52-53.) After Tofoi took her to the police station, police officers took the child to the hospital. (Id. at 54.) Tofoi testified to being unemployed, but supported by Defendant’s and the children’s Social Security checks. (Id. at 59.) She also stated that she and the children left Defendant “[m]any times. I would say over 20 times.” (Id. at 60.) While visiting Defendant at the jail, Tofoi said that she had heard Defendant tell the victim to say it was all a lie. (Id. at 57.)

 

70

 

Sonny testified to overhearing Defendant mutter to himself that “it’s better that he was going to his own daughter than other men doing it to his own daughter” (Trial Tr. at 65), and to hearing him tell his daughter to say that it was a lie (Id. at 68).

 

Dr. Timoteo testified that she found no lacerations or bruising of the genitalia, but was unable to feel the child’s hymen. (Id. at 24-25.) Regarding the importance of the perpetrator’s identity, the prosecutor engaged in the following exchange with Dr. Timoteo:

 

Q: Now when you’re confronted with a situation where a child alleges that someone is responsible for his or her condition, is the identity of that person relevant to your diagnosis and treatment decisions?

 

A: Yes, it is.

 

Q: And why is that, doctor?

 

A: Because sometimes we have to record that in the record. Everything that’s told by the patient has to be recorded.

 

Q: In a case where sexual abuse is alleged, do you have any duties that come about with such allegations?

 

A: It is my duty to get the story from the patient and then look for any sign to corroborate this story that the patient has told.

 

Q: And is it - when you’re dealing with a child, is the child’s emotional condition relevant to your treatment decision?

 

A: Yes, it is.

 

Q: And in a case where after examination you conclude that a child has been sexually abused, do you have a duty to report it to anyone?

 

A: Yes.

 

(Trial Tr. at 22.) Dr. Timoteo then testified that the child had said that her father had been fondling her private parts since New Year’s Day by inserting his fingers in her vagina. (Id. at 26.) Dr. Timoteo opined that her inability to feel the victim’s hymen would be consistent with her account of her father’s actions. (Id.)

 

When the government rested, Defendant moved for a dismissal of the charges for want of sufficient evidence, citing inconsistencies in the testimony of the child regarding counts one and two (relating to the January 1 conduct), her unspecific testimony regarding counts three and four (relating to the February conduct), and no testimony regarding counts five and six (relating to the March 2 conduct). (Id. at 69.) The prosecutor agreed that counts five and six had not been established, and the court granted the motion only as to those counts. (Id. at 70.)

 

The defense then presented the testimony of Niuapapa Taulapapa and Defendant. Taulapapa testified that he and Defendant had been together 71

 

drinking Samoan Kava until five or six in the morning on New Year’s Day. (Trial Tr. at 72.) Defendant testified that he never improperly touched his daughter or said that it was better for a father to go to his own daughter. (Id. at 84.) He explained that he had asked her about her testimony at the jail, but that she had said that she would say it was not true. (Id.) On cross-examination, Defendant did admit that he had referred to Abraham and Noah, explaining that when Tofoi asked if he “look[s] with desire . . . towards [his] children” he “sat there and suddenly I spurted this out. Abraham did this to his children.” (Id. at 88-89.)

 

The jury convicted Defendant on one count of Child Molestation and one count of Incest for his actions on January 1, as well as one count of each offense for his actions in February. (Id. at 112.) On October 24, 2001, he was sentenced to thirty years in prison on each count of Child Molestation and five years in prison on each count of Incest, with the sentences to run concurrently. Niupulusu, CR No. 19-01, Judgment and Sentence at 2 (Trial Div.).

 

Discussion

 

I. Motion for Mental Examination

 

Defendant argues that the Trial Division erred in denying his motion for a mental examination. Counsel sought a psychiatric examination for two reasons: (1) to determine whether Defendant was fit to stand trial and assist in the defense; and (2) to discover a possible defense of lack of criminal intent, from lack of ability to form an intent. He concedes that “admittedly there was little evidence of [Defendant’s] lack of competency at the time of trial,” but argues that there was considerable evidence that he suffered from a mental disability at the time of the crimes. (Appellant’s Br. at 5.) He cites his receipt of Social Security benefits for a mental disability, his trial testimony that Abraham and Noah had done it to their children and the victim’s statements to defense counsel that Defendant had acted bizarrely. The government has not filed an appellate brief, but contested Defendant’s motion for a new trial, which raised the same issue. There, the government argued that Defendant had been found to be fit for trial, that Defendant waived the defense of diminished capacity and that the Trial Division was within its discretion in denying the motion. (Resp. to Def.’s Mot. for New Trial at 4.)

 

The Trial Division’s ruling that Defendant was competent to stand trial is reviewed for clear error, United States v. Gastelum-Almeida, 298 F.3d 1167, 1171 (9th Cir. 2002), and its denial of a motion for a mental examination is reviewed for an abuse of discretion. United States v. George, 85 F.3d 1433, 1437 (9th Cir. 1996).

 

72

 

[1] A.S.C.A. § 46.1303 provides: “The court may order a mental examination of a defendant upon motion of the defendant or the government, or upon the court’s own motion, at any time before judgment.” A.S.C.A. § 46.1304(b) states: “Unless otherwise specified by the court, the scope of the examination pertains to whether: (1) the defendant is mentally competent to stand trial; and (2) the defendant was sane at the time of the commission of the criminal act charged.” Under American Samoa law, persons are presumed to be sane and mentally competent. A.S.C.A. § 46.1306(a).

 

The U.S. Supreme Court has stated that the trial court must conduct an evidentiary hearing only where the evidence raises a “bona fide doubt” that the defendant is not competent to stand trial. Pate v. Robinson, 383 U.S. 375, 385 (1966). The defendant bears the burden of producing “substantial evidence” of his mental incompetency. Davis v. Woodford, 333 F.3d 982, 997 (9th Cir. 2003) (citation omitted).

 

Here, at the government’s request, Defendant was examined by Nurse Amani, whose testimony the Trial Division elected to consider pursuant to A.S.C.A. § 46.1306(b).1 Nurse Amani concluded that he was competent to stand trial, understood the charges against him, and could assist in his defense. (Amani’s Mental Status Report at 2.) Defendant presented no evidence to refute this finding, and admits on appeal that there is “little evidence” that he could not assist in his defense. Thus, the Trial Division did not clearly err in determining that Defendant was fit to stand trial.

 

Defendant also did not carry his burden of demonstrating that a mental examination was necessary. His receipt of Social Security benefits on account of a mental disability and counsel’s statement that the victim had observed Defendant acting oddly are not sufficient, standing alone, to demonstrate that the Trial Division abused its discretion in not ordering a mental examination. Nurse Amani concluded that Defendant understood the illegality of the charged conduct, and that “[h]e has denied the charges, claiming he cares about his daughter and would not do any such actions.” (Id.) Therefore, the Trial Division did not abuse its discretion in denying the motion for a mental examination.

 

It must be noted that, contrary to Defendant’s argument on appeal, the adverse ruling on the motion for a mental examination did not foreclose a

 

1 A.S.C.A. § 46.1306(b) states, in full:

 

In the sound discretion of the court, any evidence may be received relative to the defendant’s mental competence or sanity at any proceeding to determine that competence or sanity. Within this framework, traditional rules of evidence affect the weight, but not the admissibility, of evidence.

 

73

 

defense of diminished capacity. Defendant could have advised the government of his intent to present a defense of insanity consistent with T.C.R.Cr.P. 12.2(a) or (b), then requested a bifurcated trial. See Am. Samoa Gov’t v. Taylor, 19 A.S.R.2d 99 (Tr. Div. 1991). Whether Defendant committed the crimes alleged would have been determined in the first phase, and, if he were found guilty, a second phase would have occurred in which he could have presented evidence of his insanity or diminished capacity. Id. at 103-04.

 

II.Hearsay

 

Defendant contends that the government did not show that his identity was necessary to Dr. Timoteo’s diagnosis or treatment. Defendant argues that it is significant that police officers took the victim to Dr. Timoteo to obtain evidence, and that the error was not harmless because it unduly bolstered the victim’s testimony. In its response to Defendant’s motion for a new trial, the government asserted that the testimony was necessary for treatment, that the importance of the statements for law enforcement purposes does not render them inadmissible, and that the probative value outweighed any prejudicial effect.

 

[2] Evidentiary rulings are reviewed for an abuse of discretion. Old Chief v. United States, 519 U.S. 172, 174 n.1 (1997). Even where the ruling was incorrect, the conviction will not be reversed “unless a substantial right of the party is affected[.]” T.C.R.Ev. 103(a).

 

[3-4] Hearsay is an out-of-court statement offered for the truth of the matter asserted. T.C.R.Ev. 801(c). However, a statement is not hearsay where “made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” T.C.R.Ev. 803(4). Although generally the identity of the perpetrator does not fit within the hearsay exception, “a child victim’s statements about the identity of the perpetrator are admissible under the medical treatment exception when they are made for the purposes of medical diagnosis and treatment.” Guam v. Ignacio, 10 F.3d 608, 613 (9th Cir. 1993) (emphasis in original); see also George, 960 F.2d at 99 (admissible where “reasonably pertinent to diagnosis or treatment”). Because sexual abuse can inflict psychological and emotion injuries, as well as physical injury, the course of treatment may be dictated by whether the perpetrator is a relative of the victim. George, 960 F.2d at 99.

 

The doctor’s testimony was hearsay because it was offered to prove the truth of the statement, namely that Defendant committed the acts alleged. It was also a legitimate part of the medical history the doctor said she was required professionally and legally to ascertain in cases where a

 

74

 

child is examined in connection with a molestation investigation. The legitimacy of the taking of the medical history, however, does not answer the question of how much of what the doctor heard can be retailed to the jury.

 

Dr. Timoteo testified that the identity of the responsible party is relevant to the diagnosis and treatment “[b]ecause sometimes we have to record that in the record.” (Trial Tr. at 22.) Where sexual abuse is involved, she explained that she has a duty to determine whether the patient’s explanation of the injury can be corroborated, and, if she finds evidence of sexual abuse, to report it to the authorities. (Id. at 22.) Absent from Dr. Timoteo’s testimony is an explanation of how the identity of the abuser was “reasonably pertinent” to the diagnosis or treatment. See T.C.R.Ev. 803(4); see also George, 960 F.2d at 99. It is not sufficient that Dr. Timoteo had an obligation to record or report the perpetrator’s identity, or to corroborate the victim’s account of what had occurred, because those purposes do not relate to the course of treatment or diagnosis. Without connecting Defendant’s identity to the course of treatment or diagnosis, the statement should not have been admitted under the hearsay exception.

 

United States v. Joe, 8 F.3d 1488, 1495 (10th Cir. 1993), which the government cites in its response to Defendant’s motion for new trial, does not dictate a different result. There, unlike here, the physician testified that the identity of the sexual assailant influenced his recommendation of the victim’s after-care and counseling. Joe, 8 F.3d at 1495. The physician also said that it led him to give her the telephone number of the police department and refer her to a women’s shelter. Id.

 

Although inadmissible hearsay, Dr. Timoteo’s recitation of the victim’s statements did not affect a substantial right of defendant’s. See T.C.R.Ev. 103(a). The victim testified that her father molested her, and Tofoi testified that her daughter had told her of Defendant’s conduct. The daughter’s identification of her father as the perpetrator while being examined by Dr. Timoteo was, therefore, cumulative and did not “substantially sway” the jury’s conclusion, particularly given that the primary issue was not the identity of the abuser, but whether the abuse had, in fact, occurred. See United States v. Gabe, 237 F.3d 954, 958-59 (8th Cir. 2001); United States v. Norman T., 129 F.3d 1099, 1106 n.3 (10th Cir. 1997); Ignacio, 10 F.3d at 614.

 

Thus, the error in admitting Dr. Timoteo’s testimony that the victim identified defendant as the abuser was harmless.

 

75

 

III. Sufficiency of the Evidence

 

Defendant contends that there was insufficient evidence to support the jury’s verdict. He points to the contradictions in the victim’s testimony, such as the delay in reporting the sexual abuse, and to Tofoi’s influence and motivation to imprison him. The government’s response to the Defendant’s motion for a new trial did not discuss the sufficiency of the evidence.

 

[5] Sufficient evidence exists if, viewing the evidence in a light most favorable to the government, and drawing all reasonable inferences in favor of the jury’s verdict, a reasonable jury could have found all elements of the offense beyond a reasonable doubt. American Samoa Gov’t v. Tauala, 25 A.S.R.2d 179, 180 (Tr. Div. 1994); see also United States v. Diaz-Cardenas, 351 F.3d 404, 407 (9th Cir. 2003).

 

The trial court ruled that despite the somewhat degraded memory of the child about the actual times and places of the events she described, there was enough evidence that a crime had been committed, and that the Defendant was the perpetrator, to go to the jury. The daughter testified that Defendant had touched her vagina on January 1, 2001, and again during the month of February. (Trial Tr. 35-37.) A reasonable fact finder could credit this testimony, as well as Tofoi’s and Dr. Timeoteo’s, and conclude that Defendant had committed the acts alleged.

 

The jury’s verdict is supported by sufficient evidence.

 

Conclusion

 

Defendant’s conviction is AFFIRMED.

 

It is so ordered.

 

National Pacific Ins., Ltd. v. Commissione


 

NATIONAL PACIFIC INSURANCE, LTD, and WILLIAM REARDON LAW OFFICES, INC., Petitioners-Appellants,

 

v.

 

COMMISSIONER, ASG WORKMEN’S COMPENSATION COMMISSION, Respondent-Appellee,

 

____________________

 

WILLIAM REARDON, Real Party In Interest.

 

High Court of American Samoa

 

Appellate Division

 

AP No. 16-02

 

April 12, 2004

 

[1] In American Samoa, judicial review of workmen’s compensation awards is governed by A.S.C.A. § 32.0652(a).

 

[2] A workmen’s compensation award may be challenged by bringing an 21

 

action in the High Court against the Commissioner of the ASG Workmen’s Compensation Commission.

 

[3] Within judicial review of workmen’s compensation awards, errors of law can be reviewed and remedied by each level of the reviewing courts, but findings of fact are to be reviewed deferentially.

 

[4] The Workmen’s Compensation Commission’s findings of fact will be upheld if supported by substantial evidence.

 

[5] In reviewing a workmen’s compensation decision and determining whether substantial evidence exists to support such a decision, the test is whether a reasoning mind reasonably could have reached the factual conclusion that the Workmen’s Compensation Commission reached.

 

[6] The Workmen’s Compensation Commission’s findings of fact are reviewed in light of the entire record.

 

[7] If the record before the Workmen’s Compensation Commission contains evidence from which the Commission could have made the findings challenged on appeal, and if the Trial Division ruled in accordance with law, the reviewing court’s function is concluded.

 

[8] Where claimant testified that he suffered stress in preparing for the most difficult deposition in his twenty-seven year legal career, substantial evidence existed to support the Workmen’s Compensation Commission’s decision that claimant suffered work-related stress.

 

[9] Issues relating to private law practice, such as the stress inherent in practicing law, are within the competency of the Commission, as it is required to have one “law member.”

 

[10] The Workmen’s Compensation Commission is not obligated to receive evidence on an issue that is within its competency.

 

[11] Where party failed to object to the Workmen’s Compensation Commission’s ruling on evidence it would hear, and in fact expressed agreement with such ruling, it could not later cite such ruling as erroneous.

 

[12] A.S.C.A. § 32.0520 permits recovery of compensation benefits for injury to or death of employees arising out of and in the course of employment without regard to fault as to the cause of the injury or death.

 

 

 

Before KRUSE, Chief Justice, GOODWIN,* Acting Associate Justice, TASHIMA,** Acting Associate Justice, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Associate Judge.

 

Counsel: For Appellant, Stephen M. Rummage and Jennifer L. Joneson

 

For Appellee, Martin D. McCarthy, Assistant Attorney General

 

For Real Party in Interest, Jeff Waller1

 

OPINION

 

GOODWIN, Acting Associate Justice:

 

This appeal presents two questions: (1) whether the challenged award was supported by substantial evidence, and (2) whether the Trial Division followed the law in affirming it.

 

Background

 

On August 25, 1997, claimant William Reardon, an employee of William Reardon Law Offices, Inc., felt a severe headache while at work in his office preparing for an upcoming deposition. Shortly thereafter he lost consciousness. Upon being hospitalized, he was treated for hypertension and released. The next day, he was readmitted to the hospital after complaining of head-pain and dizziness. While in the hospital, he began to feel numbness on the left side of his body, which his treating physician, Dr. Aloiamoa Anesi, diagnosed as a stroke.

 

Reardon then went to Honolulu for specialized treatment, and on September 10, 1997, he filed a claim for workmen’s compensation benefits with National Pacific Insurance Company, Ltd. (“NPI”), the workmen’s compensation insurance provider for William Reardon Law Offices. NPI requested Reardon’s medical records, and, by letter dated December 22, 1997, denied the claim on the ground that the disability was not sufficiently work-related to fall within the coverage of the insuring engagements.

 

The claim proceeded to the Workmen’s Compensation Commission

 

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of Interior.

 

** Honorable A. Wallace Tashima, Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of Interior.

 

1 Counsel moved to strike the Appellant’s brief as untimely. The delay in filing the brief was explained as a good faith mistake in applying the appropriate rule, and the motion is denied.

 

 

 

(“Commission”), where hearings were held on May 20, June 24, and June 30, 2000. At the hearings, Reardon testified that he anticipated the August 25th deposition would be the most difficult of his twenty-seven year legal career. (Hr’g Tr. Day 1 at 28.) Dr. Anesi opined that the stressful conditions preceding the deposition triggered Reardon’s stroke. (Id. at 79.) In contrast, Dr. Satupaitea Rema Viali, an expert retained by NPI, attributed the stroke to Reardon’s smoking, alcohol use and hypertension, but not his stress. (Hr’g Tr. Day 2 at 44.)

 

Because Dr. Anesi had treated Reardon at the time of the stroke, the Commission relied on Dr. Anesi’s opinion in finding that the stroke “was triggered and accelerated by the stress condition [Reardon] experienced, emanated from his work and manifested in headaches and dizziness while working in his office.” (Id. at 5.) The Commission awarded Reardon workmen’s compensation benefits.

 

NPI appealed the award to the Trial Division of the High Court. After briefing and argument, the Trial Division affirmed the Commission’s award. Nat’l Pac. Ins. Co. v. American Samoa Gov’t Workmen’s Comp. Comm’n, CA No. 75-01, slip op. (Trial Div. May 15, 2002). NPI now appeals to this court.

 

Discussion

 

[1-2] In American Samoa, as in a number of other jurisdictions, judicial review of workmen’s compensation awards is governed by statute. The full text of A.S.C.A. § 32.0652(a) reads:

 

If not in accordance with law, a compensation order may be suspended or set aside, in whole or in part, through injunction proceedings, mandatory or otherwise, brought by any party in interest against the commissioner, and instituted in the High Court of American Samoa.

 

[3] The language “not in accordance with law” has produced volumes of litigation in the field of industrial accident and workmen’s compensation law. In sum, errors of law can be reviewed and remedied by each level of the reviewing courts, but findings of fact are to be reviewed deferentially.

 

U.S. Supreme Court Justice William O. Douglas, writing in an early case involving the question whether an injured workman was a harbor worker or a member of a vessel’s crew, had this to say about the power of federal courts to set aside, in whole or in part, compensation orders if not in accordance with law: “In considering those provisions of the Act in the Basset case, we held that the District Court was not warranted in setting aside such an order because the court would weigh or appraise the

 

 

 

evidence differently. The duty of the District Court, we said, was to give the award effect, ‘if there was evidence to support it.’” Norton v. Wainer Co., 321 U.S. 565, 568 (1944) (citation omitted).

 

[4-6] Likewise, the Commission’s findings of fact will be upheld if supported by “substantial evidence.” Cont’l Ins. Co. v. Workmen’s Comp. Comm’n, 8 A.S.R.2d 152, 155 (App. Div. 1988). Whether substantial evidence exists “is limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. This need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment.” Id. (citation and quotation marks omitted). The Commission’s findings of fact are reviewed in light of the entire record. Harris v. Comm’r of the American Samoa Gov’t Workmen’s Comp. Comm’n, 29 A.S.R.2d 184, 186 (Trial Div. 1996).

 

[7] If the record before the Commission contains evidence from which the Commission could have made the findings challenged in this appeal, and if the Trial Division ruled “in accordance with law,” our function is concluded.

 

NPI contests the sufficiency of the evidence to support the award, arguing that the record does not support Reardon’s account of his stress or Dr. Anesi’s opinion about the cause of the stroke. In response, Reardon and the Commission point to the evidence that supports the Commission’s award.

 

[8] The Commission found that Reardon was under work-related stress in the days preceding his stroke. (Comm’r Decision at 5.) This finding is supported by Reardon’s testimony that he was preparing for the most difficult deposition of his twenty-seven year legal career. The Commission could reasonably have relied on Reardon’s account of the events and also could reasonably have concluded that he suffered work-related stress.

 

NPI’s strenuous dispute that Reardon did not prove that he was under stress, and that he failed to prove that his condition was work-related, misperceives the function of an appellate court reviewing findings of fact. See Cont’l Ins. Co., 8 A.S.R.2d at 155 (“The lower court’s reference to factual conflicts upon which reasonable people may differ does not attempt to establish a new standard of review but rather explains the proper application of the ‘substantial evidence’ standard.”).

 

The principal issue before the Commission was whether Reardon’s paralytic onset was causally related to his work. The Commission found that Reardon’s stroke was triggered by the stressful conditions of his work, citing Dr. Anesi’s opinion. Dr. Anesi testified that Reardon’s hypertension, though elevated for ten years, was highest when he had 25

 

been treated in the emergency room on August 25, 1997. (Dr. Anesi’s Report May 20, 1999 at 2.) He concluded that Reardon’s stress, as well as his coping mechanisms and hypertension, “contributed to the development of acute increase in blood pressure which precipitated vasospasms causing significant ischaemia and right pontine infarction.” (Id. at 3.) The Commission, as the fact finder, was justified in relying on Dr. Anesi’s testimony that the stroke was caused, in part, by stress. See Palmer Coking Coal Co. v. Dir., Office of Workers’ Comp. Programs of U.S. Dept. of Labor, 720 F.2d 1054, 1058 (9th Cir. 1983) (“It is properly within the competency of the fact finder, not of the reviewing court, to credit or discredit evidence and to draw inferences from the credited evidence.”). Thus, substantial evidence exists in the form of Dr. Anesi’s report and his testimony to support the Commission’s finding on causation.

 

[9-11] As a procedural matter, NPI argues that the Commission erred in refusing to allow testimony from a local attorney, a litigator in private practice, about the level of stress inherent in practicing law. There was no error. In Cont’l Ins. Co., this court explained that the Commission “is purposely specialized in make up. [It] comprises a Commissioner, a medical member, a law member, a fiscal member, and an employee member.” 8 A.S.R.2d at 156 n.1 (citing A.S.C.A. § 32.0505(b)). The Commission is not obligated to receive evidence on an issue within its competency, as it recognized in ruling that “private law practice is private law practice.” (Trial Tr. Day 3 at 68.) Moreover, counsel for NPI accepted the Commission’s decision without objection, saying, “I have no problem with that.” (Id.) NPI cannot now cite as error a ruling with which it expressly agreed.

 

NPI also argues that American Samoa law requires a finding of “unusual stress,” and that the Commission did not make such a finding. Reardon and the Commission dispute NPI’s assertion that the Commission needed to find, or did not find, “unusual stress.”

 

NPI cites the Trial Division’s unpublished decision in Felise v. Workmen’s Comp. Comm’r, CA No. 27-93, slip op. (Trial Div. Dec. 12, 1996). There, the claimant suffered two minor strokes while at work, leaving him partially paralyzed. Felise, CA No. 27-93, slip op. at 1. The Commission denied his request for total disability benefits. Id. at 2. On appeal, the Trial Division affirmed, ruling that petitioner had presented no evidence of a causal relationship between his job stress and his strokes. Id. at 3-4. The court elaborated that “even had petitioner offered such evidence, he would also have to show that the stress inherent in his job is greater than that which all workers are occasionally subjected.” Id. at 4 (citing Pence v. McSwain, 623 N.E.2d 201, 203 (Ohio App. 1 Dist. 1993)).

 

[12] A.S.C.A. § 32.0520 permits recovery of compensation benefits for “injury to or death of . . . employees arising out of and in the course of employment without regard to fault as to cause of the injury or death.” American state courts are divided on whether “unusual stress” must be shown to recover benefits, with the majority not imposing the heightened standard. See 2 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 43.0311(2000); accord Mudd v. Neosho Mem’1 Reg’1 Med. Ctr., 62 P.3d 236, 241 (Kan. 2003). The U.S. federal courts that have construed the federal Longshoremen’s and Harbor Workers’ Compensation Act (“Longshoremen’s Act”) have not required a showing of unusual stress for recovery. See Wheatley v. Adler, 407 F.2d 307, 311 (D.C. Cir, 1968) (en banc) (“The law in this jurisdiction does not require any unusual stress, and contemplates awards so long as the death or injury results from activity in the course of employment.”); see also Mitchell v. Woodworth, 449 F.2d 1097, 1099 (D.C. Cir. 1971). Given that the American Samoa Workmen’s Compensation Statutes closely resemble the Longshoremen’s Act, these federal decisions are persuasive. See Haleck v. Scanlan, 4 A.S.R. 998, 1002 (App. Div. 1975).

 

Here, however, we need not decide whether unusual stress must be shown to recover, because the Commission’s opinion meets the heightened standard of unusual stress under Felise. Reardon presented substantial evidence that his stress preceding the stroke was atypical. In making its findings of fact, the Commission stated that Reardon had testified to being in a “very stress[ed] condition prior to and including August 25, 1997,” and that Dr. Anesi had found that Reardon was “under a lot of mental/emotional [stress] then prior to the incident.” (Comm’r Decision at 2, 3.) We cannot say that the stress inherent in taking a contentious deposition is no greater than the stress to which all workers are occasionally subjected. The question here was one of fact.

 

The compensation award is supported by substantial evidence and is in accordance with law. Accordingly, the Trial Division’s ruling is AFFIRMED.

 

So ordered.

 

Inc. v. Progressive Ins. Co


 

MAKRO (SAMOA), INCORPORATED dba METRO ENTERPRISES, an American Samoa Corporation, CHEN KUO YEN aka TONY CHEN, and CHEN WU MAN CHU aka CHRISTINE CHEN, Plaintiffs,

 

v.

 

PROGRESSIVE INSURANCE COMPANY (PAGO PAGO) LTD., an American Samoa Corporation, and DOES 1 THROUGH 10, inclusive, Defendants.

 

______________________________

 

PROGRESSIVE INSURANCE COMPANY (PAGO PAGO) LTD., Third-Party Plaintiff,

 

v.

 

MARK SOLOFA PACIFIC INSURANCE & FINANCE, INC., and MARK SOLOFA, MARK JASON SOLOFA, and NADINE SOLOFA-TAUFA`ASAU, individually and as employees of MARK SOLOFA PACIFIC INSURANCE & FINANCE, INC., MARK SOLOFA INC., Third-Party Defendants

 

High Court of American Samoa

 

Land and Titles Division

 

CA No. 56-99

 

June 17, 2004

 

[1] An answer to an interrogatory requesting reference to specific pages of a 400-page report is evasive when the answer refers to each and every page of the report.

 

[2] The Court may award expenses and attorney’s fees to the successful party in a motion to compel under T.C.R.C.P. 37(a)(4).

 

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

 

Counsel: For Plaintiffs, Paul F. Miller

 

For Defendants/Third-Party Plaintiffs, Roy J.D. Hall, Jr.

 

For Third-Party Defendants, David M. Vargas

 

189

 

ORDER GRANTING MOTION TO COMPEL

 

AND AWARDING SANCTIONS

 

Defendant Progressive Insurance Company (Pago Pago) Ltd. (“Progressive”) moves for an order compelling Plaintiff Makro (Samoa), Inc. d/b/a Metro Enterprises (“Makro”) to fully respond to its third set of interrogatories. Progressive also moves for an award of sanctions. Counsel for Progressive and for third-party Defendants were present at the June 14, 2004 hearing on this matter. Plaintiffs and their counsel were not present at the hearing nor did they respond to the motion to compel. For the reasons stated below, we grant Progressive’s motion to compel and award expenses.

 

On April 15, 2004, Progressive filed its third set of interrogatories. This consisted of one interrogatory requesting Plaintiffs to “[p]lease indicate the page numbers of each and every page of the attached report of Mark Hunsaker that represents inventory, stock or stock items that were in Makro (Samoa) Inc.’s Fagatogo building when it burned.” (See Def.’s Third Set of Interrogs. at 3.) This interrogatory followed other interrogatory requests by Progressive in which Progressive sought information regarding the value of the inventory at the Fagatogo store. Makro responded to these requests by referring to the Mark Hunsaker report.

 

On May 19, 2004, Makro filed its response claiming “[e]ach and every page of the report attached by Progressive represents some aspect, [sic] of the inventory, stock, or stock items that were in Makro (Samoa) Inc.’s Metro Store building when it burned. Some pages are more representative than others, as shown by comparing the first 42 pages to the remaining pages.” (See Pl.’s Answer to Progressive’s Third Set of Interrogs. at 2.) Progressive argues that Makro=s response to this interrogatory was insufficient.1 1 We note that there is no evidence the parties met and conferred before

 

Progressive brought the instant motion to compel discovery. Unlike the

 

Federal Rules of Civil Procedure, the Trial Court Rules of Civil

 

Procedure do not explicitly require the parties to meet and confer prior to

 

bringing discovery motions. Compare FED. R. CIV. PRO. 37(a)(2)(B)

 

with T.C.R.C.P. 37. The High Court seeks to conform to the Federal

 

Rules of Civil Procedure. See A.S.C.A. § 43.0201(a). The meet and

 

confer requirement forces the parties to discuss and possibly resolve the

 

disputed issue before running into court to seek relief. We encourage

 

parties to make use of this procedure before bringing discovery motions.

 

190

 

According to T.C.R.C.P. 33(c),

 

[w]here the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served . . . and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records form [sic] which the answer may be derived. . . .

 

In previous interrogatory responses, Makro has referred Progressive to Mark Hunsaker’s report. We do not have enough information to determine whether Mark Hunsaker’s report falls under this rule and is properly considered a business record of Plaintiffs. As such, Makro’s use of the report to answer previous interrogatory requests may have been inappropriate.2 However, Progressive is not challenging Makro’s use of the report in this motion but, rather, seeks a more complete response regarding where in the report the information is located.

 

[1] We believe Makro’s response directing Progressive to every single page of a 400 plus page report is evasive. See generally 7 JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE § 37.03 (3d ed. 1999); see also Sanyo Laser Prod., Inc. v. Arista Records, Inc., 214 F.R.D. 496, 500 (S.D. Ind. 2003) (finding responses vague and evasive when they refer the requesting party to “two Bates stamped documents and some documents produced to a third party as responsive”). Makro is better suited than Progressive to identify the specific pages that contain responsive information. In light of the circumstances of this case, Progressive’s motion to compel is granted.

 

[2] Progressive also requests Rule 37 expenses. According to T.C.R.C.P. 37(a)(4), if the moving party’s motion is granted, the court shall “require the party . . . whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses.” See also Johnson v. Coulter, 25 A.S.R.2d 84, 88 (Trial Div. 1993). Likewise, if the moving party’s motion is denied, expenses and attorney’s fees in opposing the motion may be awarded to the non-moving party. Id.

 

2 Even assuming Mark Hunsaker’s report does qualify as a business

 

record of Makro’s, Rule 33(c) requires the burden of finding the answer

 

to be the same on both parties in order for the answering party to use a

 

document in lieu of answering. We do not believe the burden in

 

ascertaining information regarding Makro’s inventory, stock or stock

 

records at the time the building burned down is the same for these

 

parties. Clearly, Makro is better suited to obtain this information.

 

191

 

In this case, we find an award of expenses to Progressive to be appropriate. Makro’s response was evasive, and it offered no opposition in response to Progressive’s motion to compel to demonstrate otherwise.

 

Order

 

Progressive’s motion to compel a complete answer to its interrogatory is granted. Makro shall answer Progressive’s Third Set of Interrogatories within 30 days of the entry of this order. Progressive’s motion for expenses is granted. Makro shall pay reasonable attorney’s fees and costs incurred by Progressive in the bringing of this motion. Counsel for Progressive shall submit his bill of fees and costs for the Court’s approval.

 

It is so ordered.

 

Mageo v. Neria


 

LELE & TEOFILO MAGEO, SAPATI M. TUFAGA, Claimants,

 

v.

 

VATAU TUFAGA GALEA’I NERIA, Objectors.

 

High Court of American Samoa

 

Trial Division

 

LT No. 02-03

 

March 3, 2004

 

[1] The court has the procedural flexibility “to act in each case in such manner as [the court] considers to be most consistent with natural justice and convenience.” A.S.C.A. § 3.0242.

 

[2] Where a party raises the issue of subject matter jurisdiction for the first time at the close of final arguments, and the opposing party has not had the opportunity to address jurisdiction, the principles of natural justice and convenience necessitate affording the court the option to reopen the record to afford the opposing party the opportunity to be heard on the issue, even if the court did not invoke this option at the close of parties’ evidence.

 

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

 

Counsel: For Lele & Teofilo Mageo, Marie A. Lafaele

 

For Sepati M. Tufaga and Objectors, Arthur Ripley, Jr.

 

ORDER REOPENING JURISDICTION

 

This matter was referred to the Land and Titles Division from the Territorial Registrar’s Office following claimant Lele and Teofilo Mageos’ (the “Mageos”) attempts to separate a proposed structure from

 

 

 

certain Tufaga family land. The senior matai, Tufaga Sapati (“Tufaga”), has sided with the objector, Vaatau Tufaga Neria (“Neria”) taking the position that the separation agreement presented by the Mageos for his signature was in fact obtained through the deceit of Lele Mageo. Tufaga seeks eviction of the Mageos.

 

The matter has gone to trial. However, it was only on final written arguments, given after the evidentiary hearing, that the Mageos have attempted to inject the issue of jurisdiction, arguing that a claimed leasehold from Tufaga to the Mageos should have been put before the Secretary of Samoan Affairs at the A.S.C.A. § 43.0302 hearings held in this matter. Because final arguments in this matter were directed to be in writing and filed simultaneously, and since the issue of jurisdiction was never before raised on the pleadings or by pretrial motion, neither Tufaga nor Neria have therefore had the opportunity to address jurisdiction.

 

[1], [2] Under A.S.C.A. § 3.0242, we have the procedural flexibility “to act in each case in such manner as [the court] considers to be most consistent with natural justice and convenience.” We deemed it consistent with the principles of natural justice and convenience that both Tufaga and Neria be afforded the opportunity to be heard on this issue. Moreover, the Territorial Registrar was off-island at the time of trial and the court had reserved the option of keeping the record open to call the Registrar upon her return to the Territory. The court did not invoke this option at the close of the parties’ evidence. However, in light of the jurisdiction issue now raised by the claimants at the close of final arguments, we deem it necessary to reopen the record on the issue of the claimed leasehold estate.

 

Accordingly, we order the following: (1) Tufaga and Neria shall have 20 days to brief the court on the issue of jurisdiction raised by the Mageos on final arguments. (2) The Territorial Registrar is ordered to appear before this court on April 16, 2004, to testify in the above-entitled matter; and to bring with her all records in her office pertaining to the Lease between Tufaga and the Mageos, pertaining to land “Lalolama,” recorded in LA-02 at page 79; together with any and all records, minutes, or transcriptions of proceedings before the Land Commission on the said leasehold; as well as any and all documented recommendations, transmission letter(s) to the Governor on the said leasehold.

 

It is so ordered.

 

Lualemaga v. Toia


 

SEMA FALEAFAGA LUALEMAGA, Claimant,

 

v.

 

TUALAUULU EUGENE TOIA, Counter-Claimant.

 

High Court of American Samoa

 

Land and Titles Division

 

MT No. 03-03

 

March 30, 2004

 

[1] Where a party testified her family is multi-clan, a gathering comprised only of immediate family did not qualify as a family meeting.

 

[2] Where a family has not met to consider the issue of matai succession, there can be no disputed claim properly before the High Court.

 

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

 

Counsel: For Claimant, Tauivi Tuinei

 

For Counter-Claimant, Salanoa Aumoeualogo

 

ORDER ON MOTIONS TO DISMISS

 

We have cross motions for dismissal. Counter-claimant Tualauulu E. Toia (“Toia”) moves to dismiss claimant Sema Faleafaga’s (“Faleafaga”) petition, on the grounds that she had offered the family’s matai title for registration before the family had even met to select a new matai. See A.S.C.A. § 1.0405(b); In re Matai Title “Taliaaueafe,” 3 A.S.R.3d 225 (Trial Div. 1999) (Order on Motion to Dismiss).

 

Faleafaga responded with her own motion to dismiss, arguing that Toia’s petition and counterclaim was non-responsive to her succession claim to the “Faleafaga” matai title, because Toia’s counterclaim refers to an “Aofaga” matai title.

 

Dealing first with Faleafaga’s motion to dismiss, we note that her petition adverts to the “Faleafaga/Aofaga” matai title as the subject of her succession claim. At the same time, the weight of the evidence presented suggests that the labels “Faleafaga” and “Aofaga” have in the past been interchangeable; and that they reference the same matai title in Amouli. Faleafaga’s motion is unfounded and, therefore, denied.

 

 

 

[1] On Toia’s motion to dismiss, we find that while certain members of the Faleafaga/Aofaga family had met to discuss the selection of a matai, those gatherings comprised only of Faleafaga’s immediate family; more specifically certain members of her clan. This hardly qualifies as a family meeting since Tuiasina Laumoli testified that the family is multi-clan.

 

[2] We further find that the alleged family meetings were not properly convened to ensure that all clans had adequate notice, in accordance with the customs of the Faleafaga/Aofaga family. Under these circumstances, where the family has not met to consider the issue of matai succession, there can be no “disputed claim,” properly before us. A.S.C.A. § 1.0409. See In re Matai Title “Taliaaueafe,” 3 A.S.R.3d at 225. As we previously noted:

 

Unless and until a family has had a meaningful opportunity to thoroughly confront the issue of matai succession and to decide for itself whether or not it can select a new titleholder, the Lands and Titles Division really has no business entertaining matai title cases.

 

Id. at 228-29. Toia’s motion to dismiss is granted, but without prejudice, so that the matter of selecting the next titleholder can be taken up by all the family’s clans.

 

Accordingly, all succession petitions currently before the Territorial Registrar pertaining to the matai title Faleafaga/Aofaga from the village of Amouli are dismissed without prejudice.

 

It is so ordered.

 

Letuli v. Leituala_2


 

 

PAT LETULI, substituted for OLO LETULI, Plaintiff,

 

v.

 

MARIA LEITUALA, PETER GEBAUER, M & N INC.,

 

PAULINE GEBAUER, MAPU JAMIAS, and

 

ILIGANOA SOGIALO, Defendants.

 

High Court of American Samoa

 

Land Titles Division

 

LT No. 20-01

 

June 30, 2004

 

[1] Under T.C.R.C.P. 59, reconsideration and new trial standards are identical—the Court may alter or amend judgment if it has made a manifest error of law or fact.

 

[2] The Court will grant a motion for a new trial in a non-jury case only when there has been a manifest error of law or mistake of fact.

 

[3] A party’s silence will work an estoppel if, under the circumstances, he has a duty to speak.

 

[4] Anyone who fails to object to a registration offer cannot later claim ownership of properly registered land.

 

[5] Failure to object to the boundaries described in a registration offer communicates approval of the offered boundaries to the person seeking registration.

 

[6] Constructive notice is just as effectual for the protection of the rights of the parties as actual notice.

 

[7] Due registration of an instrument relating to land or an interest therein shall be notice of the instrument’s contents.

 

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

 

Counsel: For Plaintiff, David P. Vargas

 

For Defendants, Asaua Fuimaono

 

 

 

ORDER DENYING MOTION FOR

 

RECONSIDERATION OR NEW TRIAL

 

We issued an opinion and order for this case on January 29, 2004. In that prior opinion, we considered the location of a boundary between two plots of land. One plot was originally registered to Olo Letuli (“Olo”), and the other plot was originally registered to Maria Leituala (“Leituala”). We held that a substantial portion of the boundary ran on the centerline of a road which the parties had mutually shared, that the parties had easements to use the road, and that the portion of the boundary located near four fales had moved. See the prior opinion and order for the factual background and legal discussion. Letuli v. Leituala, 8 A.S.R.3d 207 (Land & Titles Div. 2004).

 

Plaintiff Pat Letuli (“Letuli”), substituted for Olo, moves for reconsideration or new trial. Defendants Leituala, Peter Gebauer (“Gebauer”), M & N Inc., Pauline Gebauer, Mapu Jamias and Iliganoa Sogialo, (together “Defendants”), also move for reconsideration or new trial on other grounds. For the reasons stated below, we deny both motions.

 

Standard of Review

 

[1-2] Under T.C.R.C.P. 59, reconsideration and new trial standards are identical. We may alter or amend judgment if we have made a “manifest error of law or fact.” See, e.g., Knepp v. Lane, 859 F. Supp. 173, 175 (E.D. Pa. 1994). We grant a motion for a new trial in a non-jury case only when there has been a “manifest error of law or mistake of fact.” American Samoa Gov’t v. South Pacific Island Air Sys., Inc., 28 A.S.R.2d 170, 171 (Trial Div. 1995).

 

Discussion

 

At hearing, the parties represented that they primarily contest our findings of fact. We begin with Letuli’s issues and address them in numbered paragraphs, as offered to us.

 

1. Letuli contends that we erred in finding that Gebauer reserved a valid or legal easement or right of way over the road in a deed to Lisa Malae Theno dated December 20, 1996. We did not err. We concluded that Letuli failed to show sufficient evidence of agreement, acquiescence, or estoppel restricting the Defendants’ rights to the road. As we had multiple reasons for this conclusion, Gebauer’s conveyance did not by itself show the Defendants’ intent concerning their rights to the road.1 1 We find that “R.O.W.” on the map attached to the deed indicates a right

 

of way because the letters are placed on the depiction of the road in the

 

 

 

The rights to the road were not reserved; the Defendants had the rights and never intended to relinquish them. Moreover, we found the easement to be broad for the reasons stated in our prior opinion, so the transfer did not improperly exceed the scope of the easement.

 

2. Letuli contends that we erred in finding that the “1990 rock-wall” is where the lautalotalo plantings were located by Leituala to designate the boundary when, in fact, the lautalotalo plantings were located near the “1980 rock-wall” constructed on Olo’s behalf. We did not err. The “1990 rock-wall,” which we refer to as the fale wall, is located off of the road and near the four fales. The “1980 rock-wall,” which we refer to as the north roadside wall, is located next to the road at issue. There are lautalotalo plantings near the north roadside wall. However, we also found that there was vegetation, specifically lautalotalo plants, which antedated the fale wall and formed a line along where the fale wall now stands. We made this finding based on professional surveyor Lawrence P. French’s testimony and a 1984 aerial photo of the land taken prior to the construction of the fale wall in 1990.2 (Defs. Ex. 29.) The dividing line made of vegetation indicates that a change was recognized in that part of the boundary. (Id.)

 

3. Letuli argues that the court erred in finding that implicit with Olo’s registration of the land surveyed in 1971 was an acknowledgement that he did not own the disputed road, or only owned a portion of the disputed road. We did not err. Olo’s registration only described a claim for half of the road, as indicated by the November 17, 1962 survey of his land that he incorporated in his registration offer. (Ex. 1.) The actual survey attached to the registration is not drawn detailed enough to include the road and ambiguously mentions that the boundary at issue runs “along the road.” (Defs. Ex. 17 (description of land attached to Letuli’s registration offer, certified to be true copy Sep. 12, 2002).) However, the attached survey was “reduced and described by” the November 17, 1962 survey of Olo’s land, thereby incorporating the November 17, 1962 survey to describe the land offered for registration. (Id.) Also, the attached survey and the November 17, 1962 survey reference the same starting point, azimuths, and distances to describe the land. (Defs. Ex. 1; Defs. Ex. 17.) The November 17, 1962 survey depicts the boundary as running roughly down the center of the road. (Defs. Ex. 1.) Even if the November 17, 1962 survey of Olo’s land fails to depict the road accurately, we find that Letuli is bound by it because Olo incorporated it in his offer for registration. Furthermore, the other deed and because the finding is supported by testimony offered by the

 

Defendants.

 

2 The vegetation line is located underneath where the fale wall is

 

depicted on the photo overlay. The fale wall is depicted by a solid black

 

line and is labeled “ROCK WALL.”

 

 

 

surveys in evidence, offered by Letuli and the Defendants, consistently show that Olo could not claim the entire road, for the surveys depict the boundary lying on the road for significant distances. (See Pl. Ex. 1; Pl. Ex. 2; Defs. Ex. 2; Defs. Ex. 4 (attached survey to registration of land, Aug. 14, 1971); Defs. Ex. 7; Defs. Ex. 8; Defs. Ex. 12; Defs. Ex. 21 (attached survey); Defs. Ex. 28; Defs. Ex. 33.)

 

4. Letuli argues that we erred in finding a purposeful division of the road because both parcels of land were recorded around the same time. We did not err. We did not rely on the recording of the registrations but on the offering of the registrations.

 

5. Letuli argues that we erred in finding that failure to assert full ownership at the time of both registrations constitutes affirmative approval by Olo or Leituala of a reciprocal easement. We did not err, but should have been clearer. Our prior opinion should not be read to mean that the Olo and Leituala approved a reciprocal easement. We were not creating a new type of common law easement, which would be known as a “reciprocal easement.” Rather, we concluded that there were two separate easements, which we described as reciprocal because of the circumstances of their creation. Letuli has an easement by estoppel over the Defendants’ portion of the road. Conversely, the Defendants have an easement by estoppel over Letuli’s portion of the road.

 

[3-5] We found affirmative approval of each easement from Letuli’s and Leituala’s failure to act when obligated. “A party’s silence, for example, will work an estoppel if, under the circumstances, he has a duty to speak.” United States v. Georgia-Pacific Co., 421 F.2d 92, 97 (9th Cir. 1970). Anyone who fails to object to a registration offer cannot later claim ownership of properly registered land. Ifopo v. Siatu’u, 12 A.S.R.2d 24, 26 (App. Div. 1989). Therefore, failure to object to the boundaries described in a registration offer communicates approval of the offered boundaries to the person seeking registration. In this case, failure of Olo and Leituala to object to the land registration of the other communicated approval of the boundary along the center of the road. As discussed in our prior opinion, because the boundary lies at the center of the road, a communication of approval for the boundary also signals approval of the other’s use of the road.

 

[6-7] 6. Letuli essentially argues that we erred in finding that Olo failed to object to Leituala’s registration offer for part ownership of the road or to Leituala’s intent to permanently use the road, because Olo had no notice or knowledge of the fact of the survey and no contemporaneous knowledge that the land was being registered by Leituala upon which to base any such objections. We did not err, because Olo had constructive notice of the registration. Constructive notice “is just as effectual for the protection of the rights of the parties as an actual notice.” 66 AM. JUR. 279

 

2D Records and Recording Laws § 102 (1973). Furthermore, constructive notice “is based on the premise that a person has no right to shut his eyes or ears to avoid information and then say he had no notice.” 58 AM. JUR. 2D Notice § 8 (1989). After the filing of a registration offer, notice is published according to A.S.C.A. § 37.0103 and is available for inspection at the Office of the Territorial Registrar. Under A.S.C.A. § 37.0210, “due registration of an instrument relating to land or an interest therein shall be notice of the contents.” When the registrations became registered after following statutory publication requirements, Olo and Leituala had constructive knowledge of the other’s registration by statute.

 

Letuli’s contended lack of contemporaneous knowledge fails to compel reconsideration or a new trial. Notice of the registration was imparted by publication throughout the 60-day notice period as required by statute. Concurrently, approval of the boundary and easement was communicated by failing to object throughout the 60-day notice period. Upon due registration, we are able to find that Olo constructively had knowledge of Leituala’s boundary and easement, and had communicated his approval.

 

7. Letuli argues that we erred in finding that the Defendants did not acquiesce to Olo’s relocation of the boundary by building the north roadside wall because the evidence showed that the Defendants’ use of the road arose from Olo’s express permission and not as a result of a claim of entitlement or ownership. We did not err. We balanced the available evidence and found the evidence indicating that the boundary had not moved to be more credible and convincing. Furthermore, as Olo owns a portion of the road, his permission to use the road acts to affirm the established easement and does not demonstrate intent to move the boundary.

 

8. Letuli argues that we erred in concluding that the parties recognized a boundary that lies along where the fale wall is currently located. Our conclusion was correct for the reasons stated in our prior opinion.

 

9. Letuli argues that we erred in finding that the common boundary between the parcels is a reasonable approximation of where the original surveyors located the boundary. We did not err. After searching for the boundary intended by the parties that divided the land, we found that the expert witness surveyors could not accurately locate the boundary between the land plots. As a result, we were forced to determine the location of the boundary. We reasonably determined the boundary to follow the centerline of the road. In making our determination, we considered the evidence presented at trial, primarily surveys and testimony. (Pl. Ex. 1; Pl. Ex. 2; Defs. Ex. 2; Defs. Ex. 1; Defs. Ex. 4; Defs. Ex. 7; Defs. Ex. 8; Defs. Ex. 12; Defs. Ex. 17; Defs. Ex. 21; Defs.

 

 

 

Ex. 28; Defs. Ex. 33.) The surveys show the boundary line lying on the road for significant distances. We find the two 1962 surveys particularly convincing, because they are the first-in-time surveys offered in evidence and are incorporated by reference in both Olo’s and Leituala’s land registrations. (Defs. Ex. 4; Defs. Ex. 17.) Both 1962 surveys depict the boundary as running roughly down the center of the road. (Id.) Though the depiction of the road in the surveys may be slightly inaccurate, we find the weight of the surveys determinative of the boundary being on the road, making it fair to divide the road in half for the reasons stated in our prior opinion.

 

10. Letuli argues that we erred in concluding that both Olo and Leituala obtained easements by estoppel over their respective un-owned portions of the disputed road. We disagree. Based on the evidence presented at trial, and discussed in our prior opinion and here, we find all of the elements for two easements by estoppel. Land registration does not normally evidence the creation of easements; yet, the circumstances here compel the conclusion that the parties have easements by estoppel.

 

As for the Defendants’ arguments, we did not err in finding no interference with business or in declining to order removal of the north roadside wall. The Defendants fail to give any argument stating why our decision concerning their interference with business claim is wrong. Leaving the wall in place is proper for the reasons stated in our prior opinion. Furthermore, the Defendants’ arguments concerning equitable and practical reasons for moving the wall are meritless, because the road has been used with the wall in place for years without objection from any of the defendants.

 

Order

 

1. Letuli’s motion for reconsideration or new trial is denied.

 

2. The Defendants’ motion for reconsideration or new trial is denied.

 

It is so ordered.

 

 

 

Letuli v. Leituala_1


 

 

 

PAT LETULI, substituted for OLO LETULI, Plaintiff

 

v.

 

MARIA LEITUALA, PETER GEBAUER, M & N INC.,

 

PAULINE GEBAUER, MAPU JAMIAS, and ILIGANOA SOGIALO, Defendants

 

High Court of American Samoa

 

Land and Title Division

 

LT No. 20-01

 

January 29, 2004

 

[1] The location of a plot’s boundaries is controlled by the intention of the parties that divided the land at the time of the division. When determining the correct boundaries of land parcels, the Court may consider different surveys of the land, monuments referenced by the surveys, physical landmarks, direction and distance, and overall area. The location of a boundary line will be judicially determined where the relevant surveys are inconsistent or conflicting and cannot be explained by available evidence.

 

[2] An easement or license by estoppel is created when a representation is communicated by a party, and is believed and relied upon by another party. The representation creating easement must be made by statements or conduct; passive acquiescence does not constitute a possible representation creating an easement.

 

[3] Each party has an obligation to object not only to the other’s registration offer for part ownership of the road, but to the other’s intent to permanently use the road. Failure to assert full ownership of the road at the time of both registrations constitutes affirmative approval by both landowners of a reciprocal easement that allows both landowners to use the road.

 

[4] The scope of an easement not defined by a grant is limited to uses as might reasonably be required by normal development of the land.

 

[5] Where use of an easement is shared, the costs of repair and maintenance should be equitably distributed among all users proportionately to the approximate usage of each user. Necessary and reasonable repairs must be made so as not to unduly burden the servient tenants.

 

 

 

[6] Before giving legal effect to land division by agreement, acquiescence, or estoppel, the Court looks for express or implied intent of the landowners involved for the division to serve as the boundary between lands.

 

[7] When a common right of way is shared, a party should not interfere with the other’s improvements of the right of way.

 

[8] Among other elements, there must be a showing of malice before holding a party liable for interference.

 

[9] Court costs are allowed to the prevailing party as a matter of course unless the Court otherwise directs.

 

[10] The general rule is against recovery of attorney’s fees by a party that incurs them in enforcing a claim against another. Unless parties contractually agree to pay attorney’s fees, attorney’s fees are awarded only in instances where required by statute, or where an opposing party has acted wantonly, oppressively, or in bad faith. Where no legal basis for an award of attorney’s fees has been stated, a party’s application for such fees is denied.

 

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

 

Counsel: For Plaintiff, David P. Vargas

 

For Defendants, Asaua Fuimaono

 

OPINION AND ORDER

 

The original Plaintiff Olo Letuli (“Letuli”)1 commenced this action to recover damages for multiple past trespasses and to permanently enjoin future trespasses across a road he alleges to be within his registered individually owned land (“Letuli land”) in Fogagogo, American Samoa. Defendants Maria Leituala (“Leituala”), Peter Gebauer (“Peter”), M & N Inc. (“MNI”), Pauline Gebauer (“Pauline”), Mapu Jamias (“Mapu”), and Iliganoa Sogialo (“Iliganoa”) answered, alleging that the road is open to public use, but is actually on or at least partially on land originally registered as the “family land of Leituala Maria” (“Leituala land”). MNI, Pauline, Mapu, and Iliganoa also counterclaimed against Letuli for damages for lost income due to Letuli’s actions delaying the opening of their business on Leituala land. The ultimate issue is the location of the

 

1 Letuli passed away on July 22, 2003. On December 12, 2003, pursuant

 

to T.C.R.C.P. 25(a), Pat Letuli, his surviving spouse and as his personal

 

representative, replaced him as the party Plaintiff. References below to

 

Letuli are to include Pat Letuli where contextually required.

 

 

 

original boundary between the Letuli land and the Leituala land.

 

Trial was held on January 16, 17, 22, and 30, and February 5, 2003. The principal individual parties and both counsel were present on these trial days. The Court viewed the land at issue in the presence of these parties and both counsel on January 22, 2003. Due to Letuli’s illness, however, a date to take his rebuttal testimony and conclude the trial was postponed. The parties eventually resolved this impasse by filing Letuli’s affidavit in lieu of his personal presence. Counsel also agreed to submit written final arguments, and the Court established a schedule for this purpose.

 

Findings of Fact

 

The Letuli land is located immediately to the south of the Leituala land in Fogagogo, American Samoa. Both parcels are situated a relatively short distance east of the southerly end of the Pago Pago International Airport and have ocean shoreline boundaries at their east end. The common boundary between the parcels is the principal issue to resolve. The location of the boundary will in turn determine whether the road at issue is located within the Letuli land or the Leituala land, or partially within each parcel, and the consequential judicial relief flowing from the road’s location. Though the family relationship does not alter these determinations, we note that Letuli and Leituala are blood relations.

 

Letuli lived on the Letuli land with other family members from approximately 1926 until he pursued a career outside the Territory in the entertainment field near the beginning of the World War II era. He returned around 1962 and lived on the same land. In November 1962, Letuli had the Letuli land surveyed, totaling approximately 44.32 acres. On March 26, 1971, he offered to register the surveyed Letuli land as his individually owned land in 1971. The offer was met by several objections. Ultimately, however, on December 1, 1972, this Court determined that the Letuli land was Letuli’s individually owned land and ordered its registration as such.

 

In May 1971, Suapilimai T. (“Suapilimai”), on Leituala’s behalf, had the Leituala land surveyed, totaling approximately 5.933 acres (“the Leituala land”). On May 11, 1971, Suapilimai offered to register the Leituala land. On August 14, 1971, after completion of the registration process, the Leituala land was registered as the “family land of Leituala Maria.” Despite the “family land” characterization of the registrant in the certificate of registration, the evidence clearly shows, at least for purposes of this action, that the registration was intended to be for Leituala as her individually owned land. The history of the Leituala land before registration was not developed in the evidence, but apparently the area was unoccupied up to that event. Three subsequent transactions 220

 

affecting the Leituala land are particularly relevant to the present controversy.

 

The first transaction was a lease. On April 28, 1993, Leituala leased approximately 2.2 acres of the Leituala land to Peter for a term of 99 years, “commencing on May 1, 1993, and ending on April 31, 2092” (“the leased land”). The rent was initially $100.00 per month, but was increased to $500.00 per month for the remainder of the term upon any commercial use of the leased land. The leased land is situated at or near the east end of the Leituala land. The survey attached to the lease shows that approximately 95.82 feet of the southern boundary of the leased land at the southwest corner abuts the road at issue. This corner area of the leased land is near the point where Letuli maintains a gate across the road and a guardhouse, and the road turns soutward towards Letuli’s home on the Letuli land.

 

Peter and Iliganoa were a married couple in 1993. Pauline is their daughter. They divorced on December 6, 1996, and Peter’s leasehold was awarded to Iliganoa in trust for the benefit of their three children as part of the division of their marital property.2 After the divorce, Iliganoa, Mapu and Pauline (together “the three owners”) organized and own MNI, which now conducts the business known as the Maliu Mai Beach Resort on the leased land. MNI and the three owners want to have customers and others enter and leave the Beach Resort from the road at issue immediately west of the gate and guardhouse. In addition to the main structure of the Beach Resort, MNI also constructed four small Samoan style houses or fales as part of the Resort facilities immediately north of where Leituala, Iliganoa, Mapu and Pauline believe to be the location of the southern boundary of the leased land and the Leituala land in this area.

 

The Beach Resort operation is the principal catalyst of the present controversy between the parties. Letuli disliked the existence of a nightclub in this area in general, and the noise emanating from and late-hour operations of the club in particular. He also claims that the four fales, or portions of them, are on the Letuli land. He therefore vigorously opposed MNI’s variance application submitted to the Zoning Board of American Samoa on September 2, 1999. Eventually, by a decision issued on October 4, 2001, the Zoning Board gave final approval of the variance for a three-year period, with certain conditions. The conditions pertained to parking facilities, midnight closure, security for patrons and neighbors, proper sewage disposal, no use of strobe lights, no traffic access to the business premises across the road at issue, 2 We take judicial notice of the divorce action before this Court, DR No.

 

35-95. The decree, granting Iliganoa a divorce from Peter and providing

 

for division of their property, was entered on December 6, 1996.

 

 

 

no noise audible at Letuli’s residence, and compliance with all applicable laws. Not entirely satisfied with the situation, Letuli brought this action on October 26, 2001, to address his continuing concerns. He wants the road declared to be his private road and access to the Beach Resort over it permanently enjoined. He also wants the fales entirely removed from the Letuli land. On the other hand, MNI and the three owners seek public access to the Resort across the road and lost income caused by the substantial delay in opening the Beach Resort as a result of the Zoning Board proceedings.

 

The second transaction was a conveyance. Also on April 28, 1993, Leituala conveyed approximately 1.404 acres of the Leituala land to Peter and his heirs (“conveyance area A”). The conveyance was registered as Peter’s individually owned land on May 19, 1993. The survey attached to the deed shows that conveyed parcel A is situated approximately 148.26 feet west of Peter’s leased land and abuts the road at issue for approximately 90.41 feet. Conveyance area A was awarded to Iliganoa in her divorce from Peter.

 

The third transaction was also a conveyance. Peter had acquired substantial portions of the Leituala land between the leased land and conveyance area A. On December 20, 1996, he sold approximately 0.403 acres of this area to Lisa Malae Theno and her heirs (“conveyance area B”).3 The survey attached to the deed shows that conveyance area B abuts the road at issue for approximately 136.76 feet from the leased land, leaving a strip approximately 12 feet wide between conveyance area A and conveyance area B to allow access from the road at issue to the area north of conveyance area B.4 Again, title to this area immediately north of conveyance area B was formerly in Peter’s name and was transferred to Iliganoa by the divorce decree. Unlike the silence in the deed of conveyance area A, the deed of conveyance area B included, without specificity however, “all the tenements, appurtenances thereunto belonging,” and the attached survey shows the letters “R.O.W.” marked on the road at issue, meaning “right of way.”

 

The road at issue runs in an east-west direction for approximately 800 feet. It essentially enables access to the ocean shoreline areas of both the 3 The divorce decree awarded the site of Iliganoa and Peter’s marital

 

home, their individually owned land also within the Leituala land, to

 

Iliganoa. The decree specifically authorized sale of their other

 

individually owned land as was necessary to provide funds to pay their

 

marital debts. Any such individually owned land not sold for this

 

purpose was awarded to Iliganoa in trust for the three children of their

 

marriage.

 

4 The registration date of the conveyance area B transaction, if it was

 

registered, is not in evidence.

 

 

 

Letuli land and the Leituala land. It was once a branch of a footpath system extending from Vaitogi at the westerly end to the Fogagogo area and then to and beyond the present Pago Pago International Airport area at the easterly end. The path system originated many, many years ago, long before vehicles appeared in American Samoa. It certainly existed long before and during the time Letuli first lived on the Letuli land.

 

Eventually, after vehicles were introduced, a road system began to be constructed in this part of the Territory. The road at issue is shown on Letuli’s 1962 survey. The present Pago Pago International Airport was first developed in late 1950s and early 1960s. A road, now commonly known as the airport road, was built from the airport terminal area westward to Ili`ili and beyond. Another road off the airport road towards and around the westerly end of the airport was also constructed and became connected with the road at issue. It also extended beyond this junction in a northerly direction, more or less parallel with the runway, for a short distance to allow access to the public sewage treatment plant. This road extension also enables access to private land in this immediate area, including the Leituala land, and is presently used as the primary means of reaching the Maliu Mai Beach Resort.

 

Letuli was instrumental in promoting development, including eventual paving, of the road to and around the westerly end of the airport. He also improved the road at issue for vehicular traffic in the 1960s and has since maintained and paved it. The extension of the road beyond the junction with the road at issue to the sewage treatment plant and to the Leituala land and other private land is still not paved.

 

The qualified, testifying professional surveyors cannot pinpoint the location of the boundary between the Letuli land and the Leituala land. The boundary is clearly near or on the road at issue. The two parcels and surrounding areas, including both the airport property and several other private properties, have been extensively surveyed. The surveyors agree that these various surveys have technical interrelationships for survey purposes. They also agree that the various surveys contain significant, presently irreconcilable errors that make accurate identification of the correct metes and bounds of the original boundary impossible.

 

Having the survey problems in mind, the testifying surveyors opined that the boundary may be entirely within the present road at issue. Pioneer roads, as the road at issue originally was, are readily subject to diversions in course due to common usage, weather influences, or other moderating circumstances, and likely occurred to some extent to this road. Thus, the surveyors also opined that the boundary could have been either entirely on the north or Leituala side, or on the south or Letuli side, or partially on either or both sides, of the present road. Looking to the original survey drawings of the Letuli land and the

 

 

 

Leituala land, it appears that the original surveyors intended to locate the boundary within or partially along the northern edge of the east-west stretch of the road as it existed in 1962 and 1971. In sum, the expert surveyors’ testimony does not of itself provide a definitive basis to locate the actual original boundary.

 

There are, however, several significant landmarks along the road at issue to also take into account. First, there are rock walls for extending distances along the north and south sides of the road at issue. Letuli installed and paid for these roadside walls, on the south side around 1968 and on the north side around 1980, when the housing utilized by the government was built. Second, an older north-side rock wall (“older wall”) and hedges still exist just north of a portion of the north roadside wall installed by Letuli. Finally, two coconut tree stumps and three fence pipes line up, more or less, along the portion of the road at issue adjacent to conveyance area A and conveyance area B.

 

The roadside walls, hedges, coconut stumps, and fence pipes fail to indicate where on the road at issue the boundary lies. The placement of the most significant landmarks, the roadside walls and hedges, occurred after the division of the land and the original surveyors’ work. The landowners could not place standard landmarks, such as walls, hedges, fence pipes, and coconut trees, on the road to protect their privacy and demarcate the actual land boundary. In order to keep the road useable, they had to put these landmarks on one side of the road or the other. In sum, the landmarks along the road do not of themselves provide a definitive basis to locate the actual original boundary.

 

Thus, even with possible movement, the road itself serves as the best landmark to indicate the boundary location. Around the time of the 1962 survey and before either party’s registration, the road’s position stabilized. In the 1960s, Letuli improved the road to accommodate for the vehicular traffic. Subsequent landmarks around the road, such as the south roadside wall, the older wall, and hedges, further fixed the road in its current position.

 

In closing our factual findings, we note one more relevant landmark. There is a rock wall (“fale wall”) immediately south of the four fales built by MNI and the three owners. Letuli had the fale wall erected at his cost in the early 1990s. The fale wall was constructed along a line of prior existing luatalotalo plants. Letuli claims, however, that the construction crew misunderstood or disregarded his instructions and located the fale wall south of the actual boundary of the Letuli land in this area, which induced the fale encroachments on his land.

 

 

 

Legal Analysis and Conclusions

 

I. Location of Boundary Along the Road

 

[1] The location of a plot’s boundaries is controlled by the intention of the parties that divided the land at the time of the division. 12 AM. JUR. 2D Boundaries § 2 (1997). When determining the correct boundaries of land parcels, we may consider different surveys of the land, monuments referenced by the surveys, physical landmarks, direction and distance, and overall area. See, e.g., Huff v. Brown, 23 A.S.R.2d 115 (Land & Titles Div. 1993). We will judicially determine the location of a boundary line where the relevant surveys are inconsistent or conflicting and cannot be explained by available evidence. See Gurr v. Scratch, 28 A.S.R.2d 15, 17 (Land & Titles Div. 1995).

 

We fairly and reasonably determine the common boundary between the Letuli land and the Leituala land to be along the center of the road at issue. Placing the boundary down the center of the road is a reasonable approximation of where the original surveyors located the boundary when the other landmarks do not conclusively show the boundary location. See Gurr, 28 A.S.R.2d at 17-18. Any variance between the true intended boundary and our determined boundary is slight and tolerable. The variance is slight, because the course of the road stabilized before the two land registrations. The variance is tolerable because placing the boundary down the road preserves the intent of Letuli and Leituala. Each landowner registered portions of land running the length of a significant portion of the road, so both sides desired some right to control the road’s usage. Whether owning half or a significant portion less than half of the road, partial ownership of the narrow road effectively gives each party the right to prevent others from using the road.

 

II. Easements On the Road

 

[2] An easement or license by estoppel is created when a representation is communicated by a party, and is believed and relied upon by another party. See Foster v. Olotoa, 3 A.S.R. 76, 81 (Trial Div. 1953). The representation creating an easement must be made by verbal statements or conduct; passive acquiescence does not constitute a possible representation creating an easement. Stallman v. Newman, 9 S.W.3d 243, 247 (Tex. Ct. App. 1999).

 

[3] After registration, both Letuli and Leituala had easements by estoppel to use the portion of the road that he and she did not own. Both individuals registered sections of land running on significant portions of the road, which was substantial enough to be marked on the 1962 survey. Offering to register these portions of road publicly demonstrated intent 225

 

to permanently use the unowned portions of the road, because neither could have intended to divide the road such that, potentially, neither side could use it. Both individuals needed some right to the full road to use it. Thus, each party had an obligation to object not only to dispute the other’s registration offer for part ownership of the road, but to object to the other’s intent to permanently use the road. Failure to assert full ownership of the road at the time of both registrations constitutes affirmative approval by both landowners of a reciprocal easement that allows both landowners to use the road. The two registration offers occurred within two months of each other, which implies a purposeful division, giving further evidence of an easement establishing intent by both parties.

 

Both landowners reasonably believed in good faith that they could use the road without restriction based on their successful registration and use of the road before and after the registrations occurred. Both landowners relied on having an easement by refraining from protesting when the other used unowned portions of the road for decades. Furthermore, Letuli paved the road and both land owners made substantial improvements on their land relying on accessibility by the road.

 

[4] We infer from the circumstances of this case that the scope of both Letuli’s and Leituala’s original easement includes access for purposes of the land’s commercial development. The scope of an easement not defined by a grant is limited to uses “as might reasonably be required by normal development of the land.” Le`i v. Letuli, 25 A.S.R.2d 33, 36 (App. Div. 1993) (citations omitted). The road has been traditionally open for public access. Letuli and Leituala each own significant portions the road. Letuli used the road for his own nightclub on the Letuli land. Because of this broad easement, we find that that Letuli and Leituala are estopped from denying the other authority to permit use of the road. Letuli cannot prevent Leituala from allowing MNI, Iliganoa, Mapu, Pauline, or Peter use of the road, even to support the traffic from a commercial establishment like Maliu Mai.

 

[5] Where use of an easement is shared, the costs of repair and maintenance should be equitably distributed among all users proportionately to the approximate usage of each user. Lindhorst, 616 P.2d at 453. Necessary and reasonable repairs must be made so as not to unduly burden the servient tenants. Id.

 

We note that MNI’s usage of the road in a commercial endeavor will far exceed the useage of others who share the easement. We find it equitable that MNI cover the costs of road maintenance and repair alone to keep the road in such a state of repair so as to not burden the users of the common right of way along the road. Our apportionment of the maintenance responsibility for the road is reasonable. We base our

 

 

 

decision on each user’s proportionate use. Calculating a percentage formula for repair liability with absolute precision is unnecessary. Lindworst v. Wright, 616 P.2d 450, 453, 455 (Okla. Ct. App. 1980). Also, we make this apportionment in consideration of Letuli’s prior unaided efforts to maintain the road.

 

III. Events Subsequent to Land Registration

 

Letuli argues that subsequent to the land registration, the boundary along the disputed road was moved to the north side of the road based on agreement, acquiescence, or estoppel. Letuli’s equitable arguments attempt to bind Leituala and her successors in title or leasehold to a boundary move, because Letuli was allowed to build the north roadside wall, improve the road, and encountered little or no opposition to other assertions of control over the road. Defendants counter, arguing that Letuli never asserted exclusive ownership of the road until the establishment of Maliu Mai, and that, as a successor in title of Leituala, Peter evidenced control over the road by granting a right of way along with the December 20, 1996 land sale. Considering both arguments, we find that the defendants with ownership or use interests in the road have not lost their interests in the road, but have given up their rights to remove the north roadside wall.

 

[6] Before giving legal effect to land division by agreement, acquiescence, or estoppel, we look for express or implied intent of the landowners involved for the division to serve as the boundary between lands. See Falefia v. Sipili, 7 A.S.R.2d 1, 3-4 (Land & Titles Div. 1988).

 

[7] Defendant landowners and occupiers never intended to move the boundary on the road and give up the right to use and grant permission to use the road. First, Defendants with an ownership or use interest in the road were obligated to let Letuli improve the commonly used road. When a common right of way is shared, a party should not interfere with the other’s improvements of the right of way. Lindhorst, 616 P.2d at 455. Without a prior agreement between the users of the road, Letuli made such improvements for his own benefit, with benefit going to his neighbors as a collateral effect. Second, Defendants’ continued to use the road and Peter granted an express easement on the road. Third, the north roadside wall serves as a privacy barrier desired by the Defendant landowners and occupiers. The roadside wall augments the privacy barrier that was intended when building the older wall and planting hedges along the road.

 

While retaining ownership or use rights of the road, Defendants with an ownership or occupant right to land along the road lost their right to have the north roadside wall removed. They acquiesced to the placement of the wall. They made no argument to remove the north roadside wall at 227

 

the time of construction or when arguing this case before us.

 

IV. Location of Boundary Along the Fales

 

Though we found no agreement, acquiescence, or estoppel regarding movement of the land boundary line along the road, we find that the boundary line from the disputed road towards the ocean traversing the length of the fale wall has moved. The parties had recognized a boundary that lies alongside where the fale wall is now. Leituala showed approval of this boundary division by not arguing for removal of the fale wall before us and by accepting the lautalotalo plants that antedate the fale wall as landmarks for the boundary. Letuli showed approval of this boundary division by constructing the fale wall along a boundary other than the true boundary and by failing to move it when he thought that it was misplaced. We are forced to assume that the boundary line has moved to a position closely tracing the fale wall on Leituala’s side of the wall.

 

V. Interference with Business

 

[8] MNI and the three onwers argue that Letuli tortiously interfered with their Maliu Mai business due to objections Letuli made before various American Samoa Government agencies. While the objections may have caused delay, they do not constitute tortious interference. Among other elements, we require a showing of malice before holding a party liable for interference. 45 AM. JUR. 2D Interference § 7 (1999). Letuli did not act with malice by making rightful and legitimate objections to government agencies.

 

VI. Costs and Fees

 

[9] Court costs are allowed to the prevailing party as matter of course unless the Court otherwise directs. T.C.R.C.P. 54(d); Pago Petroleum Prod. v. Ye Ahn Moolsoan, Ltd., 29 A.S.R.2d 34, 37 (Trial Div. 1995). Because our holding roughly restores the rights of the parties before the establishment of Maliu Mai, we find that neither side prevailed, so we award no costs to either party on the boundary issue. However, Letuli prevailed in defending against the interference claims. We award Letuli costs incurred concerning the interference claims.

 

[10] We deny both parties’ requests for attorney’s fees. The general rule is against recovery of attorney’s fees by a party that incurs them in enforcing a claim against another. Interocean Ships v. Samoa Gases, 26 A.S.R.2d 28, 41 (Trial Div. 1994). Unless parties contractually agree to pay attorney’s fees, we have awarded attorney’s fees only in instances where required by statute, or where an opposing party has acted wantonly, oppressively, or in bad faith. Fiaui v. Faumuina, 27 A.S.R.2d

 

 

 

36, 42 (Trial Div. 1994); Samoa v. Gibbens, 3 A.S.R.2d 121, 123 (Trial Div. 1986). Where no legal basis for an award of attorney’s fees has been stated, we have denied a party’s application for such fees. Samoa Products v. Pereira, 3 A.S.R.2d 45, 46 (Trial Div. 1986). The parties have no agreement on payment of attorney’s fees. Neither party has identified a statutory basis for awarding attorney’s fees. As discussed, we find none of Letuli’s actions constitute malicious tortuous interference. Similarly, parties must also pay the fees of their own expert witness surveyors.

 

Order

 

1. Boundary

 

Part of the northern boundary between the Letuli land and the Leituala land is reestablished as a line down the center of the disputed road between the two lands. The other part of the northern boundary now traces the Leituala side of the rock wall south of the fales at issue. A direct, north-south running boundary line connects the two parts of the boundary line. Within the next 120 days, the parties shall have this boundary resurveyed and recorded with the Territorial Registrar. Letuli shall pay half the cost of the resurvey, monumentation, and recordation; Defendants shall equally share the other half of the cost.

 

2. Easement

 

The land at issue originally belonging to Letuli is held subject to an easement of successors in title to the land at issue originally belonging to Leituala that allows use of the road at issue. The land at issue originally belonging to Leituala is held subject to an easement of successors in title or leasehold to the land at issue originally belonging to Letuli that allows use of the road at issue.

 

3. Interference with Business

 

Letuli is not liable for interference with the business operations of MNI and the three owners’ Maliu Mai Beach Resort. Letuli is entitled to court costs for defending against this claim, to be established with a properly submitted affidavit.

 

It is so ordered.

 

 

 

Leasau v. Paopao


 

LEASAU L. K. ESEROMA, Plaintiff,

 

v.

 

PAOPAO FARESA (County Chief of Fitiuta County), LUTU FUIMAONA (President of Senate), and LEFITI FA’AFETAI, Defendants.

 

High Court of American Samoa

 

Trial Division

 

CA No. 05-97

 

February 27, 1997

 

[1] The Revised Constitution does not allocate one senator to Ta’u County and another senator to Fitiuta and Faleasao Counties. Thus, for anyone from the Island of Ta’u to have a rightful claim to a Senate seat, the individual must be able to show that the Fitiuta, Faleasao and Ta’u County Councils—the three “county councils of the counties [the individual is] to represent”—had an opportunity to participate meaningfully in the election process.

 

[2] While the Revised Constitution does not specify those Samoan customs that govern the election of Senators, and the courts have been reticent to outline a single constitutionally permissible method for electing Senators, the court has provided some guidelines for distinguishing methods that are consistent with Samoan custom from those methods that are inconsistent with Samoan custom.

 

[3] When electing a senator, Samoan custom does not demand universal approval from the electoral body.

 

[4] Only the Senate can judge the results of a matai-senator’s election. REV. CONST. OF AM. SAMOA, art. II, § 22.

 

291

 

[5] The history of success of candidates from Ta’u County does not translate into a “Samoan custom” permitting Ta’u County to elect one of the two senators without discussing the matter with the County Councils of Fitiuta and Faleasao Counties.

 

[6] Even if the three counties of Ta’u Island had established and maintained a local practice that enabled the Ta’u County Council to elect its own senator, such a practice would be unconstitutional.

 

[7] The court will not make a mockery of the Constitution by suggesting that the Ta’u County Council alone can elect a senator to represent three counties, when the Constitution says that senators shall be elected by the “counties they are to represent.”

 

[8] The Senate is the exclusive and final judge of the results of an election of a senator.

 

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

 

Counsel: For Plaintiff, Marshall Ashley

 

For Defendants, Paopao Faresa, Henry W. Kappel, Assistant Attorney Gnereal

 

For Defendants Lutu Fuimano and Lefiti Fa’afetai, Arthur Ripley, Jr.

 

OPINION AND ORDER

 

On January 9, 1997, plaintiff Leasau L.K. Eseroma (“Leasau”) brought this action for a declaration that he is the duly elected Senator from Ta’u County and an injunction enjoining defendants Paopao Faresa (“Paopao”), Lutu Fuimaona (“Fuimaono”), and Lefiti Fa’afetai (“Lefiti”) from allowing Lefiti to serve as the Senator from Ta’u County. On February 11, 1997, this Court, pursuant to T.C.R.C.P. Rule 65(a)(2), consolidated the hearing on Leasau’s application for a temporary injunction with the trial on the merits. The Trial began on February 12 and was completed on February 18, 1997.

 

FINDINGS OF FACT

 

Ta’u County is located on the Island of Ta’u, which in turn includes the Villages of Luma and Si’ufaga and the Settlement of Amouli. Fitiuta County and Village and Falesao County and Village are also located on Ta’u Island.

 

Leasau and Lefiti are matai or “titled chiefs” from Ta’u County and

 

292

 

Village. On December 7, 1996, some but not all of the matai from Ta’u county and Village met in Ta’u Village to discuss the election of a senator from Ta’u County to the next Senate of the Legislature of American Samoa for the four-year term from 1997 to 2000. Ta’u County Chief Nua To’atolu (“Nua”) called the meeting. Lefiti and other high-ranking matai from Ta’u County and Village were not notified of the meeting, because Nua believed that the Ta’u County Council had “ousted” or “ostracized” these matai. Those matai invited to the December 7 meeting discussed at length the matter of the Senate election and ultimately agreed to support Lesau’s candidacy.

 

On December 14, 1996, the County Councils of Fitiuta, Faleasao and Ta’u Counties met in Fitiuta to discuss the election of senators to represent the three counties. The Fitiuta to’oto’o or “Manu’a orators” presided at this meeting. Present were Ta’u County and Village matai who had voiced support for Leasau at the December 7 meeting, as well as Lefiti and other allegedly “ousted” Ta’u County and Village matai. At one juncture, a matai in attendance suggested that Lefiti should hold one of the Senate seats. Nua objected, claiming that the “true” Ta’u County Council had selected Leasau at the December 7 meeting, and that Leasau must therefore be elected to the Senate seat traditionally reserved for Ta’u County. However, those present at the December 14 meeting continued to “share ideas” regarding the election of Senators. Toward the end of the meeting, to’oto’o Laapui from Fitiuta Village and County announced his perception that the three counties had decided to send Lefiti and Moaali’itele Tu’ufuli, a matai from Fitiuta County and Village, to the Senate. Nua, Leasau, and their supporters then left the meeting in protest over Lefiti’s election. The remaining council members discussed the matter further for a short period of time, and then Laapui reitereated his statement that the three counties favored Lefiti and Moali’itele as their Senators. Paopao, as the Fitiuta County Chief, was directed to certify to the Senate that Lefiti and Moali’itele had been elected by the three counties of Ta’u island. He was the only county chief who was present throughout the meeting.1

 

When Leasau later learned that Lefiti was preparing to take the Senate seat, Nua lodged objections with the Secretary of Samoan Affairs. Lutu, however, accepted Lefiti’s certification and placed Lefiti’s name on the Senate roll.

 

On the opening day of the Senate, Leasau arrived to take the Senate seat that he believed he possessed, but the Senate did not allow him to assume the seat that Lefiti occupied. This action followed. 1 The Faleasao County Chief did not attend the meeting. Nua left the

 

meeting before it concluded.

 

 

 

DISCUSSION

 

Article II, Section 4 of the Revised Constitution of American Samoa (“Revised Constitution”) prescribes the manner in which individuals are to be elected to the Senate of the Legislature of American Samoa. This section provides that “Senators shall be elected in accordance with Samoan custom by the county councils of the counties they are to represent, the number of senators from a county or counties to be as indicated: Fitiuta, Faleasao, and Ta’u, two senators; ….” Though Article II, Section 22 of the Revised Constitution grants the Senate exclusive authority to determine the results of an election occurred according to constitutional requirements. See Meredith v. Mola, 4 A.S.R. 773, 780 (Trial Div. 1973). Thus, we examine the narrow questions of (1) whether an election of senators was held on December 14, 1996 “by the county of councils of the counties they are to represent,” and (2) “in accordance with Samoan custom.”

 

[1] First, the Revised Constitution states that two senators shall represent the counties of Fitiuta, Faleasao, and Ta’u. The Revised Constitution does not allocate one senator to Ta’u County and another senator to Fitiuta and Faleasao Counties. Thus, for anyone from the Island of Ta’u to have a rightful claim to a Senate seat, the individual must be able to show that the Fitiuta, Faleasao and Ta’u County Councils—the three “county councils of the counties [the individual is] to represent”—had an opportunity to participate meaningfully in the election process. See Mauga v. Lutu, 10 A.S.R.2d 115, 120 (Trial Div. 1989) (rejecting the proposition that an electoral body can delegate election of a Senator to a sub-division); Meredith, 4 A.S.R. at 783 (requiring that matai from all villages participate in the election of a senator by the larger electoral body). In the present case, the county councils of Fitiuta, Faleasao and Ta’u Counties met on only one occasion—on December 14, 1996, in Fitiuta, and reached a decision on the next senators to represent the three counties.2

 

2 Since both of the Ta’u county councils factions had an opportunity to

 

participate meaningfully in the December 14 meeting, we need not

 

determine the membership of the “true” Ta’u County Council.

 

Nevertheless, we feel compelled to note that the deep rift between the

 

respective camps of matai is a profound tragedy, and a sad commentary

 

on the current state of the fa’a Samoa in the greater Village of Ta’u. We

 

concur in the opinion expressed in Meredith, that Senate election

 

disputes generally should “be settled by the county councils according to

 

the prevailing custom without litigation” and that “[w]hen the Court is

 

compelled to intervene,…county harmony is dashed and further disunity

 

fueled.” 4 A.S.R. at 783.

 

 

 

[2] Second, while the Revised Constitution does not specify those Samoan customs that govern the election of Senators, and the courts have been reticent to outline a single constitutionally permissible method for electing Senators, this Court has provided some guidelines for distinguishing methods that are consistent with Samoan custom from those methods that are inconsistent with Samoan custom. Permissible methods of electing Senators include, but are not limited to “voice vote, written ballot, computation of number of speakers for each candidate, and consensual agreement.” Meredith, 4 A.S.R. at 781. Impermissible methods of electing Senators include, but are not limited to appointment of the Senator by one powerful matai, id., and delegation of the decision to a subdivision of the deliberative body constitutionally assigned the responsibility of electing senators. Mauga, 10 A.S.R.2d at 120.

 

[3] The preponderance of the evidence at the trial indicated that at the December 14 meeting, many matai voiced their thoughts and opinions on the issue of who should represent the three counties in the Senate. Both parties agree that extensive “sharing of ideas” is a crucial component of the fa’a Samoa. Furthermore, the evidence indicated that to’oto’o Laapui gleaned from the myriad of speeches the prevailing mood of the assembly, so that when he announced that the three counties had chosen Lefiti to be one of the Senators, he was expressing the collective will of the electoral body, not “inject[ing] his own selection as senator.” Meredith, 4 A.S.R. at 781. The fact that certain matai from Ta’u County left the meeting after registering an objection does not alter the Court’s conclusion, for a decision “in accordance with Samoan custom” need not receive unanimous support.3

 

[4] Therefore, we reject Leasau’s claims that the election on December 14 was unconstitutional, and instead conclude that the election resulted from a decision of the three county councils of Fitiuta, Faleasao and Ta’u Counties on the next senators to represent the three counties that was reached “in accordance with Samoan custom.” We further hold that Paopao, as the Fitiuta County Chief, simply carried out his ministerial duty of certifying the results of that election. REV. CONST. OF AM. SAMOA, art. II, § 4. Only the Senate, however, can judge the results of the election. REV. CONST. OF AM. SAMOA, art. II, § 22; Meredith, 4 A.S.R. at 780.

 

[5-7] In contrast, Leasau’s claim of entitlement to a Senate seat relies on the proposition that the Ta’u County Council has a “customary” right to

 

3 In support of our assertion that Samoan custom does not demand

 

universal approval, we note that in Meredith, the court authorized

 

election by “voice vote, written ballot, [and] computation of a number of

 

speakers for each candidate”—methods of decision-making that require

 

the support of more than one but less than all. 4 A.S.R. at 781.

 

 

 

meet independent of the Fitiuta and Faleasao County Councils and to elect a senator to represent all three counties. First, we find as a factual matter that the Fitiuta and Faleasao County Councils never expressly or impliedly agreed to allocate indefinitely to the Ta’u County Council the authority to select one of the two senators from the Island of Ta’u. Moreover, the history of success of candidates from Ta’u County does not translate into a “Samoan custom” permitting Ta’u County to elect one of the two senators without discussing the matter with the County Councils of Fitiuta and Faleasao Counties. Even if the three counties of Ta’u Island had established and maintained a local practice that enabled the Ta’u County Council to elect its own senator, such a practice would be unconstitutional. In Mauga, the court held that:

 

The contention…that the customary decision-making process, as spoken of in the Constitution, includes an ability in the county to delegate completely that decision making to a mere sub-division of the county is simply untenable. The logical consequence of such an argument is that a new custom—nay even a bad habit or ill conceived practice—inconsistent with the requirements of the Constitution, will have the practical ability of repealing explicit and unambiguous provisions of the Constitution.

 

10 A.S.R.2d at 117. We will not make a “mockery of the Constitution,” id., by suggesting that the Ta’u County Council alone can elect a senator to represent three counties, when the Constitution says that senators shall be elected by the “counties they are to represent.” Leasau’s claim to the Senate seat is, therefore, without merit.

 

Conclusion and Order

 

After careful review of the text of the Revised Constitution of American Samoa, relevant case law, and the evidence presented at trial, we declare that on December 14, 1996, the County Councils of Fitiuta County, Faleasao County, and Ta’u County held an election of the two senators to represent the three counties in accordance with Article II, Section 4 of the Revised Constitution. We further declare that Paopao properly certified the results of that election. The Senate, however, is the exclusive and final judge of the results of that election.

 

Leasua’s prayer for declaratory and injunctive relief is denied.

 

It is so ordered.

 

Kruse v. American Samoa Gov’t


 

CHRISTINE KRUSE, Appellant,

 

v.

 

AMERICAN SAMOA GOVERNMENT for THE

 

OFFICE OF SAMOAN AFFAIRS, SOTOA SAVALI,

 

OFFICE OF TERRITORIAL REGISTRAR,

 

and SALOTE SCHUSTER, Appellees.

 

High Court of American Samoa

 

Appellate Division

 

AP No. 10-02

 

May 6, 2004

 

[1] A.S.C.A. §§ 1.0404 and 1.0407, which address the eligibility of an objector or counter-claimant to file, and the sufficiency of the supporting documents, do not precondition such filings on eligibility to succeed to the matai title.

 

[2] A.S.C.A. § 1.0409 specifically reserves the determination of a disputed title claim for the High Court, including the issue of whether a claimant’s foreign birth renders her ineligible as a candidate.

 

 

 

[3] Where a plaintiff had been excluded as a candidate for matai title by the Territorial Registrar and Office of Samoan Affairs in a previous case which was ultimately dismissed, but such agencies had yet to exclude her in the current controversy, her action for injunctive relief against the agencies was properly dismissed for lack of ripeness.

 

Before WARD,* Acting Associate Justice, GOODWIN,** Acting Associate Justice, TASHIMA,*** Acting Associate Justice, MAMEA, Associate Judge, and TAPOPO, Associate Judge.

 

Counsel: For Appellant, Robert K. Maez

 

For Appellees, M. Tala Uiagalelei

 

OPINION

 

Born in [Western] Samoa on March 13, 1942, appellant Christine Kruse (“Kruse”) is a naturalized citizen of the United States. Her mother, Evelyn Kruse, was American Samoan, and her father, Fritz Kruse, was a citizen of Samoa. After her parents divorced, when she was approximately three years old, Kruse moved to American Samoa. Kruse asserts a blood connection to the Fanene title through her maternal grandmother, daughter of Fanene Tuiafetoa. She has served the Fanene family from 1968 until the present time.

 

Desiring to hold the Fanene title for her family, Kruse objected to another claimant’s title registration offer. The Territorial Registrar and Office of Samoan Affairs decided to exclude her as a candidate for the title because of the birthplace requirement provision of A.S.C.A. § 1.0403(b). Seeking injunctive relief against the agencies, Kruse brought suit before the trial court, numbered MT No. 08-01. Subsequently, the Territorial Registrar submitted the Fanene matai title dispute, case MT No. 11-01, to the Land and Titles Division of the High Court. Excluded from MT No. 11-01, Kruse attempted to intervene. After the trial court denied injunctive relief in MT No. 08-01, the Land and Titles Division denied Kruse’s motion to intervene in MT No. 11-01. Upon the denial of Kruse’s motion for reconsideration or new trial in MT No. 08-01, she made this appeal.1

 

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

 

** Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

*** Honorable A. Wallace Tashima, Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

1 This action was initiated after the Registrar advised Kruse that she was

 

 

 

[1-3] Reporting on the current status of the Fanene title dispute, Kruse’s appellate argument forces us to dismiss her appeal.2 While this case was pending appellate review, the Land and Titles Division dismissed MT No. 11-01 without prejudice. See In Re Matai Title “Fanene,” MT No. 11-01, slip op. (Land & Titles Div. Sep. 15, 2003). Agency proceedings on the Fanene title restarted with the filing of another registration offer. Kruse filed an opposition to this second registration attempt. At this time, neither the Territorial Registrar nor the Office of Samoan Affairs has excluded her from the restarted proceedings. As administrative proceedings continue and Kruse is not currently aggrieved by an agency decision, we dismiss this case for lack of ripeness. Sala v. American Samoa Gov’t, 20 A.S.R.2d 80, 81 (App. Div. 1992).3

 

It is so ordered.

 

**********

 

“ineligible, due to her place of birth,” because “A.S.C.A. § 1.0403(b) disqualified her to vie for the title.” Clearly, the provisions specifically addressing the eligibility of an objector or counter-claimant to file, A.S.C.A. § 1.0404, and the sufficiency of the supporting documents, A.S.C.A. § 1.0407, do not precondition such filings with the assertion of eligibility to succeed to the matai title. The determination of a disputed title claim is specifically reserved for the High Court, A.S.C.A. § 1.0409, after a full hearing to determine the circumstances of the claimant’s foreign birth. See In Re Matai Title “I`aulualo,” 25 A.S.R.2d 116, 119 (Land & Titles Div. 1994).

 

2 Although both Kruse and ASG provided extensive briefs to the trial court on applicable case law, we note neither party included in their briefs any legislative history, committee reports, floor debate comments, transferal letters or any other information surrounding the enactment of the underlying statutes at issue in the case below. A brief review of the Matai Title statutes, A.S.C.A. § 1.041 et seq., reveals that nearly every section of this chapter was affected by the enactment of Public Law 10-61 in 1968. A bill of such sweeping scope and effect with respect to the matai system would likely generate a rich legislative history which might aid the trial court during any determination of whether a counter-claimant’s foreign birth was statutorily entitled to be considered as occurring on “American soil.”

 

3 An increasing number of cases are being filed in the Land and Titles Division praying for equitable, injunctive relief against agencies and officers of ASG. Generally, adequate remedies at law exist under the Administrative Procedures Act for judicial review and a stay of administrative proceedings. A.S.C.A. § 4.1001 et seq. Filing for review of an administrative decision under the Act avoids the nagging jurisdictional issues and the multiplicity of lawsuits presented in the case below.

 

Koreta v. Manuiaatoa


KORETA SI’ITIA SA’O, Petitioner,

 

v.

 

MANUIAATOA SA’O, Respondent.

 

High Court of American Samoa

 

Trial Division

 

DR No. 14-01

 

January 15, 2002

 

[1] In American Samoa, a military pension or “retired pay” is considered marital property and thus subject to division by this court under the Uniformed Services Former Spouses Protection Act, 10 U.S.C. § 1408.

 

[2] Like any divisible asset, a divorcing spouse’s pension must vest before it can be distributed; a mere expectancy is not subject to division.

 

[3] Military pensions vest after 20 years of service. Once vested, however, the pension is subject to division in a divorce even though it may not have matured.

 

319

 

[4] A nonmilitary spouse cannot receive a portion of the military pension unless the parties’ marriage lasted 10 years or more during the time the one spouse was a member of the armed forces.

 

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

 

Counsel : For Petitioner, Toetagata Albert Mailo

 

For Respondent, Pro Se

 

DECISION AND ORDER

 

The evidence shows that the parties were married on November 18, 1985, and made Taputimu the marital place of residence. After 15 years of marriage, the parties separated in December 2000 and for all intents and purposes the marriage has ceased to exist. The cause of the split is another woman with whom respondent is now living. While petitioner continues to reside in Taputimu with the parties’ four minor children, the respondent, after the commencement of these proceedings, suddenly moved to Hawaii without word, even to his lawyer who has since withdrawn from representing him. According to petitioner, the marriage

 

is irretrievably broken down; she seeks a divorce wanting to get on with her life.1

 

At the time of the separation, the respondent was gainfully employed with one of the local tuna canneries earning roughly the local minimum wage, a weekly paycheck of approximately $128.00. In addition, the respondent had, during the marriage, been a member of the United States Army Reserve contingent in the Territory. He recently accumulated twenty years of service, entitling him to a retirement pension when he reaches age 60. Respondent is currently 52 years of age. At the same time, the respondent also worked with the Army’s Post Exchange.

 

We are satisfied on the evidence that the material allegations of the petition have been proven. Specifically, we find and conclude that:

 

1. That the petitioner has been a bona fide resident of the territory for period in excess of one year preceding the filing of her petition. At the same time, the respondent has been duly served process. We therefore note jurisdiction under A.S.C.A. § 42.0204 and § 42.0206(a)(1).

 

1 Notwithstanding, respondent has been in contact with petitioner

 

asking that he be given one of their children. He also expressed to

 

petitioner his desire not wanting to divorce nor having to pay child

 

support.

 

320

 

2. That the parties’ differences are irreconcilable, constituting grounds for divorce under A.S.C.A. § 42.0202(6).

 

3. That the parties’ children are best left to the continuing care and custody of their mother, with reasonable visitation rights to the respondent. The children need the support of their father who is able bodied and capable of paying child support toward the children’s needs. Under A.S.C.A. § 42.0210, the court may by order provide for “the custody, care, maintenance and support of the minor children of the parties.” In view of respondent’s work history, we find that child support in the sum of $100 per month per child is reasonable; to be payable by the respondent to petitioner throughout each child’s legal dependency.

 

[1] 4. That under A.S.C.A. § 42.0210, “the court may make a division of, or order with respect to, the property of either or both of the parties as it deems fair and proper.” In American Samoa, a military pension or “retired pay” is considered marital property and thus “subject to division by this court under the Uniformed Services Former Spouses Protection Act (“FSPA”), 10 U.S.C. § 1408.” Pagofie v. Pagofie, DR No. 114-98 (Trial Div. 1999); see In re Marriage of Gallo, 752 P.2d 47, 48-50 (Colo.1988) (discussing the history, purpose, and scheme of FSPA).

 

[2-3] Like any divisible asset, a divorcing spouse’s pension must vest before it can be distributed; “a mere expectancy is not subject to division.” Storm v. Storm, 470 P.2d 367, 370 (Wyo. 1970); see Christopher v. Christopher, 871 S.W.2d 398, 399 (Ark. 1994). Military pensions vest after 20 years of service. Durham v. Durham, 708 S.W.2d 618, 619 (Ark. 1986); In re Marriage of Gallo, 752 P.2d at 48. Once vested, however, the pension is subject to division in a divorce even though it may not have matured. See In re Marriage of Gallo, 752 P.2d at 50-51, citing In re Marriage of Grubb, 745 P.2d 661 (Colo. 1987). In this case, the pension has vested, as the husband served over 20 years; it will not mature, though, for another 8 years.

 

[4] Additionally, a nonmilitary spouse cannot receive a portion of the military pension unless the “parties’ marriage lasted 10 years or more during the time the one spouse was a member of the armed forces.” In re Marriage of Gallo, 752 P.2d at 50; see also 10 U.S.C. § 1408 (d)(1)-(2). Once a nonmilitary spouse qualifies, the total amount of the retired pay available “may not exceed 50 percent of such disposable retired pay.” 10 U.S.C. § 1408 (e)(1).

 

Giving due regard to the lengthy duration of the marriage, the petitioner’s military pension entitlement or retired pay is deemed to be marital property. Except for Petitioner’s military retirement benefits, there is no accumulated marital property of any consequence. Therefore,

 

321

 

an award to petitioner of 50% of respondent’s military pension or retired pay is fair and proper under the circumstances.2

 

Order

 

1. The petition for divorce is granted, with the respondent restored to her maiden name if she so desires. The marriage of the parties is hereby dissolved, and each is free to remarry.

 

2. The petitioner shall have custody of the parties’ minor children with reasonable rights of visitation to the respondent.

 

3. The respondent shall pay to petitioner toward the needs the children the sum of $100 per month per child. Such payments shall continue throughout each child’s respective dependency.

 

4. Half of the respondent’s military pension proceeds is awarded, and shall be payable, to petitioner.

 

It is so ordered.

 

**********
2 The petitioner may wish to note the provisions of U.S.C. § 1408(b), for
service, of this order, requirements upon the “Secretary,” and
subparagraph (d)(1), with regards to property division payments.

 

Kelemete v. Atualevao


 

TOAONO M. KELEMETE, FAUSAGA TOOMATA, FUIONO TUI, and IVOGA TAUTUNU for and on behalf of the Lemeana`i Family of Ili`ili, Appellants,

 

v.

 

ATUALEVAO MEREDITH, SUALUA MASANIAI, and

 

DOES 1-10, Appellees.

 

High Court of American Samoa

 

Appellate Division

 

AP No. 14-02

 

May 18, 2004

 

[1] On appeal, the trial court’s findings of fact are reviewed for clear error. The test for clear error is not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the trial court’s decision.

 

[2] The doctrine of stare decisis does not apply to a determination of the facts of a case. A trial court does not err by failing to follow the specific findings of fact from prior cases.

 

[3] A reviewing court accords particular weight to the trial judge’s assessment of conflicting and ambiguous facts.

 

Before WARD,* Acting Associate Justice, GOODWIN,** Acting Associate Justice, TASHIMA,*** Acting Associate Justice, and TAPOPO, Associate Judge.

 

Counsel: For Appellants, Katopau T. Ainu`u

 

For Appellees, Arthur Ripley, Jr.

 

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

 

** Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of Interior.

 

*** Honorable A. Wallace Tashima, Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

50

 

OPINION

 

WARD, Acting Associate Justice:

 

Appellants contend that the trial court erred in its Opinion and Order by finding that Appellee, the late Atualevao Meredith (“Atualevao”), is the sa`o or senior matai of the Lemeana`i communal family of Ili`ili. Specifically, Appellants argue that the trial court erred by failing to follow findings of fact from previous court decisions and by finding that the family’s practice of having three family members sign documents affecting the family’s land was a sign of respect by the sa`o for other family members. For the following reasons, we affirm the trial court’s decision.

 

Background

 

On April 20, 2001, Appellants Toaono M. Kelemete, Fausaga Toomata, Fuiono Tui, and Ivoga Tautunu sought to enjoin Atualevao and Sualua Masaniai from engaging in construction on the family’s communal land known as “Siasiaga,” and sought a declaration that Atualevao lacked the authority to permit construction on or clearing of Lemeana`i communal land.

 

On May 18, 2001, Appellees answered the complaint and counterclaimed for a declaration that Atualevao is the senior matai or sa`o of the Lemeana`i family, to void transactions taken without the authorization of Atualevao, and to remove non-family members who are situated on Lemeana`i family land without Atualevao’s permission.

 

Trial was held on November 8-9, 2001. On May 2, 2002, the trial court denied Appellants’ request for relief and held that the “Atualevao” title is the sa`o of the Lemeana`i family and, therefore, that Atualevao, as the titleholder, was the Lemeana`i family sa`o. Kelemete, et al. v. Atualevao, et al., Opinion and Order at 11 (Land & Titles Div. May 2, 2002). Appellants filed a motion for a new trial or reconsideration, which was denied by the trial court on July 24, 2002. On July 31, 2002, Appellants filed a notice of appeal.

 

Discussion

 

I. Standard of Review

 

[1] The trial court’s findings of fact are reviewed for clear error. A.S.C.A. § 43.0801(b); Paolo v. Utu, 26 A.S.R.2d 18, 19 (App. Div. 1994); Toeaina v. Malae, 25 A.S.R.2d 31, 32 (App. Div. 1993); Tuileata v. Amituana`i, 8 A.S.R.2d 173, 175 (App. Div. 1988). The test for clear error is “not whether facts in the record may support a decision for an 51

 

appellant, but whether sufficient evidence supported the trial court’s decision.” Toleafoa v. American Samoa Gov’t, 26 A.S.R.2d 20, 21 (App. Div. 1994).

 

II. Previous Court Decisions

 

Appellants contend that the trial court failed to follow specific findings of fact from previous court cases. (Appellants’ Am. Opening Br. at 6-9.) Appellants argue that in Iosia v. Heirs of Lemeana`i, AP No. 1-1954, slip op. at 2 (App. Div. Jan. 22, 1954), the appellate court found that “Atualevao was a lesser matai of the family” (Appellants’ Am. Opening Br. at 6), and that in Malama v. Sagia, LT No. 02-78, slip op. at 2 (Land & Titles Div. Sept. 18, 1978), the trial court found the “Atualevao” and “Aumavae” titles were equal in rank (Appellants’ Am. Opening Br. at 6-8).

 

The trial court took judicial notice of the previous court files and presented a thorough discussion of some of the previous court decisions involving the Lemeana`i family. The trial court noted that the “decisions are not entirely consistent regarding the status of the ‘Atualevao’ title.” Opinion and Order at 5 (Land & Titles Div. May 2, 2002). The trial court distinguished the Iosia decision by noting that its finding that the “Atualevao” title was a lesser matai title was consistent with the earlier decision of Vao v. Toloumu, Case No. 45-1914 (Trial Div. Dec. 18, 1914), which found that Atualevao Maiu`u, a non-blood member of the Lemeana`i family, could retain his title but was restricted from alienating family lands due to the non-blood nature of his connection to the “Atualevao” title. The trial court pointed out that Iosia was decided after the death of Atualevao Maiu`u but before Atualevao’s father held the “Atualevao” title. Therefore, the trial court found the Iosia court did not need to consider the “non-blood” basis of the Vao decision. Opinion and Order at 8. The trial court did not err in its interpretation of the Iosia case.1

 

The trial court also was not bound to follow the specific finding of fact from the Malama case that the “Atualevao” and “Aumavae” titles are of equal rank. Appellants do not argue that Atualevao is collaterally estopped from arguing that he is the family sa`o. Indeed, Atualevao points out that he was not a party to the Malama case and was not afforded the opportunity to argue his position. (Appellees’ Br. at 12.)

 

1 In any event, the trial court could reach a different factual finding than the Iosia court. Indeed, in Reid v. Tavete, 23 A.S.R.2d 101 (Land & Titles Div. 1993), the trial court noted that “[b]ecause the appellate court . . . used the ‘clearly erroneous’ standard of review, it is possible to have different results regarding factual questions in cases with different parties.” Id. at 112.

 

52

 

There is no basis to invoke the doctrine of collateral estoppel. See, e.g., Tavete v. Estate of Lagafuaina, 11 A.S.R.2d 54, 76 (Land & Titles Div. 1989) (“The estoppel can apply, however, only against a party who was represented in the earlier litigation.”).

 

[2] Moreover, the doctrine of stare decisis is inapplicable for several reasons. First, the Malama court did not rely on this specific factual finding in reaching its conclusions of law. Opinion and Order at 8-9. See generally, 18 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 134.01 (3d ed. 1999) (“The doctrine of stare decisis extends to the holdings of prior decisions, but it does not extend to mere dicta (e.g., statements that were unnecessary to the result in a prior decision).”). Second, the trial court’s finding in Malama was one of fact, and “[s]tare decisis . . . applies to questions of law and not of fact, to general propositions rather than to specific inquiries.” Lagafuaina, 11 A.S.R.2d at 77. See generally 18 MOORE’S FEDERAL PRACTICE § 134.05(3) (“The doctrine of stare decisis does not apply to the determination of the facts of a case.”).2 The trial court did not err by failing to follow the specific findings of fact from prior cases.3

 

III. The Lemeana`i Family Practice

 

Appellants also argue that the trial court’s finding that the Lemeana`i family practice of having three family members sign documents affecting communal property was instituted “to maintain peace and harmony when the family did not have a sa`o who was clearly accepted within the family as having authority over family lands” was clearly erroneous. (Appellants’ Am. Opening Br. at 11-12.) See Opinion and Order at 9.

 

[3] The trial court found that Atualevao William Meredith continued this practice out of respect for other family members and that Atualevao continued this practice when he became the titleholder in 1982. Opinion and Order at 9-10. In light of the evidence adduced at trial, the trial court’s finding is not clearly erroneous. See Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (“The reviewing court accords particular weight to the trial judge’s assessment of conflicting and ambiguous facts.”). The trial court’s finding that Atualevao is the sa`o of the Lemeana`i family is supported by substantial

 

2 This is also applicable to the factual finding in the Iosia case.

 

3 Appellants also seem to take issue with the trial court’s findings of fact based on the testimony of certain witnesses at trial. However, “it is not the province of the appellate court to determine the credibility of conflicting evidence.” American Samoa v. Makuati, 1 A.S.R. 663, 664 (App. Div. 1938) (citations omitted). The trial court’s findings are supported by substantial evidence.

 

53

 

evidence and will not be disturbed.4

 

Conclusion

 

For the aforementioned reasons, the trial court’s decision is AFFIRMED.

 

It is so ordered.

 

K.S. Shipping Agency v. Matira South Fishing Ltd


 

K.S. SHIPPING AGENCY, TONY’S SHIPS AGENCY, K.S. MOTOR REWINDING, T.J. WELDING & FABRICATION, SAMOA EXPORT IMPORT INC., SHALHOUT SULUFAIGA STORE, STAR-KIST SAMOA INC., and SOUTHWEST MARINE OF SAMOA, INC., Plaintiffs,

 

v.

 

MATIRA SOUTH FISHING LTD., YOUNG DUK LTD., NATIONAL BANK OF NEW ZEALAND, LTD.,

 

and DOES I Through X, Defendants,

 

And F/V “MATIRA” fka F/V “YOUNG DUK,” her engines, tackle, apparel, furniture, and appurtenances, in rem, Defendant.

 

High Court of American Samoa

 

Trial Division

 

CA No. 40-04

 

June 7, 2004

 

[1] The issuance of a warrant for the arrest of a vessel is authorized if it is determined that the conditions support an in rem action, as demonstrated by the verified complaint and any other supporting papers. The verified complaint must describe the property with particularity and state that the property is or will be within American Samoa during the course of the action.

 

[2] The complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.

 

163

 

[3] Common law does not prescribe a particular form for affidavits and technical deficiencies do not render affidavits improper. Moreover, the signature of the affiant constitutes one of an affidavit’s four elements, which also include the caption or title, the venue, and the certification of a duly authorized officer. These four elements together authenticate the affidavit, making the printed name of the affiant unnecessary.

 

[4] A maritime lien is a prerequisite to the exercise of our admiralty jurisdiction in an in rem action against a vessel.

 

[5] Authorized by Congress to exercise authority as a “district court” with respect to Maritime Laws in 46 U.S.C. § 31301, the Court has jurisdiction to enforce federal maritime statutes of title 46 of the United States Code when its jurisdiction is not explicitly denied by the specific statute being enforced.

 

[6] Under the Maritime Lien Statute, a person who provides necessaries to a vessel on the order of the owner or person authorized by the owner has a maritime lien on the vessel and may bring an action in rem. “Necessaries” explicitly includes repairs, supplies, towage, and the use of a dry dock or marine railway. Necessaries may also include services provided to the vessel, or anything that facilitates or enables a vessel to perform its mission or occupation.

 

[7] The seven factors analyzed to consider maritime choice of law are: (a) the needs of the international system; (b) relevant policies of the forum; (c) relevant policies of other interested states; (d) the protection of justified expectations; (e) the basic policies underlying the particular field of law; (f) certainty, predictability and uniformity of result; and (g) ease in determination and application of the law to be applied.

 

[8] The Maritime Lien Statute represents a relevant policy of the Court’s forum that serves the needs of the international legal system as well as the basic policies underlying maritime law, because Congress intended that an American Supplier of goods, services or necessaries to a foreign vessel obtains a maritime lien in the vessel when the goods or services are supplied or performed in the United States.

 

[9] Application of the United States Maritime Lien statute protects expectations and maintains the predictability of results, because it is expected that when necessaries are furnished to a vessel in an American port by an American supplier, the American Maritime Lien Statute will apply to protect that supplier regardless of the nationality of the vessel.

 

[10] A bona fide purchase of a vessel does not automatically clear the liens attached to the vessel. To extinguish prior maritime liens and “vest a clear and indefeasible title” in the purchaser, a court must conduct an 164

 

in rem sale that satisfies due process.

 

[11] For a proper judicial sale, a court must at least have jurisdiction and provide sufficient notice to interested parties. Seizure provides notice to all the world that satisfies due process. The party that offers a judicial sale as a defense against maritime liens has the burden of proof that the sale extinguished the liens.

 

[12] The T.C.R.C.P. Supplemental Rules do not require liens to have a minimum dollar amount before the Court has in rem jurisdiction over a vessel.

 

[13] After sale to a bona fide purchaser, an unrecorded lien holder of a vessel must exert a high degree of reasonable diligence to preserve the lien or we will apply laches to bar the lien claim.

 

[14] The sum of the security to release a vessel is fixed when parties do not stipulate to an amount. The sum of the security covers the amount of the plaintiff’s claim fairly stated with accrued interest and costs.

 

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

 

Counsel: For Plaintiffs, Mark F. Ude

 

For Defendants, David P. Vargas

 

ORDER DENYING IN PART AND GRANTING IN PART

 

MOTION TO QUASH RULE C ARREST OR SET AMOUNT

 

OF SUBSTITUTE SECURITY IN AN AMOUNT EQUAL TO

 

VALUE OF PLAINTIFFS’ CLAIM FAIRLY STATED,

 

AND DENYING MOTION FOR SALE OF VESSEL

 

Unable to receive payment for supplies and services provided to F/V MATIRA (“the vessel”), Plaintiffs come before us seeking satisfaction for debts owed and making related claims. Plaintiffs include eight American Samoa businesses: K.S. Shipping Agency, Tony’s Ships Agency, K.S. Motor Rewinding, T.J. Welding & Fabrication, Samoa Export Import Inc., Shalhout Sulufaiga Store, Star-Kist Samoa Inc. (“Star-Kist”), and Southwest Marine of Samoa, Inc. (“Southwest Marine”). We authorized the arrest of the vessel in Pago Pago Harbor on May 7, 2004 under T.C.R.C.P. Supp. Rule C.

 

The vessel was formerly known as F/V YOUNG DUK (“YOUNG DUK”). Defendant Young Duk Ltd. chartered the vessel when the Plaintiffs provided supplies and services. Defendant Bank of New Zealand, Ltd. (“National Bank of New Zealand”) forced the sale of the vessel after it received the supplies and services. Does I through X are 165

 

designated as additional defendants who might own, operate, manage, maintain, control, charter, and navigate the vessel. Defendant Matira South Fishing Ltd. (“Matira South Fishing”) claims ownership of the vessel and asserts the right to defend in rem claims against the vessel.

 

Defendants Young Duk Ltd., National Bank of New Zealand, and Matira South Fishing (together “movants”) move for us to quash the arrest or set the amount of substitute security. For the reasons stated below, we set the amount of substitute security at $60,000. With this opinion and order, we also deny Plaintiffs’ motion for a judicial sale.

 

Factual and Procedural Background

 

East Ocean Fishing Limited (“East Ocean Fishing”) formally owned the vessel, then known as YOUNG DUK. East Ocean Fishing mortgaged the vessel to the Bank of New Zealand. Young Duk Ltd. chartered the vessel and operated it out of Pago Pago harbor. From late 2002 until around the end of 2003, Plaintiffs, except for Southwest Marine, fitted the vessel for fishing by loaning supplies, services, or money.

 

After the vessel sailed from Pago Pago, Cook Islands Fish Exporters Ltd. had the vessel arrested in the Cook Islands for payment of services and money spent for the vessel’s benefit. See Cook Islands Fish Exporters Ltd. v. YOUNG DUK, No. 31/2003 (Cook Is. Sep. 26, 2003) (Rarotonga). Following the vessel’s release, National Bank of New Zealand placed East Ocean Fishing in receivership. Receivers sold the vessel to Matira South Fishing in the Cook Islands on November 17, 2003. (Garnier Aff. 3, Ex. C.) Matira South Fishing named the vessel MATIRA, registered it in the Cook Islands, and began fishing operations. The vessel eventually sailed back to Pago Pago harbor. Southwest Marine serviced and provided moorage for the vessel in April and May of 2004, which created a lien that we refer to as the Southwest Marine lien.

 

On May 7, 2004, Plaintiffs filed a complaint with a supporting affidavit and declaration, and moved for issuance of a warrant of arrest of the vessel. On the same day, we issued an arrest warrant and K.S. Shipping Agency took assignment of the Southwest Marine lien.

 

Plaintiffs filed an amended verified complaint on May 11, 2004. An authorized representative of K.S. Shipping Agency verified the complaint. Plaintiffs filed another amended verified complaint on May 13, 2004. Representatives of each Plaintiff verified the complaint. Plaintiffs claim payment for the loaned supplies, services, or money. Plaintiffs allege that National Bank of New Zealand is responsible for the ship’s debts because of a failure to provide notice of the sale, negligence, and lack of due process. Furthermore, Plaintiffs allege that 166

 

Matira South Fishing and Young Duk Ltd. colluded to use the sale of the vessel to avoid payment of the debts. Matira South Fishing answered on May 14, 2004 and counter-claimed for wrongful arrest and abuse of process. Also on May 14, 2004, Defendants Matira South Fishing, Young Duk Ltd., and National Bank of New Zealand moved to quash the arrest or to set the amount of substitute security for the vessel. Three days later, Plaintiffs moved for a judicial sale of the vessel due to alleged unethical behavior of Defendants’ counsel and the totality of the pleadings. We held a hearing on these two motions on May 18, 2004.

 

Discussion

 

I. Verified Complaint

 

Movants argue that the filed complaints are insufficient under T.C.R.C.P. Supplemental Rule C to support an arrest warrant. They contend that the first complaint lacks verification and the amended complaints lack proper verification. In this case, we find their argument lacking as a ground to quash the warrant.

 

[1-2] We authorize the issuance of a warrant for the arrest of a vessel if we determine that conditions support an in rem action, as demonstrated by “the verified complaint and any other supporting papers.” 29 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 705.03[3] (3d ed. 1999); see T.C.R.C.P. Supp. Rule C(2), (3). The verified complaint must describe the property with particularity and state that the property is or will be within American Samoa during the course of the action. T.C.R.C.P. Supp. Rule C(2). The T.C.R.C.P. Supplemental Rules also provide that “the complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.” T.C.R.C.P. Supp. Rule E(2).

 

[3] Both amended verified complaints meet the requirements of the T.C.R.C.P. Supplemental Rules because the complaints describe the property, inform that the property will be in American Samoa during the proceedings, describe the claims sufficiently, and have verification. Movants take issue with the sufficiency of the verification because the affiants’ names are not printed with their verifying signature. However, the signatures of plaintiff representatives are enough to verify the complaint. Common law does not prescribe a particular form for affidavits and technical deficiencies do not render affidavits improper. See 3 AM. JUR. 2D Affidavits § 12 (1986). Moreover, the signature of the affiant constitutes one of an affidavit’s four elements, which also include the caption or title, the venue, and the certification of a duly authorized officer. See id. §§ 12, 16. These four elements together authenticate the 167

 

affidavit, making the printed name of the affiant unnecessary.

 

We agree with movants that the initial complaint was unverified; however, we do not agree that the lack of verification constitutes a ground to quash the warrant in this case. Generally, under the T.C.R.C.P Supplemental Rules, “later verification . . . reach[es] back to an earlier, unverified filing.” Edelman v. Lynchburg College, 535 U.S. 106, 117 (2002). The remedy for failure to verify a complaint to initiate in rem action is to “dismiss the complaint without prejudice,” even when property has been seized. United States v. $84,740.00, 900 F.2d 1402, 1406 (1990) (applying FED. R. CIV. P. Supp. Rule C(2) in an in rem forfeiture action). Here, we decline to dismiss because defendants will suffer no harm by our denial of the motion to quash. Plaintiffs amended the complaint with verification as “a matter of course” before the first responsive pleadings were served. T.C.R.C.P. 15(a). The amended complaint satisfies the policy of the verification requirement, which is “to insure that an individual has responsibly investigated the allegations and found them to have substance.” United States v. Banco Cafetero Int’l, 608 F. Supp. 1394, 1400 (S.D.N.Y. 1985). As the dismissal would be without prejudice, we could quash the initial arrest and immediately order the vessel re-arrested based on the complaint now before us. We currently have in rem jurisdiction, as discussed in the next section, and we secure our jurisdiction for the duration of the proceedings by ensuring that the vessel remains in American Samoa.

 

II. Existence of Maritime Liens

 

[4-5] We have admiralty jurisdiction under A.S.C.A. § 3.0208(a)(3). A maritime lien is a prerequisite to the exercise of our admiralty jurisdiction in an in rem action against a vessel. Belcher Co. of Ala., Inc. v. M/V MARATHA MARINER, 724 F.2d 1161, 1163 (5th Cir. 1984). Authorized by Congress to exercise authority as a “district court” with respect to Maritime Laws in 46 U.S.C. § 31301, we have jurisdiction to enforce federal maritime statutes of title 46 of the United States Code when our jurisdiction is not explicitly denied by the specific statute being enforced. See Clifton v. Voyager Inc., 29 A.S.R.2d 80, 86-87 (Trial Div. 1995) (exercising jurisdiction over Jones Act claims, 46 U.S.C. app. § 688). Thus, we enforce the Maritime Lien Statute and use it to determine if a maritime lien triggers our jurisdiction. 46 U.S.C. § 31342.

 

[6] Under the Maritime Lien Statute, “a person who provid[es] necessaries to a vessel on the order of the owner or person authorized by the owner . . . has a maritime lien on the vessel” and may bring an action in rem. 46 U.S.C. § 31342.1 The “‘Necessaries’ explicitly includes

 

1 The present Maritime Lien Statute, 46 U.S.C. § 31342, was “not

 

intended to make any substantive difference with prior law” codified in

 

168

 

repairs, supplies, towage, and the use of a dry dock or marine railway.” 46 U.S.C. § 31301(4). Necessaries may also include services provided to the vessel, “anything that facilitates or enables a vessel to perform its mission or occupation.” Ventura Packers, Inc. v. F/V JEANINE KATHLEEN, 305 F.3d 913, 923 (9th Cir. 2002).

 

We have jurisdiction in this case because Plaintiffs obtained maritime liens when they provided supplies and services to the vessel. See 46 U.S.C. § 31342. First, the liens asserted by Plaintiffs are for the provision of necessaries. The supplies, such as filament spools, snaps, hooks, cutters, batteries, boots, and bait provided for the vessel are directly included in the definition of necessaries. 46 U.S.C. § 31301(4). Including the repair and maintenance of motors, generators, pumps, and like apparatus, the provided services are also considered necessaries because they are essential to the vessel’s operation. The mooring provided by Southwest Marine was a necessary. In addition, Star-Kist financed the operation and maintenance of the vessel for fishing, specifically loaning money for a generator used on the vessel, and expected re-payment from the proceeds of the vessel’s fishing.

 

Second, necessaries were provided to the vessel. Movant’s reliance on TTT Stevedores of Tex, Inc. and M/V JAGAT VIJETA, 696 F.2d 1135 (5th Cir. 1980) is misplaced. As movants contend, TTT Stevedores distinguishes between furnishing supplies and services to a vessel, which creates a maritime lien, and extending credit to a person. However, the TTT Stevedores court held that “a presumption arises that one furnishing supplies to a vessel acquires a maritime lien, and the party attacking this presumption ‘has the burden of establishing that the personal credit of the owner or charterer was solely relied upon.’” TTT Stevedores, 696 F.2d at 1139 (citations omitted). In TTT Stevedores, the defendant vessel failed to produce sufficient evidence that the suppliers relied on personal credit. Id. Similarly, failing to offer any evidence on the issue, movants here do not meet their burden of showing that Plaintiffs relied on the personal credit of any Defendant.

 

Third, the necessaries were provided to the vessel on order of the owner or of an authorized person. We find the May 13, 2004 verified complaint and the May 7, 2004 affidavit of Kevin G. Smith persuasive that the necessaries provided to the vessel were ordered under the authority of the vessel’s ownership. Movants do not dispute the issue. In sum, with all of the elements of a maritime lien present, we have in rem jurisdiction over the vessel.

 

46 U.S.C. § 971. 1 THOMAS J. SCHOENBAUM, ADMIRALTY AND

 

MARITIME LAW § 9-3 n.1 (2d ed. 1994).

 

169

 

III. Choice of Law

 

[7] Movants assert that the law of the Cook Islands applies because the sale of the vessel occurred in the Cook Islands. Plaintiffs assert that the law of the United States applies. Neither party conducted a thorough choice of law analysis. Considering the applicable choice of law factors, we agree with Plaintiffs. We analyze seven factors to consider maritime choice of law: (a) the needs of the international system; (b) relevant policies of the forum; (c) relevant policies of other interested states; (d) the protection of justified expectations; (e) the basic policies underlying the particular field of law; (f) certainty, predictability and uniformity of result; and (g) ease in determination and application of the law to be applied. Gulf Trading & Transp. Co. v. Vessel HOEGH SHIELD, 658 F.2d 363, 367 (5th Cir. 1981), reh’g denied 670 F.2d 182 (5th Cir. 1982).

 

We find the choice of law analysis applied by the Gulf Trading court applicable here because the cases have similar factual circumstances. Gulf Trading concerned a contract for the provision of necessaries to the foreign flagged vessel HOEGH SHIELD in the Panama Canal Zone, under the United States jurisdiction, by an American corporation. Gulf Trading, 363 F.2d at 364. The owner of the HOEGH SHIELD was not a party to the supply contract, which was agreed to in Great Britain. Id. The HOEGH SHIELD was arrested while in Texas. Id. at 365. Likewise, this case concerns an agreement for the provision of necessaries to a foreign flagged vessel under the jurisdiction of United States by American companies. The current owner of the vessel was not a party to the agreement and the vessel was arrested in a United States jurisdiction.

 

[8-9] We choose United States law and apply the Maritime Lien Statute. Agreeing with the Gulf Trading court, we find that “the Maritime Lien Statute represents a relevant policy of this forum that serves the needs of the international legal system as well as the basic policies underlying maritime law,” because Congress intended that “an American Supplier of goods, services or necessaries to a foreign vessel obtains a maritime lien in the vessel when the goods or services are supplied or performed in the United States.” Id. at 367-368. We will have little difficulty in applying and making a determination with the Maritime Lien Statute, especially as compared to the International Maritime Lien Convention or the New Zealand Admiralty Act 1973 asserted by the defense as, or like, the law of the Cook Islands. Application of the United States Maritime Lien Statute protects expectations and maintains the predictability of result because “it is expected that when necessaries are furnished to a vessel in an American port by an American supplier, the American Maritime Lien Statute will apply to protect that supplier regardless of . . . the nationality of the vessel.” Id. at 368. The parties could have 170

 

contracted for an alternate choice of law. Id. Considering the factor of the policies of other interested states, we have as much of an interest in protecting Plaintiffs, American suppliers of the vessel, as the Cook Islands does in protecting any Cook Islands Defendants, especially the purchaser of the vessel.2 Any interest New Zealand may have concerning the National Bank of New Zealand mortgage also does not exceed our interest in protecting the Plaintiffs. As all of the factors, but one, points strongly towards the application of United States law, we apply United States law to this case.

 

IV. Continued Existence of Liens

 

Movants fail to meet their burden of proof showing that the sale erased the liens. As a result, we do not consider the liens extinguished.

 

[10-11] United States law recognizes international sales of vessels. A bona fide purchase of a vessel does not automatically clear the liens attached to the vessel. See 1 SCHOENBAUM, supra, at § 9-7. To extinguish prior maritime liens and “vest a clear and indefeasible title” in the purchaser, a court must conduct an in rem sale that satisfies due process. Thorsteinsson v. M/V DRANGUR, 891 F.2d 1547, 1552 (11th Cir. 1990) (quoting The Trenton, 4 F. 657 (E.D. Mich. 1880)). For a proper judicial sale, a court must at least have jurisdiction and provide sufficient notice to interested parties. Id. at 1552. Seizure provides notice to all the world that satisfies due process. Id. at 1553. The party that offers a judicial sale as a defense against maritime liens has the burden of proof that the sale extinguished the liens. Id. at 1551.

 

[12] Movants fail to meet their burden of showing that the sale erased the Southwest Marine lien. Apart in time from the other liens, the Southwest Marine lien remains on the vessel. The lien attached after the Cook Island sale. The T.C.R.C.P. Supplemental Rules do not require liens to have a minimum dollar amount before we have in rem jurisdiction over a vessel. See T.C.R.C.P. Supp. Rule C. This lien alone is enough to support a warrant for arrest and our jurisdiction.

 

Movants also fail to meet their burden of demonstrating that the other liens have been extinguished. In light of the evidence before us, the arrest of the vessel in the Cook Islands did not concern the subsequent sale, so it fails to provide adequate notice of the sale. National Bank of New Zealand, which forced the sale of the vessel, was not a party to the arrest. We have no evidence that National Bank of New Zealand made any claim, based on their mortgage or any other interest in the vessel, 2 Young Duk Ltd. and National Bank of New Zealand have not filed

 

answers in this case. As a result, we are uncertain of Young Duk’s and

 

National Bank of New Zealand’s legal status.

 

171

 

before the arresting court. See Cook Islands Fish Exporters Ltd., No. 31/2003, at 1. Also, there is no evidence of court adjudication or involvement with placing the vessel in receivership that qualifies as a judicial sale under United States law. (See Garnier Aff. 1, Annex C.)

 

[13] Movants also argue that the bona fide purchase of the vessel by Matira South Fishing cleared the liens. As this argument goes against current United States admiralty law, we disagree. See 1 SCHOENBAUM, supra, at § 9-7. However, after sale to a bona fide purchaser, an unrecorded lien holder must exert a high degree of reasonable diligence to preserve the lien or we will apply laches to bar the lien claim. See id.; Bermuda Express, N.V. v. M/V LITSA, 872 F.2d 554, 556 (3rd Cir. 1989). We save the laches issue for trial because we currently lack enough evidence to decide the issue, and the parties did not argue the issue at the hearing.

 

Movants argue that Plaintiffs improperly included the movants in the suit. This argument is irrelevant to this motion to quash; the arrest warrant concerns our in rem jurisdiction over the vessel.

 

Finding the liens valid based on the evidence currently before us, we deny the motion to quash the arrest warrant. We acknowledge that the existence of the liens impacts our jurisdiction and will consider additional argument and evidence concerning lien clearing events at trial.

 

V. Security

 

[14] We fix the sum of the security to release a vessel when parties do not stipulate to an amount. T.C.R.C.P. Supp. Rule E(5)(a). The sum of the security covers “the amount of the plaintiff’s claim fairly stated with accrued interest and costs.” Id. We set the security at $60,000.00. This sum accounts for Plaintiffs’ claim of approximately $40,000.00, pre-judgment interest of 6%, and costs. See United Air Lines Employees’ Credit Union v. M/V SANS END, 15 A.S.R.2d 95, 106 (Trial Div. 1990) (finding costs of $8,249 to secure a vessel for a judicial sale and other related expenses).

 

VI. Motion for Judicial Sale

 

Plaintiffs move for the sale of the vessel because of: (1) opposing counsel and opposing expert contact with Plaintiff Star-Kist without the knowledge or approval of Star-Kist’s counsel; and (2) the totality of the pleadings, presumably the alleged collusion to commit fraud. To support the motion, Plaintiffs offer the affidavit of their counsel, Mark Ude, and the May 17, 2004 affidavit of Kevin G. Smith. At hearing, opposing counsel David Vargas denied that he or his firm made any contact with Star-Kist. We find the evidence of contact with Star-Kist and the totality 172

 

of the evidence and pleadings insufficient to grant this motion for a judicial sale.

 

Order

 

1. Movants’ motion to quash rule C arrest or set amount of substitute security in an amount equal to value of plaintiffs’ claim fairly stated is denied in part and granted in part. We decline to quash the arrest warrant and set the security for the vessel at $60,000.00.

 

2. Plaintiffs’ motion for sale of vessel is denied.

 

It is so ordered.

 

J.M. Gebauer, Inc. v. American Samoa Power Auth


 

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

 

v.

 

AMERICAN SAMOA POWER AUTHORITY, Appellee.

 

High Court of American Samoa

 

Appellate Division

 

AP No. 05-02

 

April 12, 2004

 

[1] A trial court’s factual determinations are reviewed for clear error.

 

[2] A trial court’s determination of mixed questions of law and fact are reviewed de novo.

 

[3] The test for clear error is not whether facts in the record may support a decision for the appellant, but whether sufficient evidence supported the trial court’s decision.

 

[4] A motion for new trial is a jurisdictional prerequisite to appeal. As such, a reviewing court cannot review an issue that was not raised in an appellant’s motion for new trial or reconsideration.

 

[5] Whether a lessor accepted a lessee’s surrender of the premises is a question of fact.

 

14

 

[6] The trial court considers evidence of surrender in light of the surrounding circumstances and determines whether the dominion and control exercised by a landlord was for the landlord’s own benefit or for the benefit of and on behalf of the original tenant.

 

[7] A reviewing court accords particular weight to the trial judge’s assessment of conflicting and ambiguous facts.

 

[8] Where a lease is unambiguous, any testimony to the contrary is parol evidence and not appropriately considered.

 

[9] A trial court’s award of damages is clearly erroneous where the award lacks any factual or legal basis.

 

Before KRUSE, Chief Justice, GOODWIN,* Acting Associate Justice, TASHIMA,** Acting Associate Justice, ATIULAGI, Associate Judge, SAGAPOLUTELE, Associate Judge.

 

Counsel: For Appellant, Katopau T. Ainu`u

 

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

 

OPINION

 

KRUSE, Chief Justice:

 

J.M. Gebauer, Inc. (“JMG”) and Kepaoa Development Corporation (“Kepaoa” or collectively with JMG, “lessor”) appeal from the trial court’s judgment in this case, which involves a dispute over the breach of a lease agreement. Appellants contend that the trial court erred in its order and opinion by: (1) failing to apply the “modern rule” in order to determine damages due under the lease; (2) finding Appellants accepted the appellee’s surrender of the lease; (3) finding Appellants permitted the appellee to use space outside of the lease agreement for no charge; (4) finding appellee was entitled to $25,000 for unpaid utility bills; and (5) awarding Appellants an insufficient amount of punitive damages. For the following reasons, we AFFIRM in part and REVERSE in part.

 

Background

 

On November 5, 1997, American Samoa Power Authority (“ASPA” or

 

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

** Honorable A. Wallace Tashima, Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

“lessee”) and J.M. Gebauer, Inc. entered into a lease for a property in Nu`uuli commonly known as the Aiga Basket (“the premises”) for a term of twenty years. Gebauer v. American Samoa Power Auth., 5 A.S.R.3d 204, 206 (Trial Div. 2001). In 2000, Kepaoa Development Corporation assumed the lessor’s rights and obligations under the lease agreement. Id. As part of the lease agreement, JMG was obligated to pay its outstanding utility bills to ASPA.

 

Throughout the lease period, ASPA used approximately 272 square feet of additional space without paying rent. Id. On October 18, 2000, lessor notified ASPA that it was in default on the rental payments and also demanded payment for the 272 square feet of additional space. Lessor notified ASPA that it had thirty days to remedy the default. Id. On November 14, 2000, ASPA quit the premises. Id. at 207. ASPA caused substantial damage to the premises during the move, which the lessor repaired at its own expense. Id.

 

Trial was held on July 12, 2001. On December 7, 2001, the trial court awarded JMG and Kepaoa $21,626.26 in compensatory and $5,000 in punitive damages. This award was to compensate JMG and Kepaoa for the damages ASPA caused to the premises. Id. at 210. The trial court also found that JMG and Kepaoa accepted ASPA’s surrender of the premises, and that ASPA had paid all the rentals that it owed prior to JMG and Kepaoa’s acceptance. Id. at 208. Additionally, the trial court found that ASPA was not liable for its use of the extra space. Id. at 209. The trial court also awarded ASPA $25,000 in damages on its counterclaim for unpaid utility bills. Id. at 211. JMG and Kepaoa filed a motion for a new trial or reconsideration which was denied by the trial court on February 5, 2002. On February 11, 2002, JMG and Kepaoa filed a notice of appeal.

 

Discussion

 

I. Standard of Review

 

[1-3] “A trial court’s factual determinations are reviewed for ‘clear error’ and questions of law or mixed questions of law and fact are reviewed de novo.” Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992) (emphasis omitted). The test for clear error is “not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the trial court’s decision.” Toleafoa v. American Samoa Gov’t, 26 A.S.R.2d 20, 21 (App. Div. 1994).

 

II. “Old Rule” v. “Modern Rule”

 

[4] Appellants argue that the trial court should have applied the “modern

 

rule”1 rather than the “old rule”2 in determining ASPA’s liability under the lease.3 The Appellants failed to raise this issue in their motion for a new trial or reconsideration. A motion for a new trial is a jurisdictional prerequisite to appeal. A.S.C.A. § 43.0802(a). As such, we cannot review this issue that was not raised in Appellants’ motion for a new trial or reconsideration. See Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146, 149 (App. Div. 1988) (finding the appellate court lacked jurisdiction to consider appellant’s argument that the appellee was independently negligent when the appellant failed to raise that issue in its motion for a new trial).

 

III. Acceptance

 

[5-6] Appellants contend that the trial court’s finding that JMG and Kepaoa accepted ASPA’s offer of surrender after ASPA abandoned the premises is clearly erroneous. Whether the lessor accepted the lessee’s surrender is a question of fact. See, e.g., Onal v. BP Amoco Corp., 275 F. Supp. 2d 650, 669 (E.D. Penn. 2003); Riggs v. Murdock, 458 P.2d 115, 118 (Ariz. Ct. App. 1969); 49 AM. JUR. 2D Landlord and Tenant § 249 (1995). The trial court considers the evidence “in light of the surrounding circumstances and determine[s] whether the dominion and control exercised by the landlord was for the landlord’s own benefit or

 

1 According to Appellants, under the “modern rule,” “when a tenant wrongfully abandons the property, the landlord is under a duty to mitigate its damages and may sue the tenant for breach of contract damages.” (Appellants’ Br. at 11.)

 

2 According to Appellants, under the “old rule,” the lessor has three options upon a tenant’s abandonment:

 

(1) the landlord could accept the surrender of the premises, which would terminate the lease and the tenant’s obligations under the lease, and sue only for unpaid rent up to the date of termination; (2) the landlord could re-enter the property and attempt to mitigate his damages, holding the tenant liable for any deficiencies that occur; or (3) the landlord could allow the property to remain vacant and sue the tenant for rent for the remainder of the lease term.

 

(Appellants’ Br. at 10.)

 

3 The trial court held that the lessor could:

 

(1) accept the lessee=s offer of surrender and terminate the lease, leaving lessee liable only for rent accrued before the acceptance and damage caused by the abandonment or (2) attempt to lease the premises to another lessee as a means of mitigating the loss of rents, in which case the original lessee is liable for the difference between promised rent and rents obtained.

 

Gebauer, 5 A.S.R.3d at 208.

 

for the benefit of and on behalf of the original tenant.” Riggs, 458 P.2d at 118.

 

The trial court’s finding that JMG and Kepaoa were acting for their own benefit when they reentered the premises is supported by substantial evidence. “Whether or not a dissatisfied litigant had himself presented substantial evidence is not . . . the test for clear error. Rather, the question is whether there was substantial evidence to support the trial court=s conclusions.” Moea`i v. Alai`a, 12 A.S.R.2d 91, 93 (App. Div. 1989). Accordingly, the trial court’s finding that the lessor accepted the lessee’s surrender of the premises is not clearly erroneous and will not be disturbed.4

 

IV. Additional Space

 

Appellants argue the trial court’s finding that they permitted ASPA to use an extra 272 square feet of space free of charge until October 18, 2000 was clearly erroneous. The lessor claims this decision was clearly erroneous because the evidence demonstrated that the parties had negotiated for the additional space prior to the October 18, 2000 demand for compensation, and because the trial court’s decision was inconsistent with other findings. (Appellants’ Br. at 23-25.)

 

[7] There was conflicting evidence presented at trial on this issue. Hugo Ryanny Gebauer, Jr. (“Ryanny”) testified for JMG and Kepaoa that he did not allow ASPA to use the space for free and that he was trying to reach an agreement with ASPA regarding the space. (Trial Tr. at 13-15, 26-28, 35.) However, Gary Sword testified that JMG and Kepaoa allowed ASPA to use the space for free, and that ASPA never accepted any agreement with JMG and Kepaoa to make rental payments for that space. (Trial Tr. at 52, 54-55, 66.) In light of the evidence adduced at trial, the trial court’s finding that the lessor did not demand compensation until October 18, 2000 and that the use prior to this time was permissive is not clearly erroneous. See Roman Catholic Diocese of Samoa Pago Pago, 20 A.S.R.2d at 73 (“The reviewing court accords particular weight to the trial judge’s assessment of conflicting and ambiguous facts.”); American Samoa v. Makuati, 1 A.S.R. 663, 664 (App. Div. 1938) (“[I]t is not the province of the appellate court to determine the credibility of conflicting evidence.”) (citations omitted). Accordingly, the trial court’s finding that the lessor permitted ASPA to use the extra space free of

 

4 JMG and Kepaoa argue that even if they did accept ASPA’s surrender of the premises, they are still entitled to recover contract damages. (Appellants’ Br. at 22-23.) Like their argument regarding the “modern rule” versus the “old rule” (see supra at 16), Appellants failed to raise this issue in their motion for new trial or reconsideration. As such, we cannot review it. See Kim, 8 A.S.R.2d at 149.

 

18

 

charge will not be disturbed.

 

V. Unpaid Utilities

 

The trial court found that ASPA “established the unpaid electrical and water charges at $25,000.” Gebauer, 5 A.S.R.3d at 210. In its order denying a new trial or reconsideration, the trial court found that “the agreements between the parties” supported its position that JMG and Kepaoa were liable for the unpaid utility charges. Gebauer v. American Samoa Power Auth., CA No. 139-00, Order on Motion for Reconsideration or New Trial at 2-3 (Trial Div. Feb. 5, 2002). The trial court also found that “[t]estimony showed that Ryanny Gebauer had the authority to enter the agreement on plaintiffs= behalf.” Id. at 3.

 

The Appellants argue that no evidence was produced at trial demonstrating that the lessor “had any obligation to settle any of its related entities’ outstanding accounts” or that “Gebauer had the authority to negotiate and settle the accounts of the other entities.” (Appellants’ Br. at 26.)

 

The trial court did not specify which agreement or agreements it found entitled ASPA to the $25,000 in unpaid utility bills from JMG and Kepaoa. The parties agreed at trial that the amount owed by JMG to ASPA for unpaid utility bills is $4,774.88. (Trial Tr. at 93.) Accordingly, it appears the trial court’s remaining award of $20,225.12 to ASPA was to cover debts incurred by JMG’s “related entities.” Thus, the trial court determined that JMG was obligated for these debts under an agreement or agreements. Gebauer, CA No. 139-00, Order on Motion for Reconsideration or New Trial at 2-3.

 

[8] Essentially three agreements were discussed at trial: (1) the lease (Trial Ex. 24); (2) the guarantees (Trial Ex. 33); and (3) the purported settlement regarding the additional space and outstanding utility bills (Trial Tr. at 27-28, 88-90). The relevant provision of the lease states:

 

Furthermore, Landlord will bring current any outstanding indebtedness to Tenant from previous utility accounts within ninty [sic] (90) days or such sums, upon reconciliation between Landlord and Tenant, shallbe [sic] deductible from Lease payments.

 

(Trial Ex. 24.) In the lease, “Landlord” is defined as J.M. Gebauer, Inc. (Id.) Ryanny signed the lease for JMG as its corporate officer. (Id.) According to the lease, JMG as the “Landlord” was responsible for bringing its utility debts current. ASPA argues that trial testimony indicated that it was understood by the parties that this provision also included debts owed by JMG affiliated companies. (Appellee’s Br. at 19

 

31-32.) However, the trial court did not find the lease ambiguous nor did the parties make any argument to this effect. Therefore, under the terms of the lease the only outstanding payments ASPA was entitled to were those owed by JMG. Any testimony to the contrary is parol evidence and not appropriately considered. See, e.g., Asifoa v. Nat’l Pac. Ins. Co., 26 A.S.R.2d 99, 100 (Trial Div. 1994); 11 SAMUEL WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW OF CONTRACTS §§ 33:1, 33:37 (4th ed. 1999). As such, ASPA was not entitled to the remaining amount of $20,225.12, an amount attributed to JMG’s “related entities,” under the lease agreement.

 

Three “Utility Payment Agreements” were introduced at trial. (Trial Ex. 33.) One agreement between ASPA, Ryanny, and Jude Corporation/ Ryan, Inc. shows an outstanding debt to ASPA of $29,049.30. Ryanny was listed as the customer in the agreement. Ryanny signed this document as the “owner” of the ASPA “customer” in the agreement and agreed to make monthly payments on this outstanding debt. The agreement makes no mention of JMG or Kepaoa and no evidence demonstrates that Ryanny’s signature on this agreement obligates JMG or Kepaoa to be responsible for the debt. Likewise, another one of these agreements is between Ryanny, Hugo Gebauer, Jr. and ASPA showing a delinquent amount of $2,065.90. This agreement also fails to mention JMG or Kepaoa. These agreements do not indicate that JMG or Kepaoa is responsible for these debts or that Ryanny’s signature on them obligated JMG or Kepaoa to pay the debts.5 Moreover, Ryanny is not a plaintiff to this action and the trial court made no findings that Ryanny was the alter ego of JMG or Kepaoa. Accordingly, the “Utility Payment Agreements” do not show that JMG or Kepaoa was liable to ASPA for the remaining award of $20,225.12 in unpaid utility bills.

 

[9] Evidence was also presented at trial that Ryanny and ASPA were negotiating for payment of the outstanding utility bills in exchange for use of the 272 square feet of extra space. ASPA presented evidence that it never accepted this agreement. The trial court did not explicitly address these negotiations, but its finding that ASPA was allowed use of the extra space for free until October 18, 2000 indicates that it did not find an agreement had been reached between ASPA and JMG regarding the extra space and outstanding utility debt. Gebauer, 5 A.S.R.3d at 209. Accordingly, the trial court could not have relied on these negotiations as the basis for imposing liability on JMG and Kepaoa for the outstanding utility debt. Absent any factual or legal basis for the trial court’s award

 

5 The third agreement is between Ryanny Gebauer, J.M. Gebauer, and ASPA in the amount of $2,321.64. However, this amount is already included in the parties’ stipulated amount of $4,774.88. ASPA’s Opp. to Mot. for New Trial or Reconsideration at 5, Gebauer, CA No. 139-00 (Trial Div.).

 

of $20,225.12 to ASPA for the unpaid utility bills of Ryanny or other JMG “related entities,” it is clearly erroneous and, therefore, we reverse this award.

 

VI. Punitive Damages

 

Appellants argue that the trial court’s award of $5000 in punitive damages was inadequate and irrational. The appellants failed to raise this issue in their motion for a new trial or reconsideration. As such, we cannot review this issue. See supra, at 17; Kim, 8 A.S.R.2d at 149.

 

Conclusion

 

The trial court’s award to ASPA of $20,225.12 in damages for the unpaid utility bills of entities other than JMG or Kepaoa is REVERSED. The trial court’s decision is AFFIRMED in all other respects.

 

It is so ordered.

 

In re Matai Title “Puailoa”_1


 

AVEA T. VA`AFUSUAGA, Appellant,

 

v.

 

MA`AE TAEI, Appellee.

 

________________________________

 

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

 

High Court of American Samoa

 

Appellate Division

 

AP No. 13-03

 

May 6, 2004

 

[1] The trial court’s factual determinations are reviewed for clear error. The test for clear error is not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the trial court’s decision.

 

[2] Under A.S.C.A. § 1.0409(c)-(d), the High Court is guided by the following considerations in the trial of title cases, 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 descendent prevails over the female; (2) the wish of the majority or plurality of those clans of 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 . . . (d) The court shall issue a written decision that must contain findings of facts and conclusions of law on each issue under (c) above.

 

[3] When the court attempts to resolve a dispute among family members about who should hold a matai title, it is doing its best to apply the criteria that the Fono believes the family would have applied if there were no external means of dispute resolution.

 

[4] Under A.S.C.A. § 1.0409(c), the court is directed by statute to give each criterion less weight than the one it follows. Other than this statutory requirement, the comparative evaluation of the four statutory criteria is not, and cannot be, measured by mathematical exactness.

 

[5] It is for the trial court to resolve conflicts in the evidence, and to judge the credibility of the witness. 39

 

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, TASHIMA,** Acting Associate Justice, LOGOAI, Chief Associate Judge, and ATIULAGI, Associate Judge.

 

Counsel: For Appellant, Robert K. Maez

 

For Appellee, S. Salanoa Aumoeualogo

 

OPINION AND ORDER

 

This case involves a dispute over the succession to the Puailoa matai title in the village of Nu`uuli. Appellant Avea T. Va`afusuaga (“Avea”) contends that the trial court erred in its order and opinion awarding the Puailoa matai title to Appellee Ma`ae Taei (“Ma`ae”) by: (1) failing to make appropriate findings of fact and conclusions of law under A.S.C.A. § 1.0409(d); and (2) erring in its findings, pursuant to A.S.C.A. § 1.0409(c), on the third statutory factor of the candidates’ forcefulness, character, personality, and knowledge of Samoan customs, and fourth statutory factor of the candidates’ value to the family, village, and country. For the following reasons, we AFFIRM the trial court’s decision.

 

Background

 

Tepatasi M. Puailoa (“Tepatasi”) offered the Puailoa title for registration with the Office of the Territorial Registrar. Subsequently, Tuitogamaatoe P. Fanene (“Tuitogamaatoe”), La`au Seui (“La`au”), Ma`ae, Archie Soliai (“Archie”) and Avea filed their objections and counterclaims. Pursuant to A.S.C.A. § 43.0302, the Secretary of Samoan Affairs issued a certificate of irreconcilable dispute after the parties failed to resolve their claims. Accordingly, the case was referred to the High Court for resolution. In Re Matai Title “Puailoa,” 7 A.S.R.3d 228, 229 (Land & Titles Div. 2003).

 

Trial was held over several days in January of 2003. On May 1, 2003, the trial court awarded the Puailoa title to Ma`ae. The court found candidates Tepatasi and Tuiotgamaatoe prevailed equally over Ma`ae and Avea on the first or hereditary right statutory criterion used in determining matai title succession.1 The court also found that no one

 

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

** Honorable A. Wallace Tashima, Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

1 The trial court found La`au’s “hereditary connection claim to be, at best, doubtful,” and that Archie’s “connection is tenuous.” In Re Matai

 

 

 

prevailed on the second or clan preference criterion, and that Ma`ae prevailed over the other candidates on the third and fourth criteria. Avea filed a motion for a new trial or reconsideration which was denied by the trial court on July 7, 2003. Shortly thereafter, Avea filed a notice of appeal.2

 

Discussion

 

I. Standard of Review

 

[1] The trial court’s factual determinations are reviewed for clear error. See In re Matai Title “Tauaisafune,” 6 A.S.R.2d 59, 61 (App. Div. 1987). The test for clear error is “not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the trial court’s decision.” Toleafoa v. American Samoa Gov’t, 26 A.S.R.2d 20, 21 (App. Div. 1994).

 

II. Application of A.S.C.A. § 1.0409(d)

 

Avea argues that the trial court’s findings and conclusions are deficient under A.S.C.A. § 1.0409(d). She claims the court is required to “separate the fact finding from the legal conclusions” and assess the “relative margins” by which a candidate prevails over other candidates on each statutory factor. (Appellant’s Br. at 4.) Additionally, Avea argues that the Appellate Division should “insist on an uniform and fair standards [sic]” for each criterion. (Id. 10.)

 

[2] The relevant part of the current statute states:

 

(c) In the trial of title cases, the High Court shall be guided by the following consideration, 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 descendent prevails over the female;

 

(2) the wish of the majority or plurality of those clans of 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

 

Title “Puailoa,” 7 A.S.R.3d at 231. While neither La`au nor Archie appealed the court’s decision, we caution that the decision should not be interpreted in and of itself as preventing either La`au or Archie from participating in the Puailoa family’s affairs or from asserting a claim to the Puailoa title in the future.

 

2 Tuitogamaatoe filed a separate notice of appeal. See In re Matai Title “Puailoa,” 8 A.S.R.3d 41 (App. Div. 2004).

 

 

 

Samoan customs; and

 

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

 

(d) The court shall issue a written decision that must contain finding of facts and conclusions of law on each issue under (c) above.

 

A.S.C.A. § 1.0409(c)-(d). The trial court made findings and conclusions consistent with the statute. In Re Matai Title “Puailoa,” 7 A.S.R.3d at 229-235.

 

[3] Appellant’s argument that the court needs to formulate some sort of additional standard is not in accordance with the Fono’s current statutory scheme. As Avea points out in her brief, the Fono has been tweaking and revising this statute over the years to provide the court with guidance on deciding matai title cases. (Appellant’s Br. at 3-5.) “When the Court attempts to resolve a dispute among family members about who should hold a matai title, it is doing its best to apply the criteria that the Fono believes the family would have applied if there were no external means of dispute resolution.” In re Matai Title “Soata,” 6 A.S.R.2d 91, 95 (App. Div. 1987). Indeed, if the Fono thought that the court’s decisions in matai title cases left something to be desired, it could revise the statute.

 

[4] Additionally, Avea argues that the trial court failed to assess the relative margins by which Ma`ae prevailed over the other candidates. The court is directed by statute to give each criterion less weight than the one it follows. A.S.C.A. § 1.0409(c). Other than this statutory requirement, “the comparative evaluation of the four statutory criteria is not, and cannot be, measured by mathematical exactness.” In re Matai Title “Tuaolo,” 28 A.S.R.2d 137, 143 (Land & Titles Div. 1995); See also, e.g., In re Matai Title “Tuaolo,” 27 A.S.R.2d 97, 102 (Land & Titles Div. 1995); In re Matai Title “Tauala,” 15 A.S.R.2d 65, 69 (Land & Titles Div. 1990). An assessment of the relative margins in all cases on all factors is impractical. In all respects, the trial court’s findings and conclusions satisfy A.S.C.A. § 1.0409(d). See, e.g., In re Matai Title “Tauaisafune,” 6 A.S.R.2d at 60; In re Matai Title “Atiumaletavai,” 22 A.S.R.2d 94, 95 (Land & Titles Div. 1992) (noting “the frequent but not universal approach in this Court’s matai-title decisions to include substantial comparative discussions of the title candidates’ qualifications under each of the four statutory criteria which must be considered. While this method can provide useful analysis to the reader of matai-title judicial decisions . . . , the only legal requirement is a written decision containing findings of fact and conclusions of law on each of the four statutory criteria.”).

 

 

 

III. The Statutory Factors

 

Avea contends that the trial court erred by finding in favor of Ma`ae on the third and fourth criteria.3

 

A. Forcefulness, Character, Personality, Knowledge of Samoan Custom

 

[5] Avea contends that the trial court erred by finding in favor of Ma’ae on this criterion. (Appellant’s Br. at 5-7.) The trial court noted “it relie[d] in part on personal observation of each candidate while on the witness stand.” In Re Matai Title “Puailoa,” 7 A.S.R.3d at 233. The court also listed “[l]eadership ability, honesty, education, public service, involvement in church and village affairs, and previous experience as a matai” as other factors it considered relevant to this criterion. Id. (citations omitted) (alteration in original). In finding Ma`ae prevailed on this criterion, the trial court noted Ma`ae’s matai and career experiences as well as his demeanor on the witness stand. “[I]t [i]s for the trial court to resolve conflicts in the evidence, and to judge the credibility of the witnesses.” Reine v. Taotoai, 25 A.S.R.2d 136, 138 (App. Div. 1994). The trial court’s determination in favor of Ma`ae on this factor was supported by substantial evidence.

 

B. Value to Family, Village, and Country

 

Avea disputes the trial court’s conclusion that Ma`ae’s value to his family, village, and country is superior to that of the other candidates. In determining this factor, the trial court noted that Ma`ae served his country through military service and commented on his service to the territory. In Re Matai Title “Puailoa,” 7 A.S.R.3d at 233. The trial court found that Ma`ae’s experience as a matai would serve his family and village. The court also based its conclusion on this factor on the in-court observation of the candidates’ testimony. “[A]ppellant is in essence urging this court to reweigh the facts presented at trial, an area specifically reserved for the trier of fact, who is in a unique position to hear evidence and observe the demeanor of witnesses.” Uiagalelei v. Ulufale, 26 A.S.R.2d 118, 119 (App. Div. 1994). The record amply supports the trial court’s findings, and we will not disturb them.

 

3 Avea also contends that the trial court failed to make conclusions of law on the first criterion by failing to “assign[] what weight would be assigned to heredity.” (Appellant’s Br. at 5.) We believe this issue is adequately addressed in our discussion supra. The trial court made factual findings and ranked the candidates as follows: Tepatasi and Tuitogamaatoe prevailed equally over Avea and Ma`ae who, in turn, prevailed equally over La’au and Archie. In Re Matai Title “Puailoa,” 7 A.S.R.3d at 232.

 

 

 

Conclusion

 

For the aforementioned reasons, the trial court’s decision is AFFIRMED.

 

It is so ordered.

 

In re Matai Title “Le`i”


 

SONNY LE`I THOMPSON, Appellant,

 

v.

 

TIKERI THOMPSON, Appellee.

 

________________________________

 

[In re Matai Title “Le`i” of the Village of Ofu]

 

High Court of American Samoa

 

Appellate Division

 

AP No. 14-03

 

May 28, 2004

 

[1] A trial court’s factual determinations are reviewed for clear error, and questions of law or mixed questions of law and fact are reviewed de novo.

 

[2] In matai title cases, the trial court is required to issue a written decision containing findings of fact and conclusions of law on each of the four statutory criteria set out in A.S.C.A. § 1.0409(c).

 

[3] When considering the third criterion (forcefulness, character and personality) in matai title cases, some of the attributes that the court considers are leadership ability, honesty, education, public service, involvement in church and village affairs, and previous experience.

 

4 We also point out that the trial court noted the “Atualevao” title is registered under A.S.C.A. § 1.0401, while the “Lemeana`i” title is not registered under the statute. The legal distinctions between registered and unregistered titles are significant.

 

54

 

[4] A.S.C.A. § 1.0409(c) does not require the court to assess the relative margins by which one matai candidate prevails over others on a given criterion, but only requires “priority” to be given to the four considerations in the order listed.

 

[5] The comparative evaluation of the four statutory criteria cannot be measured by mathematical exactness.

 

[6] The Sotoa rule allows the trial court to determine the best hereditary right criterion by tracing the blood connection of each candidate back to the original titleholder.

 

[7] The Sotoa rule provides generational equality among current candidates for a title and fairer results in the assessment of the hereditary right criterion.

 

[8] Where candidates in a matai title action cannot agree on the identity of the original titleholder, the court modifies the Sotoa rule by tracing the candidates’ blood connection back to a known common titleholder or ancestral descendent of a former titleholder.

 

[9] The approach used by the court in determining the candidate with the best hereditary right to a matai title must be consistent with the particular family’s traditions.

 

[10] Adoption, whether by Samoan customary means or by judicial process, does not confer any hereditary right to a matai title; only blood relationships count.

 

[11] A candidate’s customary adoption by previous titleholder and sibling-like relationship with another candidate, although not conferring any hereditary right to the matai title, are additional facts that the court can consider in determining whether to apply the Sotoa rule rather than the nearest titleholder rule.

 

[12] Where the trial court failed to make any factual findings with respect to the most appropriate hereditary right rule to be applied, it had committed clear error.

 

[13] Where the trial court ruled that no candidate had prevailed on the second (family preference) criterion, determining that the family had failed to settle on any one candidate, it nonetheless committed clear error by failing to make findings on the composition of the family clans.

 

[14] Where the trial court relied, at least in part, on the observation and assessment of the witnesses in its determination of the third (character and personality) criterion, the appellate court properly deferred to the

 

55

 

trial court’s judgment, as the trial court had the firsthand opportunity to consider the witnesses and their proofs.

 

[15] It is the trial court’s responsibility, not the reviewing court’s, to resolve conflicts in the evidence and to judge the credibility of the witnesses.

 

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, TASHIMA,** Acting Associate Justice, LOGOAI, Chief Associate Judge, and ATIULAGI, Associate Judge.

 

Counsel: For Appellant, Charles V. Ala`ilima

 

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

 

OPINION AND ORDER

 

RICHMOND, Associate Justice:

 

Background

 

Tuanu`utele Sai (“Tuanu`utele”) initially offered for registration with the Territorial Registrar the vacant matai title Le`i of village of Ofu in the Manu`a Islands. Timely objections were filed by Appellant Sonny Le`i Thompson (“Sonny”), Appellee Tikeri Thompson (“Tikeri”), Leana Misiuaita (“Leana”), Vae`ena Sofeni (“Vae`ena”), Tagata A.T. Le`i (“Tagata”), and Porotesano T. Tuiolosega (“Porotesano”). In due course, pursuant to A.S.C.A. § 43.0302, the Secretary of Samoan Affairs issued a certificate of irreconcilable dispute. The controversy was then referred to the High Court for judicial resolution.

 

On June 6, 2003, following trial,1 the Land and Titles Division court awarded the Le`i title to Tikeri. Only Sonny moved for reconsideration or a new trial. The trial court denied the motion on July 18, 2003, and Sonny timely appealed.

 

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

** Honorable A. Wallace Tashima, Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

1 By the time of trial, Leana and Tagata were no longer active candidates. Vae`ena participated in the trial but essentially only to establish his qualifications to hold the title and to emphasize his support for Sonny’s selection. Thus, Tuanu`utele, Tikeri, Sonny, and Porotesano were then competing for the title.

 

56

 

Sonny contends that that the trial court erred in awarding the Le`i title to Tikeri by failing to make: (1) appropriate conclusions of law with respect to hereditary right under A.S.C.A. § 1.0409(c)(1) by (a) not making factual findings to support use of the “nearest titleholder” standard and (b) not considering Sonny’s customary adoptive status by the previous titleholder; (2) appropriate findings of fact and conclusions of law with respect to the candidates’ support by the majority or plurality of the clans customary in the family under A.S.C.A. § 1.0409(c)(2); (3) appropriate conclusions of law with respect to objective standards by which forcefulness, character, personality, and knowledge of Samoan customs under A.S.C.A. § 1.0409(c)(3) could be compared between the candidates; (4) appropriate conclusions of law with respect to objective standards by which value to family, village, and country under A.S.C.A. § 1.0409(c)(4) could be compared between the candidates; and (5) appropriate conclusions of law regarding the relative weight assigned to each of the four criteria set out under A.S.C.A. § 1.0409(c) to ensure an objective measure of compliance with the priorities established by the statute.

 

Analysis

 

I. Standard of Review

 

[1] “A trial court’s factual determinations are reviewed for ‘clear error’ and questions of law or mixed questions of law and fact are reviewed de novo.” Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992) (emphasis omitted); In re Matai Title “Tauaisafune,” 6 A.S.R.2d 59, 61 (App. Div. 1987). The test for clear error is “not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the trial court’s decision.” Toleafoa v. American Samoa Gov’t, 26 A.S.R.2d 20, 21 (App. Div. 1994).

 

II. Appropriate Findings of Fact and Conclusions of Law

 

[2] We will first address in general the claimed error of failing to make appropriate findings of fact and conclusions of law. A.S.C.A. § 1.0409(d) requires the trial court to “issue a written decision that must contain finding of facts and conclusions of law” on each of the four statutory criteria set out in A.S.C.A. § 1.0409(c). Sonny argues that the court’s findings and conclusions are deficient.

 

Sonny claims that the trial court is required to “separate the fact finding from the legal conclusions” and assess the “relative margins” by which a candidate prevails over other candidates on each statutory factor. (Appellant’s Br. at 9.) He maintains that the Appellate Division should develop a “rigorous approach” for matai title cases by “develop[ing] 57

 

uniform and fair standards” for each criterion, particularly for the third and fourth factors. (Id. at 22.) Tikeri responds that Sonny’s approach requires the court to “undertake a novel, but ill-conceived, quantitative analysis of the evidence.” (Appellee’s Br. at 5.)

 

Sonny’s position is contrary to the plain language of A.S.C.A. § 1.0409. He recognizes that the Legislature has revised this statute from time to time to provide the court with guidance on deciding matai title cases. (Appellant’s Br. at 2-10.) Section 1.0409(c) currently reads:

 

(c) 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 descendents are equal in families where this has been customary; otherwise, the male descendent prevails over the female;

 

(2) the wish of the majority or plurality of those clans of 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;

 

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

 

Sonny’s argument that the court needs to formulate some sort of additional test or formula is not in accordance with the Legislature’s present statutory scheme. “When the Court attempts to resolve a dispute among family members about who should hold a matai title, it is doing its best to apply the criteria that the Fono believes the family would have applied if there were no external means of dispute resolution.” In re Matai Title “Sotoa,” 6 A.S.R.2d 91, 95 (App. Div. 1987). Indeed, if the Legislature thought that the court’s decisions in matai title cases left something to be desired, it could change the statute.

 

[3] Sonny specifically seeks a “list of standards” for the third and fourth criteria, claiming that “no candidate can know what the court will decide to focus on until the decision is made.” (Appellant’s Br. at 16, 19.) Judicial imposition of additional standards for the third and fourth criteria would be contrary to the statute. It would also be impractical. Every candidate has individual characteristics, unlike any other candidate in all particulars, with unique significance for the matai title controversy at hand. However, candidates can still find some guidance from previous trial and appellate court decisions. See, e.g., In re Matai Title “Leaeno,” 25 A.S.R.2d 4, 9 (Land & Titles Div. 1993) (“Leadership ability, honesty, education, public service, involvement in church and village affairs, and previous experience as a matai are some of the factors which aid in meeting this [third] criterion.”).

 

58

 

[4-5] Additionally, Sonny argues that the trial court failed to assess the relative margins by which Tikeri prevailed over the other candidates. However, A.S.C.A. § 1.0409(c) only requires “priority” to be given to the four considerations in the order listed. In re Matai Title “Tuaolo,” 27 A.S.R.2d 97, 102 (Land & Titles Div. 1995); see also In re Matai Title “Tauala,” 15 A.S.R.2d 65, 69 (Land & Titles Div. 1990). Moreover, “the comparative evaluation of the four statutory criteria is not, and cannot be, measured by mathematical exactness.” In re Matai Title “Tuaolo,” 28 A.S.R.2d 137, 143 (Land & Titles Div. 1995).

 

We will next address specific issues that Sonny raises with respect to each of the four statutory criteria.

 

III. Hereditary Right

 

The trial court succinctly applied the frequently used judicial standard adjudicating the candidates’ hereditary right to the title according to the percentage or fraction of blood connection to their closest ancestral titleholder. In re Matai Title “Tuaolo,” 27 A.S.R.2d at 99. Tikeri is the natural son of the last Le`i titleholder, while all of the other candidates are more remotely connected to a previous titleholder. Tikeri clearly prevailed under this approach.

 

[6-9] Trial courts have in some recent matai title cases applied the standard for the hereditary right determination of tracing the blood connection of each candidate back to the original titleholder, now commonly known as the Sotoa rule. In re Matai Title “Sotoa,” 2 A.S.R.2d 15 (Land & Titles Div. 1984). The Sotoa rule provides generational equality among current candidates for a title and fairer results in the assessment of the hereditary right criterion. This is particularly true for candidates who descend from a family line that has not included a titleholder for many generations. The Sotoa rule runs into difficulty, however, when, as frequently happens and occurs in the present case, the candidates do not agree on the first titleholder’s identity. Thus, in practical application, the Sotoa rule has been modified by tracing the candidates’ blood connection back to a known common titleholder or ancestral descendent of a former titleholder. See In re Matai Title “Atiumaletavai,” 22 A.S.R.2d 94, 97 (Land & Titles Div. 1992). The approach actually used must, in any event, be consistent with a particular family’s traditions. Id.

 

If the Sotoa rule is appropriately applied in this case, it is apparent that each candidate would have a blood connection that is much closer, if not equal, to Tikeri’s connection. Traced to a common ancestral titleholder, Sonny’s blood connection, for example, would be either the same as Tikeri’s connection or only one generation further removed. Regardless of which candidate may still prevail under the Sotoa rule on the

 

59

 

hereditary right criterion, closer characterization of blood ties may result in a different assessment of the candidates’ relative qualifications under the four statutory criteria and a different award of the title.

 

[10-11] In this regard, we take special note that, in addition to Sonny’s blood connection to a titleholder, he was customarily adopted by the last titleholder, Tikeri’s father, and in this sense, Tikeri and Sonny were brothers. Sonny argues that since his blood connection was established, the trial court should have considered his adoptive status with the last titleholder in determining his hereditary right to the title, presumably enhancing his right to equivalent status with his adoptive brother Tikeri. Adoption, however, whether by Samoan customary means or by judicial process, does not confer any hereditary right to a matai title; “only blood relationships count.” In re Matai Title “Mulitauaopele,” 17 A.S.R.2d 75, 82 (Land & Titles Div. 1990). Nonetheless, Sonny’s customary adoption and sibling-like relationship with Tikeri are additional facts that may appropriately call for application of the Sotoa rule rather than the nearest titleholder rule.

 

[12] The trial court did not make any factual findings with respect to the hereditary right rule that should be most appropriately applied in this case, particularly including but not limited to Sonny’s customary adoptive status with the last Le`i titleholder and, as a consequence, did not reach any legal conclusions in this regard. This lack of findings and conclusions was clear error.

 

IV. Wish of the Family’s Customary Clans

 

[13] Sonny claims the trial court erred by failing to make findings on the composition of the family clans. The court found that “the Le`i family did not decide on any one candidate and, hence, no candidate can be said to prevail on this criterion.” In re Matai Title “Le`i,” 7 A.S.R.3d 244, 247 (Land & Titles Div. 2003). The court based its conclusion on the outcome and circumstances surrounding family meetings in the 1990s and one meeting in 2002. The trial court found that the family abdicated its duty to choose a successor to the title at the meetings in the 1990s and found the 2002 meeting to be mere political posturing. As a result, the court found,

 

[it] need not at this time decide on the issue of clan definition and the number of clans in the Le`i family. The only thing really clear on the evidence in this regard, apart from the very apparent fact that the research on family history was very much superficial and wanting, is that there was accord on the evidence suggesting that the Le`i family is compromised of more than one clan.

 

60

 

Id. at 247, n.3.

 

Recent precedent suggests that the trial court’s failure to make findings regarding the composition of the family clans is error. In re Matai Title “Tagoilelagi,” 3 A.S.R.3d 66 (App. Div. 1999). In Tagoilelagi, the Court reversed and remanded a matai title award because the trial court failed to “provide specific findings on the ‘number, identity and preference of the clans’ in the family.” Id. (quoting In re Matai Title “Faumuina,” 26 A.S.R.2d 1, 4 (App. Div. 1994)). Likewise, in Faumuina, the award of a matai title was reversed because the trial court also “did not make a finding on the number, identity and preference of the clans.” 26 A.S.R.2d at 4. The Faumuina court “acknowledge[d] the often-difficult task of determining clans and whom they support” but then found it was “precluded by law from allowing the decision below to stand, since the trial court failed to make the required findings.” Id. Accordingly, we find that the trial court erred by failing to make the requisite findings under this criterion.

 

V. Forcefulness, Character, Personality and Knowledge of Samoan Custom

 

Sonny contends the trial court erred by failing to make appropriate conclusions of law with respect to objective standards for this criterion. (Appellant’s Br. at 16.) We already rejected this argument. See supra, at 51.

 

However, Sonny also appears to disagree with the trial court’s factual findings on the third criterion, claiming they were not supported by the record. The trial court found that the candidates were equally versed in Samoan customs. In re Matai Title “Le`i,” 7 A.S.R.3d at 248. In determining forcefulness, the court discussed Sonny’s, Tikeri’s and Tuanu`u’s educational pursuits and ultimately found that Sonny and Tikeri prevailed equally over the other candidates. Id. The court then determined that Tikeri prevailed on the consideration of character and personality. The court based its conclusion on the in-court impressions of the candidates as well as their behavior throughout the matai title selection process. Id. at 249. Based on these findings, the court found that Tikeri prevailed over the other candidates on this criterion.

 

[14] As the trial court noted in its order denying Sonny’s motion for a new trial, “[w]hether or not a dissatisfied litigant had himself presented substantial evidence in trial is not the test for clear error. Rather, the question is whether there was substantial evidence to support the trial court’s conclusions.” In re Matai Title “Le`i,” MT No. 03-98, Order denying Motions for New Trial & Stay at 3 (Land & Titles Div. July 18, 2003) (quoting Moea’i v. Alai’a, 12 A.S.R.2d 91, 93 (App. Div. 1989)). There was substantial evidence to support the trial court decision. 61

 

Moreover, the trial court, in order to make findings on character and personality, relied, at least in part, on the observation and assessment of the witnesses, “and with such matters the appellate court must of necessity defer to the judgment of the trial court, who had the firsthand opportunity to consider the witnesses and their proofs.” In re Matai Title “Tauaisafune,” 6 A.S.R.2d at 61; see also Nat’l Pac. Ins. Co. v. Oto, 3 A.S.R.2d 94, 94-95 (App. Div. 1986); In re Matai Title “Mauga,” 4 A.S.R. 947, 952 (App. Div. 1967). The trial court’s findings on this criterion were not clearly erroneous.

 

However, in light of our discussion regarding the first and second criteria, the trial court may decide it needs to reevaluate its findings under this criterion.

 

VI. Value to Family, Village, and Country

 

Again, Sonny contends the trial court erred by failing to make appropriate conclusions of law with respect to objective standards for this criterion. (Appellant’s Br. at 19.) We have similarly rejected this argument. See supra, at 51.

 

Sonny further appears to disagree with the trial court’s findings on this criterion. He argues that the evidence supports a finding that he prevailed on this factor. The court found all candidates equal in their value to their village. In re Matai Title “Le`i,” 7 A.S.R.3d at 249. The court found that Sonny and Tikeri prevailed in the consideration of their value to the country because of their backgrounds and experiences. Id. In terms of the candidates’ value to family, the trial court found that Tikeri prevailed. The court noted his involvement in his father’s administration and his current involvement in the administration of rental income. Additionally, the court found Tikeri’s disposition to be the best suited to lead his family. Id. at 250. Based on these findings, the trial court determined that Tikeri prevailed on this criterion.

 

[15] Tikeri and Sonny each presented evidence to show that they should prevail on this criterion. “[I]t [i]s for the trial court to resolve conflicts in the evidence, and to judge the credibility of the witnesses.” Reine v. Taotoai, 25 A.S.R.2d 136, 138 (App. Div. 1994). The trial court’s decision on the fourth factor is supported by the evidence and was not clearly erroneous.

 

However, again in light of our discussion regarding the first and second criteria, the trial court may decide it needs to reevaluate its findings under this criterion. 62

 

Order

 

This case is REMANDED to the trial court for proceedings consistent with this opinion.

 

It is so ordered.

 

In re Matai Title “Ava”


 

AKAPO KOFE AKAPO, Appellant,

v.

LUFILUFI LAFOIA AVA PENEUETA, Appellee.

________________________________

[In re Matai Title “AVA” of the Village of Pava`ia`i]

High Court of American Samoa

Appellate Division

AP No. 08-03

May 5, 2004

[1] A trial court’s evidentiary rulings are reviewed for abuse of discretion.

[2] A trial court’s factual determinations are reviewed for clear error.

[3] In determining whether a trial court has committed clear error, the reviewing court looks at whether there is sufficient evidence in the record to support the trial court’s decision.

[4] If family members decide to support a particular matai candidate rather than file a timely objection or counterclaim, they are resigned to the court’s determinations of eligibility and merit regarding their chosen candidate.

[5] Where an unsuccessful candidate for matai title moved, post-trial, for DNA testing and offered to pay for such testing, but failed to present adequate justification to the court for reopening the record and receiving the new evidence, the request was properly denied.

[6] The reviewing court accords particular weight to the trial judge’s assessment of conflicting and ambiguous facts.

[7] A claimant who lives in the family and the village is more familiar with members and the needs of family members than a claimant who has never lived in the family or village.

 

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, TASHIMA,** Acting Associate Justice, SAGAPOLUTELE, Associate Judge, and TAPOPO, Associate Judge.

Counsel: For Appellant, Arthur Ripley, Jr.

For Appellee, S. Salanoa Aumoeualogo

OPINION AND ORDER

RICHMOND, Associate Justice:

This case involves a dispute over the succession to the Ava matai title in the village of Pava`ia`i. The Ava title became vacant in 1997 following the death of Ava Vili, Jr. Appellant Akapo Kofe Akapo (“Akapo”) contends that the trial court erred in its order and opinion awarding the Ava matai title to Appellee Lufilufi Lafoia Ava Peneueta (“Lufilufi”) by: (1) declining to adjudicate Appellant’s eligibility to hold the Ava title before analyzing the statutory factors; (2) denying Appellant’s post-trial motion to allow DNA evidence; and (3) determining three of the four statutory factors in favor of Appellee. For the following reasons, we AFFIRM the trial court’s decision.

Background

On April 19, 2001, Lufilufi offered the Ava title for registration with the Office of the Territorial Registrar. On June 15, 2001, Akapo timely filed his objection and counterclaim with the Territorial Registrar. Pursuant to A.S.C.A. § 43.0302, the Secretary of Samoan Affairs issued a certificate of irreconcilable dispute after the parties failed to resolve their claims. Accordingly, the case was referred to the High Court for resolution. In re Matai Title “Ava,” 7 A.S.R.3d 211 (Land & Titles Div. 2003).

Trial was held on June 3 and 4, 2002. On June 4, 2002, following testimony that Akapo was actually born in Savaii, Samoa, Lufilufi filed a motion to dismiss Akapo’s claim arguing that Akapo is ineligible to hold the Ava title under A.S.C.A. § 1.0403(b). After the close of evidence but prior to submitting closing arguments, Akapo filed a motion for DNA testing. Lufilufi opposed the motion. On September 24, 2002, the trial court denied the motion for DNA testing.

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

** Honorable A. Wallace Tashima, Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

On January 8, 2003, the trial court awarded the Ava title to Lufilufi. The court found Lufilufi prevailed over Akapo on the first, second and fourth criteria used in determining matai title succession. In light of this outcome, the court declined to address Lufilufi’s motion to disqualify Akapo. Akapo filed a motion for a new trial or reconsideration which was denied by the trial court on May 1, 2003. On May 9, 2003, Akapo filed a notice of appeal.

Discussion

I. Standard of Review

[1-3] We review the trial court’s evidentiary rulings for abuse of discretion. Freeman v. Allstate Life Ins. Co, 253 F.3d 533, 536 (9th Cir. 2001). The trial court’s factual determinations are reviewed for clear error. See In re Matai Title “Tauaisafune,” 6 A.S.R.2d 59, 61 (App. Div. 1987). The test for clear error is “not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the trial court’s decision.” Toleafoa v. Am. Samoa Gov’t, 26 A.S.R.2d 20, 21 (App. Div. 1994).

II. Eligibility

During the trial, Lufilufi’s counsel filed a motion to dismiss Akapo’s claim arguing that under A.S.C.A. § 1.0403(b) Akapo is not eligible to hold the Ava title. At trial, the court informed the parties it was taking the motion under advisement and would address the issue in the final decision. (Trial Tr. at 144.) In its opinion, the trial court declined to decide whether Akapo was eligible for the Ava title. Instead, after finding in favor of Lufilufi on three of the four factors, the trial court determined it was unnecessary to decide Lufilufi’s motion to disqualify Akapo. In re Matai Title “Ava,” 7 A.S.R.3d at 213, n.1.

Akapo argues that a determination of eligibility is a condition precedent to applying the four statutory factors. He argues that if the court had determined that he was ineligible to succeed to the matai title, the case should have been dismissed, Lufilufi should have been required to re-register, and other family members would have been able to object and file counterclaims. (Appellants’ Br. at 13-14.)

[4] Akapo’s understanding is incorrect. If the trial court had determined that Akapo was ineligible to hold the Ava title, Akapo’s counterclaim would have been dismissed and Lufilufi would have prevailed. A.S.C.A. § 1.0407 provides, “[f]or a period of 60 days immediately following the posting of notice . . . any interested person may file a counterclaim or objection.” Accordingly, if family members decide to support a particular candidate rather than file a timely objection or counterclaim, 33

they are resigned to the court’s determinations of eligibility and merit regarding their chosen candidate. Therefore, even if the trial court should have made a determination regarding eligibility before analyzing the four factors, the outcome would have been the same. See, e.g., In re Matai Title “Fonoti,” 20 A.S.R.2d 22, 25-26 (Land & Titles Div. 1991) (ordering one candidate be registered as the successor to a matai title after the other candidate was found ineligible). As such, we will not disturb the trial court’s decision.

III. DNA Testing

[5] The trial court denied Akapo’s post-trial motion for DNA testing finding that he “presented no good reason, at this stage of the proceedings, to reopen the record for the taking of new and additional evidence.” In re Matai Title “Ava,” MT No. 09-01, Order denying Motion for DNA Testing at 1 (Land & Titles Div. Sept. 24, 2002). Appellant argues that the trial court should have reopened the case because “Akapo . . . w[as] willing and ready to pay the expenses,” because “[t]he court also had trouble resolving the conflict in the pedigrees proffered,”1 and because “DNA testing would have provided scientific evidence of whether or not the candidate . . . descended from Tulifaga Lafoia.” (Appellant’s Br. at 15.) The trial court acted within its discretion in denying Akapo’s motion to allow DNA evidence post-trial. See, e.g., Compass Tech., Inc. v. Tseng Labs., Inc., 71 F.3d 1125, 1130 (3rd Cir. 1995) (setting forth the requirements for the admission of new evidence).

IV. The Statutory Factors

A.S.C.A. § 1.0409 lists the four factors in order of priority that the trial court should take into consideration when determining matai title succession cases:

(c) 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 descendent prevails over the female;

1 Although the trial court acknowledged in its opinion that there were conflicting views regarding Lufilufi’s hereditary right to the Ava title, it did not claim it had trouble resolving the conflict. Indeed, Appellant cites to Judge Logoai’s questioning of one witness, Pagofie Fiaigoa, to corroborate his argument. (Appellant’s Br. at 15 n.8.) However, this questioning occurred early in the trial before Lufilufi’s corroborating witnesses were called. 34

(2) the wish of the majority or plurality of those clans of 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.

A.S.C.A. § 1.0409(c). Akapo contends that the trial court erred by finding in favor of Lufilufi on the first, second and fourth criteria.

A. Best Hereditary Right

[6] The witnesses at trial disagreed about the paternity of Lufilufi’s father. It is through her paternal grandfather, Ava Lafoia Tulilefaga (“Tulilefaga”), that Lufilufi claims her 25% heredity right. The trial court decided the conflicting family accounts in favor of Lufilufi. In making its determination, the trial court relied on the testimony of Lufilufi, which was corroborated by other witnesses including her paternal aunt, Folole Tulilefaga Ava (“Folole”). In re Matai Title “Ava,” 7 A.S.R.3d at 212. Appellant argues that the trial court erred in crediting Folole’s testimony over Taeaoleilei Tialavea, a witness for Akapo and a daughter of Tulilefaga. (Appellant’s Br. at 16.) However, “[t]he reviewing court accords particular weight to the trial judge’s assessment of conflicting and ambiguous facts.” Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992). There was substantial evidence to support the trial court’s finding on this factor and, therefore, the trial court’s finding was not clearly erroneous.

B. Clan Support

The trial court was also presented with conflicting testimony on this issue. Appellant acknowledges that “[a]t the very least, there was evidence that members from each of the four clans supported both Akapo and Lufilufi . . . .” (Appellant’s Br. at 16.) Lufilufi and Akapo both testified that they received support from each clan. “[I]t is not the province of the appellate court to determine the credibility of conflicting evidence.” American Samoa v. Makuati, 1 A.S.R. 663, 664 (App. Div. 1938) (citations omitted). The trial court’s determination in favor of Lufilufi on this factor was supported by substantial evidence.

C. Value to Family, Village, and Country

[7] The trial court found that Lufilufi’s value to her family and village was superior to that of Akapo, and that Akapo’s value to his country was superior to that of Lufilufi. As such, the trial court found that Lufilufi prevailed on this factor. In re Matai Title “Ava,” 7 A.S.R.3d at 213. In 35

determining this factor, the trial court noted that Lufilufi renders tautua to the village of Pava`ia`i and has done so her entire life. The trial court also noted that Lufilufi has been raised with the Ava family and is better acquainted with the family’s needs. The trial court found that Akapo’s main ties are to the village of Vaitogi, where he currently holds a matai title. See In re Matai Title “Fagaima,” 4 A.S.R. 83, 90-91 (Land & Titles Div. 1973) (“We have said many times that a claimant who lives in the family and the village is more familiar with members and the needs of family members than the claimant who has never lived in the family or village.”). The record amply supports these findings and they are not clearly erroneous.

Conclusion

For the aforementioned reasons, the trial court’s decision is AFFIRMED.

It is so ordered.

Â

Heirs of Hunkin v. Galea`i


HEIRS OF MATHEW HUNKIN, Plaintiffs,

 

v.

 

FAIIVAE APELU GALEA`I and OTHERS, Defendants.

 

High Court of American Samoa

 

Land & Titles Division

 

LT No. 12-03

 

May 6, 2004

 

[1] Before seeking judicial remedies, parties to a land or title dispute must first participate in a traditional dispute resolution process at the Office of Samoan Affairs, pursuant to A.S.C.A. § 43.0302.

 

[2] Under A.S.C.A. § 43.0302(a)(4), the Secretary of Samoan Affairs, or his deputy, is required to issue findings and conclusions with respect to the land or title dispute, and must include the reasons why the controversy could not be resolved.

 

[3] Where the parties had not appeared at least twice before the Secretary of Samoan Affairs, where there was no record that the parties were given 20 days’ notice before meeting with the Secretary, and where the Secretary’s findings and conclusions did not state the reasons why the controversy could not be resolved, the court set aside the Certificate of Irreconcilable Dispute and remanded the matter back to the Office of Samoan Affairs.

 

Before WARD, Acting Associate Justice.

 

 

 

Counsel: For Plaintiff, Fuimaono, Esq.

 

For Defendants, Faiivae Apelu Galea’i, pro se

 

ORDER REMANDING TO

 

OFFICE OF SAMOAN AFFAIRS

 

This matter came on regularly before the Court on April 21, 2004, on motion by the Plaintiffs to set this case for trial. Counsel Fuimaono was present. Defendant pro se Faiivae was not present.1 Counsel Fuimaono advised the Court that Defendant pro se Faiivae had verbally agreed to a trial date any time after this June.

 

The Court inquired as to whether a pre-trial conference pursuant to Rule 6, T.C.R.L.T. would assist the parties in clarifying the disputed factual and legal issues in this controversy, and Counsel Fuimaono agreed this would be helpful. A tentative pre-trial date was established and the Court took this matter under advisement to deliberate and draft an appropriate order.

 

Discussion

 

[1] In our review of the pleadings, papers, and documents on file in this matter to prepare an order for the pre-trial conference, we also reviewed the February 3, 2004 Certificate of Irreconcilable Dispute filed by the Office of Samoan Affairs2 pursuant to A.S.C.A. § 43.0302(a)3. Under 1 Pro se defendant Faiivae has been sanctioned by this Court earlier in

 

this case for failure to comply with the Court’s orders. A motion to set a

 

land or titles case for trial normally results in the Court establishing a

 

pre-trial conference pursuant to Rule 6, T.C.R.L.T., at which many of the

 

factual and legal issues raised in such controversies may be resolved or

 

narrowed prior to trial. Participation by counsel and the parties, or by

 

pro se parties, is as critical at these hearings as at trial. Failure of

 

counsel or pro se parties to appear without good cause therefore will

 

result in appropriate sanctions being imposed.

 

2 “This matter came on regularly for hearings before the Office of

 

Samoan Affairs as provided under Section 43.0302 of the American

 

Samoa Code Annotated. All parties and their respective representatives

 

were served notices before the hearings were conducted; and hearings

 

were held on the following dates and times: First Hearing – Began at

 

9:00a.m. on May 22, 2003. Ended at 10:15a.m. on the same date.

 

Second hearing – Began at 9:25a.m. on November 6, 2003. Ended at

 

9:45a.m. on the same date. Findings and Conclusions: During the

 

second hearing, the Objector did not show up. The Claimants wish,

 

however, to refer this matter to court for final disposition. Now,

 

therefore, the undersigned hereby declare that there now exists

 

irreconcilable dispute among the parties, and the matter is herewith

 

 

 

A.S.C.A. § 43.0301 et seq., the Legislature has provided a detailed statutory scheme for the resolution of land and titles disputes within the Territory. Although providing the Court with limited powers to issue pre-trial and interlocutory orders, including restraining orders, to preserve the peace while these disputes are resolved, the Legislature wisely required the parties to first participate in a traditional dispute resolution process at the Office of Samoan Affairs before seeking judicial remedies.

 

Since being enacted by two successive legislatures in 1972, (P.L. 12-59), and 1973 (P.L. 13-39), our case files reveal that many parties treat this potent, culturally protective procedure as more of an obstacle to litigation rater than an opportunity to meet, discuss, debate, and seek consensus on the resolution of the controversy. Indeed, a review of certificates of irreconcilable disputes filed with the court over the last several years indicate that, due to frustration over the intractability of the parties or other reasons, Secretaries of Samoan Affairs and their deputies have also acquiesced to this view. The statute, however, clearly requires something more than the parties simply checking in a couple of times at the Office of Samoan Affairs and advising the Secretary or his deputy they want to go to court.

 

[2] Under A.S.C.A. § 43.0302(a)(4), the Secretary or his deputy is required to issue findings and conclusions with respect to the controversy before them and include the reason(s) why the controversy could not be resolved. If not otherwise made obvious by this statute, this transmitted for judicial litigation.”

 

3 43.0302 Certificate of Irreconcilable Dispute.

 

(a) Before any action relating to controversies over communal

 

land or matai titles may be commenced in the Land and Titles

 

Division, each party shall file with his complaint a certificate

 

signed and attested by the Secretary of Samoan Affairs or his

 

deputy, in which the Secretary or his deputy affirms and

 

states:

 

(1) that on at least 2 occasions, the parties have appeared

 

personally before him and 2 persons designated by him,

 

without an attorney or counsel, and that an attempt was

 

made to resolve the controversy;

 

(2) that all parties to the controversy received at least 20

 

days notice for each of the 2 required appearances;

 

(3) the date and hour of the beginning and conclusion of

 

each appearance;

 

(4) the findings and conclusions of the Secretary or his

 

deputy and the 2 designees with respect to the controversy

 

heard before them, including a statement of the reason why

 

the controversy could not be resolved.

 

 

 

paragraph reflects the Legislature’s clear intent to empower the Secretary with an affirmative duty to use the power and prestige of his office and title to facilitate the resolution of controversies relating to land and titles, those twin pillars supporting the Samoan culture. The Legislature has at once provided both a carrot (affording the parties a traditional venue at which their disputes may be resolved without the expense, or risk, of trial before the court), and a stick (the Secretary, in the exercise of his sound discretion, need not certify an irreconcilable dispute until at least two meetings of the parties and until he and his two neutral designees have concluded all traditional attempts at resolving the controversy).

 

Conclusion

 

[3] On its face, the February 3, 2004 Certificate of Irreconcilable Dispute reveals that the parties have not appeared at least twice before the Secretary or his deputy and the two designees. Proof of the requisite 20-day notice to the parties is not reflected in certificate or record. The findings and conclusions in the certificate state only that, because only one meeting between the parties occurred, there exists an irreconcilable dispute. Clearly the statutory preconditions for the Court to exercise jurisdiction over this case have not been fulfilled. This certificate, being made and filed upon unlawful procedure, is therefore reversed and set aside. This matter is remanded back to the Secretary of Samoan Affairs for hearings consistent with the appropriate statutes and this opinion and order. Any future determination by the Secretary or his deputy that either party has failed to appear at noticed hearings without good cause, or has refused to participate in good faith at such hearings or failed to offer good reason why the controversy can only be resolved as a matter of law by the Court, shall be grounds for the aggrieved party to petition the Court for injunctive relief or other appropriate remedies. The tentative, pre-trial date of May 12, 2004 is set aside as a consequence of this order.

 

It is so ordered.

 

Fiu v. American Samoa Gov’t


 

FA`AI`U FIU aka HANA, Appellant,

 

v.

 

AMERICAN SAMOA GOVERNMENT, Appellee.

 

High Court of American Samoa

 

Appellate Division

 

AP No. 07-01

 

June 16, 2004

 

[1] A defendant is entitled to a new trial when the jury obtains or uses evidence that has not been introduced during trial, if there is a reasonable possibility that the extrinsic material could have affected the verdict.

 

[2] Exposure of a jury to facts not in evidence can deny a defendant the rights of confrontation, cross-examination, and assistance of counsel.

 

[3] Where a criminal defendant’s counsel failed to diligently question jurors on voir dire regarding their knowledge of matters which could result in bias against him, the defendant waived his constitutional protections and could not object on appeal to jurors who possessed such knowledge prior to voir dire. However, the defendant did not waive such rights as to any jurors who only became tainted by such knowledge after the trial began.

 

[4] A trial court’s decision of whether to grant a new trial is generally reviewed for an abuse of discretion.

 

[5] When a defendant makes a sufficient allegation of juror misconduct, the issue is whether the prosecution has met its burden of demonstrating that extrinsic evidence did not contribute to the verdict, and it is an abuse

 

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of discretion to fail to hold an evidentiary hearing to fully investigate allegations of juror misconduct.

 

[6] An evidentiary hearing must be held when a party comes forward with clear, strong, substantial, and incontrovertible evidence that a specific, nonspeculative impropriety in the jury deliberation process has occurred.

 

[7] Although the trial court cannot and should not delve into the deliberations of the jury, it nonetheless has an obligation to investigate jury exposure to external evidence and to safeguard against jury consideration of inadmissible, irrelevant, or prejudicial evidence.

 

[8] Where the trial court was informed of a juror’s statement implying that all jurors were aware of prejudicial, extraneous evidence against the defendant, there was a good possibility that at least one juror acquired such knowledge during the course of the trial and it was therefore an abuse of discretion for the trial court not to hold an evidentiary hearing on the issue.

 

[9] Affidavits are not procedurally required to trigger an evidentiary hearing into juror misconduct in a motion for new trial.

 

[10] Where defense counsel was lax in his questioning of the jury during voir dire, but the possibility existed that extraneous, prejudicial information was conveyed among jurors during the course of the trial, an evidentiary hearing would be conducted, but narrowly focused on post-voir dire jury exposure to extraneous evidence that could have affected the verdict.

 

Before KRUSE, Chief Justice, GOODWIN,* Acting Associate Justice, TASHIMA,** Acting Associate Justice, MAMEA, Associate Judge, and TAPOPO, Associate Judge.

 

Counsel: For Appellant, Bentley C. Adams III, Assistant Public

 

Defender, and Andrew Stave, Assistant Public Defender

 

For Appellee, John W. Cassell, Assistant Attorney General

 

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

** Honorable A. Wallace Tashima, Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

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ORDER OF REMAND

 

KRUSE, Chief Justice:

 

Appellant Fa`ai`u Fiu aka Hana (“Fiu”) was convicted by a jury of rape, kidnapping, and sexual abuse in the first degree. After the trial and sentencing, Fiu’s trial attorney, Asaua Fuimaono, filed a Motion for New Trial or Reconsideration. Counsel then filed a Motion to Substitute Attorneys, seeking to be relieved and to have the Public Defender appointed to represent Fiu. The trial court denied the Motion for New Trial, granted the Motion to Withdraw, and appointed the Public Defender to represent the defendant.

 

Subsequently, Fiu’s Public Defender attorney, Bentley C. Adams III, filed with the Appellate Division a Combined Notice of Appeal and Motion for Time to File Out of Time Appeal Based on Newly Discovered Evidence. American Samoa Gov’t v. Fa`ai`u Fiu, AP No. 07-01 (App. Div. April 30, 2002). In these pleadings, Fiu requested a hearing to inquire into information not introduced into evidence that may have influenced the verdict. Without supporting affidavits, the amended motion describes a conversation that counsel Fuimaono had with a juror, Ms. Puletasi:

 

Mr. Fuimaono asked Ms. Puletasi if she would tell him what influenced the jury to return its verdict of guilty in the case because in Mr. Fuimaono’s estimation the Government’s case was rather weak. Ms. Puletasi informed Mr. Fuimaono that he felt sorry for Mr. Fuimaono because the jury was pretty much convinced the defendant was guilty due to their knowledge of the defendant and his reputation. She specifically stated the jurors knew the defendant had a reputation as a womanizer and that he had gotten two women pregnant out of wedlock.

 

(Mot. for New Trial at 2.) The Appellate Division heard the motion and remanded the matter to the trial court for consideration. (Id.)

 

Treating Fiu’s Combined Notice of Appeal and Motion for Time to File Out of Time Appeal Based on Newly Discovered Evidence as a second new trial motion, the trial court heard argument and denied the motion. The trial court concluded that Fiu was not diligent in attempting to discover the extraneous evidence of the jurors’ knowledge of his character and prior bad acts. This appeal ensued.1

 

1 The defendant additionally appeals on the grounds that the trial court also erred in: (1) allowing the jury to hear testimony concerning an in-custody statement of the defendant; (2) failing to reverse the verdict because of ineffective assistance of counsel and/or insufficient evidence

 

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[1-2] The juror’s statement discussed in Fiu’s motion implicates juror misconduct for exposure to extraneous evidence. “A defendant is entitled to a new trial when the jury obtains or uses evidence that has not been introduced during trial if there is ‘a reasonable possibility that the extrinsic material could have affected the verdict.’” United States v. Keating, 147 F.3d 895, 900 (9th Cir. 1998) (quoting Dickson v. Sullivan, 549 F.2d 403, 405 (9th Cir. 1988)) (emphasis added). Exposure of the jury to facts not in evidence could deny a defendant “the rights of confrontation, cross-examination, and the assistance of counsel.” Marino v. Vasquez, 812 F.2d 499, 505 (9th Cir. 1987) (quoting Gibson v. Clanon, 633 F.2d 851, 853 (9th Cir. 1980)). Regardless of whatever each juror knew about Fiu before voir dire, Fiu may be entitled to a new trial if one juror learned extraneous evidence that could have affected the verdict. Keating, 147 F.3d at 899-900.

 

[3] ASG argues Fiu waived his right to make a post-trial challenge of any juror’s exposure to extraneous information, because during voir dire the defendant had opportunity to discover and challenge juror knowledge of extraneous evidence and bias. The trial court did not clearly err in finding that Fiu failed to take advantage of the opportunity to inquire and challenge the preexisting knowledge of jurors. American Samoa Gov’t v. Fa`ai`u Fiu, CR No. 102-00 (Trial Div. April 30, 2002). As a result of Fiu’s lack of diligence, he waived his constitutional protections and cannot object on appeal to jurors with knowledge of extraneous evidence obtained prior to voir dire. See Keating, 147 F.3d at 899-900. Despite this initial waiver, however, Fiu did not waive the other constitutional protections that prohibit the exposure of unknowing jurors to extraneous evidence during trial. We cannot, therefore, dispose of the matter without further analysis. See id.; United States v. Saya, 101 F.Supp.2d 1304, 1315 (D. Haw. 1999).

 

[4-7] A trial court decision whether to grant a new trial is generally reviewed for an abuse of discretion. United States v. Sarno, 73 F.3d 1470, 1507 (9th Cir. 1995). When a defendant makes a sufficient allegation of juror misconduct, the issue is whether “the state has met its burden of demonstrating that extrinsic evidence did not contribute to the verdict,” and it is an abuse of discretion to fail to hold an evidentiary hearing to fully investigate allegations of juror misconduct. Keating, 147 F.3d at 899 (citations omitted); United States v. McKinney, 429 F.2d 1019, 1025-1026 (5th Cir. 1970) (quoting Richardson v. United States, 360 F.2d 366, 369 (5th Cir. 1966)); United States v. Doe, 513 F.2d 709, 711-712 (1st Cir. 1975) (adopting McKinney). An evidentiary hearing must be held “when a party comes forward with ‘clear, strong, substantial and incontrovertible evidence . . . that a specific, nonspeculative

 

to establish guilt beyond a reasonable doubt. For reasons discussed below, we reserve jurisdiction on these questions.

 

66

 

impropriety has occurred.’” United States v. Ianniello, 866 F.2d 540, 543 (2nd Cir. 1989) (quoting United States v. Moon, 718 F.2d 1210, 1234 (2d Cir. 1983) (omission in original)). Although the trial court cannot and should not delve into the deliberations of the jury, the trial court, however, has an obligation to investigate jury exposure to external evidence to safeguard against jury consideration of inadmissible, irrelevant, or prejudicial evidence.

 

[8-9] In our view, the trial court abused its discretion in failing to undertake an evidentiary inquiry into the question of extraneous evidence impacting upon the verdict. Fiu’s failure to produce affidavits in support of his motion is not fatal to his claim of juror misconduct. McKinney, 429 F.2d at 1030 (holding that affidavits were not procedurally required to trigger an evidentiary hearing into juror misconduct in a motion for new trial). Fiu’s Public Defender attorney Adams stated at hearing that the trial attorney “informed me that since the trial . . . it has come to his attention that one of the jurors - - through one of the jurors in the case, that during the trial, the jury was exposed to inadmissible and prejudicial material which is not part of the evidence in the case.” (Hr’g Tr. at 5, Oct. 29, 2001.) The juror’s statement implies that all of the jurors knew the information, which indicates a good possibility that at least one juror learned prejudicial extraneous evidence about Fiu during trial. The evidence against Fiu is not overwhelming, so exposure to extraneous evidence could reasonably have impacted on the verdict. Keating, 147 F.3d at 898. Viewed in this context, the allegation made in the motion for new trial warrants further evidentiary investigation.

 

[10] The scope of such a hearing should be narrowly focused “to only what is absolutely necessary to determine the facts with precision,” namely, to only post-voir dire jury exposure to extraneous evidence that could have affected the verdict. Ianniello, 866 F.2d at 544. Additionally, and in accordance with T.C.R.Ev. 606, the inquiry should refrain from examining jurors’ mental impressions. See id. The trial court has the discretion to control the mode and extent of questioning, and the participation of the parties. See id. Initially, at least the juror who spoke to counsel Fuimaono should be questioned. Then, based on initial evidence, the trial court has the discretion whether to examine any more jury members or other witnesses. See id.

 

We accordingly REMAND for an evidentiary hearing and, if the evidence on juror misconduct so warrants, a new trial.

 

Filifili v. Seiuli_2


 

ALAI`ASA FILIFILI, Plaintiff,

 

v.

 

SEUFALE SEIULI, Defendant.

 

High Court of American Samoa

 

Land and Titles Division

 

LT No. 30-92

 

February 11, 2002

 

 

 

[1] T.C.R.C.P. Rule 56(c) requires the court to not only treat the adverse party’s evidence as true but that the adverse party must also be given the benefit of all inferences reasonably deducible from the evidence.

 

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

 

Counsel: For Plaintiff, Tautai Aviata F. Fa`alevao

 

For Defendant, Afoafouvale L.S. Lutu

 

ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND DIRECTING TRIAL SETTING

 

This matter came on regularly for hearing on February 11, 2002, upon plaintiff Alai`asa’s motion for summary judgment. Alai`asa contends the absence of triable issues of fact and that he is entitled, as a matter of law, to summary judgment. T.C.R.C.P. Rule 56.

 

The dispute concerns a house site, on land located in Faleniu village which Alai`asa claims to be “Toa,” and the subject of previous litigation before this court in Moea`i v. Te`o, 8 A.S.R.2d 85 (Land & Titles Div. 1988); aff’d sub nom. Moea`i v. Alai`a, 12 A.S.R.2d 91 (App. Div. 1989). In that matter, an area of land known as “Toa” was awarded to the Alai`asa’s family, while other portions of immediately adjacent land were awarded to the Moea`i family.

 

In support of his motion for summary judgment, Alai`asa filed his affidavit averring, inter alia, that: 1) defendant Seiuli’s house lies within “Toa” as awarded him in Moea`i v. Te`o, supra; and that 2) Seiuli’s claim to entitlement is derivative based, upon the competing title claims of Moea’i and/or Te’o, which claims the Moea`i v. Te`o court had resolved in his favor. Alai`asa thus argues a res judicata bar to defendant’s derivative claims, citing to Alai`asa v. Te`o, 5 A.S.R.3d 266, (Land & Titles Div. 2001).

 

With regard to Alai`asa’s contention that Seiuli’s claim is derivative based, we find that Seiuli had admitted as much in her deposition taken July 2, 2001. Seiuli had indeed deposed that she was brought onto the land in question by Moea`i in 1970. Dep. Tr. 4.

 

Seiuli, however, argues triable issues of fact. In her deposition, Seiuli also deposed that the land she was living on is Moea`i family land known as “Vaivai.” Dep. Tr. 11. She moreover contends that Alai`asa’s averment as to the location of her house is merely self-serving and that Alai`asa ought to be put to proof. (See Def.’s Opp’n To Pl.’s Mot. Summ. J. at 2.)

 

[1] We agree with Seiuli that there are triable issues of fact precluding

 

 

 

summary judgment. In essence, she says “Vaivai,” he says “Toa.” But T.C.R.C.P. Rule 56(c) requires the court to “not only treat the adverse party’s evidence as true but [that] [s]he must also be given the benefit of all inferences reasonably deducible from the evidence.” D. Gokal & Co. Ltd., v. Daily Shoppers, Inc., 13 A.S.R.2d 11, 12 (Tr. Div. 1989), citing Lokan v. Lokan, 6 A.S.R.2d 44, (Tr. Div. 1987). See also Plaza Department Stores v. Duchnak, 26 A.S.R.2d 82. (Tr. Div. 1994) (“the court must . . . resolve all doubts as to the existence of genuine issues of fact against the moving party, and view all inferences from the facts in the light most favorable to part[y] opposing the motion”). On this basis, Alai`asa’s motion for summary judgment must fail.

 

Order

 

Accordingly, plaintiff’s motion for summary judgment is hereby denied.

 

Counsel are directed to confer with the Clerk of Courts as to the earliest available trial date.1

 

It is so ordered.

 

Filifili v. Seiuli_1


 

ALAI`ASA FILIFILI, Plaintiff,

 

v.

 

SEUFALE SEIULI, Defendant,

 

High Court of American Samoa

 

Land and Titles Division

 

LT No. 30-92

 

March 16, 2004

 

[1] Where the Court determined that the defendant should be evicted, but the defendant subsequently raised an “unjust enrichment” argument based on his construction of a house upon the same land, and raised said argument without having offered any evidence on the issue at trial, the Court properly awarded the defendant nominal damages in the amount of $1.00 and gave him 60 days to remove the house or have it deemed abandoned and forfeited to the plaintiff.

 

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

 

Counsel: For Plaintiff, Tautai Aviata F. Fa`alevao

 

For Defendant, Afoafouvale L.S. Lutu

 

OPINION & ORDER

 

The dispute here concerns the location of the late Defendant Seufale Seiuli’s house on land located in Faleniu village, which Alai`asa claims to be “Toa” and the subject of previous litigation before this court in Moea`i v. Te`o, 8 A.S.R.2d 85 (Land & Titles Div. 1988); aff’d sub nom. Moea`i v. Alai`a, 12 A.S.R.2d 91 (App. Div. 1989).1 Alai`asa claims that: 1) Defendant Seiuli’s house lies within “Toa” as awarded to the Alai`asa family in Moea`i v. Te`o, supra; and 2) Seiuli’s claim to entitlement is derivative based upon the competing title claims of Moea`i and/or Te`o, whose claims were resolved in favor of Alai`asa by the Moea`i v. Te`o court.

 

With regard to Alai`asa’s contention that Seiuli’s claim is derivative, we find that Seiuli’s wife had admitted as much in her deposition taken July 2, 2001. Mrs. Seiuli had deposed that her family was brought onto the 1 In this matter, an area of land known as “Toa” was awarded to the

 

Alai`asa’s family, while other portions of immediately adjacent lands

 

were awarded to the Moea`i family.

 

land in question by Moea`i in 1970. (Suiuli Dep. at 4.) In her deposition, Mrs. Seiuli also deposed that the land she was living on is Moea`i family land known as “Vaivai.” (Id. at 11.) At trial, the testimony of Defendant’s daughter, Paileulu Seiuli, was in accord.

 

In essence, the issue before us is simply to determine whether defendant’s house lies within Moea`i’s land known as “Vaivai” or within plaintiff’s land “Toa.” After seemingly interminable delays, for one reason or another, including aborted settlement attempts, this matter was finally tried. Meko Aiumu, a qualified surveyor, attended and testified.

 

Based on the evidence presented at trial, we find that defendant Seufale Seiuli’s house is in fact located within the Alai`asa family’s communal land Toa, and not within the Moea`i family’s land Vaivai. Wherefore, Plaintiff Alai`asa’s prayer for eviction will, therefore, be granted.

 

[1] Defendant’s counsel at final argument raised “unjust enrichment,” seeking compensation for the value of the house. Unfortunately, no evidence whatsoever was presented in this regard. Because this matter has been outstanding since 1992, after first being closed and then reopened, we are not inclined to again reopen the record for purposes of inquiry into the present day value of Defendant’s house. Notwithstanding, we will allow Defendant’s representative a nominal award in the amount of $1.00 and permit his family and assigns to remove Defendant’s house from Plaintiff’s land within the next 60 days. However, failure to so remove the structure within 60 days from date hereof will be deemed as an abandonment in favor of the situs and Plaintiff may thereafter enter and take possession

 

Judgment is rendered accordingly.

 

It is so ordered.

 

Fanene v. Scanlan


 

TOULI LA`AU FANENE and CHRISTINE KRUSE, for themselves and on behalf of the FANENE FAMILY, Plaintiffs,

 

v.

 

ALIIMAU H. SCANLAN, JR., Defendant.

 

High Court of American Samoa

 

Land and Titles Division

 

LT No. 35-03

 

June 15, 2004

 

[1] Under A.S.C.A. § 43.1309(b), an action for injunctive relief concerning communal land can be brought only by the family’s sa`o, or, if the sa`o title is vacant or the sa`o is incapacitated, by two blood male matai family members over age 18, or, if the family does not have two qualified male matai members, by two blood family members over age 18.

 

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

 

Counsel: For Plaintiffs, Robert K. Maez

 

For Defendant, Marie A. Lafaele

 

ORDER DENYING MOTION FOR SUMMARY JUDGMENT, SCHEDULING FURTHER HEARING ON DIMISSAL, AND CONTINIUING INTERIM ORDER

 

On June 3, 2004, the Court heard Defendant’s motion to dismiss, pursuant to T.C.R.C.P. 12(b)(6), and Plaintiffs’ application to hold Defendant in contempt of the Court’s order of January 16, 2004, prohibiting Defendant from any further construction on the house at issue, other than to complete installation of the roof for protection

 

 

 

against the elements, that he has under construction on the Fanene family’s communal land in the village of Nu`uuli. All parties and their counsel were present.

 

Testimony was taken on both matters, and an affidavit was filed in support of the dismissal motion. Therefore, in accordance with T.C.R.C.P. 12(b), we treat this motion as one for summary judgment under T.C.R.C.P. 56.

 

Discussion

 

I. Motion for Summary Judgment

 

Plaintiff Touli La`aau Fanene (“Touli”) testified that, among other things, he is withdrawing as a party to this action. He and the witness Malaeoi Toasefulu Laulu are blood male matai Fanene family members over age 18. Plaintiff Christine Kruse (“Kruse”) is a blood female Fanene family member. Her matai status is disputed. The Fanene sa`o title is vacant.

 

[1] Plaintiffs seek to permanently enjoin Defendant from constructing the house and from occupying the land at issue. Under A.S.C.A. § 43.1309(b), an action for injunctive relief concerning communal land can be brought only by the family’s sa`o, or if the sa`o title is vacant or the sa`o is incapacitated, by two blood male matai family members over age 18 or, if the family does not have two qualified male matai members, by two blood family members over age 18. Kruse is not a blood male matai. Therefore, in any event, the present Plaintiffs do not have authority to bring this action.

 

Moreover, the complaint is facially deficient in stating the substantive cause of action. The action is apparently predicated on Plaintiffs’ capacity as representatives of the Fanene family’s Land Council, established by the Fanene Family Agreement, dated June 29, 1998, attached to and incorporated in the complaint. Paragraph B of the Agreement expressly states that the Land Council takes on “only those responsibilities of administration and disposition of communal family lands approved by the Fanene family.” The complaint fails to allege that the Fanene family has approved referral of the issue of Defendant’s house on Fanene family communal land at stake to the Land Council for purposes of bringing this action or carrying on any other management responsibilities pertaining to this family land issue.

 

Further to the substantive aspects of any summary judgment, while Defendant believes that the evidence shows that his house project was approved according to the Fanene family’s customary decision-making process for its communal land issues when the sa`o title is vacant, the

 

 

 

evidence presents a genuine contest over this material fact. This contest makes summary judgment inappropriate. This leads us, however, to remind the parties of our observation at previous hearings that the family ought to be able to solve what appears to be a straightforward and simple issue. Is the family so fractured that the members cannot amicably resolve this matter? Perhaps the explanation lies in the family members’ failure to date to select the successor to hold their long-vacant sa`o title. The family needs to settle upon the successor. The new sa`o would clearly have the healing authority to bring the opposing elements of the family together again and to resolve this and other family matters.

 

Because of the genuine and material factual dispute over the Fanene family’s immediate customary communal land decision-making authority, this action is not ripe for summary judgment. However, because of the party Plaintiffs’ lack of standing to sue and the complaint’s inadequate factual allegations, the action is ripe for dismissal, but without prejudice to afford opportunity to file a proper amended complaint.

 

A proposed amended complaint has been submitted. It appears to drop Touli as a party Plaintiff and to add, somewhat unclearly, three or four other persons besides Kruse as new party Plaintiffs. The proposed complaint apparently alleges that each of the new party Plaintiffs is acting as a Fanene Land Council representative, but it still fails to allege that the Fanene family has expressly given the responsibility for handling this family land issue to the Land Council. It also does not allege that any of the new party Plaintiffs is a Fanene family male matai. However, in the interest of judicial economy, we will schedule a hearing, also necessary under T.C.R.C.P. 15(a) in view of Defendant’s filed answer, on whether to permit filing of either the proposed or another revised amended complaint.

 

II. Contempt Application

 

The order of January 16, 2004, preventing Defendant’s further construction of the house, except for finishing the roof, was duly made. The parties stipulated to issuance of this order. The order effectively continued the interim order to substantially the same effect, made on December 4, 2003, also upon the parties’ stipulation. Defendant was personally present at both hearings and thus was well aware of the restraint in each order at all times since it was made. Defendant also had the ability to comply with the order at all times since it was made. He failed to comply with the order by not preventing his carpenter in charge of constructing the house from placing a stucco or plaster covering on the exterior concrete block walls of the house on or about April 6, 2004. The carpenter testified that he did this additional wall work to support the roof by strengthening the walls. Given the nature of April 6 work, as 274

 

described by the carpenter, we find this explanation to be ludicrous and unbelievable. The wall covering was intentionally and contemptuously done.

 

Accordingly, we find that Defendant was in contempt of the Court’s order of January 16, 2004 when the stucco or plaster covering was added to the house walls on or about April 6, 2004.

 

 

 

1. Touli is withdrawn as a party Plaintiff.

 

2. Final ruling on Defendant’s motion to dismiss this action, characterized as one for summary judgment or not, is deferred until after we hear and decide whether to permit filing of the proposed amended complaint. The hearing on filing the proposed amended complaint is scheduled for June 28, 2004.

 

3. Defendant is adjudged in contempt of this Court for his violation of the January 16, 2004 interim order. He shall pay a fine of $500.00 as punishment. Payment of the fine is suspended on condition that he does not further violate the interim order in any way while the order remains in effect.

 

4. The interim order prohibiting further construction of the house at issue remains in full force and effect while this action is pending or until further order of the Court.

 

It is so ordered.

 

Fanene v. Fanene


FANENE S. SCANLAN, Plaintiff,

 

v.

 

FANENE FETAIAIGA KAVA and DOES I-X, Defendants.

 

High Court of American Samoa

 

Land and Titles Division

 

LT No. 13-00

 

September 6, 2002

 

[1] The fa`a Samoa or the Samoan way life has twin cornerstones, the matai system and communal land tenure.

 

[2] The highest authorities in the territory are the Treaties of Cession and the Constitution. These resources dictate that the court respect the right to property according to Samoan custom, regardless of past wrongly-footed court decisions.

 

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

 

Counsel: For Plaintiff, Paul F. Miller

 

For Defendant, Charles V. Ala`ilima

 

ORDER DENYING MOTION FOR NEW TRIAL

 

This dispute concerns land Lalopua in the village of Pago Pago belonging to the Fanene extended family. As the consequence of prior court decisions, the once unitary Fanene family has been split into two factions who have been fighting ever since for dominion over real family assets. The latest round in this enduring inter-factional rivalry concerns the attempt by one faction to altogether oust the other from communal land, and thereby, effectively disenfranchise the defendants’ side not only as Fanene family members, but as an extended Samoan family unit.1 We denied the petition for eviction and refused to perpetuate a

 

1 [1] The fa`a Samoa or the Samoan way life has twin cornerstones, the

 

matai system and communal land tenure. Fairholt v. Aulava, 1 A.S.R.2d

 

73, 78 (Land & Titles Div. 1983); Tavai v. Silao, 2 A.S.R.2d 1, 2 (Land

 

& Titles Div. 1983); Lavata`i v. Pen, AP No. 08-94, slip op. at 8 (App.

 

Div. 1996). Thus, without communal land, the defendant’s side of the

 

family would simply cease to exist as a Samoan family unit.

 

 

 

travesty on the fa`a Samoa, as it concerns the defendants.

 

We are cognizant of the fact that the land Lalopua has been fought over and previously litigated. In fact, our Order & Opinion deals quite extensively with the previous litigation and contains our related analysis. As explained in detail in our opinion, the 1945 Lalopua land decision, Taofi v. Fanene, 2 A.S.R. 197 (Trial Div. 1945), was misinterpreted by the court in 1971, LT Nos. 1089 and 1154 (Land & Titles Div. 1971), and this misinterpretation was applied as controlling precedent by later courts without close review of the substance of the decision. We found, among other things, that the defendants are in fact members of the extended Fanene family, the same family that was found to be entitled to Lalopua in 1945. The problem, essentially, is that the 1945 decision treated the Fanene family as one, but the 1971 decision treated the 1945 case as precedent in favor of only one side of the by then divided Fanene family.

 

[2] Res judicata is, of course, a concern in a situation where the same land has been previously contested. However, the previous cases not only misapplied the 1945 decision, they also never addressed the issue of eviction. It is our opinion that the issue of eviction casts a new light upon all the issues revolving around the disagreement over this piece of land. The questions of who is entitled to live on Lalopua and who has pule over it cannot be properly addressed without considering the full ramifications of the 1971 decision, including possible evictions. The highest authorities in the territory are the Treaties of Cession and the Constitution. These resources dictate that we respect the right to property according to custom. See April 17, 1900 Cession of Tutuila and Aunu`u (February 20, 1929); July 16, 1904 Cession of Manu`a Islands (May 22, 1929); REV’D CONST. OF AM. SAMOA art. I, ‘ 2. We cannot in good conscience respect the customs and traditions of the Samoan people and continue to apply the previous wrongly footed decisions concerning this property. With the issue of eviction, we were forced to consider fundamental issues, which we outlined in our detailed opinion and order.

 

Order

 

We see no manifest error of law or mistake of fact required to order a new trial. Accordingly, we deny plaintiff’s motion.

 

It is so ordered.

 

Etuale v. American Samoa Gov’t


 

TUIFAGU IOSEFA ETUALE, Appellant,

 

v.

 

AMERICAN SAMOA GOVERNMENT, Appellee.

 

High Court of American Samoa

 

Appellate Division

 

AP No. 08-02

 

April 12, 2004

 

[1] The trial court has discretion to restrict a party’s closing arguments to the jury, to prevent the discussion of irrelevant or inadmissible material.

 

[2] It was not an abuse of discretion for the trial court to advise the jury to disregard defense counsel’s discussion, during closing arguments, of the victim’s prior sexual experiences, even where such comments were made in response to the prosecution’s characterization of the victim as “inexperienced.”

 

Before KRUSE, Chief Justice, GOODWIN*, Acting Associate Justice, TASHIMA,** Acting Associate Justice, MAMEA, Associate Judge, and TAPOPO, Associate Judge.

 

Counsel: For Appellant, Andrew Stave, Assistant Public Defender

 

For Appellee, John W. Cassell, Assistant Attorney General

 

OPINION

 

GOODWIN, Acting Associate Justice:

 

Tuifau Iosefa Etuale was convicted by a jury of burglary and sodomy upon his fifteen-year-old female cousin. He admitted entering the victim’s home at night and engaging in sexual activity with her, but denied that he used force or threat of force. The victim and the Defendant both testified and both were vigorously cross-examined.

 

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of Interior.

 

** Honorable A. Wallace Tashima, Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of the Interior.

 

 

 

The victim testified that on the night of July 4, 2001, she was asleep on a bed with her ten-year-old female cousin, in a room in which seven other family members were also sleeping. She testified that she awakened some time after midnight to find that someone had placed a hand over her mouth and eyes, and was holding her down on the bed. She soon recognized her cousin, Etuale, and saw a knife on the bed. She testified: “He said if I screamed or make noise, then no member of my family will ever see me again.” The victim then described the sexual assault and said that afterward the Defendant left the room through the window through which he had apparently entered. The victim testified that she did not invite the Defendant to enter the house, and that she never consented to the sexual behavior.

 

The victim said that no member of the family was awakened, and that she told no one about the event for several weeks. She testified that after the assault, she saw Etuale every day and that he would renew his threats against her. The prosecution introduced evidence that some six weeks after the assault, the Defendant apologized to the victim and her aunt “for the ugly things that he did.” However, the victim still did not tell the aunt that Etuale had sexually assaulted her. She told the aunt about the assault on August 25, 2001, and her aunt took her to the police station where the victim gave statements. These statements contained details that were inconsistent with some of her later testimony.

 

It was undisputed that friction between the victim’s family and the Defendant’s family culminated in an altercation that involved rock throwing and threats of violence followed by police intervention. The violent clash between the families was cited by the defense in its jury argument as motivation for the victim to falsely accuse Etuale of the crime charged.

 

Etuale’s testimony, consistent with his own statements to the police, admitted that he had entered the room where the victim was sleeping and that he engaged in the behavior substantially as described by the victim. However, Etuale swore that she consented to everything that happened. He denied making any threat, or holding or using the knife in a threatening manner. The defense was allowed to develop fully the credibility questions in direct and cross-examination. The bad blood between the families was fully exploited as a possible motive for a false accusation. The jury nonetheless rejected Etuale’s defense of consent, and believed the victim’s version of the events.

 

During closing arguments, the prosecution stated that the victim’s inconsistent statements were reasonable: “And one would expect that a child or anyone inexperienced in situations like that might well get details mixed up as she told this story over and over again, but she would never forget the essentials of the terror.” Defense counsel attempted to 29

 

counter this statement by challenging the government’s characterization of the victim as “inexperienced,” and began discussing her prior sexual experiences. The court sustained the prosecution’s objection, and advised the jury to disregard the challenged argument.

 

The motion for a new trial raised all the credibility questions that lurked in the two conflicting versions of the charged conduct, and challenged the rulings of the trial court that restricted final argument by defense counsel. The motion also challenged the sufficiency of the evidence. These same points were briefed and argued on appeal.

 

[1-2] The rulings by the trial court that restricted a part of the defense’s closing argument to the jury were well within the discretion of the trial court, to prevent the discussion of irrelevant or inadmissible material. State v. Cecotti, 639 P.2d 243, 246 (Wash. App. 1982) (“Absent a showing of abuse resulting from the limitation in scope of the defense counsel argument, the trial court’s rulings will be upheld.”).

 

Etuale’s argument that the evidence was insufficient to support his conviction is also unavailing. The jury’s verdict is supported by substantial evidence. See 5 AM. JUR. 2D Appellate Review § 663; In re Kelly W., 95 Cal. App. 4th 468, 471 (Cal. Ct. App. 2002).

 

AFFIRMED.

 

So ordered.

 

Estate of Aofia Aveina


ESTATE OF AOFIA AVEINA, Deceased.

 

High Court of American Samoa

 

Trial Division

 

PR No. 21-83

 

January 17, 2002

 

[1] Where credible evidence clearly shows that a missing original will is more the case of a lost original rather than one of revocation, a photocopy of the will may be admitted to probate.

 

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

 

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

 

For Claimant/Intervenor, Charles V. Ala`ilima

 

ORDER ON CLAIMANT’S MOTION TO DISMISS AND ON PETITION TO ADMIT WILL TO PROBATE

 

The factual background to this matter and our conclusions as to testamentary capacity and authenticity of the testamentary document before the court is set out in our Order On Motion For Probate, entered March 12, 2001. The sole remaining issue for resolution concerns the fact of the missing original will and whether a photocopy filed with the petition for probate can be held to sufficiently express the decedent’s testamentary intent.

 

On December 18, 2001, the matter came on for hearing upon motion filed by claimant/intervenor Faleula Daphne Togia`i (“Togia`i”) to dismiss the outstanding petition of the named executor of the will, Finagalo Aveina (the “executor”), to admit the will to probate, citing grounds of delay. In lieu of probate, Togia`i seeks administration of the decedent’s estate in accordance with the intestate succession statute, A.S.C.A. ‘‘40.0201 et seq.

 

The executor, citing to his counsel’s recent off-island surgery and unavoidable delay in gaining access to the files of testator’s late attorney, Mulitauaopele Ivi (“Pele”), moved to resume hearing on the issue of revocation. There being no basis for Togia`i’s motion, and there being no objection to the immediate resumption of proceedings, we heard evidence on the issue of revocation.

 

Leaisa Asuega-Ieremia (“Asuega-Ieremia”), one of the witnesses to testator’s will, and an employee at all relevant times in Pele’s law office,

 

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had earlier testified about the preparation and execution of the will. She testified this time that she had recently, at petitioner’s behest, searched counsel Pele’s files on storage at his family home looking out for anything on testator’s matters.1 She further testified that her search did not uncover any files on testator’s matters but that a number of the law office files were missing, while others were hurricane damaged. Mrs. Ieremia also testified that the originals of some of the wills drawn up by Pele, were retained by the law office while in other cases, the original was taken by the client.

 

The executor took the stand to explain how the photocopy of the will, on file with the court, was located. He testified that some time after his mother’s demise he received a call from Amerika Samoa Bank regarding his mother’s safety deposit box. He went thereafter to the bank to look into the matter and when the contents of the safety deposit box were finally examined, the will copy was discovered. That after this discovery, he went and saw his mother’s attorney, Pele and after meeting with him the lawyer’s only instructions to him was to go ahead and do what the will required. He heard no more from the lawyer.

 

One of testator’s daughters and a granddaughter testified that their mother/grandmother had confided in each of them about her testamentary intentions; specifically, about testator’s desire to ensure that the family business remain in the capable direction of her son Finagalo.

 

Togia`i also took the stand to again assert her position of undue influence. She testified that her mother had also confided in her about her testamentary intentions, and about her half brother Finagalo’s overbearing influence to get her to sign a will. Togia`i further testified that petitioner Finagalo had essentially admitted to her his being the root cause of their mother’s stress related heart attack.

 

Findings & Discussion

 

At the outset, we affirm our prior finding of no undue influence. We again find Ms. Togia`i’s testimony to be unbelievable. We add at this time that the subject estate is largely comprised of testator’s share in a family business, which she had developed with her surviving spouse Aveina. In these circumstances, it is hardly surprising, therefore, that testator would only have in mind as objects of her bequests, the children of her marriage with her surviving spouse and business partner. It is equally not surprising, therefore, that testator’s bequests involving the Aveina business did not embrace the children of her prior marriage to 1 Ms. Ieremia also testified that Mrs. Pele had been off-island for some

 

extended time and hence the delay in undertaking the search.

 

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Togia`i. Against this light, the undue influence claims of Togia`i (a child of a former marriage) appear even less credible.

 

[1] We are satisfied that the credible evidence here received clearly shows that the missing original is more the case of a lost original rather than one of revocation. Under these circumstances, the photocopy may be admitted to probate. In re Arbuckle’s Estate, 220 P.2d 950 (Cal. 1950). As we earlier found, there was no question that the testamentary document before us is an unaltered photocopy of the original will. The testimony of Ms. Asuega-Ieremia, a disinterested party, was unequivocal. There is no question that the will was executed with full testamentary capacity in accordance with applicable law. At the same time, testator made her testamentary intentions well known to some of her children, which expressions are corroborative of the will’s bequests. Moreover, the missing original is sufficiently explained by Pele’s practice of retaining will originals. Lastly, the fact that testator had kept the photocopy she had in her possession in a bank safety deposit box is of significant import. This fact clearly evidences the importance of the document to the testator; this fact is clearly antithetical to an intent to revoke.

 

Order

 

We conclude in favor of preserving the testator’s expressed testamentary intent and admit the testamentary document to probate. Petition is granted.

 

It is so ordered.

 

Drabble v. Mikaele


THOMAS H. DRABBLE, Plaintiff,

 

v.

 

PULE MIKAELE SALIMA, PETELO MIKAELE,

 

and FALANIKO MIKAELE, Defendants.

 

High Court of American Samoa

 

Land & Titles Division

 

LT No. 03-04

 

March 5, 2004

 

[1] For a preliminary injunction to issue, the applicant must show a substantial likelihood that he will prevail at trial on the merits and obtain a permanent injunction, and that he will suffer great or irreparable harm before a full and final trial can be fairly held on the requested permanent injunction.

 

[2] In reviewing an application for preliminary injunction, the “substantial likelihood” standard is met where there are important questions of law at issue requiring or deserving more deliberate and in-depth consideration.

 

[3] In reviewing an application for preliminary injunction, the “great or irreparable harm” standard is a fact-intensive determination in which the relative detriments to the parties are commonly considered and balanced. Public interest may be considered.

 

[4] The “substantial likelihood” standard for issuing a preliminary injunction was met, where the circumstances surrounding a lease agreement presented complex factual and legal questions, including whether the lease was legally valid and whether the defendants had standing to challenge the lease.

 

[5] The “great or irreparable harm” standard for issuing a preliminary injunction was met, where the defendants’ actions were negatively impacting customers’ perception of the applicant’s business, where that harm far outweighed the defendants’ harm, and where the public interest also suffered.

 

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

 

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

 

 

 

For Defendants, Charles V. Ala`ilima and Mark Ude

 

PRELIMINARY INJUNCTION

 

AND RELATED ORDERS

 

On February 9, 2004, Plaintiff Thomas H. Drabble (“Drabble”) filed this action to enjoin Defendants Pule Mikaele Salima, Petelo Mikaele, and Falaniko Mikaele (together “the Defendants”) from interfering with Drabble and others’ occupancy and use of business improvements, commonly known as the Nu`uuli Shopping Center (“Shopping Center” or “premises”), on the Lagafuaina family’s communal land, and to obtain damages for losses incurred by the Defendants’ present interference.

 

On February 9, after hearing and considering the parties’ presentation of the immediate situation, the Court issued a temporary restraining order requiring the Defendants to remove all material they placed on the premises obstructing entry to the Shopping Center. An order to show cause hearing on Drabble’s application for a preliminary injunction was scheduled on February 19, 2004, continued to February 20 at the parties’ request, and then, because proper counsel for the Defendants was not immediately available, continued to February 24, with the temporary restraining order remaining in effect. Counsel and the parties were present at the February 24 hearing.

 

Standard of Review

 

[1] Issuance of a preliminary injunction is based on the applicant showing a substantial likelihood that the applicant will prevail at trial on the merits and obtain issuance of a permanent injunction against the opposing party, and that the applicant will suffer great or irreparable harm before a full and final trial can be fairly held on issuance of the requested permanent injunction. A.S.C.A. § 43.1301(j).

 

[2] The substantial likelihood standard is sufficiently met by a showing that there are important questions of law at issue requiring or deserving more deliberate and in-depth consideration. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 101, 103-04 (Trial Div. 1995).

 

[3] Great or irreparable harm standard is basically a fact-intensive determination. Relative detriments to the parties are commonly considered and balanced. Gurr v. Scratch, 22 A.S.R.2d 103, 105 (Trial Div. 1992). Public interest may be involved. Id.

 

Facts

 

Drabble leased the premises in 1974. The sa`o of the family in 1974, Lagafuaina Laisene, signed the lease as the lessor. The lease expired on

 

 

 

or about January 31, 2004. The lease provided for payment of the rent to the Defendants’ mother, Finau Mikaele, aka Finau Asi (“Finau”), now deceased, on behalf of the Lagafuaina family. Drabble successfully developed the Shopping Center on the premises. Four businesses presently operate at the Shopping Center. Drabble owns or controls three, Transpac corporation’s retail store, Rubble’s bar and restaurant, and a retail liquor store. The fourth business is the Good Food Bakery, owned and operated by Sepp Steffany.

 

As the end of the lease term neared, Drabble initiated negotiations for a new lease. In May 2003, the Defendants and other family members, including Lagafuaina Talanoa, the present family sa`o, authorized attorney Charles V. Ala`ilima (“Ala`ilima”) to represent Finau’s estate on matters concerning Lagafuaiana communal land in the vicinity of the Shopping Center, including negotiations for a new lease of the premises. Drabble and Ala`ilima did not reach a meeting of the minds on a new lease. Thus, Drabble separately approached the present sa`o, and they signed a new lease of the premises on December 4, 2003. The communal land lease approval process, the Land Commission’s review and recommendation and the Governor’s approval, required to validate the lease, is still ongoing. See A.S.C.A. §§ 37.0203, 37.0221.

 

The Defendants are opposed to the new lease, at least to its present provisions. Knowing that the original lease had expired, they decided to take self-help measures by blockading the access to the premises. During the evening of Friday, February 6, 2004, the Defendants announced the blockade plan to the Rubbles’ customers, and told them to remove their vehicles within five minutes from the parking area on the premises and, for those wanting to return to Rubbles, that parking would be available behind the Shopping Center. When all vehicles were removed about 15 minutes later, the Defendants blockaded the entries to the Shopping Center using timbers and large storage drums. This action fortunately took place without any violence or other noteworthy peace disturbance. The police were soon called, however, and came to monitor the scene. The potential of violence was ever present while the blockade lasted.

 

The Defendants did not consult with Ala`ilima beforehand. Afterwards, Drabble did call Ala`ilima, who then contacted the Defendants and reported back to Drabble that the Defendants had “a mind of their own” in pursuing this self-help remedy.

 

On Saturday, February 7, 2004, the Defendants beefed up the blockade with loads of cinders. The Defendants did not allow vehicles to enter the Shopping Center’s parking area throughout the weekend and until shortly after the temporary restraining order requiring removal of the blockade was issued on Monday, February 9. However, they did not 244

 

prevent customers from entering the four businesses and continued to permit parking behind the Shopping Center.

 

Analysis

 

I. Likelihood of Success

 

[4] The essential facts present significant issues of law that are properly resolved only after the complex factual and legal aspects of this situation are fully developed at trial and given deliberate and thorough consideration.

 

At genuine issue is the validity of a second lease of the premises by Drabble and the present Lagafuaina sa`o. The new lease appears to be an acceptable provisional agreement that is still undergoing the final validation process. See A.S.C.A. §§ 37.0203, 37.0221. At face value, the agreement should be but has not been given the Defendants’ respect. In related regard, the dispute resolution process before the Secretary of Samoa Affairs, required under A.S.C.A. § 43.0302, has not yet been initiated, let alone completed. The Court’s jurisdiction, other than interim orders we deem appropriate, cannot be exercised until the Secretary issues a certificate of irreconcilable dispute, which requires a stay of this action unless and until the certificate is filed. A.S.C.A. § 43.0304; see, e.g., Tupua v. Faleafine, 5 A.S.R.2d 131, 132-33 (Land & Titles Div. 1987). Also at genuine issue is the standing or other validating basis for the Defendants’ challenge to the lease.

 

Drabble has sufficiently met the likelihood of success criteria for issuance of a preliminary injunction.

 

II. Great or Irreparable Harm

 

[5] The Defendants’ blockage of the premises, while in place, resulted in significantly reduced revenues to Drabble’s businesses. His financial loss, then and if the blockade is reinstated, can of course be rectified by money damages. However, the disruption certainly did, and will again if resumed, negatively impact customers’ perception of Drabble’s operations, and in the longer run will seriously diminish his businesses’ goodwill, reputation, and general integrity. It stands to reason that the fourth business in the Shopping Center will similarly suffer.

 

The harm to Drabble and other occupants of the Shopping Center under his authority is considerable and immediate. Their harm far outweighs any adverse impact on the Defendants from allowing the businesses to continue operating in a normal fashion while the lease approval and dispute resolution processes are ongoing.

 

Moreover, the public also suffered, and will again suffer if the blockade is resumed, from the Defendants’ self-help action. Customers are entitled to access the businesses in the Shopping Center, including parking in the designated area on the premises, not along the public highway or, even if known, at the less convenient location behind the premises, unimpeded by a vehicle blockade to the parking area. It is of even greater public interest not to tolerate the type of self-help remedy employed by the Defendants. The Defendants, like anyone else, should respect the legal process available to resolve this kind of dispute and let that process take its course.

 

The Defendants profess that they will not resume the blockade during the course of this action. This is well and good, but it is far better and prudent to ensure that it will not be repeated, along with the attendant potential risk of violence, by putting in place an appropriate preliminary injunction while the action is pending.

 

Drabble has also sufficiently met the great or irreparable harm criteria for issuance of a preliminary injunction.

 

III. Indispensible Party

 

The Defendants also filed early on a motion under T.C.R.C.P. 19 to join the present Lagafuaina sa`o as an indispensable party to complete adjudication of the merits of this action. However, during the preliminary injunction hearing, both counsel present agreed that this motion was premature and should be denied at this time.

 

Order

 

1. Drabble’s application for a preliminary injunction is granted.

 

2. While this action is pending or until further order of the Court, the Defendants, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, including but not limited to other family members, are enjoined from blockading or obstructing in any manner vehicle entry to the parking area on Nu`uuli Shopping Center premises, or from interfering in any manner with the business operations and any other aspects of quiet and peaceful occupancy and use of the premises by Drabble and other business occupants there with his permission, and the customers, officers, agents, servants, and employees of Drabble or his businesses, or of other business occupants.

 

3. The Defendants’ motion to join the Lagafuaina sa`o as an indispensable party is denied without prejudice.

 

 

 

4. Other than for necessary or appropriate interim orders, this action is stayed unless and until a jurisdictional certificate of irreconcilable dispute issued by the Secretary of Samoan Affairs, as the consequence of unsuccessful dispute resolution proceedings before the Secretary, is filed in this action.

 

It is so ordered.

 

Copy of Southern Star Int’l, Inc v. Progressive Ins


 

SOUTHERN STAR INTERNATIONAL, INC. dba HONG KONG RESTAURANT, KENNY and HELEN YOUNG, Defendants/Appellants.

 

v.

 

PROGRESSIVE INSURANCE COMPANY (PAGO PAGO), Plantiff/Appellee, and

 

AINOAMA FATA dba NOFO’S STORE,

 

Cross-Defendant/ Appellee,

 

High Court of American Samoa

 

Appellate Division

 

AP No. 11-02

 

June 28, 2004

 

[1] The appellate court reviews a trial court’s factual determinations for clear error, and questions of law or mixed questions of law and fact de novo. A finding is clearly erroneous when the entire record produces the definite and firm conviction that the court below committed a mistake. In de novo review, the appellate court must review the record in light of its own independent judgment without giving special weight to the prior decision.

 

[2] Under A.S.C.A. § 29.1522(a), every interest in property of such a nature that a contemplated peril might directly damage the insured, is such an insurable interest. A mere contingent or expectant interest in anything not founded upon an actual right to or in the thing, nor upon any valid contract for it, is not insurable.

 

[3] An insurance policy is subject to the same rules of construction as any other contract. If an insurance contract is unambiguous, a court must follow the prescriptions of the policy as written, and need look no further in resolving any disputes. If a policy is found to be ambiguous, however, a court should undertake further inquiry to determine the intent of the parties.

 

[4] An insurance contract may be reformed to reflect the actual intent of both parties, and it may be reformed after a loss has occurred. However, reformation is an extraordinary remedy, to be used only when there is mutual mistake or unilateral mistake coupled with actual or equitable fraud by the non-erring party.

 

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[5] A mutual mistake of fact occurs where the parties to an agreement have a common intention, but the written contract erroneously reflects that intention due to a mistake on the part of both parties in writing the agreement.

 

[6] A contract will not be reformed on information that a party knew or should have known, absent an actual, mutual intent to agree on that information.

 

[7] Under A.S.C.A. § 29.1577, an insurer’s liability is governed by the terms of the policy.

 

Before RICHMOND, Associate Justice, GOODWIN,* Acting Associate Justice, TASHIMA,** Acting Associate Justice, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Associate Judge.

 

Counsel: For Appellants, Paul F. Miller

 

For Appellee Fata, Katopau T. Ainu’u

 

For Appellee Progressive Insurance Co., Roy J.D. Hall, Jr.

 

OPINION

 

Southern Star International, Inc., dba Hong Kong Restaurant (hereinafter “SSI”) and Kenny and Helen Young (“Youngs”), appeal from the Trial Division’s judgment granting Appellee Ainoama Fata (“Fata”) $100,000 under a Progressive fire/material insurance policy on a building Fata owned. The Youngs leased Fata’s building and used it as a restaurant. Appellee Progressive Insurance’s (“Progressive”) policy covered the building and its contents, which were destroyed when a restaurant employee negligently caused a fire.

 

Appellants allege that they are entitled to the policy proceeds as well as additional damages resulting from Progressive’s alleged bad faith in paying on the policy. In total, Appellants seek $200,000 in damages. For the reasons stated below, we affirm in part and reverse in part.

 

* Honorable Alfred T. Goodwin, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of Interior.

 

** Honorable A. Wallace Tashima, Circuit Judge, United States Court of Appeals for the Ninth Circuit, serving by designation of the Secretary of Interior.

 

78

 

Background

 

The facts are substantially undisputed. Fata owned a building in the village of Nu`uuli, on land under the pule of High Chief Falemalama Vaesa`u (“Falemalama”). Fata leased the building to the Youngs to use in the operation of the Hong Kong Restaurant. The Youngs also lived in and operated the Nu`uuli Store in a building owned or leased by them and located next to the restaurant. A third, smaller building was leased by the Youngs and used as a fast-food outlet. All three of the buildings in which the Youngs had insurable interest were covered by “Policy 720,” issued by Progressive, the named plaintiff. The first named defendant, SSI, is a Samoan corporation organized and controlled by the Youngs for the lawful purpose, as found by the Trial Division, of sponsoring aliens who could be employed as help in the Hong Kong Restaurant. The trial court found that SSI was the alter ego of the Youngs, and was so treated by the agents of Progressive, which insured the restaurant premises.

 

The only insurance contract directly at issue here is the portion of Policy 720 covering the restaurant building. Progressive offered, and the Youngs accepted, coverage amounting to $100,000 for the restaurant building, $50,000 for the restaurant building’s contents, and $150,000 for the adjacent building housing the Nu`uuli Store. These terms remained basically consistent through the various documents Progressive issued; however, there was no consistency in the named insureds listed on each of the documents. A written quote delivered to the Youngs by Progressive underwriter Tavita Taumua on May 18, 1999, addressed the Youngs. After the Youngs agreed to the quote, Taumua issued an insurance proposal (“Proposal”), detailing the coverage underwritten. SSI and the Youngs were listed as co-applicants on the Proposal and Falemalama, not Fata, was erroneously listed as the building’s owner. On June 2, 1999, Progressive issued a certificate of insurance (“Certificate”), which named SSI as the sole insured. The Certificate also referenced the Proposal as the controlling descriptive document. Three weeks later, Progressive issued a summary of coverage, which again named the SSI as the sole insured party.

 

On August 11, 1999, a fire, started in the restaurant, razed the restaurant building down to its concrete foundation, slab, and part of a wall. The fire consumed the furnishings and equipment of the restaurant, for which loss Progressive paid SSI in response to a written claim. The fire also caused collateral damage to the Nu`uuli Store. Progressive agreed to pay a claim for that loss. But when the Youngs and the Progressive adjusters failed to agree on the amount of the loss of the restaurant building, trouble entered the previously amiable adjustment process. Fata, meanwhile, filed a claim to be recognized as the building owner and named as a loss payee.

 

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The Youngs wanted the face amount of the $100,000 policy, which exceeded by more than $30,000 the amount that Progressive was then willing to pay. Eventually, after an abortive attempt to settle all remaining claims for $64,300, Progressive paid this sum into court and filed this interpleader action, naming all the contending parties and others that were later deleted from the case. Fata cross-claimed against SSI and the Youngs for indemnification consistent with the terms of the building lease.

 

After a three-day trial, the trial court ordered Progressive to pay $100,000 to Fata, on the theory that SSI had no insurable interest in the restaurant building, and that Fata was entitled to full indemnification from the Youngs.1

 

Standard of Review

 

[1] The appellate court reviews a trial court’s factual determinations for clear error, and questions of law or mixed questions of law and fact de novo. Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992). “A finding is ‘clearly erroneous’ when the entire record produces the definite and firm conviction that the court below committed a mistake.” E.W. Truck & Equip. Co. v. Coulter, 20 A.S.R.2d 88, 92 (App. Div. 1992). “In de novo review, the appellate court must review the record in light of its own independent judgment without giving special weight to the prior decision.” Amerika Samoa Bank v. Pacific Reliant Indus., 20 A.S.R.2d 102, 107 (App. Div. 1992).

 

Discussion

 

I. SSI’s Insurable Interest

 

[2] A.S.C.A. § 29.1522(a) states:

 

Every interest in property . . . of such a nature that a contemplated peril might directly damage the insured, is an insurable interest. A mere contingent or expectant interest in anything, not founded upon an actual right to or in the thing, nor upon any valid contract for it, is not insurable.

 

Following the statute, the record compels the conclusion that SSI had an insurable interest in the restaurant building. According to Kenny

 

1 Without consulting Fata, and allegedly at the direction of Falemalama, the Youngs have since had the remains of the restaurant building removed. The Youngs then built a larger structure on the same property, and entered into a twenty-year lease with Falemalama.

 

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Young’s uncontested testimony, SSI owned and operated the restaurant business. Although the trial court deemed it significant that the Youngs established SSI exclusively to “serve as an immigration conduit” for the restaurant, it matters not for what purpose SSI was formed, so long as it owned the restaurant business. As the owner, it sustained a direct loss when the restaurant had to stop operating because of the fire. As indicated on the Proposal, SSI and the Youngs are the named insureds on Policy 720 and both SSI and the Youngs had insurable interests in the restaurant building.

 

II. Reformation of the Policy

 

[3-4] An insurance policy is subject to the same rules of construction as any other contract. Plaza Dep’t Store v. Duchnak, 26 A.S.R.2d 106, 108-09 (Trial Div. 1994). If an insurance contract is unambiguous, a court must “follow the prescriptions of the policy as written, and need look no further in resolving any disputes.” Asifoa v. Nat’l Pac. Ins. Co., 26 A.S.R.2d 24, 25-26 (Trial Div. 1994). If a policy is found to be ambiguous, however, a court should undertake further inquiry to determine the intent of the parties. Id. at 26. An insurance contract may be reformed to reflect the actual intent of both parties, and it may be reformed after a loss has occurred. Plaza, 26 A.S.R.2d at 109. However, reformation is an “extraordinary remedy,” to be used only when there is mutual mistake or unilateral mistake coupled with actual or equitable fraud by the non-erring party. Mutual of Omaha Ins. Co. v. Russell, 402 F.2d 339, 344 (10th Cir. 1968).

 

In this case, the controlling descriptive document was the Proposal, which listed the Youngs and SSI as co-applicants and Falemalama as building owner. There is an ambiguity within the Certificate, which lists only SSI as a named insured. However, as the trial court pointed out, the Certificate cites the Proposal as “more particularly describ[ing]” the insurance coverage. Contrary to Progressive’s contention, the Proposal reflects the intent of the parties to name the Youngs and SSI as named insureds.

 

[5] Additionally, the mutual mistake resulting in Falemalama’s name appearing on the Proposal compels us to affirm the trial court’s reformation of the insurance agreement to conform to the fact that Fata owned the building. “A mutual mistake of fact occurs where the parties to an agreement have a common intention, but the written contract erroneously reflects that intention due to a mistake on the part of both parties in writing the agreement.” American Samoa Power Auth. v. Nat’l Pac. Ins. Co., 30 A.S.R.2d 145, 147 (Tr. Div. 1996) (quoting Newsom v. Starkey, 541 S.W.2d 468, 472 (Tex. 1976)). Here the parties clearly intended to include the name of the building owner, and erred in naming Falemalama instead of Fata.

 

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[6] However, the trial court erred in reforming the insurance policy to list Fata as a loss payee. Reformation must reflect the “actual intent” of the parties. Plaza, 26 A.S.R.2d at 109. Neither the Certificate nor the Proposal indicate that there was any discussion or agreement on listing a loss payee. Although Progressive contends that it would have listed Fata as the loss payee had it known that she was the building owner, a contract will not be reformed on information that a party knew or should have known, absent an actual, mutual intent to agree on that information. See Hanover Ins. Co. v. Am. Eng’g Co., 105 F.3d 306, 311 (6th Cir. 1997) (citing 3 ARTHUR L. CORBIN, CORBIN ON CONTRACTS § 614, at 723 (1950)) (“[T]he requirement of actual intent by both parties is black letter law in most jurisdictions.”). The trial court erred in this regard.

 

Policy 720 is deemed to be reformed to reflect that Fata is the building owner, but there was no mutual intent to list the building owner as a named insured or a loss payee. Fata recovers by reason of indemnity, not by reason of being a named insured. Fata had a cross-claim, and judicial economy is advanced by affirming the trial court’s equitable reformation to implement the indemnity rights created in Fata’s lease to the Youngs.

 

III. A.S.C.A. § 29.1577 Claim

 

[7] The Appellants argue that the trial court erred in denying their claim for damages under A.S.C.A. § 29.1577, a statute penalizing insurers who fail to pay on a policy within the time specified for covering a loss.2 Although the Appellants argue correctly that A.S.C.A. § 29.1577 is a strict liability statute requiring no proof of bad faith, Paisano’s Corp. v. Nat’l Pac. Ins., 30 A.S.R.2d 139, 141 (Trial Div. 1996), Progressive’s liability was not triggered in this case. The statute makes clear that an insurer’s liability is governed by the terms of the policy. See A.S.C.A. § 29.1577. The trial court noted, and the Appellants do not dispute, that the Youngs failed to submit a written demand as required under the terms of the policy.

 

IV. Tort Claim

 

The Appellants contend that Progressive breached its duty of good faith in adjusting their claims. Specifically, they argue that Progressive had a duty to inform Appellants about a comprehensive general liability policy

 

2 “In all cases where loss occurs and the insurer liable therefor fails to pay the same within the time specified in the policy, after demand made therefor, the insurer is liable to pay the holder of the policy, in addition to the amount of such loss, 12% damages upon the amount of the loss, together with all reasonable attorneys fees . . . .” A.S.C.A. § 29.1577.

 

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and about the extent of the damage done to a second building near the restaurant building.

 

It appears from the trial court’s opinion that the Appellants failed to raise these arguments below. Instead, the Appellants’ bad faith argument seems to have rested on allegations that Progressive improperly delayed in paying for the restaurant building loss and that it purposefully hired an assessor who would report an unreasonably low estimate of the loss to the restaurant building. Appellants may not raise new theories of liability for the first time on appeal. Ill. Graphics Co. v. Nickum, 159 Ill. 2d 469, 490 (1994) (There is a “general waiver rule that a party may not raise a theory in support of the claim for the first time on appeal.”) (citation omitted). We affirm the trial court’s denial of Appellants’ tort claim.

 

V. Indemnification

 

Appellants assert that Fata breached her duty to mitigate damages by bringing a breach of contract claim against the Youngs instead of bringing a claim against Progressive. This assertion is without merit. Indeed, before Progressive filed its interpleader with the court, Fata submitted a claim to Progressive, only seeking indemnification from the Youngs after this action began.

 

VI. Amount of Award

 

Progressive objects to the trial court’s determination that the restaurant building was a total loss after the fire. There is no clear error in the trial court’s factual determination that the building was a total loss, and we affirm. See A.S.C.A. § 43.0801(b).

 

Conclusion

 

We disapprove of part of the trial court’s holdings. SSI had an insurable interest under Policy 720, and the trial court erred in reforming the policy to include Fata as a loss payee. However, these errors were harmless as they did not affect the ultimate order. We affirm the trial court’s rejection of the Appellants’ statutory and tort claims alleging bad faith practices by Progressive. We affirm the court’s holding that the Youngs must indemnify Fata for the loss of the building. We also affirm the order issuing the $64,300 deposited by Progressive to Fata and directing Progressive to pay Fata an additional $35,700.

 

AFFIRMED.

 

It is so ordered.

 

Copy of American Samoa Gov’t v. Tavale


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,

 

v.

 

NAPOLEON TAVALE, Defendant.

 

High Court of American Samoa

 

Trial Division

 

CR No. 34-03

 

February 25, 2004

 

[1] Statements given by a person during custodial interrogation without a prior warning are in violation of constitutionally protected rights and are subject to the exclusionary rule.

 

[2] A statement made by a person who is not in a custodial situation is not subject to suppression on Miranda grounds.

 

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[3] Custodial interrogation occurs when questioning is initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

 

[4] Courts look at the totality of the circumstances to determine whether a person is in custody.

 

[5] The ultimate inquiry of whether a person is in custody is whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.

 

[6] Miranda warnings are not to be imposed simply because the questioning takes place in the station house or because the questioned person is one whom the police suspect.

 

[7] Being questioned at the police station without being handcuffed, threatened, placed under arrest, or being told that one may not leave, does not constitute a custodial interrogation for Miranda purposes, and therefore, does not require Miranda warnings.

 

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

 

Counsel: For Plaintiff, Harvey L. Kincaid, Assistant Attorney General

 

For Defendant, David P. Vargas

 

ORDER DENYING MOTION TO SUPPRESS

 

Defendant Napoleon Tavale (“Tavale”) is charged with fabricating physical evidence in violation of A.S.C.A. § 46.4611(a)(2). Tavale moves, pursuant to T.C.R.Cr.P. 12(b)(3), to suppress statements he made to detectives on November 14, 2002. All counsel and Tavale were present at the hearing February 20, 2004. For the reasons stated below, we deny Tavale’s motion to suppress.

 

On November 14, 2002, around 6:00 a.m., Detective Liusila Brown and another detective arrived at Tavale’s home. Upon their arrival, Detective Brown spoke with Tavale and Tavale’s parents explaining that he was investigating the homicide of Ma`alona Felisi. Detective Brown requested Tavale accompany him to the police station in Fagatogo. Tavale accompanied the officers and rode in the backseat of the police car to the station. At the station, Tavale was escorted to the office of Captain Seau V. Laumoli. Without reading Tavale his Miranda rights, Captain Laumoli interviewed Tavale regarding the events surrounding the death of Ma`alona Felisi, which occurred the previous afternoon. At the same time, Lieutenant Ta`ase Sagapolutele was recording Tavale’s statements in Samoan. The interview lasted approximately 45 minutes. 120

 

After the interview, Tavale agreed to provide a written statement in English. During this entire time, Tavale was never handcuffed, threatened, placed under arrest, or told that he could not leave. At the end of the interview, Tavale freely left the station.

 

Tavale was never arrested or charged with a crime in connection with the death of Ma`alona Felisi. Rather, Tavale subsequently gave a conflicting statement regarding the events of November 13, 2002. As a result of this subsequent statement, the government brought the current charge against Tavale. Tavale now claims that his November 14, 2002 statements were made while in custody, during an interrogation, and without adequate advisement of his rights. Because he was not administered the Miranda rights, Tavale argues that the statements were illegally obtained in violation of his Fifth, Sixth, and Fourteenth Amendment rights of the United States Constitution, as well as Article I, Sections 2, 5 and 6 of the Revised Constitution of American Samoa and, therefore, must be suppressed. The government disagrees, arguing that there was no violation of Tavale’s rights because Tavale was not in custody when he made the statements and because he was interviewed as a witness and not a suspect.

 

[1-2] As well established by Miranda v. Arizona, 384 U.S. 436 (1966), statements given by a person during custodial interrogation without a prior warning are in violation of constitutionally-protected rights and are subject to the exclusionary rule. However, in order to trigger Miranda, an individual must be in custody and must be subject to interrogation. A statement made by a person who was not in a custodial situation is not subject to suppression on Miranda grounds. See Am. Samoa Gov’t v. Fealofa`i, 24 A.S.R.2d 10, 11-12 (Trial Div. 1993).

 

[3-6] Custodial interrogation occurs when “questioning [is] initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444. Courts look at the “totality of the circumstances” when making a determination as to whether a person is “in custody.” California v. Beheler, 463 U.S. 1121, 1125 (1983). However, “the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Id. (citations omitted). In Oregon v. Mathiason, 429 U.S. 492 (1977), the Supreme Court found that a suspect who voluntarily went to a police station and freely left after a 30 minute interview was not “in custody” for Miranda purposes. The Court explained that “[Miranda] warnings [are not] to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.” Id. at 495. Likewise, in Beheler, the Court found the defendant was not “in custody” when he voluntarily accompanied the police to the police station, was interviewed

 

121

 

for about 30 minutes, and then allowed to leave. 463 U.S. at 1122-23. The Court noted that “Beheler was neither taken into custody nor deprived of his freedom of action. Indeed, Beheler’s freedom was not restricted in any way whatsoever.” Id. at 1123.

 

[7] In the current case, based on the aforementioned facts adduced at the suppression hearing, we find that Tavale was not in custody at the time he made his statements to the officers.1 Accordingly, Tavale’s statements are admissible.

 

Order

 

The motion to suppress Defendant Tavale’s November 14, 2002 statements to police officers is denied. It is so ordered.

 

Construction Services of Samoa, Inc. v. Bank of Hawaii_1


 

CONSTRUCTION SERVICES OF SAMOA, INC.,

 

MORU MANE and SALLIE MANE, Plaintiffs,

 

v.

 

BANK OF HAWAII, TONY’S CONSTRUCTION

 

and SILA POASA, Defendants.

 

High Court of American Samoa

 

Trial Division

 

CA No. 21-02

 

January 28, 2004

 

[1] Where a defendant has already answered a complaint, a motion to dismiss under T.C.R.C.P. 12(b)(6) for failure to state a claim is untimely, and the appropriate motion is a motion for judgment on the pleadings under T.C.R.C.P. 12(c).

 

[2] A motion for judgment on the pleadings brought pursuant to T.C.R.C.P. 12(c) employs the same standard used in determining a motion to dismiss brought under T.C.R.C.P. 12(b)(6).

 

[3] In the case of a sole proprietorship, the firm name and the sole proprietor’s name are but two names for one person.

 

[4] Although a court is not permitted to enter a “default” summary judgment, if the moving party meets its initial summary judgment burden, and the motion is unopposed, it is quite likely that the court will enter summary judgment.

 

[5] A motion for partial summary adjudication should be considered pursuant to T.C.R.C.P. 56(d).

 

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[6] The standard for determining a T.C.R.C.P. 56(d) motion is identical to the standard used for a motion brought under T.C.R.C.P. 56(c).

 

[7] The party seeking summary judgment bears the burden of showing there is no genuine issue of material fact.

 

[8] There are four elements to a claim of tortious interference with contractual relations: (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of the contract; (3) the defendant’s intentional procurement of a breach of the contract by the third party; and (4) damages caused by the breach.

 

[9] One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability under the cause of action known as Intentional Infliction of Emotional Distress.

 

[10] Where the defendant acquired equipment from a bank after the bank had repossessed the equipment from the plaintiff, such conduct was not extreme or outrageous conduct that would support cause of action for Intentional Infliction of Emotional Distress.

 

[11] Where plaintiffs failed to offer any evidence that the defendant intended to cause them emotional distress by acquiring their repossessed equipment, an action for Intentional Infliction of Emotional Distress would not lie.

 

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

 

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

 

For Defendant Bank of Hawaii, Roy J.D. Hall, Jr.

 

For Defendants Tony’s Construction and Sila Poasa, Frederick

 

J. O’Brien

 

ORDER GRANTING IN PART DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO DISMISS

 

Defendant Sila Poasa (“Sila”) moves, pursuant to T.C.R.C.P. 56, for partial summary judgment on the complaint of Plaintiffs Construction Services of Samoa, Inc. (“CSS”), Moru Mane (“Moru”) and Sallie Mane (“Sallie”) (collectively “Plaintiffs”). Defendant Tony’s Construction (“Tony’s”) moves to dismiss Plaintiffs’ complaint against it entirely.1

 

1 We note that Defendant Bank of Hawaii (“BOH”) filed a separate motion for summary judgment. We address BOH’s motion by separate order.

 

110

 

Plaintiffs did not file a response to Defendants’ motions. For the reasons stated below, we grant in part Sila’s motion for partial summary judgment and deny Tony’s motion to dismiss.

 

I. Tony’s Motion to Dismiss

 

[1-2] Tony’s argues that it should be dismissed from the instant litigation because as the alter ego for Sila it can neither sue nor be sued. As an initial matter, Tony’s fails to assert under which rule of civil procedure it makes its motion. We can only assume that Tony’s is seeking to be dismissed under T.C.R.C.P. 12(b)(6) for failure to state a claim. However, Tony’s has filed an answer in this matter and therefore a motion to dismiss under T.C.R.C.P. 12(b)(6) is untimely. Instead, Tony’s motion is more properly considered under T.C.R.C.P. 12(c). In deciding a motion for judgment on the pleadings pursuant to T.C.R.C.P. 12(c), the same standard is used as that for determining a motion brought pursuant to T.C.R.C.P. 12(b)(6). GATX Leasing Corp. v. Nat’l Union Fire Ins. Co., 64 F.3d 1112, 1114 (7th Cir. 1995).

 

[3] Plaintiffs alleged in their complaint that Tony’s is a sole proprietorship doing business in American Samoa. Tony’s admitted this allegation in its answer. Tony’s argues that because it is Sila’s alter ego it should be dismissed. Indeed, Sila, as the owner of Tony’s, a sole proprietorship, is liable for its debts. See Wing Hop Lee, Ltd. v. Soo, 30 A.S.R.2d 76, 78 (Trial Div. 1996). “[I]n the case of a sole proprietorship, the firm name and the sole proprietor’s name are but two names for one person.” Credit Assoc. of Maui, Ltd. v. Carlbom, 50 P.3d 431, 435 (Haw. Ct. App. 2002) (citations omitted). As such, “[w]here a person engages in business . . . under such name, he may be sued under such name.” Id. (citations omitted). Accordingly, whether Plaintiffs sue Sila or Tony’s, Sila is responsible for any judgment obtained against either entity. Although Plaintiffs cannot receive double recovery by naming both entities, we see no reason to dismiss Tony’s.

 

II. Sila’s Motion for Partial Summary Judgment

 

[4] Sila moves for partial summary judgment with respect to counts six, seven, and nine of Plaintiffs’ complaint. Plaintiffs failed to respond to Sila’s motion. “[A]lthough a court is not permitted to enter a ‘default’ summary judgment, if the moving party meets its initial summary judgment burden, it is quite likely that the court will enter a summary judgment in the absence of any opposition.” 11 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 56.10[3][b] (3d ed. 1999).

 

[5-6] A motion for partial summary adjudication should be considered pursuant to T.C.R.C.P. 56(d). See, e.g., Wing Hop Lee, Ltd., 30 A.S.R.2d at 77. The standard for determining a Rule 56(d) motion is 111

 

identical to the standard used for determining a motion brought under Rule 56(c). Aurelio v. R.I. Dep’t of Admin., 985 F. Supp. 48, 53 (D. R.I. 1997).

 

[7] Summary judgment is appropriate when the pleadings and other supporting documents “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. 56(c). The party seeking summary judgment bears the burden of showing there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Accordingly, we look to whether Sila met his burden.

 

A. Count 6 – Conversion

 

Sila argues that he purchased an excavator from BOH after BOH repossessed the excavator following Plaintiffs’ default on a loan. Sila was a guarantor on the loan. Sila argues that he is not liable for conversion because he acquired the excavator through a lawful purchase. Sila makes his argument with no citation to any law or facts; however, he does refer this Court to “the pleadings and documents on file.” A review of the pleadings and documents demonstrates that there is a factual dispute as to whether Sila purchased the excavator from BOH or whether he redeemed it as the guarantor of the loan. This factual determination may affect Sila’s liability on this count. As such, we decline to grant Sila summary judgment on count six.

 

B. Count 7 – Tortious Interference

 

Sila also seeks summary judgment on count seven of Plaintiffs’ complaint, which alleges that Sila tortiously interfered with the security agreement between CSS and BOH “by taking possession of the repossessed excavator and attachments with knowledge that BOH was obligated to return the equipment to CSS under the Security Agreement upon his discharging the debt as guarantor.” (Compl. ¶ 77.) The complaint also alleges that Sila had knowledge that under the terms of the security agreement “three bids were to be obtained for the collateral if the collateral were to be put up for sale.” (Id. ¶ 75.)

 

[8] There are four elements to a claim of tortious interference with contractual relations:

 

(1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of the contract; (3) the defendant’s intentional procurement of a breach of the contract by the third party; and (4) damages caused by the breach.

 

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Standard Dyeing & Finishing Co. v. Arma Textile Printers Corp., No. 85 Civ. 5399 (BN), 1991 WL 49782, *11 (S.D.N.Y. March 25, 1991); see also RESTATEMENT (SECOND) OF TORTS § 766 (1979).

 

Sila argues that under the security agreement the bank was under no obligation to refrain from selling the excavator to him. We agree. Nothing in the language of the security agreement prevents BOH from selling the excavator to Sila. Contrary to Plaintiffs’ allegation that the security agreement precludes sale to Sila, section J.4 of the agreement permits such a sale. (See Security Agreement/Chattel Mortgage ¶ J.4 (“After repossessing, [BOH] may obtain three bids for any Collateral . . . and sell such Collateral for cash or credit at the highest bid price . . .).) [BOH is] not restricted, however, from using other sale procedures or selling to persons other than those described above.”).

 

Additionally, if Sila is found to have redeemed the collateral as a guarantor, he still would not be liable on this count. Plaintiffs’ allegation that BOH had to return the excavator to CSS after Sila fulfilled its loan obligations as the guarantor is simply wrong. There is no language to this effect in the security agreement nor does the law support this allegation. (See Security Agreement/Chattel Mortgage passim.) See also, e.g., HAW. REV. STAT. ANN. §§ 490:9-618; 9-623 (West 2004). As such, we grant Sila’s motion for summary judgment on this claim.

 

C. Count 9 - Intentional Infliction of Emotional Distress

 

Sila seeks partial summary judgment with respect to part of Plaintiffs’ claim for the intentional infliction of emotional distress (“IIED”). Plaintiffs allege that Sila caused them “extreme emotional distress” by both his wrongful acquisition of the excavator and by his use of police officers to enter Plaintiffs’ property and harass them. Sila seeks summary judgment arguing that his acquisition of the excavator was not the sort of conduct necessary for a claim of IIED and that he did not intend to cause the Manes emotional distress by taking possession of the excavator.

 

[9-11] We agree with Sila that the alleged conduct falls short of what is required for a claim of IIED. In an IIED case, “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability.” RESTATEMENT (SECOND) OF TORTS § 46 (1965). Sila’s acquisition of the excavator after BOH’s repossession, whether by sale or by redemption, was not extreme or outrageous conduct. Moreover, Plaintiffs have offered no evidence (nor did we locate any in the record) that Sila intended to cause them emotional distress by acquiring the excavator. Accordingly, we grant Sila partial summary judgment on this claim.

 

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Order

 

1. Defendant Tony’s Construction’s motion to dismiss is denied.

 

2. Defendant Sila Poasa’s motion for partial summary judgment is granted in part and denied in part. Sila Poasa’s motion for summary judgment on count six is denied. Sila Poasa is entitled to summary judgment on count seven of Plaintiffs’ complaint. Sila Poasa is also entitled to partial summary judgment on count nine of Plaintiffs’ complaint regarding his acquisition of the excavator.

 

It is so ordered.

 

Construction Services of Samoa, Inc. v. Bank of Hawaii.


 

CONSTRUCTION SERVICES OF SAMOA, INC., MORU MANE and SALLIE MANE, Plaintiffs,

 

v.

 

BANK OF HAWAII, TONY’S CONSTRUCTION

 

and SILA POASA, Defendants.

 

High Court of American Samoa

 

Trial Division

 

CA No. 21-02

 

June 22, 2004

 

[1] To constitute conversion of a chattel, there must be an unauthorized assumption of the right to possession or ownership. A plaintiff must show a tortious conversion of the chattel, a right to the property, and an absolute and unconditional right to immediate possession of the property.

 

[2] In the case of secured transactions, one incident of the obligation to exercise good faith is that a creditor who seizes and sells a thing to satisfy his debt must exercise due diligence to secure a fair price for it. This obligation has been codified by statute in all fifty states; where it 192

 

does not require a judicial foreclosure or an advertised public sale it at least requires the sale be conducted in accordance with commercially reasonable practices and that there be notice to the mortgagor.

 

[3] Notice enables the debtor to protect his interest in the property by paying the debt, finding a buyer, or being present at the sale to bid on the property or have others do so, to the end that it be not sacrificed by a sale at less than its true value.

 

[4] Although notice and commercial reasonableness are related but independent requirements, if no notice or a defective notice is given, the creditor acts in a commercially unreasonable manner.

 

[5] Where a security holder, proceeding as permitted by the security instrument, secures possession of the security and sells it at a private forced sale, he should exercise due diligence to get the best price obtainable at such a sale, and if he fails so to do and sells the security for less than he could have obtained by the exercise of such diligence, he is liable to the debtor for the difference between the price obtained and the price he could have obtained by the exercise of such diligence.

 

[6] The right of setoff is an ancient doctrine tracing its origin back to the Roman doctrine of “compensatio,” which is the extinction of cross-demands. This right allows entities that owe each other money to apply their mutual debts against each other, thereby avoiding the absurdity of making A pay B when B owes A.

 

[7] The right to setoff usually exists when four conditions are met: (1) the funds to be setoff are property of the debtor; (2) the funds are deposited without restrictions; (3) the existing indebtedness is due and owing; and (4) there is mutuality of obligation.

 

[8] In determining a bank’s right to setoff from a joint account, modern courts usually first turn to state statutes regulating bank accounts or the provisions in the account agreement. It is universally recognized that a bank may contract with customers for the right to a setoff from the entire joint account the debt of only one of the joint account holders. In the absence of an agreement between the parties, courts look to state statutes. Some states have adopted statutes regulating setoffs or other aspects of joint bank accounts.

 

[9] At common law, a bank typically had to concede a lack of mutuality when at least one of the holders of a joint account did not have a debt with the bank. Thus, the bank would try to argue that the debtor was indeed the actual owner of the account’s funds and that the other joint “owner” had made no contribution at all. If the argument was convincingly made, a court would allow the bank equitable setoff of the

 

193

 

funds.

 

[10] In the absence of a statute or a specific agreement between joint depositors and the bank conferring upon the bank a right to set off the individual indebtedness of one of the depositors against the bank’s liability on the joint account, the bank’s setoff may not exceed the interest of the indebted depositor in the joint account.

 

[11] In determining which party should bear the burden in wrongful setoff cases, the answer is usually that the burden is on the account holder. This is the only practical solution because a bank is privy only to imperfect information regarding ownership of funds.

 

[12] Where a bank breaches its deposit contract with a depositor by wrongfully exercising a setoff, the depositor is entitled to recover the full amount of the offset.

 

[13] In an intentional infliction of emotional distress case, one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability.

 

[14] Replevin is a proceeding in which the owner or one who has a general or special property in the chattel taken or detained seeks to recover possession. Ordinarily, in an action for replevin, the defendant must have possession of the property.

 

[15] Permitting the defendant to set up as a defense to the action the fact that he has parted with the possession of the property, when this was done wrongfully, would allow him to take advantage of his own wrong. It would enable one who had wrongfully taken or detained property from the owner to refuse to deliver, and hold to the last moment before the writ, and then evade a suit by a transfer of possession.

 

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

 

Counsel: For Plaintiffs, Charles V. Ala`ilima

 

For Defendant Bank of Hawaii, Roy J.D. Hall, Jr.

 

For Defendants Tony’s Construction and Sila Poasa, Frederick

 

J. O’Brien

 

OPINION AND ORDER

 

Plaintiffs Construction Services of Samoa, Inc. (“CSS”), Moru Mane (“Moru”), and Sallie Mane (“Sallie”) (collectively “Plaintiffs”) brought the instant action against Defendants Bank of Hawaii (“BOH”), Tony’s Construction, and Sila Poasa (“Sila”). Plaintiffs seek damages from 194

 

BOH on six counts: (1) conversion; (2) breach of duty to return equipment; (3) breach of duty to notify; (4) breach of duty to account; (5) conversion of funds from bank account; and (6) intentional infliction of emotional distress. Plaintiffs seek damages from Tony’s Construction on two counts: (1) conversion; and (2) intentional infliction of emotional distress; and from Sila on these two counts and two additional counts: (1) tortious interference with security agreement; and (2) trespass. Sila and Tony’s Construction brought a counterclaim against Plaintiffs for replevin and crossclaims against BOH for: (1) breach of warranty of good title; (2) fraud and misrepresentation; (3) negligence; and (4) indemnity.

 

On January 28, 2004, we granted BOH partial summary judgment with respect to the breach of duty to return equipment and intentional infliction of emotional distress claims. On this same date, we granted Sila partial summary judgment with respect to the tortious interference and intentional infliction of emotional distress claims against him. Trial was held on the remaining claims on January 29, 2004 and February 2, 2004. All parties and counsel were present at trial.

 

Findings of Fact

 

Plaintiffs operated CSS, a construction company, in American Samoa. Sila was involved with the operations of CSS but eventually left CSS to start his own construction business, Tony’s Construction. In September 1998, CSS purchased a used 1995 PC-200 excavator and various other pieces of equipment for $153,050.00 New Zealand dollars.1 (Ex. 14 at 3). On December 10, 1999, Sila entered into a Security Agreement/Chattel Mortgage with BOH on behalf of CSS. (Ex. 14). The loan was secured by the excavator and certain accessories listed on the invoice attached to the Security Agreement/Chattel Mortgage. (Id.) Sila and Moru guaranteed the loan in their individual capacities. (Ex. 39.) Even after Sila left CSS, he remained obligated as a guarantor on the loan.

 

CSS defaulted on its loan obligations. In April 2001, BOH set off 1 We take judicial notice that the exchange rate on September 9, 1998 (the

 

date of the invoice) was 0.5075 currency units per dollar. Federal Reserve

 

Statistical Release, Foreign Exchange Rates (Weekly) (released Oct. 5,

 

1998) available at http://www.federalreserve.gov. Accordingly, the value

 

of all of the equipment on the date of invoice in U.S. dollars was

 

$77,672.12, with the excavator price at $55,825.00 and the rock breaker

 

price at $16,240.00. Neither party introduced any evidence regarding the

 

exchange rate.

 

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$3,700.55 from the personal joint account of Moru and Sallie and applied these funds to the outstanding loan obligation in order to bring the loan current. (Ex. 17 and 44.) As a result of this setoff, Sallie incurred returned check and vendor fees.

 

CSS again defaulted on the loan. On August 2, 2001, BOH sent a notice to CSS indicating that CSS was in default and that the full amount of the loan was due by August 14, 2001. (Ex. 30.) CSS made no payments in response to this correspondence. On August 15, 2001, BOH repossessed the excavator and attachments. However, BOH could not repossess the rock breaker because Moru and Sallie claimed it had been stolen. (Ex. 34.) Two days later, on August 17, 2001, BOH sent a notice to CSS notifying them that BOH planned to sell the excavator at a public sale unless the loan was paid in full by August 31, 2001. (Ex. 6.)

 

During this same period, BOH was in contact with Sila. On August 17, 2001, Sila made a payment to BOH of $8,867.67 and paid EFVJ Trucking and Machinery $1,668.00 for the storage fees. (Ex. 35.) Sila expressed that he wanted to purchase the equipment rather than redeem the loan. At this point, Sila took possession of the excavator. On September 11, 2001, Sila made financing arrangements with BOH for the remaining amount of $30,943.00 in order to purchase the excavator and attachments.2 (Ex. 37.) BOH secured Sila’s and his wife, Falesa’s, new loan with the excavator and attachments. (Id.) Sila acknowledged BOH was unable to secure possession of the rock breaker and agreed to recover the rock breaker himself. (Id.) Sila still does not have possession of the rock breaker. Indeed, in 2002, CSS gave the rock breaker to Vailu`u and Sons in order to satisfy a $10,155.00 debt.

 

Discussion

 

I. Plaintiffs v. BOH

 

A. Conversion

 

[1] Plaintiffs allege that BOH converted the excavator and attachments by repossessing and releasing them to Sila. “To constitute conversion of a chattel, there must be an unauthorized assumption of the right to possession or ownership.” Andrews v. Mid-Am. Bank and Trust Co., 503

 

2 We acknowledge that there has been conflicting evidence regarding

 

whether Sila purchased the excavator from BOH or redeemed it as the

 

guarantor on the loan. We find the testimonial and documentary evidence,

 

in total, supports a finding that Sila purchased the excavator from BOH.

 

(See, e.g., Ex. 37 (In a financing approval letter to Sila and Falesa Poasa,

 

BOH “extend[ed] [its] best wishes with the purchase of this equipment.”).)

 

196

 

N.E.2d 1120, 1122 (Ill. App. Ct. 1987). “Plaintiff must show a tortious conversion of the chattel, a right to the property, and an absolute and unconditional right to immediate possession of the property.” Id.

 

With respect to BOH’s repossession, it is undisputed that CSS defaulted on its loan, which was secured by the excavator and attachments. Upon default, BOH had the right to repossess the excavator and attachments. The Security Agreement/Chattel Mortgage says that upon default BOH “may take the Collateral without notice to [CSS] and/or require [CSS] to produce the Collateral to [BOH] at a reasonably convenient place.” (Ex. 14.) Plaintiffs could not show they had the right to immediate possession of the excavator after their default. As such, BOH had the superior right to possession when it repossessed the equipment. See, e.g., Taylor v. United Missouri Bank of Kansas City, 693 F.2d 63, 64 (8th Cir. 1982); Keller v. La Rissa, Inc., 586 P.2d 1017, 1020 (Haw. 1978); Andrews, 503 N.E.2d at 1122.

 

With respect to BOH’s subsequent disposition of the excavator and attachments to Sila, Plaintiffs argue that BOH is liable to them for conversion because it could not release the equipment to Sila as a loan guarantor.3 Because we find that BOH sold the equipment to Sila in a private sale, Plaintiffs’ claim that BOH converted the equipment by releasing it to Sila, a loan guarantor, fails.4

 

B. Breach of Notice

 

Plaintiffs allege that BOH failed to give them proper notice before

 

3 Plaintiffs argue that Hawaii Revised Statute section 460:9-504(5) stated

 

that if a guarantor came into possession, the transaction was not to be

 

construed as a sale. HAW. REV. STAT. § 460:9-504(5) (current version at

 

HAW. REV. STAT. ANN. § 490:9-618 (West 2003)). This statute was part of

 

the Hawaii Uniform Commercial Code (“UCC”), which has been

 

significantly revised and renumbered. We do not find it necessary to apply

 

the UCC to this case. See disc. infra at n.5. However, we note that,

 

although Plaintiffs argue that the earlier version of this statute should apply

 

to them, and although we decline to apply any version, the commentary in

 

the revised provision “rejects the view, which some may have ascribed to

 

former section 9-504(5), that a transfer of collateral to a recourse party can

 

never constitute a disposition of collateral which discharges a security

 

interest. Inasmuch as a secured party could itself buy collateral at its own

 

public sale, it makes no sense to prohibit a recourse party ever from buying

 

at the sale.” HAW. REV. STAT. ANN. § 490:9-618 cmt. 3.

 

4 If we had found that BOH had released the property to Sila as a loan

 

guarantor, BOH also would not be liable to Plaintiffs for conversion. If Sila

 

had redeemed the equipment rather than purchased it, he would have been

 

subrogated to BOH’s rights.

 

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disposing of the excavator to Sila. BOH sent notice to Plaintiffs on August 17, 2001 that it intended to publish notice of public sale ten days later and gave Plaintiffs until August 31, 2001 to redeem the collateral. (Ex. 6.) In the meantime, on August 17, 2001, BOH sold the excavator and attachments to Sila.5

 

[2-3] We have said before,

 

[i]n the case of secured transactions one incident of [the obligation to exercise good faith] is that a creditor who seizes and sells a thing to satisfy his debt must exercise due diligence to secure a fair price for it. This obligation has been codified by statute in all fifty states; where it does not require a judicial foreclosure or an advertised public sale it at least requires the sale be conducted in accordance with commercially reasonable practices and that there be notice to the mortgagor.

 

Dev. Bank of Am. Samoa v. Ilalio, 5 A.S.R.2d 1, 8 (Trial Div. 1987). Notice “enable[s] the debtor to protect his interest in the property by paying the debt, finding a buyer, or being present at the sale to bid on the property or have others do so, to the end that it be not sacrificed by a sale at less than its true value.” 68A AM. JUR. 2D Secured Transactions § 653 (1993) (footnotes omitted). Accordingly, we turn to whether BOH provided proper notice of sale to Plaintiffs.

 

In the Security Agreement/Chattel Mortgage, the parties agreed that reasonable notice was five days. BOH provided notice to Plaintiffs on August 17, 2001 that ten days later it would publish notice for a public sale of the equipment. Then, the very same day, on August 17, 2001, BOH sold the equipment to Sila in a private sale. We find this notice was deficient. See, e.g., Liberty Bank v. Honolulu Providoring Inc., 650 P.2d 576, 580 (Haw. 1982) (declining to determine if notice was reasonable under the UCC and finding that “[b]y the very terms of the note and security agreement, Liberty Bank failed to provide sufficient notice of the action within a reasonable time.”).

 

5 Plaintiffs insist that the notice provisions in Hawaii Revised Statute

 

section 490:9-611(b) apply to their claim. We disagree. American Samoa

 

has not adopted the UCC, and we believe this case can be resolved using

 

common law concepts. However, we do look to the UCC and the cases

 

interpreting it as persuasive authority. See Pac. Reliant Indus., Inc. v.

 

Amerika Samoa Bank, 16 A.S.R.2d 57, 60 (Trial Div. 1990) (“While the

 

UCC does not of its own force apply in American Samoa, that is not to say

 

that certain rules embodied in widely adopted uniform codes, such as the

 

UCC, may not otherwise be applicable in the territory when they evince or

 

restate generally accepted principles of law.”); see also Theo H. Davies &

 

Co. v. Pac. Dev. Co., 6 A.S.R.2d 5 (Trial Div. 1987).

 

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[4] Although “[n]otice and commercial reasonableness are related but independent requirements, . . . [i]f no notice or a defective notice is given, the creditor acts in a commercially unreasonable manner.” 68A AM JUR. 20 Secured Transactions § 654 (footnotes omitted). We are convinced that BOH’s sale to Sila, without proper notice to Plaintiffs, was commercially unreasonable.

 

Other circumstances surrounding the sale lead us to question its commercial reasonableness. According to the Security Agreement/ Chattel Mortgage, the parties indicated that “obtain[ing] three bids for any Collateral, from any wholesaler or retailer in similar property and sell[ing] such Collateral for cash or credit at the highest bid price” would be commercially reasonable. (Ex. 14.) On August 17, 2001, rather than getting bids or proceeding to a public sale, BOH decided to enter into a private sale with Sila without informing the Plaintiffs. The evidence indicated that the price Sila paid for the equipment was substantially less than the price it was purchased at three years previous. Tasi Scanlon, a BOH representative, indicated that she would only try to get the amount of the outstanding loan obligation at a sale. (Ex. 34 (“[Tasi] also explained to him that regardless of the machines’ value, the Bank intends to sell it for an amount to recover the outstanding loan and no more . . . .”) The circumstances surrounding the transaction lead us to believe that the private sale of the equipment to Sila without proper notice to the Plaintiffs was commercially unreasonable. See, e.g., Mercantile Fin. Corp. v. Miller, 292 F. Supp. 797, 801 (E.D. Pa. 1968); Reed v. Universal C.I.T. Credit Corp., 253 A.2d 101, 103-4 (Pa. 1969).

 

[5] BOH argues that even if it did violate a notice requirement, Plaintiffs have not suffered any recoverable damages under the UCC. Whether in terms of the UCC or common law, we believe Plaintiffs would have been entitled to any surplus from the sale of the equipment.6 See, e.g., HAW. REV. STAT. ANN. §§ 490:9-625(b), (d) cmt. 3 (West 2003) (“Assuming no double recovery, a debtor whose deficiency is eliminated under section 9-626 may pursue a claim for a surplus.”); id., § 490:9-615(f) (discussing how to calculate the surplus); Willis v. Healthdyne, Inc., 382 S.E.2d 651, 653 (Ga. App. Ct. 1989) (“A sale of collateral, even if it is without notice, does not constitute conversion, but a defaulting debtor can recover actual damages . . . for any loss caused by an inadequate sale price.”).

 

6 Some jurisdictions will find the secured party liable for conversion in the

 

absence of proper notice because the debtor is unable to redeem the

 

equipment. The evidence at trial conclusively established that Plaintiffs

 

made no attempt to redeem nor were they in any position to redeem the

 

equipment.

 

199

 

Where a security holder, proceeding as permitted by the security instrument, secures possession of the security and sells it at a private forced sale, he should exercise due diligence to get the best price obtainable at such a sale, and if he fails so to do and sells the security for less than he could have obtained by the exercise of such diligence, he is liable to the debtor for the difference between the price obtained and the price he could have obtained by the exercise of such diligence.

 

A to Z Rental, Inc. v. Wilson, 413 F.2d 899, 909 (10th Cir. 1969); see also Bank of Hawaii v. Davis Radio Sales & Serv., Inc., 727 P.2d 419, 425 (Haw. Ct. App. 1986) (“Defendants [debtors] were entitled to prove any damages they suffered as a result of the failure to notify them of the sale.”). Thus, we must determine if Plaintiffs have established the fair market value of the equipment exceeded the purchase price.7 See In re Cummings, 147 B.R. 738, 745 (Bankr.D.S.D. 1992) (dismissing debtor’s claim because he “failed to present any evidence of the damages he suffered by [the secured party’s] alleged failure to sell secured property in compliance with the Uniform Commercial Code”); Mercantile Fin. Corp., 292 F. Supp. at 801.

 

Plaintiffs submitted a price list for excavators and insist that we should value the excavator at $67,666.66, that price being the average price of three 1998 PC 200 six year old excavators with accessories listed on the price list. (Ex. 22.) There are immediately numerous problems with this approach. First, we have no evidence that the 1998 PC 200 and 1995 PC 200 are equivalent models. For example, car manufactures often change their models from one year to the next, different styles being worth much different prices. Second, evidence was introduced that CSS’s excavator had a significant number of hours on it, maybe even close to 8000 hours of use. No machine on the provided list has a comparable amount of hours, nor were we provided with information as to how the number of hours on a machine (or the condition of the machine) may depreciate its value. Third, the price list contains excavators and lists some included attachments. How are we supposed to know if the attachments in the price list mirror the attachments at issue in this case? Certainly, the type of attachments the equipment comes with can affect its value. These are just some of the problems we have with Plaintiffs’ damages figure.

 

We believe a fairer assessment is to look at CSS’s disposition of the rock 7 Much of the case law in this area involves the secured creditor trying to

 

recover a deficiency judgment after the sale of the collateral. There is less

 

case law discussing the situation where a debtor alleges that the collateral

 

was worth not only more then it was sold for, but more then the amount of

 

the debt.

 

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breaker and determine how much it depreciated at the time of sale. CSS purchased the rock breaker new in 1998 for $16,240.00. In 2002, it gave the rock breaker to Vailu`u & Sons to settle a $10,155.00 debt. This represents a depreciation to 62.53 percent. CSS purchased the excavator and the other equipment (including the rock breaker) for $77,672.13 in 1998. Using the 62.53 percent figure, we find fair market value of this equipment to be $48,568.38 at the time it was sold to Sila. In addition to the $30,943.00 loan, Sila made payments of $8,867.67 and $1,668.00 for the equipment. Thus, Sila paid $41,478.67 in connection with the excavator. The difference between this price and the fair market value is $7,089.71. BOH is liable to CSS for this amount.

 

C. Breach of Duty to Account

 

Plaintiffs argue that BOH breached its duty to account after the disposition of the equipment. On January 29, 2002, Plaintiffs, through their attorney, requested BOH provide an accounting for the disposition of the collateral that secured their loan. (Ex. 7.) In this letter, Plaintiffs claim they previously requested this information in writing on October 1, 2001 and received an insufficient response. (Id.). BOH responded to Plaintiffs’ January 29 request on February 1 and 19, 2002. (Ex. 8 and 9.) Plaintiffs argue that BOH’s response was inadequate.

 

Even assuming BOH had a duty to account to the Plaintiffs, Plaintiffs have not established that BOH’s failure to provide the accounting caused them any damages. As such, we find in favor of BOH on this claim.8

 

D. Conversion of Sallie’s Funds

 

[6] Sallie alleges that BOH wrongfully set off money from a checking account she jointly owned with her husband. The right of setoff is “an ancient doctrine tracing its origin back to the Roman doctrine of ‘compensatio,’ which is the extinction of cross-demands.” Four Circle Co-op v. Kansas St. Bank & Trust Co., 771 F. Supp. 1144, 1149 (D. Kan. 1991). This right “allows entities that owe each other money to apply their mutual debts against each other, thereby avoiding the absurdity of making A pay B when B owes A.” Citizens Bank of Maryland v. Strumpf, 116 S.Ct. 286, 289 (1995) (citations omitted); see also American Samoa Gov’t Employees Fed. Credit Union v. Sele, 28 8 Under Hawaii Revised Statutes section 490:9-625(f), Plaintiffs may have

 

been entitled to recover the $500 statutory award. However, American

 

Samoa has not adopted the UCC, nor does it have any statutory damage

 

award to compensate Plaintiffs for this claim. In the absence of any

 

showing of damages by Plaintiffs, we believe a damage award is

 

inappropriate in this case.

 

201

 

A.S.R.2d 21, 24 (Trial Div. 1995).

 

[7-8] The right to setoff usually exists when four conditions are met:

 

(1) the funds to be setoff are property of the debtor; (2) the funds are deposited without restrictions; (3) the existing indebtedness is due and owing; and (4) there is mutuality of obligation.

 

Paul Laurino, Whose Money is It Anyway? A Bank’s Right to Setoff Against Joint Accounts, 1996 COLUM. BUS. L. REV. 61, 63. In determining a bank’s right to setoff from a joint account, modern courts usually first turn to state statutes regulating bank accounts or the provisions in the account agreement. Id. at 64. “It is universally recognized that a bank may contract with customers for the right to setoff from the entire joint account the debt of only one of the joint account holders.” Id. at 65. In the absence of an agreement between the parties, courts look to state statutes. Some states have adopted statutes regulating setoff or other aspects of joint bank accounts. Id. at 70-72, 81 (“Presently, the majority of states permit banks the statutory right to setoff only a debtor’s net contribution to the account, or in absence of evidence thereof, the debtor’s pro rata share of the account.”).

 

[9-10] In the Continuing Guaranty, Moru agreed BOH could use the setoff process against his checking or savings accounts. (See Ex. 39 ¶ 15.) However, BOH offers no contractual agreement to demonstrate that it was allowed to set off funds from Sallie and Moru’s joint account.9 Moreover, American Samoa does not have statutes regarding the right to setoff or the regulation of joint accounts.10 Because we do not have statutes or an account agreement to turn to for guidance, we must look to the common law.

 

At common law, a bank typically had to concede a lack of mutuality when at least one of the holders of a joint account did not have a debt with the bank. Thus, the bank would try to 9 In its written closing argument, Bank of Hawaii also argues that it was

 

entitled to set off funds from the Sallie and Moru’s account because Tasi

 

Scanlon testified that Moru Mane separately gave them permission to set

 

off the loan payments at issue, and because Moru did not explicitly deny

 

this at trial. However, no evidence demonstrated that Sallie Mane gave her

 

permission for the setoff.

 

10 According to paragraph 12 of the Continuing Guaranty, the “Guaranty

 

shall be construed in accordance with the laws of the State of Hawaii.” (Ex.

 

39.) However, neither party provided any discussion of Hawaii law

 

regarding this issue. Hawaii Revised Statutes Annotated section 412:4-105

 

discusses joint accounts but does not explicitly address the setoff issue.

 

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argue that the debtor was indeed the actual owner of the account’s funds and that the other joint “owner” had made no contribution at all. If the argument was convincingly made, a court would allow the bank equitable setoff of the funds.

 

Paul Laurino, 1996 COLUM. BUS. L. REV. at 64 (footnotes omitted). In Greenwood v. Bank of Illmo, 782 S.W.2d 783 (Mo. Ct. App. 1989), the court noted that “[o]ut-state authorities hold that, in the absence of a statute or a specific agreement between joint depositors and the bank conferring upon the bank a right to set off the individual indebtedness of one of the depositors against the bank’s liability on the joint account, the bank’s set off may not exceed the interest of the indebted depositor in the joint account.” Id. at 786 (collecting cases); see also Symanski v. First Nat’l Bank of Danville, 609 N.E.2d 989, 993 (Ill. App. Ct. 1993) (“A bank has a right of setoff, as against a deposit, only when the individual who is both depositor and debtor stands in both of these characters alike, in precisely the same relation and on precisely the same footing toward the bank.”); Colella v. N. Easton Sav. Bank, No. Civ. A. 95-00362, 1995 WL 670140 *5 (Mass. Super. Ct. Sept. 11, 1995) (denying bank’s motion for summary judgment because actual ownership of the funds in joint account was question of fact and bank was only entitled to setoff from funds owned by debtor); 10 AM. JUR. 2D Banks and Financial Institutions § 878 (1997) (“[A] bank has no right to set off against a deposit in the names of two persons . . . save to the extent to which its debtor is shown to be the actual owner of the moneys deposited, even though the bank accepted the deposit without knowledge as to the actual ownership of the money.”). We hold that Bank of Hawaii was entitled to setoff funds from the Manes’ joint account to the extent those funds belonged to Manu.

 

[11] However, Sallie seeks damages for the entire amount set off from the joint account. If Sallie thought the entire setoff was inappropriate, she should have made a showing that all of the funds belonged to her. In determining which party should bear the burden in wrongful setoff cases, one commentator noted, “[t]he answer is usually that the burden is on the account holder.” Paul Laurino, 1996 COLUM. BUS. L. REV. at 81. He claims this “is the only practical solution because a bank is privy only to imperfect information regarding ownership of funds.” Id.

 

[12] Absent any evidence from either side to the contrary, we presume that ownership in the Manes’ joint account was equal, which gave Bank of Hawaii the right to set off one half of the Manes’ joint account. The setoff of more than one half of the account was wrongful. “Where a bank breaches its deposit contract with a depositor by wrongfully exercising a setoff, the depositor is entitled to recover the full amount of the offset.” 10 AM. JUR. 2D Banks and Financial Institutions § 873. On April 10, 2001, the joint account had a balance of $4,068.55. BOH

 

203

 

exercised its right to set off on April 11, 2001. Accordingly, at this time, BOH was entitled to setoff $2,034.28, representing one half of the amount in the joint account. BOH wrongfully set off an additional $1,666.27 from the Manes’ joint account. This setoff caused several of Sallie’s checks to be returned and caused her to incur vendor fees. We believe BOH is also responsible for these charges. According to the BOH statements and Sallie’s chart, she incurred returned check fees of $294.00 and vendor charges of $400.00. In total, BOH shall reimburse Sallie Mane $2,360.27. (Ex. 17, 18, 43, 44.)

 

II. Plaintiffs v. Tony’s Construction

 

A. Conversion

 

Sila purchased the excavator from BOH. Sila was legally entitled to take possession of the excavator and the attachments since he purchased them. As such, Tony’s Construction is not liable on this claim.

 

B. Intentional Infliction of Emotional Distress

 

Plaintiffs allege that Tony’s Construction caused them “extreme emotional distress” by its wrongful acquisition of the excavator. We previously granted summary judgment to Sila and BOH on similar claims.

 

[13] For the same reasons we discussed in our January 28, 2004 orders granting partial summary judgment, we find that the alleged conduct falls short of what is required for a claim of intentional infliction of emotional distress (“IIED”). In an IIED case, “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability.” RESTATEMENT (SECOND) OF TORTS § 46 (1965). Tony’s Construction’s acquisition of the excavator after BOH’s repossession was not extreme or outrageous conduct. Moreover, Plaintiffs have offered no evidence that Tony’s Construction intended to cause them emotional distress by acquiring the excavator.

 

III. Plaintiffs v. Sila Poasa

 

A. Conversion

 

Sila purchased the excavator from BOH. Sila was legally entitled to take possession of the excavator and the attachments since he purchased them. As such, Sila is not liable on this claim.

 

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B. Trespass

 

Plaintiffs seek damages for trespass from Sila arguing that employees of Tony’s Construction along with police officers entered and searched their property. However, at trial, Plaintiffs offered little or no evidence to support this allegation. Absent a sufficient showing by Plaintiffs, we find in favor of Sila on this claim.

 

IV. Tony’s Construction and Sila Poasa v. Moru Mane, et al.

 

A. Replevin

 

Tony’s Construction and Sila Poasa argue that as part of the agreement with BOH, they purchased a rock breaker, which was being wrongfully withheld by CSS and the Manes. On September 10, 2001, BOH approved Sila and Falesa Poasa’s financing request and noted that the rock breaker was not repossessed by BOH and that Sila would have to repossess it on his own. (Ex. 37.) Indeed, when BOH attempted to repossess the rock breaker, Moru represented that it had been stolen at a job CSS did in Poloa. BOH was, therefore, never able to acquire the rock breaker.11 (Ex. 34.) Later, when Sila and Tony’s Construction brought their counterclaim for replevin, Plaintiffs admitted that they had possession of a rock breaker. During trial, testimony demonstrated that Moru gave the rock breaker to Vailu`u and Sons Trucking in order to satisfy a $10,155.00 outstanding debt.

 

[14-15] “Replevin is a proceeding by which the owner or one who has a general or special property in the chattel taken or detained seeks to recover possession . . . .” 66 AM. JUR. 2D Replevin § 2 (1973) (footnote omitted). Ordinarily, in an action for replevin, the defendant must have possession of the property. See, e.g., Relational Funding Corp. v. Advantage Sch., Inc., No. 02 C 1242, 2002 WL 1303134 *9 (N.D. Ill. June 13, 2002). Indeed, at the time Sila and Tony’s Construction brought the counterclaim, CSS and Moru were in possession of the rock breaker. In any event,

 

there are many holdings to the effect that the replevin action is maintainable where the defendant’s transfer of possession was wrongful, particularly where it has been made for the purpose

 

11 BOH was still entitled to sell the rock breaker to Sila. See, e.g., Buran

 

Equip. Co. v. H & C Inv. Co., 142 Cal. App. 3d 338, 342 (Cal. Ct. App.

 

1983) (“[S]ale may occur before repossession of the collateral. In modern

 

day commercial transactions, often involving large equipment as the

 

security, it would not be unusual for the equipment to be located in diverse

 

geographical locations.”) (citations omitted).

 

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of evading the action . . . [I]t has been pointed out that permitting the defendant to set up as a defense to the action the fact that he has parted with the possession of the property, when this was done wrongfully, would be allowing him to take advantage of his own wrong. It would enable one who had wrongfully taken or detained property from the owner to refuse to deliver, and hold to the last moment before the writ, and then evade a suit by a transfer of possession. His successor might do the same; and his after him; and so on, until the cost of successive writs would exceed the value of the property.

 

66 AM. JUR. 2D Replevin § 27 (footnotes omitted); see also B.P. Rozen v. Redco Corp., 362 P.2d 1095, 1096-97 (Okla. 1961); Black v. City of Cleveland, 387 N.E.2d 1388, 1391 (Ohio App. Ct. 1978).

 

CSS and Moru deceived BOH by telling it the rock breaker was missing when they actually were in possession of it.12 After Sila made it clear that he believed he had legal title and that he wanted possession of the rock breaker, Moru and CSS used it to satisfy another debt. Accordingly, we cannot order Moru or CSS to return the rock breaker because they no longer have actual or constructive possession of it. However, we can award Sila an alternative money judgment representing the value of the property. There is authority “indicating that evidence as to the purchase price may be considered in determining the value of the replevied property for the purposes of such an alternative money judgment.” 66 AM. JUR. 2D, Replevin § 123. Moru and CSS gave the rock breaker to Vailu`u and Sons Trucking in order to satisfy a $10,155.00 debt. Therefore, the value of the rock breaker is assessed at $10,155.00.

 

V. Tony’s Construction and Sila Poasa v. BOH

 

Sila and Tony’s Construction brought several crossclaims against BOH: (1) breach of warranty of good title; (2) fraud and misrepresentation; (3) negligence; and (4) indemnity. All of these claims were dependant on our finding that BOH improperly sold or converted the excavator or that Sila had to return the excavator to CSS. Since we found that BOH privately sold the excavator to Sila and that Sila properly has legal title, 12 We note under A.S.C.A. § 46.4128, “[a] person commits the crime of

 

defrauding secured creditors, [a Class D Felony punishable by a term of

 

imprisonment of up to five years where the value of the outstanding debt

 

exceeds the sum of $500], if he destroys, removes, conceals, encumbers,

 

transfers, or otherwise deals with property subject to a security interest with

 

purpose to defraud the holder of the security interest.”

 

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these claims are no longer at issue. Accordingly, Sila and Tony’s Construction’s crossclaims against BOH are denied.

 

Conclusion & Order

 

1. BOH is liable to CSS for $7,089.71 representing the difference between the fair market value of the equipment and the sale price to Sila Poasa.

 

2. BOH is liable to Sallie Mane for the wrongful setoff of money in her joint checking account in the amount of $2,360.27.

 

3. Plaintiffs’ other claims against BOH are denied.

 

4. Plaintiffs’ claims against Sila and Tony’s Construction are denied.

 

5. Sila and Tony’s Construction’s counterclaim for replevin is granted. CSS and Moru are liable to Sila for $10,155.00.

 

6. Sila and Tony’s Construction’s crossclaims against BOH are denied.

 

Judgment will enter accordingly.

 

It is so ordered.

 

Construction Services of Samoa, Inc. v. Bank of Hawaii _2


 

CONSTRUCTION SERVICES OF SAMOA, INC., MORU MANE and SALLIE MANE, Plaintiffs,

 

v.

 

BANK OF HAWAII, TONY’S CONSTRUCTION and SILA POASA, Defendants.

 

High Court of American Samoa

 

Trial Division

 

CA No. 21-02

 

January 28, 2004

 

[1] Summary judgment is appropriate when the pleadings and other supporting documents show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The party seeking summary judgment bears the burden of showing there is no genuine issue of material fact. All inferences are construed in a light most favorable to the non-moving party.

 

[2] A motion for partial summary adjudication should be considered pursuant to T.C.R.C.P. 56(d). The standard for determining a T.C.R.C.P. 56(d) motion is identical to the standard used for determining a motion brought under T.C.R.C.P. 56(c).

 

114

 

[3] When a depositor is indebted to the bank, the bank is justified in using a self-help setoff against the depositor’s account in order to extinguish the debt.

 

[4] In an intentional infliction of emotional distress case, one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability.

 

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

 

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

 

For Defendant Bank of Hawaii, Roy J.D. Hall, Jr.

 

For Defendants Tony’s Construction and Sila Poasa, Frederick

 

J. O’Brien

 

ORDER GRANTING IN PART DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

 

Defendant Bank of Hawaii (“BOH”) moves, pursuant to T.C.R.C.P. 56, for summary judgment or, in the alternative, partial summary judgment on the complaint of Plaintiffs Construction Services of Samoa, Inc. (“CSS”), Moru Mane (“Moru”) and Sallie Mane (“Sallie”) (collectively “Plaintiffs”).1 For the reasons stated below, we grant in part BOH’s motion for partial summary judgment.

 

[1] BOH moves for summary judgment or, in the alternative, partial summary judgment with respect to counts one through five and nine of Plaintiffs’ complaint. According to T.C.R.C.P. 56(c), summary judgment is appropriate when the pleadings and other supporting documents “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The party seeking summary judgment bears the burden of showing there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party must then affirmatively show there is a genuine issue for trial. Id. at 324. “[A]ll inferences are construed in a light most favorable to the non-moving party.” Am. Samoa Power Auth. v. Nat’l Pac. Ins. Co., 30 A.S.R.2d 145, 146-47 (Trial Div. 1996); see also Pal Air Int’l, Inc. v. Porter, 30 A.S.R.2d 104, 105 (Trial Div. 1996).

 

[2] A motion for partial summary adjudication should be considered pursuant to T.C.R.C.P. 56(d). See, e.g., Wing Hop Lee, Ltd., v. Soo, 30

 

1 We note that Defendant Sila Poasa (“Sila”) filed a separate motion for partial summary judgment. We address Sila’s motion by separate order.

 

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A.S.R.2d 76, 77 (Trial Div. 1996). The standard for determining a Rule 56(d) motion is identical to the standard used for determining a motion brought under Rule 56(c). Aurelio v. R.I. Dep’t of Admin., 985 F. Supp. 48, 53 (D. R.I. 1997). Using these standards, we turn to the merits of the instant motion.

 

Count One – Conversion

 

BOH argues that Sila, as loan guarantor, redeemed an excavator from BOH after BOH had repossessed the excavator following Plaintiffs’ default on a loan. Sila was a guarantor on the loan between BOH and CSS that pledged the excavator and its accessories as the collateral. BOH argues that it is not liable for conversion because it acquired and disposed of the excavator through lawful means. Plaintiffs argue (and a review of the pleadings and documents demonstrates) that there is a factual dispute as to whether Sila purchased the excavator from BOH in a private sale or whether he redeemed it as the guarantor of the loan. This factual determination may affect BOH’s liability on this count. As such, we decline to grant BOH summary judgment on count one.

 

Count Two – Breach of Duty to Return Collateral

 

BOH also seeks summary judgment on count two of Plaintiffs’ complaint, which alleges that BOH breached its “implied contractual duty” in the security agreement to return the collateral to CSS upon the discharge of the debt. We cannot find any sort of “implied” duty in the security agreement that obligates BOH to return the collateral to CSS when a loan guarantor discharges the debt and redeems the collateral.

 

Indeed, assuming Sila is found to have redeemed the collateral as a loan guarantor, Plaintiffs’ allegations, with no citation to authority, that BOH had to return the excavator to CSS after Sila fulfilled the loan obligations, are simply wrong. There is no language to this effect in the security agreement nor does the law support this argument. (See Security Agreement/Chattel Mortgage passim.) See also, e.g., HAW. REV. STAT. ANN. §§ 490:9-618; 9-623 (West 2004).2 As such, we grant BOH’s motion for summary judgment on this claim.

 

2 We note that American Samoa has not adopted the Uniform Commercial Code (“UCC”). See Theo H. Davies & Co. v. Pac. Dev. Co., 6 A.S.R.2d 5, 8 (Trial Div. 1987). However, Hawaii has adopted the UCC and the parties to the security agreement agree that the applicable law is the law of American Samoa “and in the absence of applicable law, Hawaii law.” (See Security Agreement/Chattel Mortgage ¶ P.)

 

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Count Three – Breach of Notice

 

In count three of their complaint, Plaintiffs allege that BOH failed to give them proper notice before disposing of the excavator. This count depends on whether the disposition of the excavator is characterized as a sale to Sila or as a redemption by him. If Sila redeemed the excavator in his capacity as guarantor, BOH did not fail to give notice. However, if BOH sold the excavator to Sila in a private sale after notifying Plaintiffs of a public sale, the notice issue would be a question of fact.

 

BOH argues that even if it did violate a notice requirement, Plaintiffs have not suffered any recoverable damages. We disagree. BOH is correct that if it did not give proper notice, it may not recover any deficiency from the Plaintiffs. However, Plaintiffs may have been entitled to any surplus from the sale. HAW. REV. STAT. ANN. §§ 490:9-625(b), (d) cmt. 3 (“Assuming no double recovery, a debtor whose deficiency is eliminated under section 9-626 may pursue a claim for a surplus.”); id. 9-615 (f) (discussing how to calculate the surplus). As such, we deny summary judgment on this count.

 

Count Four – Breach of Duty to Account

 

BOH argues that that there “is no obligation on the part of BOH to account if it retains the collateral in full satisfaction of the indebtedness.” This may be true but is irrelevant in the instant action. BOH did not choose to retain the collateral; instead, it chose to dispose of it via private sale or redemption by a guarantor. In either of these circumstances, BOH likely had a duty to account. HAW. REV. STAT. ANN. § 490:9-210.

 

BOH also argues that even if it did fail to account, Plaintiffs cannot recover the statutory $500.00 remedy because they have sustained no other damages.3 We believe whether Plaintiffs have sustained other damages is a question of fact. Accordingly, we deny summary judgment on this count.

 

3 In support of this argument BOH cites to Anderson on the Uniform Commercial Code. Unfortunately, we do not have this authority in our library nor do we have online access to it. If BOH wants to rely on authorities that are not easily accessible for the Court, we suggest attaching the relevant pages and title pages of such authorities to the memorandum of law. We also note that both parties cite to relevant sections of the Hawaii Revised Statutes. We are able to access these online; however, Plaintiffs have cited to the previous version of these laws causing us to spend time searching for the updated and renumbered provision and leaving Plaintiffs citing provisions that have been significantly altered.

 

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Count Five – Conversion of Sallie’s Funds

 

Plaintiffs allege that BOH converted Sallie’s funds when it used money from Sallie and Moru’s joint checking account towards the outstanding loan balance. BOH argues that it was exercising its well-established right to set off funds by applying money from the Manes’ joint account toward the loan balance.

 

[3] We agree with BOH that “when a depositor is indebted to the bank, the bank is justified in using a self-help set-off against the depositor’s account in order to extinguish the debt.” American Samoa Gov’t Employees Fed. Credit Union v. Sele, 28 A.S.R.2d 21, 24 (Trial Div. 1995); see also Collums v. Union Planters Bank, N.A., 832 So.2d 572, 576 (Miss. Ct. App. 2002). Indeed, in the Continuing Guaranty, Moru agreed BOH could use the set-off process against his checking or savings accounts. (See Continuing Guaranty ¶ 15.) However, BOH offers no case law or facts to demonstrate that it was allowed to set off funds from Sallie and Moru’s joint account. BOH did not argue that Sallie had any sort of contractual agreement with BOH that would allow it to set off her funds in the joint account. Moreover, the authorities differ on whether a creditor can set off funds in a joint account. See, e.g., 10 AM. JUR. 2D Banks and Financial Institutions § 878 (1997) (“[A] bank has no right to set off against a deposit in the names of two persons . . . save to the extent to which its debtor is shown to be the actual owner of the moneys deposited.”); but see Masotti v. Bristol Savings Bank, 653 A.2d 836, 838 (Conn. Super. Ct. 1994), aff’d, 653 A.2d 179 (Conn. 1995) (“The coholders of a joint account are considered owners of the entire account and either may withdraw.”). Therefore, we deny BOH summary judgment on this count.

 

Count Nine – Intentional Infliction of Emotional Distress

 

BOH also seeks summary judgment with respect to Plaintiffs’ claim for the intentional infliction of emotional distress (“IIED”). Plaintiffs allege that BOH caused them “extreme emotional distress” by releasing the excavator to Sila. BOH seeks summary judgment arguing that the release of the excavator was not the sort of conduct necessary to support a claim of IIED and that it did not intend to cause the Manes emotional distress by releasing the excavator to Sila.

 

[4] We agree with BOH that the alleged conduct falls short of what is required for a claim of IIED. In an IIED case, “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability.” RESTATEMENT (SECOND) OF TORTS § 46 (1965). BOH’s disposition of the excavator after the repossession, whether by sale or by redemption, was not extreme or outrageous conduct. See, e.g., Hamilton v. Ford Motor Co.,

 

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502 A.2d 1057, 1064 (Md. Ct. Spec. App. 1986) (commenting that in order to be extreme or outrageous the “conduct must completely violate human dignity”). Indeed, Plaintiffs have offered no evidence in response to BOH’s motion to demonstrate that BOH’s actions met the IIED standard. Moreover, Plaintiffs have offered no evidence to show that BOH intended to cause them emotional distress by the release of the excavator. See Bi-Rite Petroleum, Ltd. v. Coastal Ref. & Mktg., Inc., 282 F.3d 606, 609 (8th Cir. 2002) (affirming trial court’s grant of summary judgment on IIED claim when “[t]here was no testimony that [Plaintiff] was targeted for outrageous conduct; that outrageous conduct took place; or even that [Defendant] was the sole cause of her alleged distress”). Accordingly, we grant BOH summary judgment on this claim.

 

Order

 

Defendant BOH’s motion for summary judgment is granted in part. BOH is entitled to summary judgment on counts two, five and nine of Plaintiffs’ complaint. With respect to the remaining counts against BOH, summary judgment is denied.

 

It is so ordered.

 

Blue Pacific Management Corp. v. Anderson


 

BLUE PACIFIC MANAGEMENT CORP.,

 

Plaintiff/Counter-Defendant,

 

v.

 

MARTIN ANDERSON dba PAGO PLAZA,

 

Real Party in Interest, Defendant/Counter-Plaintiff.

 

High Court of American Samoa

 

Trial Division

 

CA No. 76-01

 

January 12, 2004

 

[1] Where an instrument containing all the terms of a completed contract between the two parties is executed by one of the parties and accepted or adopted by the other, the instrument constitutes a contract in writing within the meaning of the applicable statute of limitations.

 

[2] The applicable statute of limitations for a breach of contract action based upon a written contract is ten years.

 

[3] An agent who willfully and deliberately breaches an agency contract is not entitled to compensation.

 

[4] Where an agent breaches his duty of loyalty, but said breach is considered less than a serious one, the Court has the discretion to allow compensation to the agent for any valuable services he rendered.

 

[5] Courts consider equitable principles when sustaining a principal’s duty to compensate a disloyal agent.

 

[6] The Court determines the applicability of the defense of laches on a case by case basis and will usually bar recovery only if a party has voluntarily delayed asserting a right, and, as a result, the opposing party’s as well as the court’s ability to ascertain the truth are harmed.

 

[7] A cause of action based upon equitable principles of agency and implied contract falls under a three-year statute of limitations.

 

[8] A statute of limitations begins to run upon the accrual of a cause of action.

 

[9] Contract and implied contract claims accrue when a breach of duty or contract has occurred.

 

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[10] An agent’s right to reimbursement from the principal arises when payment is made by the agent, not before, and the statute of limitations runs from such time.

 

[11] Amenable to service means the defendant is subject to service under the law and is sufficiently available for a plaintiff to effectuate service.

 

[12] The purpose of A.S.C.A. § 43.0127, which tolls the applicable statute of limitations during the time that a defendant is a nonresident of American Samoa, is to protect the right of a plaintiff to bring an action and to prevent a defendant from defeating a claim by absenting himself from the jurisdiction.

 

[13] The Court would not apply A.S.C.A. § 43.0127 to toll the statute of limitations, despite the fact that the defendant lived outside of American Samoa, where the defendant was subject to the Court’s in personam jurisdiction through his substantial business dealings in the territory, where the defendant had engaged in other litigation in the territory during the period in question, where the defendant was in continual communication with the plaintiff, and where extending the statute would contravene the purpose of the statute and allow the plaintiff a virtually endless cause of action.

 

[14] A.S.C.A. § 3.0103(b) provides the Court with in personam jurisdictional power over an individual who transacts business within American Samoa.

 

[15] Statutes of limitation are intended to encourage promptness in the prosecution of actions and thus avoid the injustice that may result from the prosecution of stale claims.

 

[16] A claim on a continuous, open, concurrent account accrues on the date of the last item therein.

 

[17] Generally speaking, the mere relationship of an agent to his principal is not sufficient to entitle the agent to maintain a bill for an accounting against the principal.

 

[18] An agent could not maintain that he had an account with his principal, therefore entitling him to a claim for monies owed, where the account lacked mutuality.

 

[19] An account is a detailed statement of mutual demands in the nature of debit and credit.

 

[20] The equitable principle of waiver will not save an action from the applicable statute of limitations unless the plaintiff shows that he did not 88

 

exercise his right to sue and was led not to do so by the defendant’s conduct.

 

[21] The equitable principle of estoppel will not save an action from the applicable statute of limitations unless the plaintiff shows that he did not exercise his right to sue and was led not to do so by the defendant’s conduct.

 

[22] An agent has a duty to keep, and render to his principal, an account of money or other things that he has received or paid out on behalf of the principal.

 

[23] When a principal proves his agent has breached the duty of giving an accounting, the burden of proof shifts to the agent to prove that income was paid or disposed of in accordance with the agent’s authority.

 

[24] The award of prejudgment interest lies within the discretion of the Court.

 

[25] The Court exercises its discretion to deny a prejudgment interest award in three peculiar circumstances: (1) where the plaintiff has delayed in bringing the suit; (2) where a genuine dispute regarding ultimate liability exists, or the factual and legal issues are sufficiently complex; and (3) where judgment is rendered in an amount substantially less than that claimed.

 

[26] Where both the plaintiff and the defendant recovered monies from each other, but plaintiff’s judgment was larger, the Court properly considered plaintiff to be the prevailing party and entitled to court costs under T.C.R.C.P. 54(d).

 

[27] The general rule is against recovery of attorney’s fees by a party that incurs them in enforcing a claim against another.

 

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

 

Counsel: For Plaintiff, Charles V. Ala’ilima

 

For Defendant, Jennifer L. Joneson

 

OPINION AND ORDER

 

We separated the current action from a dispute between G.M. Meredith and Associates and Plaintiff Blue Pacific Management Corp. (“BPMC”) as agent for Pago Plaza. On May 16, 1997, BPMC intervened on its own behalf and asserted distinct claims against Pago Plaza, with Defendant Martin Anderson (“Anderson”) as a real party in interest. BPMC alleged

 

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that Anderson owed payment for lease commissions, construction services, and reimbursements. Anderson counterclaimed for an accounting of revenue earned by charging for parking, a return of some personal property, and a rent payment. On April 22, 2003, Anderson moved for summary judgment based on the statute of limitations and argued for a Rule 12(b)(6) partial dismissal of BPMC’s construction management service claims. After a May 8, 2003 hearing, the Court denied the summary judgment and dismissal motions, and deferred ruling on the statute of limitations issue until after trial.

 

For the reasons stated below, we find Anderson liable for the lease commissions, but the statute of limitations bars BPMC’s other claims. In addition, we find that BPMC sufficiently accounted for the parking lot fees, but is liable for the rent payment. Anderson did not present any evidence that BPMC still possessed Plaza property.

 

Factual Findings

 

A lawyer residing in Hawaii, Anderson constructed and owned Pago Plaza, a commercial property. James McGuire (“McGuire”) of American Samoa, in his capacity as president of BPMC, acted as Anderson’s agent, managing the Plaza from November 13, 1986 until February 1997. Anderson supervised McGuire using intermediary agents. Warren Hamamoto (“Hamamoto”) supervised McGuire for approximately the first three years of the agency. Robert Kerley (“Kerley”) supervised McGuire after Hamamoto until the end of the agency.

 

On September 3, 1986, as construction finished on the Plaza, Anderson hired McGuire for a term of three months to broker Pago Plaza leases. For every lease, McGuire earned a commission of one month’s rent. McGuire performed his duties successfully, and the brokerage agreement developed into a long-term management agreement.

 

Agreeing orally, the parties embodied their management agreement in a detailed November 13, 1986 letter from McGuire to Hamamoto. McGuire promised 15 hours of management services a week, with specific duties including rent collection, complaint handling, security, maintenance, office and retail space leasing, and specific construction tasks. The letter detailed five forms of compensation: monthly salary; heavy equipment rental commissions; use of secretarial services; letter of recommendation; and lease commissions. McGuire received a salary of $1,000.00 per month and a lease commission worth the value of the lease’s first month of rent, including common area charges.

 

Anderson and McGuire initially seemed satisfied with the terms of the management agreement. On February 9, 1990, Anderson executed a

 

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power of attorney that authorized McGuire to manage and execute leases for Pago Plaza. McGuire closed some lucrative leases for Anderson, including two leases with the Federal Emergency Management Agency (“FEMA”), a 15-month February 15, 1990 lease in evidence, and a 3-month January 4, 1992 lease. Among other documents in evidence, McGuire’s July 6, 1993 accounts receivable spreadsheet and February 16, 1994 letter show the existence and value of both leases. Including common area fees, monthly rent was $10,622.50 for the 15-month lease and $3,150.00 for the 3-month lease.

 

The agency relationship successively changed. McGuire managed obligations incurred by Anderson outside the scope of the established 1986 management agreement. The Plaza needed repair after a hurricane destroyed its original skylight. McGuire managed the construction of a sturdier replacement. Anderson’s business opportunities outside of the Plaza needed developing. McGuire responded by managing a Lotopesega property development project and an industrial park warehouse proposal. As a new commercial property, Pago Plaza needed additional capital improvements to complete its establishment. McGuire managed the installation of an elevator, improvement of the office, and preparation work for the Plaza Café.

 

Likely in reaction to the need for the additional management work, Anderson tried to expand McGuire’s duties on July 9, 1992, evidenced by a management responsibility outline. Though evidence implies that McGuire disputed the change in duties, the outline remains useful for demonstrating Anderson’s intent. With the outline, Anderson intended to increase and generalize the scope of McGuire’s construction management duties. Also, the outline shows that Anderson intended for McGuire to “charge non-tenants to park in the parking lot after 6 p.m., seven nights a week.”

 

McGuire continued managing and leasing space at the Plaza without interruption. In 1993, he obtained a Government Services Administration (“GSA”) lease deal, requiring a monthly rent of $10,778.40 for 10 years. The February 16, 1994 letter from McGuire includes a copy of the lease.

 

Acting on Anderson’s behalf following GSA’s occupation of its renta1 space, Kerley visited McGuire in American Samoa to resolve some outstanding issues that had developed, including the scope of McGuire’s duties and his compensation. A July 20, 1993 letter of understanding written by Kerley summarized some results of the meeting and requested McGuire’s signed acknowledgement. McGuire did not sign Kerley’s letter, but he acknowledged the demands through performance. McGuire ceased using the services of H.F. McGuire Trust Corporation, a corporation in which his wife has interest, doing business as Mariani’s, at the Plaza. Practically copying the duty list from the 1992 management

 

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responsibilities outline, McGuire wrote a description of his duties for Anderson on February 11, 1994. In doing so, McGuire excluded some duties listed on the 1992 management responsibility outline, such as the supervision of independent contractors or the collection of parking fees.

 

After Kerley’s July 1993 visit, McGuire’s compensation changed considerably. McGuire started receiving a salary of $2,000.00 per month, shown by February 1994 correspondence between Anderson and McGuire. Anderson would only pay lease commissions on a case-by-case basis, as admitted by McGuire in an August 1, 1994 letter. Anderson also agreed in writing, as reflected in Kerley’s December 19, 1995 letter, to pay McGuire for additional work beyond the scope of the Pago Plaza management duties, as long as McGuire received Anderson’s prior approval.

 

Approximately concurrent with the compensation change, McGuire began requesting compensation that he considered due from Anderson. McGuire repetitiously made the same compensation requests over several years—these requests are the claims now before us. Anderson consistently responded by denying any duty that he had to pay any additional compensation. On the record, McGuire communicated to Anderson a first clear request for payment of the compensation claims with the July 6, 1993 accounts receivable spreadsheet faxed on August 7, 1993. A few months later, on February 16, 1994, McGuire insistently sent an invoice for the lease commissions with a request to negotiate a higher commission for the GSA lease. Anderson responded unequivocally. In a letter, Kerley wrote on February 14, 1994: “[w]e are unaware of any ‘commissions and fees we owe you.’” Regarding the disputed lease commissions, Anderson wrote, “any extra payment is not in accordance with our prior understanding,” in a February 22, 1994 letter. Anderson’s denial of liability persisted in an August 26, 1994 letter and a July 27, 1997 phone conversation transcription.

 

In the stream of correspondence concerning McGuire’s requests for compensation, a discussion of special consideration surfaced. McGuire requested special consideration from Anderson for the unpaid compensation demands to assist him in purchasing the Plaza. The 1997 phone conversation transcription records McGuire as stating, “I always felt that you’d show due consideration for the extra amount of time that I put in.” On the record, Anderson never made such a promise. As stated in a January 24, 1996 letter, Anderson only promised to discuss “any special considerations that you [McGuire] feel are operating.” Anderson never promised to sell the building to McGuire, as indicated by the February 22, 1994 letter and the 1997 phone conversation transcription.

 

In closing our factual findings, we note Anderson’s and McGuire’s other business dealings. Anderson and McGuire discussed but never finalized 92

 

an agreement to establish a sailing and water sport business near the Plaza. However, McGuire involved himself in a retail paint shop and a pizza restaurant, which both defaulted on loans from Anderson. Anderson gave a three-member partnership a $45,000.00 loan to establish the paint shop. McGuire, one of the partners, signed a $15,000.00 promissory note to Anderson, as evidenced by McGuire’s testimony and letters dated February 14, 1994, and December 16, 1993. Following default, Anderson wrote to McGuire on February 23, 1993, stating, “[o]bviously I will carry you.” However, McGuire made no promises to Anderson regarding the pizza restaurant’s debt.

 

During the course of the agency, McGuire expended his own funds to further Anderson’s interests. Between 1990 and 1993, McGuire incurred costs for a parking lot, an industrial park lot, some California trips, and an Apia trip. Some time in 1996, McGuire incurred $3,000.00 in costs for a well lease.

 

In 1995, McGuire arranged to charge for after-business-hour parking at the Plaza. Though the fees did not generate a profit and no one maintained accounting records, Anderson benefited from the parking charges. The manager of Sunset Security and McGuire credibly testified that the parking fees compensated Sunset Security for security services at the Plaza.

 

Towards the end of McGuire’s agency with Anderson, McGuire arranged a reduced rate lease for his sister-in-law’s company, Trophies & Things. The lease, in evidence, allowed for Trophies & Things to “administer” the parking lot after hours. McGuire disclosed his conflict of interest with his sister-in-law prior to signing the lease.

 

Discussion

 

Throughout the discussion, we impute the actions of Hamamoto and Kerley to Anderson as agents with authority to supervise McGuire’s management of Pago Plaza. See generally RESTATEMENT (SECOND) OF AGENCY § 27 (1957).

 

I. Lease Commissions

 

We find McGuire entitled to the three lease commissions claimed. With a combination of letters, testimony, and copies of leases in evidence, McGuire sufficiently proves the two FEMA leases, the GSA lease, and his entitlement to lease commissions of the first month’s rent. Summing the three commissions, we award him $24,550.90.

 

To establish McGuire’s right to lease commission claims, he properly relies on the 1986 agency management letter, sent from McGuire and

 

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accepted by Hamamoto for Anderson. The letter’s compensation section terms include “[l]ease commissions paid on retail and office space equivalent to the first month’s rent plus common area charges.” We find that this written embodiment of their oral agreement describes the parties’ compensation arrangement until sometime between July 1993 and February 1994, when Anderson and McGuire modified the terms of compensation. Correspondence concerning the commission change provides additional evidence of Anderson’s lease commission promise. Acting for Anderson, Kerley affirmed McGuire’s December 18, 1995 comment that “[m]y gross income got reduced by no longer being able to receive lease commissions . . . .” Kerley’s December 19, 1995 affirmation reads, “[y]our letter is correct as far as it goes . . . .” In addition, McGuire wrote on January 9, 1995, “[p]rior to February, 1994, we had agreed to a commission for my services of one month’s rent as compensation for a tenant signing a lease.”

 

We interpret the 1986 management agreement as entitling McGuire to lease commissions for both new and renewed tenant leases. The relevant language of the 1986 agency management letter states, “[l]ease commissions paid on retail and office space . . . .” Anderson interprets the relevant language as applying only to new tenant leases. McGuire interprets the language as applying to all leases. We agree with McGuire. The plain language of the agreement makes no mention of new tenants. Until approximately eight years into their agreement, Anderson never mentioned a commission distinction between new and renewed tenant leases. For example, a February 22, 1988 letter in evidence records Anderson as paying $4,292.50 in commissions without verifying if the commissions were charged for new or renewed leases. Anderson first declared a lack of obligation to pay new tenant lease commissions in February 1994 when responding to McGuire’s compensation requests for the FEMA and GSA leases. Therefore, we find Anderson obligated to pay commissions for leases of new and established tenants.

 

McGuire obtained the three leases under the compensation provisions of the 1986 management agreement. McGuire signed the two FEMA leases in 1990 and 1992. The GSA lease occurred before the compensation modification of July 1993. While the signatures on the contract are dated September 28, 1993, the contract indicates that GSA occupied the space starting from March 1, 1993. By occupying the space for the full month of March 1993, GSA committed to leasing the space for a sufficient length of time to entitle McGuire to his commission.

 

McGuire has no entitlement to a commission based on an industry standard. The parties only agreed on a commission of the first month’s rent, as reflected in the 1986 agency management letter. Other letters, dated February 16, 1994 and February 22, 1994, only show negotiations 94

 

to create an exception for these specific leases; the parties never reached agreement.

 

[1-2] Anderson unpersuasively argues that the statute of limitations has run on McGuire’s lease commission claims that accrued in the early 1990s. Anderson considers the lease commission agreement to be an oral, unwritten contract that has a three-year statute of limitations under A.S.C.A. § 43.0120(3). Finding another statute of limitations applicable, we disagree and recognize McGuire’s lease commission claims. The statute of limitations “founded on written contracts” under § 43.0120(10) applies to the lease commission claims because, “where an instrument containing all the terms of a completed contract between the two parties is executed by one of the parties and accepted or adopted by the other, the instrument constitutes a contract in writing within the meaning of the applicable statute of limitation.” Pene v. Bank of Hawaii, 17 A.S.R.2d 168, 171 (App. Div. 1990). The 1986 agency management letter includes the terms of a completed contract, “the subject matter, the parties, the terms and conditions, and the price or consideration.” Smith v. Skone & Connors Produce Inc., 26 P.3d 981, 985 (Wash. App. Div. 2001). The subject matter of the letter is “[McGuire’s] contractual responsibilities at the Pago Plaza.” McGuire signed the letter, and Hamamoto accepted the letter for Anderson. The letter describes Anderson as responsible for paying McGuire’s salary. The letter’s body gives a detailed description of McGuire’s duties and compensation. Thus, with the agreement effectively founded on a written contract, a 10-year limitation of action applies. Regardless of when in the 1990s Anderson breached the agreement, the applicable statute of limitations does not bar McGuire’s lease commission claims filed in 1997.

 

[3-5] Anderson argues that McGuire’s willful and deliberate breaches of an agent’s duty of loyalty bars McGuire from receiving unpaid compensation.1 We disagree. An agent who willfully and deliberately breaches an agency contract is not entitled to compensation. See RESTATEMENT (SECOND) OF AGENCY § 469 (1957). A “willful and deliberate” breach is “a serious violation of a duty of loyalty or seriously disobedient conduct.” Id. § 469 cmt. b. In cases of a less serious breach, we have the discretion “to allow compensation for valuable services rendered by a less than faithful agent.” Taylor v. Berkheimers, Inc., 618 P.2d 452, 455 (Or. Ct. App. 1980). Courts consider equitable principles when sustaining a principal’s duty to compensate a disloyal agent. See Johnson v. Pacific Lighting Land Co., 817 F.2d 601, 608 (9th Cir. 1987) (finding that the agent preformed the contracted services properly, and that a refund and damages were sufficient remedies for the principal); Richardson v. Blue Grass Mining Co., 29 F.Supp, 658, 670 (E.D. Ky.

 

1 In some cases, agents have been forced to disgorge compensation earned during times of disloyalty. Anderson makes no such claim here.

 

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1939) (finding that denying the agent compensation would unjustly enrich the principal); Taylor, 618 P.2d at 455 (finding that the agent received no personal gain, that the agent’s act was motivated by desire to benefit the principal, and that the agent was generally successful in serving the principal).

 

Considering the adequacy of McGuire’s performance, Anderson’s unjust enrichment, and the sufficiency of legal remedies available to Anderson, we find that McGuire retains his right to compensation. First, assuming that McGuire’s actions were marginally disloyal, he performed his duties well enough to earn the promised compensation. McGuire breached no express condition of the agency agreement. The essence of each transaction challenged by Anderson was legitimate exchange. Mariani’s conducted cleaning and maintenance services. Sunset Security provided security for the Plaza and parking lot. Though at a reduced rate, Trophies & Things paid valuable rent. The failed paint business and pizza restaurant loans were bad investments. Second, denying McGuire due compensation will lead to Anderson’s unjust enrichment. McGuire performed the vast bulk of his duties properly. After over ten years of effortful service, the evidence shows, and we note, that McGuire established the Plaza as a well-respected commercial space in the Pago Pago community. Third, Anderson has sufficient remedies available to compensate him for any of McGuire’s disloyalty. Anderson had ample opportunity to file claims or counterclaims against McGuire. We address below Anderson’s right to a rent payment, an accounting for the parking lot fees, and a return of property. In totality, these three considerations show that McGuire’s breach was less than willful and deliberate. McGuire retains his right to claim compensation from his agency with Anderson.

 

[6] Anderson’s remaining argument against McGuire’s lease commission claims merits attention. Anderson argues that the doctrine of laches bars McGuire’s recovery. We determine the applicability of laches “on a case by case basis and will usually bar recovery only if a party has voluntarily delayed asserting a right, and due to the delay, the opposing party’s as well as the court’s ability to ascertain the truth are harmed.” Passi v. America Samoa Bank, 28 A.S.R.2d 130, 134 (Trial Div. 1995) (citations omitted). Here, Anderson fails to show any harm from McGuire’s delay. A substantial volume of evidence allows Anderson and the Court to ascertain the truth.

 

II. Construction Services Compensation

 

We find McGuire is not entitled to recover on his construction services claims because of the statute of limitations. McGuire claims compensation for his services from 1990 to 1993 for managing the skylight and elevator installations, the office improvement, the Plaza

 

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Café preparation, the Lotopesega property project, and the warehouse proposal development. Anderson affirmatively defends himself using a three-year statute of limitations. He argues that the Court cannot enforce McGuire’s construction service claims that accrued in the early 1990s when McGuire performed the services. We agree with Anderson’s conclusion for different reasons.

 

[7] McGuire’s right to compensation derives from equity, which has a three-year limitation. See A.S.C.A. § 43.0120(7). Arguing that the service claims “related primarily to the time and effort given” while working as Anderson’s general agent for managing the Plaza, McGuire relies on equitable principles of agency and implied contract as the basis for these claims. See 66 AM.JUR.2D Restitution and Implied Contracts § 24 (1973); 3 AM.JUR.2D Agency § 254 (1986). The construction service claims developed from McGuire’s subsequent expectations and actions in reaction to new demands of the hurricane repair, the development of opportunities outside of the Plaza, and the major construction needs of the fledgling commercial property.

 

Moreover, the claims are outside the scope of the written 1986 management agreement. The parties did not address or contemplate Anderson’s future construction service needs in 1986. The 1986 management agreement only lists specific construction supervision duties. The relatively precise construction duties of the 1986 management agreement letter include:

 

4. Supervise the completion of second floor construction.

 

5. Supervise completion of the Inspector General’s Office on the first floor.

 

6. Supervise repair of the buildings [sic] generator,

 

7. Change schlage locks in building and get all glass doors re-keyed.

 

In comparison, the broad language of the 1992 management responsibility outline reads:

 

5. Correct Defects in Building Structure and Plant . . .

 

9. Be in Charge of Building Capital improvement Projects . . .

 

11. Supervise and Monitor independent Contractors while working on Premises . . .

 

Thus, the equitable construction service claims stand separate from the lease commission claims embodied in writing. Accordingly, the three-year statute of limitations for unwritten contracts applies to the equitable construction service claims.

 

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[8-9] The statute of limitations begins to run upon the accrual of a cause of action. 51 AM.JUR.2D Limitations of Actions §§ 107, 134. Contract and implied contract claims accrue when “breach of duty or contract has occurred.” Id. § 107; see RESTATEMENT (SECOND) OF AGENCY § 455 cmt. c (“[s]tatutes of limitations, however, commonly run from the time of breach by the principal”). The date of accrual can also be described as from the date when “the plaintiff could have first maintained the action to a successful conclusion.” 51 AM.JUR.2D Limitations of Actions § 107. Arguably, McGuire could have brought his claim against Anderson immediately after he completed each service. We would consider McGuire’s action more likely to be successfully maintained after establishing a breach of implied contract duty, such as failure to pay or repudiation following a demand for payment. See RESTATEMENT (SECOND) OF CONTRACTS § 243(2) (1979). Anderson’s repudiation first occurred on the record in the February 14, 1994 letter, which is the latest date that we could find an accrual of McGuire’s construction service claims. However, this accrual date does not avail him of the Court’s power to enforce his construction service claims. To avoid the bar of A.S.C.A. § 43.0120(7), McGuire must have filed before February 14, 1997. Mcguire’s May 1997 filing came too late.

 

McGuire unpersuasively argues that his equitable construction service clams are part of a long-term agency agreement that Anderson breached when he terminated McGuire without paying all compensation due, as in Afshar v. Procon Inc., 442 F. Supp. 587 (S.D.N.Y. 1977). In Ashfar, the court held that a statute of limitations barred an agent from bringing claims for unpaid compensation. Id. at 891. The Ashfar court found the accrual date to be the date of the agent’s termination, the date of breach when the “plaintiff was wronged.” Id. However, in this case, McGuire had no reasonable expectation of being paid by Anderson at the time of termination. Anderson had already wronged McGuire by not paying and repudiating any duty to pay for the construction services. For relief, McGuire should have filed his claims in a timely manner, at a time before his termination.

 

III. Reimbursements

 

[10] The statute of limitations has run on most of McGuire’s reimbursement claims. McGuire claims reimbursement for costs incurred during his duties as Anderson’s agent for the parking lot, the industrial park lot, some California trips, the Apia trip, and the well lease. McGuire became entitled to reimbursement upon discharging expenses for Anderson. See RESTATEMENT (SECOND) OF AGENCY § 438 cmt. c (“The right of reimbursement arises upon, and not until, payment is made by the agent, and the statute of limitations runs in the principal’s favor from such time . . . .”); 3 AM.JUR.2D Agency § 250. All claims, except for the well lease claim, were incurred and accrued between 1990

 

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and 1993. Thus, the claims for reimbursement filed in May 1997 came after the three-year filing window expired under the applicable statute of limitation. See A.S.C.A. § 43.0120(7).

 

McGuire’s well lease reimbursement claim has merit and remains timely. McGuire expended $3,000.00 when working on the well lease in 1996, sufficiently shown by testimony at trial. Anderson offers no rebuttal evidence challenging the accuracy of the amount claimed. For the reasons stated above, none of Anderson’s defenses bar McGuire from bringing this reimbursement cause of action.

 

IV. Statute of Limitations Exception

 

Attempting to prevent the statute of limitations from blocking his reimbursement and construction service claims, McGuire posits multiple exceptions. We find none of the offered exceptions applicable.

 

McGuire argues that A.S.C.A. § 43.0127 tolls the statute of limitations for the construction service and reimbursement claims. Section 43.0127 provides, “the time during which a defendant is a nonresident of American Samoa shall not be included in the computation of any period of limitation.” In this case, even though Anderson resides in Hawaii, the section does not apply.

 

[11-12] Many states have nonresident tolling statutes that stop statutes of limitation from running on claims against out-of-state defendants. Tolerated for years, broadly applied nonresident tolling statutes have fallen into disfavor. See Bendix Corp. v. Midwesco Enter., Inc., 486 U.S. 888, 894 (1988) (holding that the Commerce Clause of the United States Constitution invalidated a similar Ohio nonresident tolling statute); Compare McNamara v. McAllister 130 N.W. 26, 28 (Iowa 1911) (applying Iowa’s nonresident tolling statute, IOWA CODE ANN. § 614.1(6)) with Vogt v. Miller, 285 N.W.2d 1, 6-7 (Iowa 1979) (declining to apply Iowa’s nonresident tolling statute). Interpreting the will of their legislatures, a majority of courts decline to apply tolling statutes to nonresidents “amenable to service of process and the jurisdiction” of the deciding court. Frazier v. Castellani, 342 N.W.2d 623, 626 (Mich. Ct. App. 1983); see also Ankers v. Rodman, 995 F. Supp. 1329, 1334 (D. Ut. 1997); Shin v. McLaughlin, 967 P.2d 1059, 1063 (Haw. 1988); Tetzlaff v. Brooks, 950 P.2d 1242, 1244 (Idaho 1997); Vogt, 285 N.W.2d at 6-7 (describing the test as one of “inescapability from service”); Haton v. Haton, 672 N.E.2d 962, 964 (Ind. Ct. App. 1997). Amenable to service means the defendant is subject to service under the law and is sufficiently available for a plaintiff to effectuate service. See Shin, 967 P.2d at 1063; Tetzlaff, 950 P.2d at 1244. We find interpretations of the Iowa and Indiana statutes particularly persuasive. Describing the out-of-state defendant with the term “nonresident,” these statutes closely

 

99

 

resemble our own. IOWA CODE ANN. § 614.1(5) (West 1977); IND. CODE ANN. § 34-1-2-6 (West 1983). Courts find that the purposes of these statutes are to “protect the right of a plaintiff to bring an action and to prevent a defendant from defeating a claim by absenting himself from the jurisdiction.” Haton, 672 N.E.2d at 964 (quoting Frazier, 342 N.W.2d at 626); see also Bendix Corp., 486 U.S. at 894-95 (discussing the state interests for enacting these nonresident tolling statutes).

 

[13] We consider the nonresident tolling statute inapplicable to Anderson under the facts of this case. American Samoa, far away from the continental United States, has a greater interest in the nonresident tolling statute than many other United States jurisdictions. American Samoa residents may more easily lose their claims against nonresidents due to distance and communication difficulties. In addition, defendants can more easily hide themselves from service. Nevertheless, we find that Anderson does not fall within the intended ambit of A.S.C.A. § 43.0127.

 

[14] First, McGuire did not need the protection of the nonresident tolling statute, because our in personam jurisdictional power and service authorization statutes extend to Anderson off island. See Haton, 672 N.E.2d at 965. Section 3.0103(b) of the A.S.C.A. provides us with in personam jurisdictional power over Anderson, for he transacted business within the territory. From the weight of business transacted between Anderson and McGuire and from Anderson’s business dealings at Pago Plaza, personal jurisdiction over Anderson “does not offend traditional notions of fair play and substantial justice.” Patau v. Rosendahl Corp., 16 A.S.R.2d 96, 99 (Trial Div. 1990) (citations omitted). With or without Anderson’s consent, McGuire could serve Anderson with notice in Hawaii and bring him before an American Samoan court. A.S.C.A. §§ 43.0501, 43.0504. Anderson engaged in other litigation within the territory, concerning the destruction of the Plaza’s original skylight, and kept in continual communication with McGuire, his agent.

 

[15] Second, statutes of limitation are intended to “encourage promptness in the prosecution of actions and thus avoid the injustice which may result from the prosecution of stale claims.” Shin, 967 P.2d at 1064 (quoting Byrne v. Ogle, 488 P.2d at 718); see Ankers, 995 F. Supp. at 1334. Allowing a virtually endless cause of action against nonresidents who will never come to American Samoa would interfere with the effectiveness of the statute of limitations. See Shin, 967 P.2d at 1064. Plaintiffs could wait until evidence, witnesses, or documents became unavailable to bring their claims, while “defendants could not know with any certainty when they would be safe from the threat of litigation.” Id. at 1065 (quoting Tarter v. Insco, 550 P.2d 905, 911 (Wyo. 1976)). Allowing an unnecessary loophole in the statutes of limitation would be “absurd and illogical.” Shin, 967 P.2d at 1066.

 

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McGuire raises a concern about consistent interpretations of the term “nonresident” throughout the American Samoa Code. Though our holding here exempts Anderson from classification as a nonresident, our interpretation is in harmony with the consistent application of the long-arm statute and protects the integrity of the American Samoa statute of limitations. See id. at 1064 (construing the Hawaiian nonresident tolling statute for out-of-state defendants in conjunction with the Hawaiian long-arm statute).2

 

[16-19] Turning to another tolling statute, Anderson did not share a “continuous, open, concurrent account.” A.S.C.A. § 43.0122. Claims on such accounts accrue “on the date of the last item therein.” Id. Generally, “the mere relationship of an agent to his principal is not sufficient to entitle the agent to maintain a bill for an accounting against the principal.” 3 AM.JUR.2D Agency § 248. Similarly, in this particular case we find that agent McGuire cannot maintain that he had an account with principal Anderson. The account was not concurrent, because it lacked mutuality. See BLACKS LAW DICTIONARY 17 (5th ed. 1979) (defining an account as “a detailed statement of mutual demands in the nature of debit and credit”). McGuire’s invoices and accounts receivable spreadsheet, in evidence, record nonmutual obligations, showing only Anderson’s debt. Moreover, Anderson had no duty to keep account of his dealings with McGuire. See 3 AM.JUR.2D Agency § 248.

 

[20-21] McGuire argues that either estoppel or waiver tolls the statute of limitation, due to the “special consideration” that Anderson promised. We disagree. Anderson’s representations did not amount to estoppel or waiver. Waiver and estoppel both require that “the plaintiff did not exercise his right to sue and was led not to do so by the defendant’s conduct.” 51 AM.JUR.2D Limitation of Actions §§ 425 (waiver), 432 (estoppel). Anderson did not prevent McGuire from suing. Anderson never promised special consideration on the record, as demonstrated by the February 16, 1994 and February 22, 1994 letters. Also, after Anderson’s repeated repudiations of any additional obligation to pay, McGuire was reasonably aware that Anderson had no intention to pay the requested compensation.

 

V. Parking Lot Fees, Office Space Rent, and Property Return

 

[22-23] Anderson was due an accounting of the profit from the parking

 

2 We hold A.S.C.A. § 43.0127 inapplicable in this case and save further interpretation of the statute for another day. Issues left open include, but are not limited to, whether § 43.0127 applies when an individual residing in American Samoa becomes liable for a cause of action and then moves elsewhere, see Ankers, 995 F. Supp. at 1331, or when only in rem jurisdiction is available.

 

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lot fees that McGuire collected. An agent has a duty “to keep, and render to his principal, an account of money or other things which he has received or paid out on behalf of the principal.” RESTATEMENT (SECOND) OF AGENCY § 382. When the principal proves the agent has breached this duty, the burden of proof shifts to the agent to prove that the income was paid or disposed of in accordance with the agent’s authority. See id. § 382 cmt. e. Here, McGuire has the burden of showing that he spent the parking lot fees properly. McGuire used the fees to serve Anderson’s interests. The testimony of McGuire and the manager of Sunset Security meet this burden by establishing that the fees were used to pay for security, which serves Anderson’s interests. Anderson is not entitled to a damages award from McGuire’s failure to record the details of the parking lot fees.

 

McGuire owes $760.00 for office space rent. The May 1, 1997 rent statement in evidence shows the amount due. McGuire makes no rebuttal to Anderson’s evidence.

 

Anderson fails to offer any evidence that McGuire remains in possession of any Plaza property. Anderson does not meet his burden of proof to support this counterclaim.

 

VI. Prejudgment Interest, Fees, and Costs

 

[24-25] McGuire and Anderson both request prejudgment interest. The award of prejudgment interest lies within the discretion of the Court. Generally, we exercise our discretion to deny a prejudgment interest award in three peculiar circumstances: “(1) plaintiff’s delay in bringing the suit, (2) a genuine dispute regarding ultimate liability or the complexity of the factual and legal issues to be resolved, and (3) judgment in an amount substantially less than that claimed.” Interocean Ships, Inc. v. Samoa Gases Corp., 26 A.S.R.2d 28, 43 (Trial Div. 1994) (citations omitted). McGuire delayed bringing most of his claims for a significant length of time, so we deny the bulk of his prejudgment interest request. McGuire’s well lease reimbursement and Anderson’s rent claim fit into none of the three circumstances, so we grant prejudgment interest on these claims. McGuire is entitled to 6% annual interest on $3,000.00 from when the well lease reimbursement became due sometime in 1996. Without an exact date, we exercise our discretion and set the starting date of prejudgment interest at the last day of 1996, December 31st. Anderson is also entitled to 6% annual prejudgment interest on $760.00, from when the rent became due on May 1, 1997.

 

[26] Court costs are allowed to the prevailing party as matter of course unless the Court otherwise directs. T.C.R.C.P. 54(d); Pago Petroleum Prod. v. Ye Ahn Moolsoan, Ltd., 29 A.S.R.2d 34, 37 (Trial Div. 1995). Winning the larger judgment, we logically consider McGuire as the 102

 

prevailing party. Hillside Enter. v. Carlisle Corp., 69 F.3d 1410, 1416 (8th Cir. 1995). We award McGuire reasonable court costs.

 

[27] We deny both parties’ requests for attorney’s fees. The general rule is against recovery of attorney’s fees by a party that incurs them in enforcing a claim against another. Interocean Ships, Inc., 26 A.S.R.2d at 41. We have awarded attorney’s fees in instances where they have been required by statute, agreed to contractually, or where an opposing party has acted wantonly, oppressively, or in bad faith. See Fiaui v. Faumuina, 27 A.S.R.2d 36, 42 (Trial Div. 1994); Jessop v. Hisatake, 25 A.S.R.2d 12, 13 (Trial Div. 1993); Samoa v. Gibbens, 3 A.S.R.2d 121, 123 (Trial Div. 1986). Where no legal basis for an award of attorney’s fees has been stated, we have denied a party’s application therefore. Samoa Products v. Pereira, 3 A.S.R.2d 45, 46 (Trial Div. 1986). Neither party identifies a statutory or contractual basis for awarding attorney’s fees. As discussed, we find none of McGuire’s actions sufficiently devoid of bad faith to authorize a discretionary award of attorney’s fees for Anderson.

 

Conclusion and Order

 

1. Anderson is liable for the following damages:

 

Lease Commissions

 

$24,550.90

 

Construction Management Services

 

$00.00

 

Reimbursements

 

$3,000.00

 

Prejudgment Interest

 

6% interest on $3,000.00 from December 31, 1996

 

Court Costs

 

To be established with properly submitted affidavit

 

Attorney’s Fees

 

$00.00

 

2. BPMC is liable for the following damages:

 

Parking Lot Fees

 

$00.00

 

Office Space Rent

 

$760.00

 

Reimbursements

 

$00.00

 

Prejudgment Interest

 

6% interest on $760.00 from

 

May 1, 1997

 

Court Costs

 

$00.00

 

Attorney’s Fees

 

$00.00

 

Judgment shall enter accordingly.

 

It is so ordered.

 

**********

 

Application of Pita Amataga for Change of Name


Application of PITA AMATAGA for Change of Name

 

High Court of American Samoa

 

Trial Division

 

CA No. 85-95

 

June 18, 1995

 

[1] The territory lacks statutory guidelines for name change proceedings, but at common law a person is free to adopt and use whatever name he or she chooses; however the court is not subject to the whims of every petitioner and will not lend as a matter of course its imprimatur to effect a change of name.

 

[2] The court will not grant a name-change application if it is sought for any fraudulent purpose or if it infringes on the rights of others.

 

[3] A petitioner applying for a change of name to indicate a familial bond to a matai name must give actual notice of such proceedings to the petitioner’s matai and immediate family, as well as constructive notice to potential persons affected, by way of publication in a newspaper of general circulation.

 

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

 

Counsel: For Petitioner, Afoa Moega Lutu

 

ORDER REQUIRING NOTICE & FURTHER HEARING

 

Petitioner seeks an order changing his name from Pita S. Amataga to Pita Amataga Poumele. This application, if granted, will result in petitioner’s third set of names.

 

Petitioner was born Kuinitusi Velo on August 1, 1948, as reflected in his birth certificate. Subsequently, and when he was of full age, he consented to his adoption by his maternal uncle Suafoa Amataga, and his wife Gaupule. Consequently, a decree of adoption issued out of this court on December 31, 1969, resulting in, among other things, petitioner’s change of identity to Pita S. Amataga. In apparent pursuance of the decree of adoption, the Registrar of Vital Statistics re-issued a new birth certificate for petitioner reflecting not only his new name but the 289

 

identity of his new legal parents.1

 

The application now before the court essentially seeks yet another cognomen change to include the name of “Poumele,” the matai title name of the petitioner’s natural father. The only intelligible reason that we can gather for the application, is that petitioner’s natural father’s family has awarded him a lesser matai title, and that the petitioner would like his legal identity to reflect what he believes are his natural circumstances, for purposes of future matai succession.

 

[1-2] Unlike a number of other jurisdictions, we lack statutory guidelines for name change proceedings. See Application of Fogapapa Mamea, CA No. 95-92 (Trial Div. Jan. 9, 1992) (order requiring notice and further hearing). At common law, a person is free to adopt and use whatever name he or she chooses; however, the court is not subject to the whims of every petitioner and will not lend as of course its imprimatur to effect a change of name. 57 AM. JUR. 2D, Name, § 22 at page 668. A name change application will not be granted if it is sought for any fraudulent purpose or if it infringes on the rights of others. Id., § 16 at 663.

 

[3] The petitioner here, like the petitioner in the Application of Fogapapa Mamea, CA No. 95-92, did not satisfactorily address potential complications a name change might impose to his immediate and extended family’s future dealings. In these circumstances, the Mamea court suggested that:

 

[a]t the very least, an affirmative record should be made to show that the wife and minor children, and probably the matai as well, have been notified of this proceeding and are in agreement with the objective, or at least have reasonable opportunity to present any opposition to the name change. This extra effort will also provide the basis for making any order changing his name a record of the other persons whose names [sic] affected by the change.

 

Id. at 2. In addition, the Mamea court spoke approvingly of the precautionary step taken by the petitioner there to publish notice of the proceeding in a newspaper of general circulation, thus, “affording some notice to potential creditors and others who may be negatively affected by a name change.” Id. this “advisable” action taken was in keeping wit h a common statutory requirement in other jurisdictions. Id.

 

[3] Taking guidance from Mamea, we deem it eminently sensible in the present matter to require actual notice of these proceedings to the

 

1 A.S.C.A. § 45.0424(b) authorizes the Registrar of Vital Statistics to

 

issue a new birth certificate showing “the adoptive parents as the natural

 

parents of the [adopted] child….”

 

290

 

petitioner’s matai and immediate family, as well as constructive notice to potential persons affected, by way of publication in a newspaper of general circulation. Thereafter this matter will further set for hearing.

 

It is so ordered.

 

Anoa’i v. Lai


 

TUMUA ANOA’I, Plaintiff,

 

v.

 

MICHAEL LIEN SHU LAI, Defendant.

 

____________________

 

MICHAEL LIEN SHU LAI, Plaintiff,

 

v.

 

TUMUA ANOA’I, Defendant.

 

High Court of American Samoa

 

Land & Titles Division

 

LT No. 02-01

 

CA No. 48-99

 

January 15, 2002

 

[1] The sa’o of a communal family has pule or the authority to make decisions about family lands; conversely, an untitled family member has no pule or authority to unilaterally deal in family property.

 

[2] A lessor without the authority of law or custom cannot lease out family property to a lessee. Consequently, the lessee under the aforementioned lease equally has nothing in the way of a leasehold interest to sublet.

 

[3] The Alienation of Land Act allows only the native proprietor(s) of communal land to lease said land; only after gubernatorial-approval of the lease (signified in writing) can any provisional agreement to lease said land take effect. Notwithstanding such, the term of the communal land lease cannot extend for more than 55 years (except when the lease’s purpose concerns mineral and timber).

 

[4] For the purposes of A.S.C.A. § 37.0221, the term “native proprietor” normally references the family sa’o or senior matai.

 

[5] Labeling a lease a “house lease” does not exclude a transaction from the requirements of the Alienation of Land Act applicable to native land leases, as communal land on which a structure is located is necessarily encumbered.

 

[6] The Separation of Structures from Communal Land Act allows the 310

 

facilitating of secured financing for communal family members who build on communal land, and nothing more. The Separation of Structures from Communal Land Act does not repeal the mandates of the

 

Alienation of Land Act (including gubernatorial-approval), as the latter regulates the leasing of native lands.

 

[7] The Separation of Structures from Communal Land Act clearly does not facilitate the automatic encumbrance of the situs realty without the agreement of the landowner (that is, the sa’o of the landowning family). For instance, a mortgagee who takes a mortgage on a separated structure has, without more, only the salvage value of the separated structure in the event of a foreclosure—nothing more. The mortgagee has no interest in the underlying land without agreement of the landowner (the Samoan family through its sa’o) when properly transferred in accordance with the Land Alienation Act.

 

[8] In the leasehold context, the lease of a separated house or building involves the transfer of possession of the situs realty. The Separation of Structures from Communal Land Act does not claim that the lease of a house or building does not involve the transfer of possession of the situs realty itself, nor attendant real property rights (like ingress and egress).

 

[9] From a policy point of view, mischief is possible if the “house-lease” rule somehow allowed an untitled person to permit strangers to live on communal land. It would then have the potential of eroding the notion of matai pule, a “cornerstone” of the fa’a Samoa (the Samoan way of life).

 

[10] The Alienation of Land Act limits the leasing of communal land to terms not exceeding 55 years. If these limits are not applicable to a “house-lease” devoid of any term limits, then the house-lease rule would controvert the Alienation of Land Act. Additionally, the house-lease ruse would open the door to communal property dealings which bypass legislative policy regulating the leasing of communal property and it would open the door for unsupervised “improvident” communal land dealings.

 

[11] Subleases in violation of the Alienation of Land Act, A.S.C.A. § 37.0221(b), are nullities.

 

[12] A nonnative failing to comply with the mandatory provision of the Alienation of Land Act is without a remedy.

 

[13] Where objectors filed objections in the Land Commission that have not been heard and not voluntarily withdrawn, the objections still remain pending. Without any of the other objectors before the court, full and final relief sought by one objector’s interpleader action is unavailable. 311

 

Consequently, the court will invoke the procedural flexibility permitted the Land and Titles Division by A.S.C.A. § 3.0242(b) by finding it “most consistent with natural justice and convenience” to continue and remand such an action to the Land Commission. A.S.C.A. § 3.0242(b ).

 

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

 

Counsel: For Tumua Anoa’i, Katopau T. Ainu’u

 

For Michael Lien Shu Lai, Jennifer L. Joneson

 

For Ta’amuvaigafa T. Iakopo, Asaua Fuimaono

 

OPINION & ORDER CONTINUING PROCEEDINGS

 

AND REMANDING MATTER TO LAND COMMISSION

 

I. INTRODUCTION

 

This matter concerns a small commercial building in Fagatogo, commonly known as the BP Building (“the building”), located on land claimed by the Ta’amuvaigafa (“Ta’amu”) family. The building was built by the Burns Philp (South Seas) Co. Ltd. (“BP”), in the early 1950s and it was used as one of BP’s merchandizing outlets. At the time, BP had leased the site from the then sa’o of the Ta’amu family, Ta’amu Faiumu. The lease term was originally for twenty years but it was subsequently extended in May 1972, for an additional ten years, by Ta’amu Iosefo Elisara. In both instances of lease and renewal, the lease process was handled strictly in accordance with the statute governing the alienation and leasing of native (communal) land, A.S.C.A. §§ 27.0221, et seq., (the “Alienation of Land Act”). That is, the lease agreement was routed through the Land Commission and approved by the Governor.

 

BP’s tenancy finally ended in 1982. In accordance with the terms of the lease, the building became part of the lessor’s property. Thereafter, the building remained under the control and direction of the family sa’o up until the demise of Ta’amu Iosefa Elisara. Following the death of Ta’amu Iosefa Elisara, the family’s matai title remained vacant for many years until the succession of defendant Ta’amu Ta’alolo Iakopo in June 1998. In the interim, however, Le’ala Pili (“Le’ala”), a member of the Ta’amu family, took it upon herself to rent the building out to third-parties. She initially let the premises out to Mrs. Nive Reed for an unspecified rent and term, applying the rental proceeds derived from that tenancy to the use of her immediate side of the family; namely, the heirs of Ta’amu Ma’alona.

 

Le’ala subsequently entered into another lease agreement, again on behalf of “the Ta’amu Ma’alona heirs, “with plaintiff/cross-defendant 312

 

Tumua Anoa’i (“Anoa’i”) for a term of 10 years at a monthly rental of $800. This instrument, dated April 25, 1995, was accepted by the Territorial Registrar for recording as a “House Lease,” without regard to the requirements of the Alienation of Land Act, as more fully discussed below.

 

According to Le’ala, she has never received any rents from Anoa’i, but it was also evident that she did not pursue the unpaid rents with any vigor. Anoa’i in turn sublet the building to defendant/cross-claimant Michael Lien Shu Lai (“Lai”), a “nonnative.” A.S.C.A. § 37.0201(e). This sublease, executed with Lai on June 15, 1996, provided for a term of 5 years with a graduated monthly rental rate of $2,100 during the first year, $2,200 during the second, and $2,300 for the remaining years.

 

Shortly after the current Ta’amu took office, he intervened on the family’s behalf, making a demand upon Lai, who then decided to deal with the Ta’amu family’s matai. Consequently, Ta’amu, on behalf of the Ta’amu family, and Lai, as “President Evergreen Corporation, Inc.,” entered into an entirely separate lease agreement commencing January 1, 1999, for a term of 5 years, at a monthly rental of $2,300.

 

II. FINDINGS & DECISION

 

The proceedings now before the Court first arose with Anoa’i filing suit against Lai on their sublease agreement. Lai responded with a counterclaim seeking damages against Anoa’i, alleging the latter’s failure to renovate the building with rental advances made to him for that purpose. Additionally, Lai filed an interpleader action joining both Anoa’i and Ta’amu. Pending final disposition of the matter, the Court earlier issued an interim order requiring Lai to deposit into registry of the Court the rental proceeds on interpleader.

 

Le’ala was called by Anoa’i to explain her dealings with the building. She testified that the building was not on Ta’amu land, but on communal land of the Tiumalu family, of which she is also a member. According to her understanding, Ta’amu Ma’alona, who was also a member of the Tiumalu family, dealt with BP not as sa’o of the Ta’amu family but as a member of the Tiumalu family. Le’ala thus, somehow, claims entitlement to lease the building on behalf of the Ta’amu Ma’alona’s immediate descendants.1

 

1 Le’ala’s legal theory escapes us. Even if the land is the communal

 

property of the Tiumalu family as claimed, we fail to see how the land

 

could have possibly devolved to the issue of Ta’amu Ma’alona, as the

 

territory’s law on descent and distribution does not apply to “communal

 

land.” See A.S.C.A. § 40.0106 and § 40.0206.

 

 

 

The evidence, however, quite clearly shows that the former Ta’amu titleholders who dealt with BP were dealing as Ta’amu titleholders rather than as some dubious sort of agent for the Tiumalu family. The alienation process giving rise to the BP’s leases, which included proceedings before the Land Commission and approval by the Governor, is conspicuously void of any suggestion whatsoever that the demised premises in question was anything but Ta’amu family property. We further find that the Ta’amu titleholders who dealt with the Land Commission in 1953 and 1972 were Ta’amu Faiumu and Ta’amu Elisara respectively. Also conspicuous over the years to this day is the lack of any objection or adverse claim to the leasehold site from any of the Tiumalu titleholders.

 

We find that the building is the property of the Ta’amu family.

 

A. Le’ala-to-Anoa’i Lease, Anoa’i-to-Lai Sublease

 

[1] It is black letter law that the sa’o has pule or the authority to make decisions about family lands. See Sagapolutele v. Sagapolutele, 20 A.S.R.3d 16 (Land & Titles Div. 1991); Lutu v. Taesaliali’i 11 A.S.R.2d 80 (Land & Titles Div. 1989); Gi v. Temu, 11 A.S.R.2d 137 (Land & Titles Div. 1989); Coffin v. Mageo 4 A.S.R. 14 (Trial Div. 1970); Lutu v. Fuimaona, 4 A.S.R. 450 (Trial Div. 1964); Tiumalu v. Scanlan 4 A.S.R. 194 (Trial Div. 1961). Conversely, an untitled family member has no pule or authority to unilaterally deal in family property. Malaga v. Alaga, 4 A.S.R. 735, 737 (Trial Div. 1966) (“‘Who can act as a matai?’ The law in American Samoa is quite clear…only a matai has the powers, the authority, the pule of the matai”); Lolo v. Heirs of Sekio, 4 A.S.R. 477, 481 (Trial Div. 1964) (“[U]nder Samoan Custom, family lands are under the jurisdiction of the matai.... A young man has no authority to permit strangers to live on communal family lands”). See also Gi, 11 A.S.R.2d at 141 (“A unilateral and...secret attempt by [a matai] to give his daughter sole authority over family land to the exclusion of his successors in title would seem to have been inconsistent with Samoa tradition, and would certainly have been contrary to statutory law of American Samoa with regard to the alienation of family land”).

 

[2-3] Quite clearly, Le’ala had no authority, cognizable either in law or in custom, to lease out Ta’amu family property to Anoa’i. As she was without right to convey a leasehold estate to Anoa’i, the latter equally had nothing in the way of a leasehold interest to sublet. Moreover, the building, as we have found, is a part of the communal property of Ta’amu family. As such, any lease thereof is subject to the requirements of the Alienation of Land Act, which in pertinent part provides:

 

(a) Native [or communal] land may, with the approval of the Governor, be leased to any person for any term not exceeding 55 years for any purpose, except for the

 

 

 

working of mineral and cutting timber.

 

(b) Provisional agreements for the leasing of native land as provided in subsection (a) may be entered into with the native proprietor or proprietors. Every such provisional agreement, stating in full its terms and conditions, shall be submitted with a plan showing the situation of the land to the Governor for approval, and it shall have no validity until such approval has been signified in writing.

 

A.S.C.A. § 37.0221 (emphasis added).

 

[4] None of the lease instruments presented to the court are in compliance with statute. The documents pertaining to the lease and sublease involving Anoa’i are not even in contemplation of § 37.0321(b) so as to at least qualify for “provisional agreement[s]” pending gubernatorial approval. That is because the claimed lessor Le’ala does not qualify as a “native proprietor,” as that term appears in the enactment. From the cases above discussed, the term “native proprietor” necessarily references in this instance the family sa’o or senior matai Ta’amu.

 

[3, 5-6] Even if the building was the separate property of the heirs of Ta’amu Ma’alona, and it is clearly not, we fail to see how calling a lease a “house lease” thereby excludes the transaction from the requirements of the Alienation of Land Act, applicable to native land leases. First, the Alienation of Land Act requires the Land Commission to meet periodically for the purposes of “making recommendations respecting the approval or disapproval of instruments affecting...possession of [communal] land....” A.S.C.A. § 37.0203(b) (emphasis added). Leaseholds clearly come within the reach of this enactment. Moreover, the house-lease stratagem too conveniently ignores the reality that the communal land on which a structure is located, is necessarily encumbered. Buildings do not exist in a vacuum, notwithstanding the Separation of Structures From Communal Land Act, A.S.C.A. §§ 37.1501, (the “Separation Act”). This statute provides a vehicle for treating what would otherwise be realty into personalty for the sole statutory aim of facilitating secured financing for family members who build on communal land. The Separation Act does not purport to do anything more. It certainly does not attempt to in any way to repeal the mandates of the Alienation of Land Act as it regulates the leasing of native land.2

 

2 Cf. Tiumalu v. Levi, 4 A.S.R.3d 291, 294 (Land & Titles Div. 2000)

 

(leases “for…buildings or portions of a building…are not subject to the

 

requirement that leases of communal land be approved by the

 

Governor”).

 

 

 

[7] The Separation Act clearly does not facilitate the automatic encumbrance of the situs realty without the agreement of the landowner (that is, the sa’o of the landowning family). For instance, a mortgagee who takes a mortgage on a separated structure has, without more, only the salvage value of the separated structure in the event of a foreclosure. Nothing more. The mortgagee has no interest in the underlying land without agreement of the landowner (the Samoan family through its sa’o) when properly transferred in accordance with the Land Alienation Act.

 

[8] Similarly with a leasehold situation, it cannot be sensibly suggested that the lease of a separated house or building does not involve the situs realty. To the contrary, the lease of a house or building also inextricably involves the transfer of “possession,” A.S.C.A. § 37.0203(c), of the situs realty. This hard and fast reality simply cannot be blissfully ignored on some vague assumption that the Separation Act has somehow otherwise adjusted property rights.

 

[8] Moreover, the functionality of any house or building is meaningful only in context that include such real property incidents such as rights of ingress/egress and access to a certain cartilage area for parking and other attendant needs. Again, buildings do not exist in a vacuum, and there is absolutely nothing in the Separation Act that remotely suggests that these sort of rights are part and parcel of the fictional statutory state of separation.

 

[9-10] Furthermore, and from a policy3 point of view, it does not take too much imagination to picture the sort of mischief potential with the “house-lease” ruse. Among other things, this stratagem is anti-fa’a Samoa. It is in derogation of Samoan custom that recognizes that an untitled person does not have the right to permit strangers to live on

 

3 AM. SAMOA REV. CONST. art. 1, § 3 provides :

 

It shall be the policy of the Government of American

 

Samoa to protect persons of Samoan ancestry against

 

alienation of their lands and the destruction of the

 

Samoan way of life and language, contrary to their

 

best interests. Such legislation as may be necessary

 

may be enacted to protect the lands, customs, culture,

 

and traditional Samoan family organization of persons

 

of Samoan ancestry, and to encourage business

 

enterprises by such persons. No change in the law

 

respecting the alienation or transfer of land or any

 

interest therein shall be effective unless the same be

 

approved by two successive legislatures by a twothirds

 

vote of the entire membership of each house and

 

by the Governor.

 

 

 

communal land. Lolo v. Heirs of Sekio, supra. It thus has the potential for eroding the notion of matai pule, and hence a “cornerstone” of the fa’a Samoa (the Samoan way of life). Fairholt v. Aulava, 1 A.S.R.2d 73, 78 (Land & Titles Div. 1983) (“The Samoan way of life has twin cornerstones, the matai system and communal land tenure”). It opens the door to extended encumbrance of communal lands (situs realty) to the exclusion of the matai and family. The Alienation of Land Act limits the leasing of communal land to terms not exceeding 55 years. A.S.CA. § 37.0221(a). If these limits are not applicable to a “house-lease,” such would appear to without any limits as to term. Additionally, the house-lease ruse would open the door to communal property dealings which bypass legislative policy regulating the leasing of communal property, see A.S.C.A. § 37.0221, and it would open the door for unsupervised “improvident” communal land dealings, A.S.C.A. § 37.0203(c).4

 

B. Ta’amuvaigafa-to-Lai Lease

 

With respect to the Ta’amu and Lai lease, this instrument, although seemingly dated--it was executed February 22, 1999-- and qualifies as a “provisional agreement” pending gubernatorial approval in contemplation of the Alienation of Land Act, A.S.C.A. § 37.0221(b). The evidence shows that the contracting parties, Ta’amu and Lai with capacity to enter into a lease of communal land submitted their concluded, but provisional, lease agreement, together with a plan of the demised premises as required by § 37.0221(b), to the Land Commission for approval processing in accordance with the requirements of § 37.0203(b). Notwithstanding this statutory mandate, the Land Commission inexplicably altered the whole statutory process by withholding the parties’ leasehold instrument from the Governor solely on the unelaborated observation that the “Taamuvaigafa matter is being removed because this is a house lease.” See LAND COMMISSION MINUTES, Feb. 18, 2000. This exceptionary treatment appears even less merited given the actual terms of the proposed lease agreement which refer to the demised premises as “that pieces (sic) of land situated in the village of Fagatogo,” followed by a detailed description of that land in metes and bounds. The Land Commission thus committed gross error with its apparent theory that land is not land if you call it something else. We remind the Land Commission of the civil penalties that flow from any violations of Chapter 02, of Title 37, see A.S.C.A. § 37.0230,5 which

 

4 This enactment charges the Land Commission with the duty of

 

preventing the “improvident alienation” of communal lands. It goes

 

without saying that provision in the Ta’amu-to-BP lease that kept the

 

building part of the lessor’s property upon the expiration lease, was a

 

critical term of the lease that would have featured in the Land

 

Commission’s favorable deliberations and the Governor’s approval.

 

5 This enactment in pertinent part provides that “any person committing,

 

 

 

apply equally to private individuals and public officials whose acts thwart the Governor’s statutory duties.

 

III. CONCLUSIONS

 

A. Le’ala-to-Anoa’i Lease, Anoa’i-to-Lai Sublease.

 

[11-12] We conclude that the Anoa’i lease and sublease are nullities, being in violation of Alienation of Land Act, A.S.C.A. § 37.0221(b), and being nullities concluded between competent contracting parties, neither can be heard to complain. Anoa’i having had nothing to lease to Lai, he has no claim upon which relief can be based and his complaint should, therefore, be dismissed. As a nonnative failing to comply with the mandatory provisions of the Alienation of Land Act, he is without a remedy. Specifically, A.S.C.A. § 37.0230 provides in pertinent part:

 

[A]ny nonnative failing to conform to [Title 37] [] chapter [02]...shall be liable to the forfeiture to the owner of land, of all improvements he may have erected or made on the land and no action shall lie for recovery of any payment he may have made or other expenditure he may have incurred in respect thereof.

 

(emphasis added).

 

B. Ta’amuvaigafa-to-Lai Lease

 

[13] We conclude on Lai’s interpleader action that Ta’amu, on behalf of the Ta’amu family, has clearly shown superior rights to the land, and hence the building, over Anoa’i’s claim. We note, however, from the Land Commission’s file on the Ta’amu and Lai proposed lease, in evidence as Ex. “8,” that there were a number of objections lodged with the Land Commission, besides Anoa’i’s. While Anoa’i has had his day in court, it is not clear to us on the record before us that the other objectors have. Presumably with the tact taken by the Land Commission to avoid meeting on the merits of the Ta’amu and Lai proposed lease, the claims of the other objectors, if not voluntarily withdrawn, still remain pending. Without any of the other objectors before us, full and final relief sought here by Lai’s interpleader action is not available at this time. In aid of our jurisdiction, this matter should be continued. We invoke the procedural flexibility permitted the Land and Titles Division by A.S.C.A. § 3.0242(b), and find it “most consistent with natural justice and convenience,” to continue and remand to the Land Commission.

 

IV. ORDER

 

or attempting to commit, a breach of a provision of [Title 37] [] chapter

 

[02]…shall be liable to a fine not to exceed $200.”

 

 

 

For reasons given, and in aid of our jurisdiction in this matter, the following orders are entered:

 

1) Anoa’i’s complaint against Lai on the sublease is dismissed and Anoa’i shall take nothing thereby.

 

2) Lai’s cross-complaint against Anoa’i on the sublease is dismissed and Lai shall take nothing thereby.

 

3) The Ta’amu/Lai proposed lease is remanded to the Land Commission and Governor for approval processing in accordance with the requirements of the Land Alienation Act.

 

4) This matter is continued sine die pending proceedings before the Land Commission and Governor.

 

It is so ordered.

 

American Samoa Gov’t. v. Wright


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,

 

v.

 

TAGAOLO WRIGHT, Defendant.

 

High Court of American Samoa

 

Trial Division

 

CR No. 11-04

 

April 26, 2004

 

[1] At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file a written request that the court instruct the jury on the law as set forth in the request. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. T.C.R.Cr.P. 30.

 

1 We also give defense counsel the opportunity to meet his ethical

 

obligations to inform his client about matters which require informed

 

consent and about “the means by which the client’s objectives are to be

 

accomplished.” MODEL RULES OF PROF’L CONDUCT R. 1.4 (2002).

 

142

 

[2] Courts sometimes give preliminary instructions to the jury prior to the presentation of the evidence. It is often desirable for the judge to give the jury preliminary instructions at the outset of trial. However, these preliminary instructions consist of routine issues such as the burden of proof, presumption of innocence, reasonable doubt, and the roles of the judge and attorneys.

 

[3] In instructing the jury, the court must accurately define the essential elements of the offense charged.

 

[4] A defendant is entitled to have the jury instructed regarding each legitimate theory of defense. The proposed instruction must be supported by evidence sufficient for a reasonable jury to find in the defendant’s favor.

 

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

 

Counsel: For Plaintiff, Jeremy M. Kirkland, Assistant Attorney General

 

For Defendant, Sachin R. Mehta, Assistant Public Defender

 

ORDER DENYING MOTION FOR JURY INSTRUCTION AND GRANTING MOTION TO CONTINUE PRETRIAL CONFERENCE

 

Defendant Tagaolo Wright (“Tagaolo”) is charged with Abuse of Child in violation of A.S.C.A. § 46.38111 and with Assault in the Third Degree in violation of A.S.C.A. § 46.3522. Tagaolo moves for a jury instruction and also moves to continue the pre-trial conference in light of his current motion for an instruction.2 All counsel and Tagaolo were present at the April 12, 2004 hearing on this motion. For the following reasons, we deny Tagaolo’s motion for a jury instruction and grant his motion to continue the pre-trial conference.

 

Tagaolo seeks a pre-trial ruling that a specific jury instruction will be presented at trial. He requests an instruction regarding: (1) the mens rea requirement of the child abuse statute; and (2) the “accepted child rearing practices” as that language is used in A.S.C.A. § 45.2001.3 1 Tagaolo mistakenly refers to this statute as A.S.C.A. § 46.3611 (short

 

cited as “section 3611”) in his memorandum. A.S.C.A. § 46.3611 is the

 

sodomy statute. Tagaolo is not charged with any offense under A.S.C.A. §

 

46.3611.

 

2 The government did not file a written response to Tagaolo’s motion.

 

3 The proposed instruction reads as follows:

 

PROPOSED PRELIMINARY JURY INSTRUCTION. (a) If

 

you find that defendant’s actions fall within the accepted child

 

rearing practices of the territory of American Samoa, then you

 

143

 

At the outset, we note (and Tagaolo admits) that “generally jury instructions are filed after the pre-trial conference.” (Def.’s Mot. at 3.) Tagaolo cites no legal authority or precedent to demonstrate that consideration of jury instructions at this early juncture is appropriate.

 

[1] T.C.R.Cr.P. 30 provides in relevant part:

 

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written request that the court instruct the jury on the law as set forth in the requests . . . . The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. (emphasis added).

 

We see no reason to depart from T.C.R.Cr.P. 30 and decide on jury instructions at this time.

 

[2] Moreover, it is unclear from his motion whether Tagaolo wants the court to give this instruction to the jury before the presentation of the evidence as a preliminary jury instruction or after the close of evidence during regular jury instructions. (Def.’s Mot. at 3 n.1 (providing his “PROPOSED PRELIMINARY JURY INSTRUCTION”) (emphasis added).) Courts sometimes give preliminary instructions to the jury prior to the presentation of the evidence. 2A CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE, § 483 (West 2000) (“It is often desirable for the judge to give the jury preliminary instructions at the outset of trial . . . .”) (footnote omitted). However, most times, these preliminary instructions consist of routine issues such as “the burden of proof, presumption of innocence, reasonable doubt, and the roles of the judge and attorneys.” 26 JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE § 630.04 (3d ed. 1999). We prefer to rule on jury instructions at a later date.

 

[3-4] However, in denying Tagaolo’s motion, we do not preclude him from bringing this same instruction at a more appropriate time. Indeed, with respect to the requested mens rea instruction, we note that “[i]n instructing the jury, the court must accurately define the essential elements of the offense charged.” Id. § 630.02[2]. With respect to the requested “accepted child rearing practices” instruction, we note that “[a] defendant is entitled to have the jury instructed regarding each legitimate must find Defendant “Not Guilty.” (b) If you find that

 

Defendant committed the acts or omissions through negligence,

 

then you must find Defendant “Not Guilty.”

 

(Def.’s Mot at 3-4 n.1.)

 

144

 

theory of defense. The proposed instruction must be supported by evidence sufficient for a reasonable jury to find in the defendant’s favor.” Id. § 630.11[2][a] (footnote omitted).

 

From Tagaolo’s written request for a jury instruction, it is apparent that defense counsel brought this motion in an attempt to clarify “a question of law, the judicial determination of which would assist both parties in plea negotiations.” (Def.’s Mot. at 3.) Should there be some confusion or disagreement about the interpretation of the statute under which Tagaolo is charged, he is not without options in this regard. As we noted at the hearing, if defense counsel thinks the child abuse statutes are vague, he can bring the appropriate motion to challenge them. Moreover, if defense counsel thinks the mens rea element is inappropriately excluded from the charge, he can move to dismiss.4 See, e.g., American Samoa Gov’t v. Afamasaga, 17 A.S.R.2d 145, 149-50 (Trial Div. 1990) (noting an information may track a statute, “as long as the statute sets forth fully, directly and expressly, without any uncertainty or ambiguity, . . . all the elements necessary to constitute the offence intended to be punished”) (citation omitted); State v. Briscoe, 847 S.W.2d 792, 794 (Mo. 1993) (discussing a post-verdict challenge to an information that “fail[ed] to specify, at least by express terms, the culpable mental state”). However, since neither of these issues is properly before us, we express no opinion on the merits of them.

 

Order

 

Tagaolo’s motion for jury instructions is denied. Tagaolo’s motion to continue the pre-trial conference is granted.

 

It is so ordered.

 

**********

 

4 In this same regard, the government may move to amend the information

 

“at any time before verdict or finding if no additional or different offense is

 

charged and if substantial rights of the defendant are not prejudiced.”

 

T.C.R.Cr.P. 7(e).

 

American Samoa Gov’t. v. Uli_2


 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

MARLON ULI, Defendant.

 

High Court of American Samoa

 

Trial Division

 

CR No. 41-03

 

April 13, 2004

 

[1] Statements given by a person during custodial interrogation without a prior warning are in violation of constitutionally protected rights and are subject to the exclusionary rule. However, in order to trigger Miranda, an individual must be in custody and must be subject to interrogation. A statement made by a person who is not in a custodial situation is not subject to suppression on Miranda grounds.

 

[2] Custodial interrogation occurs when questioning is initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Courts look at the totality of the circumstances when making a determination as to whether a person is in custody. However, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.

 

[3] “Custody” in the prison context necessarily implies a change in the surroundings of the prisoner, which results in an added imposition on his freedom of movement.

 

[4] An accused is denied the basic protections of the Sixth Amendment when there is used against him at his trial evidence of his own incriminating words, which federal agents deliberately elicited from him after he had been indicted and in the absence of his counsel.

 

[5] As a matter of policy, the courts encourage opposing counsel to cooperate with one another, whenever possible, to facilitate fair and orderly criminal proceedings.

 

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

 

Counsel: For Plaintiff, Harvey L. Kincaid, Assistant Attorney General

 

For Defendant, Andrew T. Stave, Assistant Public Defender

 

126

 

ORDER DENYING MOTION TO SUPPRESS, DENYING MOTION TO INSPECT VIDEO-TAPE RECORDINGS, & GRANTING MOTION TO EXTEND TIME FOR FILING PRE-TRIAL MOTIONS

 

Defendant Marlon Uli (“Uli”) is charged with murder in the first degree, in violation of A.S.C.A. § 46.3502(a)(1). Uli moves to suppress statements he made to officers on November 13, 2002. Uli also moves to suppress other statements he made to an officer at the Tafuna Correctional Facility (“TCF”) subsequent to his arrest. Additionally, Uli moves for the disclosure of aggravating factors, the inspection of videotaped recordings of witness interviews and the crime scene, and an extension of time in which to file pre-trial motions. All counsel and Uli were present at the March 29, 2004 hearing on this matter. For the reasons stated below, we deny Uli’s motion to suppress and to inspect videotaped recordings. However, we grant Uli’s motion to extend the time for the filing of pre-trial motions.

 

Discussion

 

I. Motion to Suppress

 

Uli moves to suppress statements he made to officers on three separate occasions: (1) the oral and written statements he made to officers on November 13, 2002 at the central police station (“CPS”) in Fagatogo (“CPS Statements”); and (2) the oral statements he made to an officer while incarcerated at TCF (“TCF Statements”) on two separate occasions.

 

Uli argues that the statements were illegally obtained in violation of his Fifth, Sixth, and Fourteenth Amendment rights of the United States Constitution, as well as Article I, Section 6 of the Revised Constitution of American Samoa and, therefore, must be suppressed. We will discuss the CPS and TCF Statements in turn.

 

A. CPS Statements

 

On November 13, 2002, sometime around 9:00 p.m., Uli and his father, Anaua Uli (“Anaua”), arrived at CPS. According to Uli and Anaua, they went to the station because officers had been by Anaua’s house earlier that evening looking for Uli and because they wanted to recover their vehicle, which was in police custody.

 

Upon their arrival at CPS, Uli and his father sat together downstairs at the station. Sometime thereafter, an officer asked Uli to accompany him to a separate room. Without reading Uli his Miranda rights, Sgt. Lui Fuifatu (“Sgt. Fuifatu”) interviewed Uli regarding the events surrounding the death of Ma`alona Felisi (“Ma`a”), which had occurred earlier that 127

 

afternoon.1 Sgt. Fuifatu testified that he considered Uli to be a witness and that he explained this to Uli. According to Uli, the questioning lasted fifteen or twenty minutes. After the questioning, Sgt. Fuifatu asked Uli to give a written statement. Sgt. Fuifatu testified that Uli inquired whether he needed an attorney before making a written statement.2 Sgt. Fuifatu claims he again informed Uli that they considered him a witness not a suspect at that time. Subsequently, Uli made a written statement.

 

The witnesses at the suppression hearing estimated the time Uli was at the station was somewhere around two hours. During this entire time, Uli was never handcuffed, threatened, placed under arrest, or told that he could not leave. Uli was allowed to smoke cigarettes in the room. After Sgt. Fuifatu requested Uli make a written statement, he left the room. A few hours later, Uli was arrested in connection with the death of Ma`a. At this time, Uli was given his warning of his rights, and he invoked them, refusing to make a statement.

 

Uli claims that his CPS Statements were made while in custody, during an interrogation, and without adequate advisement of his rights. Uli argues that the statements were illegally obtained and, therefore, must be suppressed. The government disagrees, arguing that there was no violation of Uli’s rights because Uli was not in custody when he made the CPS Statements. We agree with the government.

 

[1] As well established by Miranda v. Arizona, 384 U.S. 436 (1966), statements given by a person during custodial interrogation without a prior warning are in violation of constitutionally-protected rights and are subject to the exclusionary rule. However, in order to trigger Miranda, an individual must be in custody and must be subject to interrogation. A statement made by a person who was not in a custodial situation is not subject to suppression on Miranda grounds. See American Samoa Gov’t v. Fealofa`i, 24 A.S.R.2d 10, 11-12 (Trial Div. 1993).

 

[2] Custodial interrogation occurs when “questioning [is] initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444. Courts look at the “totality of the circumstances” when making a determination as to whether a person is “in custody.” California v. Beheler, 463 U.S. 1121, 1125 (1983). However, “the ultimate inquiry is simply whether there is a formal arrest

 

1 At some point, another officer, Mike Fuiava, was present in the room.

 

2 Uli’s testimony differs from Fuifatu’s testimony about how and when he requested an attorney. Uli testified that he clearly requested an attorney prior to being questioned by the officers and again during the interview. We believe Fuifatu’s testimony of the events to be more credible.

 

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or restraint on freedom of movement of the degree associated with a formal arrest.” Id. (citations omitted).

 

In Oregon v. Mathiason, 429 U.S. 492 (1977), the Supreme Court found that a suspect who voluntarily went to a police station and freely left after a thirty-minute interview was not “in custody” for Miranda purposes. The Court explained that “[Miranda] warnings [are not] to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.” Id. at 495. Likewise, in Beheler, the Court found the defendant was not “in custody” when he voluntarily accompanied the police to the police station, was interviewed for about thirty minutes, and was then allowed to leave. 463 U.S. at 1122-23. The Court noted that “Beheler was neither taken into custody nor significantly deprived of his freedom of action. Indeed, Beheler’s freedom was not restricted in any way whatsoever.” Id. at 1123.

 

In the current case, based on the aforementioned facts adduced at the suppression hearing, we find that Uli was not in custody at the time he made his statements to the officers. See, e.g., Fealofai`i, 24 A.S.R.2d at 11-12; People v. Gillis, 632 N.Y.S.2d 671 (N.Y. App. Div. 1995) (finding defendant’s twelve-hour interrogation was non-custodial when the defendant “voluntarily came to the police station and agreed to go with the State Police to their barracks; he was not handcuffed or physically restrained and was repeatedly left unguarded. The atmosphere in the interview room was not coercive and the questioning was investigatory, not accusatory or continuous; defendant was fed and allowed to sleep alone in the unlocked interview room”). Accordingly, Uli’s CPS Statements are admissible.3

 

B. TCF Statements

 

On two separate occasions while incarcerated at TCF, Uli made statements to Filemoni Amituana`i (“Amituana`i”). Amituana`i was an officer at TCF4 who was assigned to transport prisoners from TCF to the hospital for medical appointments and to the court. He also had duties

 

3 To the extent Uli is arguing that his CPS Statements should be suppressed because they were given in violation of his Sixth Amendment right to counsel, he is incorrect. The Sixth Amendment right to an attorney attaches “at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Ill., 406 U.S. 682, 689 (1972); see also Fellers v. U.S., 124 S.Ct. 1019, 1022 (2004). Accordingly, at the time of the CPS Statements, Uli’s Sixth Amendment right to counsel had not attached.

 

4 Amituana`i has been reassigned and is no longer working at TCF.

 

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during food service. Amituana`i was never directed to interrogate or question Uli but, rather, testified that he frequently had casual conversations with Uli and other prisoners while employed at TCF. Amituana`i testified that TCF has rooms for interrogation, but that the two conversations at issue with Uli occurred outside of these rooms.

 

According to Amituana`i the first conversation at issue occurred while he was supervising food service in the maximum unit. Amituana`i asked Uli if the victim, Ma`a, in his case was the same Ma`a who Amituana`i knew. Uli affirmatively replied and then, without any further prompting by Amituana`i, made several inculpatory statements to Amituana`i.

 

The second conversation at issue occurred when Uli approached Amituana`i to inquire about his next court date. Amituana`i replied that he would let Uli know his next court date when he received the schedule. Then, Amituana`i proceeded to ask Uli how his case was going. Uli replied with several potentially inculpatory statements.

 

Uli argues that these TCF Statements should be suppressed. In response, the government argues that the TCF Statements were not given in violation of either the Fifth or Sixth Amendment. The government claims that Uli was not subject to interrogation and, therefore, his statements should not be suppressed under the Fifth Amendment. The government also argues that the statements should not be suppressed under the Sixth Amendment because Amituana`i did not “deliberately elicit” the statements from Uli. The government does not dispute that Uli’s Sixth Amendment right to counsel had attached at the time these statements were made to Amituana`i. We agree with the government.

 

[3] As discussed above, in order to trigger the protections of Miranda, an individual must be in custody and must be subject to interrogation. See discussion supra at 88. The government does not dispute that Uli was in custody at the time he made the TCF Statements. However, there is disagreement among the courts about whether a defendant is automatically “in custody” simply because he is incarcerated. Indeed, the Fourth Circuit has held that “a prison inmate is not automatically always in ‘custody’ within the meaning of Miranda.” U.S. v. Cooper, 800 F.2d 412, 414 (4th Cir. 1986) (quoting U.S. v. Conley, 779 F.2d 970, 972 (4th Cir. 1985)). Rather, “custody” in the prison context, “necessarily implies a change in the surroundings of the prisoner which results in an added imposition on his freedom of movement.” Id. (citations omitted); see also American Samoa Gov’t v. Galumalemaga, CR No. 98-00, Order denying Motions to Suppress at 4-6 (Trial Div. Feb. 14, 2001) (defendant was not in custody for Miranda purposes when he was subjected to on-the-scene questioning at TCF); U.S. v. Menzer, 29 F.3d 1223, 1231-32 (7th Cir. 1994). One commentator noted,

 

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On a superficial review, all incarceration might seem to constitute custody since inmates cannot, of course, leave the facility in which they are incarcerated. But custody in layperson’s terms is not necessarily custody for Miranda purposes. Miranda’s definition of custody reflects a concern more with the coercive forces that may affect interactions between a suspect and an interrogating official, and less with the fact that a person’s ability to select his activities and routine is greatly limited as an inmate. Thus, many courts have convincingly made a distinction between custody for Miranda purposes and general prison population confinement.

 

Laurie Magid, Questioning the Question-Proof Inmate: Defining Miranda Custody for Incarcerated Suspects, 58 OHIO ST. L.J. 883, 933 (1997).

 

The two conversations at issue were between Uli and a junior corrections officer. One conversation occurred in the lunch room. Neither conversation was conducted in any sort of interrogation room. Uli was not restrained in any additional manner. Both conversations were brief. Uli’s answers to both questions from Amituana`i went well beyond the scope of the questions. Under these facts, we do not believe that Uli was “in custody” for Miranda purposes.

 

Although we could end our inquiry here, we also do not believe Uli was interrogated by Amituana`i. In Rhode Island v. Innis, 446 U.S. 297 (1980), the United States Supreme Court specifically addressed the meaning of “interrogation” in the Miranda context. The Court noted that,

 

the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.

 

Id. at 308 (footnotes omitted). Amituana`i testified that he did not intend to conduct an investigation. His purpose was to engage in casual conversation and to satisfy his own curiosity. Uli’s answers to both questions went well beyond the scope of Amituana`i’s innocuous inquiries.

 

Uli’s “gratuitous, expletive, and candid reply to the query cannot be characterized as one induced by any form of proscribed intimidation. At best the question and the answer were the products of [n]ormal, human, 131

 

and spontaneous curiosity.” State v. Davis, 157 N.W.2d 907, 911 (Iowa 1968) (quoting State v. Persinger, 433 P.2d 867, 868 (Wash. 1967)). In this case, we do not believe the questions posed (or the manner in which they were posed) by Amituana`i created the sort of custodial interrogation contemplated by the Miranda court.5 See, e.g., People v. Taylor, 766 N.Y.S.2d 266, 268 (N.Y. App. NY 2003) (“Finding that [the detective’s] communications were not intended or anticipated to evoke inculpatory declarations, we reiterate the established principle that the police are not required to silence [a] chatterbox.”) (citations omitted, alteration in original); People v. Johnson, 30 P.3d 718, 724 (Colo. Ct. App. 2000) (“[C]onsidering the totality of the circumstances, the challenged statements were not the product of an interrogation because they were not elicited by words or actions that the officer should have known were reasonably likely to elicit an incriminating response. Further, the encounter was brief and was entirely devoid of the inherently coercive interrogation practices that Miranda and its progeny traditionally have sought to address.”) (citations omitted). As such, we will not suppress the TCF Statements under the Fifth Amendment.

 

[4] Since we find that the TCF Statements should not be suppressed under the Fifth Amendment, we now turn to the question of whether the statements should be suppressed under the Sixth Amendment. The United States Supreme Court recently said “that an accused is denied ‘the basic protections’ of the Sixth Amendment ‘when there [is] used against him at his trial evidence of his own incriminating words, which federal agents . . . deliberately elicited from him after he had been indicted and in the absence of his counsel.’” Fellers, 124 S.Ct. at 1022 (quoting Massiah v. United States, 377 U.S. 201, 206 (1964)) (alterations in original). Therefore, we must determine whether Amituana`i “deliberately elicited” the TCF Statements from Uli in violation of the Sixth Amendment.

 

In Bey v. Morton, 124 F.3d 524 (3rd Cir. 1997), the defendant moved to suppress under the Sixth Amendment incriminating statements he made to a corrections officer while incarcerated. Id. at 527. The corrections officer testified that he had several conversations with the defendant and that during some of these conversations the defendant relayed information about the crimes. Id. at 526. The trial judge found that the corrections officer “never set out to gain information from [the defendant] in the capacity of being a corrections officer; that they were talking, as he described it, man to man.” Id. 5 Although we do not find that Amituana`i interrogated Uli as contemplated

 

under Miranda and Innis, we do not encourage officers to engage in these

 

sorts of conversations with the inmates at TCF.

 

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In distinguishing Bey from Massiah and its progeny, the Bey court noted that “[t]he critical distinction . . . is that [the corrections officer], while a state actor, was not a state actor deliberately engaged in trying to secure information from the defendant for use in connection with the prosecution that was the subject matter of counsel’s representation.” Id. at 531. In making its determination the Bey court further noted,

 

[The corrections officer] was known by Bey to be an employee of the state, not a fellow inmate or confederate. While the circumstances were such that [the corrections officer] should have anticipated that Bey would converse freely with him, given [the corrections officer’s] status as a guard and the fact that he did little, if anything, to draw Bey out on the subject of his crimes, we question whether [the corrections officer] should have anticipated the confession which Bey volunteered. But even if we assume elicitation on [the corrections officer’s] part, the undisputed facts do not support the hypothesis that [the corrections officer] intended to elicit information for use against Bey. First, [the corrections officer] had no responsibility for eliciting or reporting information for use in the prosecution of Bey’s case and was not working with anyone who had such responsibility. Second, and most importantly, [the corrections officer] did not behave like someone who intended to secure incriminating statements from Bey.

 

Id. We believe Amituana`i’s conversations with Uli are similar to those between the corrections officer and the defendant in Bey. Amituana`i testified that he was not directed to question Uli, that he frequently has conversations with inmates at TCF, and that he asked Uli the question about Ma`a to satisfy his own curiosity. Amituana`i testified that he did not write down Uli’s statements from the first conversation immediately, and that he did not tell detectives about this conversation until after Uli’s first case had been dismissed.6 Moreover, Uli made statements Amituana`i could not have anticipated Uli would make in response to the two questions he asked. Under these specific circumstances, Amituana`i was not “deliberately eliciting” incriminating information from Uli to later use against him. Thus, we decline to suppress Uli’s statements under the Sixth Amendment.

 

II. Motion to Disclose Aggravating Factors

 

Uli seeks an order requiring the government to disclose any aggravating factors it may use at his trial in the event the government seeks the death 6 See American Samoa Gov’t. v. Uli, CR No. 71-02 (Trial Div. 2003).

 

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penalty. In response, the government stated at hearing that it does not intend to seek the death penalty. As such, Uli’s counsel agreed at the hearing that this motion is unnecessary.

 

III. Motion to Inspect Videotaped Recordings

 

Uli seeks to inspect videotaped recordings that are currently in the possession of the government. These recordings are of witness interviews as well as of the crime scene. The government counters that if it plans to enter the scene reconstruction video into evidence, it will give defense counsel a copy. The government also acknowledged its ongoing duty to turn over any Brady material to defense counsel. See Brady v. Maryland, 373 U.S. 83 (1963).

 

We are satisfied that the government is well aware of its duty to turn over Brady material to defense counsel. In addition, with respect to the videotape of the scene reconstruction, we assume, and expect, that the government will be true to its in-court representation and will give defense counsel a copy of the videotape if it intends to use it as evidence at trial.

 

[5] With respect to the videotape of potential witness statements, we reiterate that we expect the government to comply with its obligations under Brady. However, absent Brady material, we will not order the pre-trial production of this videotape. T.C.R.Cr.P. 16(a)(2) (“[T]his rule does not authorize the discovery . . . of statements made by government witnesses or prospective government witnesses.”). We do note that the government’s position at the hearing was unclear on whether or not the videotapes contain Brady material. Accordingly, we order the government to respond in writing to Uli’s request for Brady material from the videotapes. If, indeed, the government contends that the videotapes do not contain Brady material, Uli may renew his motion for an in camera review of the videotapes, and we will consider at that time whether an in camera review is appropriate. See, e.g., State v. Craft, 776 N.E.2d 546, 549-50 (Ohio Ct. App. 2002); State v. Marco, 577 So.2d 328, 329-330 (La. Ct. App. 1991). In the meantime, we remind the parties that “[a]s a matter of policy, this court encourages opposing counsel to cooperate with one another, whenever possible, to facilitate fair and orderly criminal proceedings.” American Samoa Gov’t v. Solaita, 27 A.S.R.2d 9, 15 (Trial Div. 1994).

 

IV. Motion to Extend Time

 

Uli requests an extension of time in order to file additional pre-trial motions. We grant this motion. 134

 

Order

 

The motion to suppress Uli’s CPS and TCF Statements is denied. Uli’s motion to inspect videotaped recordings is denied; however, the government should respond to Uli in writing and address whether the videotapes contain Brady material. Uli’s motion to extend time for the filing of pre-trial motions is granted.

 

It is so ordered.

 

American Samoa Gov’t. v. Uli_1


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,

 

v.

 

MARLON ULI, Defendant.

 

High Court of American Samoa

 

Trial Division

 

CR No. 41-03

 

February 25, 2004

 

[1] Depositions are not favored in criminal cases.

 

[2] A deposition may be allowed in a criminal case if the moving party demonstrates exceptional circumstances that justify its taking.

 

1 Because we find that Tavale was not in custody at the time he made the statements to police, we need not explore other reasons why Miranda warnings may not have been required in this case. However, we do note that Miranda warnings “[are] not intended to hamper the traditional function of police officers in investigating crime.” Miranda, 384 U.S. at 477-78.

 

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[3] Exceptional circumstances exist within the meaning of T.C.R.Cr.P. 15(a) when the prospective deponent is unavailable for trial and the absence of his or her testimony would result in an injustice.

 

[4] The court need not authorize depositions that would be clearly inadmissible at trial.

 

[5] T.C.R.Cr.P. 15(b) allows a criminal defendant to be present during a deposition, even when he is in custody.

 

[6] When, in a criminal case, a deposition is taken in a foreign nation and the defendant is unable able to attend due to his custodial status, other accommodations can be made to satisfy the requirements of the Confrontation Clause.

 

[7] Where the government was willing to provide a criminal defendant videotape of a deposition taken in his absence, but refused to provide him telephone access to his attorney during the taking of the deposition, the court would not allow the deposition to be taken.

 

[8] Where a proposed deposition in a criminal case was to be taken in a foreign country, the court required information regarding the manner in which depositions were conducted in the foreign country, assurance that the deposition would comply with the laws of the host nation, and knowledge that such laws were not repugnant to the laws of American Samoa, before it would allow the deposition to take place.

 

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

 

Counsel: For Plaintiff, Harvey L. Kincaid, Assistant Attorney General

 

For Defendant, Andrew T. Stave, Assistant Public Defender

 

ORDER DENYING MOTION TO DEPOSE

 

On February 6, 2004, the American Samoa Government moved for an order allowing the deposition of Tagata Uli, a government witness, to be taken in Savai`i, Samoa pursuant to T.C.R.Cr.P. 15(a). All counsel and Defendant Marlon Uli (“Uli”) were present at the February 13, 2004 hearing on this matter. The motion was continued until Friday, February 20, 2004, at which time counsel for the government was to propose how the deposition would comply with T.C.R.Cr.P. 15(b) and was to present additional logistical information regarding the deposition to the Court, which would allow us to make an informed decision regarding whether an order allowing the deposition would be futile. All counsel and Defendant were present at the February 20, 2004 hearing. For the reasons stated below, we deny the government’s motion to depose 123

 

Tagata Uli.

 

[1-3] We note at the outset that “depositions are not favored in criminal cases.” See 2 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 242 (West 2000). We also note that “because of the absence of procedural protections . . . foreign depositions are suspect and, consequently, not favored.” U.S. v. Drogoul, 1 F.3d 1546, 1551 (11th Cir. 1993). However, according to T.C.R.Cr.P. 15(a), a deposition may be allowed in a criminal case if the moving party demonstrates “exceptional circumstances” that justify its taking. T.C.R.Cr.P. 15(a); Drogoul, 1 F.3d at 1552.

 

[O]rdinarily, exceptional circumstances exist within the meaning of Rule 15(a) when the prospective deponent is unavailable for trial and the absence of his or her testimony would result in an injustice. The principal consideration guiding whether the absence of a particular witness’s testimony would produce injustice is the materiality of that testimony to the case.

 

Drogoul, 1 F.3d at 1552. The government has met these factors by sufficiently demonstrating that Tagata Uli’s testimony is material and that he will probably be unavailable at trial.

 

[4] However, while we understand that at this time the government’s motion is concerned with preserving Tagata Uli’s testimony and not necessarily admitting it at trial, as we indicated in our February 13, 2004 Order continuing the motion, “[t]he court need not, at the cost of time and money, engage in an act of futility by authorizing depositions that clearly will be inadmissible at trial.” See Drogoul, 1 F.3d at 1555. Accordingly, we directed the government to provide us with more information about the logistics of the deposition and how it purports to comply with T.C.R.Cr.P. 15(b). Because the government has provided us with little or no information regarding how the deposition is to be conducted in Samoa, we are not inclined to order Tagata Uli’s deposition until we receive further information from the government.

 

[5-7] T.C.R.Cr.P. 15(b) allows the criminal defendant to be present during the deposition, even when he is in custody. However, when the deposition is taken in a foreign nation and the defendant is not able to attend the deposition because he is in custody, other accommodations are made in an attempt to satisfy the requirements of the Confrontation Clause. See REV. CONST. OF AM. SAMOA ART. 1, § 6; 2 FEDERAL PRACTICE AND PROCEDURE § 244; U.S. v. Korolkov, 870 F. Supp. 60, 65 (S.D.N.Y. 1994). In this regard, Uli requested that the deposition be videotaped. The government agreed to this request. Uli also requested access to his attorney via a telephone line during the deposition. The

 

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government was unwilling to cooperate with this request, claiming it was unnecessary. We fail to comprehend the government’s unwillingness to make accommodations for Uli that would provide some minimum safeguards of his constitutional rights. The government does not claim that the laws of Samoa preclude these safeguards. If the government is able to videotape the deposition, it also should be able to set up live monitoring and a separate phone line on which Uli can access his attorney during the deposition. See U.S. v. Gifford, 892 F.2d 263, 264-65 (3d Cir. 1989) (deposition did not violate defendant’s due process when it was videotaped, defendant was able to listen through a phone line, and defendant was able to confer with his attorney through another private phone line); Korolkov, 870 F. Supp. at 65 (allowing deposition in which government proposed to videotape deposition and allow defendant to monitor by telephone). It is our concern that unless the government is willing to make some allowances to protect Uli’s rights, ordering this deposition will be an exercise in futility.

 

[8] Furthermore, the government has not provided us with any information about how depositions are conducted in Samoa. We need some assurance that the deposition would comply with the laws of Samoa and that the laws of Samoa providing for depositions are not repugnant to our own.

 

Order

 

The government’s motion to depose Tagata Uli is at this time denied. We are prepared to reconsider this order provided the government agrees to furnish Marlon Uli with access to his attorney via a private telephone line during the deposition and also agrees to allow Marlon Uli to monitor the deposition via telephone. In addition, we need some information from the government describing Samoa’s procedures for taking depositions, and that such procedures are not inconsistent with our notions of due process.

 

It is so ordered.

 

American Samoa Gov’t. v. Majhor_2


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,

 

v.

 

RICHARD PATRICK MAJHOR, Defendant.

 

High Court of American Samoa

 

Trial Division

 

CR No. 10-03

 

CR No. 21-03

 

June 16, 2004

 

[1] The Sixth Amendment guarantees effective assistance of counsel.

 

[2] To demonstrate ineffective counsel, a criminal defendant must show that his counsel’s performance was deficient, and that such deficiency caused him prejudice.

 

[3] The Court strongly presumes that a criminal defendant’s counsel’s conduct falls within the wide range of reasonable professional assistance.

 

[4] American Bar Association guidelines are accepted standards for assessing the reasonableness of an attorney’s performance.

 

[5] In assessing the reasonableness of a defense attorney’s performance, the Court may deviate from the American Bar Association guidelines when it determines that the deviation will not cause a criminal defendant constitutional harm.

 

[6] Where a local assistant public defender, possessing no training or experience in death penalty cases, was appointed to represent a criminal defendant in a capital case, such representation was nonetheless appropriate, as the local attorney was not serving as the sole defense attorney, nor lead counsel, but acting as a member of the defense team together with experienced, off-island attorneys well versed in the defense of capital cases.

 

[7] The Sixth Amendment guarantees a defendant adequate and fair representation, not perfect representation.

 

[8] When considering motions to withdraw, the Court reviews the facts of the particular case to determine if a Sixth Amendment violation is present.

 

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[9] Representation of co-defendants by different attorneys in the same public defender’s office does not violate the Sixth Amendment per se.

 

[10] Attorneys practicing in American Samoa are subject to the American Bar Association Model Rules of Professional Conduct.

 

[11] A violation of the Model Rules of Professional Conduct can indicate ineffective assistance of counsel.

 

[12] A lawyer shall not represent a client if the representation of that client will be directly adverse to another client.

 

[13] Rule 1.10 of the Model Rules of Professional Conduct provides that while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so.

 

[14] A conflict of interest must be actual in order show an ethical violation or ineffective assistance; a possible or potential conflict of interest is insufficient.

 

[15] Public defenders are not associated within the meaning of Rule 1.10 of the Model Rules of Professional Conduct where the public defender’s office sufficiently insulates attorneys representing co-defendants.

 

[16] Attorneys at a public defender’s office can be insulated from each through early screening of cases, structural and procedural separation, assignments to completely separate units in the same office, and other innovations in the handling of cases involving co-defendants.

 

[17] Rule 1.10 of the Model Rules of Professional Conduct, which imputes conflicts of interest to all members associated in a firm, promotes loyalty to clients by: (1) preventing associated lawyers from sharing client information; and (2) cultivating a positive public perception of legal representation.

 

[18] Where a criminal defendant asserted a conflict of interest because an investigator and a secretary at the public defender’s office had worked on his and a co-defendant’s case, but failed to show his lawyer’s performance or that of the investigator or secretary had been affected, the Court did not find a necessary conflict and refused to allow the public defender attorney to withdraw.

 

[19] Where a criminal defendant asserted a speculative claim that a public defender’s candidacy for Governor prejudiced his defense, but failed to present any evidence substantiating such a claim, the Court refused to find a conflict of interest.

 

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

 

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

 

Assistant Attorney General, and Harvey Kincaid, Assistant

 

Attorney General

 

For Defendant, Andrew T. Stave, Assistant Public Defender

 

ORDER DENYING MOTION TO WITHDRAW

 

On February 5, 2004, Defendant Richard Patrick Majhor (“Majhor”) filed a motion for the withdrawal of his counsel, Assistant Public Defender Andrew T. Stave (“Stave”). We held a hearing on the motion on March 2, 2004. Majhor renewed the motion to withdraw on May 10, 2004. In support of the renewed motion, Majhor filed an additional in camera and ex parte supplemental motion to withdraw. We held another hearing on the motion on May 12, 2003.

 

Majhor’s arguments for withdrawal have two main thrusts: that Stave lacks the necessary competence to handle Majhor’s capital case; and that Stave’s conflicts of interest prevent him from representing Majhor. For the reasons stated below, we deny the motion to withdraw without prejudice. A supplemental opinion, released ex parte, will address a related conflict of interest issue concerning privileged defense information.

 

Background

 

On March 20, 2003, Plaintiff American Samoa Government (“ASG”) filed a criminal complaint against Majhor and co-defendants Victor “Vic” Sepulona (“Sepulona”) and Talofa Seumanu (“Seumanu”) for murder in the first degree and related crimes. We appointed attorneys of the Public Defender’s office to represent the accused. Public Defender Tautai Aviata Fa`alevao (“Fa`alevao”) assumed the responsibilities for Seumanu’s defense. Former Assistant Public Defender Sharron I. Rancourt (“Rancourt”) took charge of Sepulona’s defense. Majhor’s co-defendants have now pled guilty and agreed to testify against Majhor. Former Assistant Public Defender Bentley C. Adams (“Adams”) initially represented Majhor. On March 21, 2003, we allowed Adams to withdraw. We appointed Arthur Ripley, Jr. (“Ripley”) to defend Majhor. Subsequently, Adams left the Public Defender’s office. Rancourt also left the Public Defender’s office at some point. She continues to represent Sepulona. On June 6, 2003, ASG filed another criminal complaint against Majhor for possession of a controlled substance with intent to distribute. Ripley withdrew from Majhor’s defense with our approval on October 31, 2003, which was followed by more attorney changes. We appointed Marie Lafaele as Majhor’s attorney but, due to

 

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her criminal defense experience, replaced her with Assistant Public Defender Sachin Mehta (“Mehta”) on November 13, 2003. Subsequently, Mehta left the Public Defender’s office. Soon after joining the Public Defender’s office, specifically December 18, 2003, Andrew T. Stave (“Stave”) assumed responsibility for Majhor’s defense.

 

In protecting Majhor’s interests, Stave has performed “enthusiastically and conscientiously.” (James S. Thompson Dep. at 10.) Stave has filed a number of motions, including motions for change of venue, for the preservation of evidence, for visitation, and for funding for experts. On May 21, 2004, we granted Majhor’s motion to fund capital defense experts and authorized him to have such experts, including investigators, to prepare his defense. Currently, we are awaiting a pro hac vice motion, which will enable us to appoint a capital defense law firm with experienced attorneys to manage Majhor’s defense. “For over two months,” Stave has “been in constant contact” with attorneys of a potential pro hac vice law firm. (Id. at 27.) Once pro hac vice counsel is appointed, Stave will not serve as lead counsel. Experienced in death penalty cases, new lead counsel will direct defense strategy and manage local co-counsel, Stave, as appropriate to prepare Majhor’s defense under the new lead counsel’s direction.

 

Discussion

 

I. Competence

 

Majhor argues that Stave is incompetent to act as counsel in a capital case. We find that Stave is competent to act as local co-counsel for a pro hac vice capital defense team.

 

A. Sixth Amendment Effectiveness of Counsel

 

[1-3] We cannot refuse to appoint counsel to assist in Majhor’s defense. Gideon v. Wainwright, 372 U.S. 335, 344 (1963); Tamafili v. Moaali`itele, 6 A.S.R.2d 15, 19 (Trial Div. 1987). The Sixth Amendment guarantees effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685 (1984); Tamafili, 6 A.S.R.2d at 20. Two components constitute a showing of ineffective counsel: counsel’s performance must be deficient; and the deficiency must prejudice the defendant. Strickland, 466 U.S. at 687. We strongly presume “that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. A counsel’s performance is deficient when it falls “below an objective standard of reasonableness.” Id. at 688.

 

Applying the Strickland standards, the court in Riley v. Taylor evaluated the effectiveness of solo lead counsel in a death penalty case who had never handled a murder or capital case. 277 F.3d 261, 271 (3d Cir. 179

 

2001). The appellate court affirmed the trial court’s refusal to appoint co-counsel or an investigator to assist. Id. at 271, 306. The Riley court reasoned that the defendant failed to show that counsel provided representation below a level of quality defined by the Strickland standards. Id. at 306. Here, we are considering the likely effectiveness of assistance of counsel prior to trial, rather than evaluating the quality of past representation as in Riley. However, Riley shows that the assistance of an inexperienced solo attorney is not necessarily ineffective in a death penalty case.

 

Majhor contends that Stave is ineffective as counsel because he believes Stave cannot explain capital case defense strategy, develop capital defense strategy, or plan mitigation. As a member of the bar with some criminal experience, Stave is capable of representing Majhor. See Riley, 277 F.3d at 306. We have no indication that Stave’s representation of Majhor has been flawed. Rather, Stave has actively protected Majhor’s interests and effectively marshaled resources for Majhor’s defense. Furthermore, the defense team that we are preparing to appoint will be more likely to provide effective assistance to Majhor with Stave as a member. He is competent to complete the duties of local co-counsel. Stave can be “responsible to the client and responsible for the conduct of the proceeding” and to advise the client according to his legal judgment. MODEL RULE ON PRO HAC VICE ADMISSION (Recommended draft Aug. 2002), available at http://www.abanet.org/cpr/mjp/201f.pdf. In particular, he can ensure that deadlines are met and that Majhor is kept informed about the case. The performance of basic lawyerly duties does not require death penalty experience. Any complex issues that Stave finds himself unable to explain to Majhor can be explained by more experienced members of Majhor’s defense team. The lead pro hac vice counsel can establish Majhor’s defense strategy and direct mitigation efforts. In sum, we deny the motion to withdraw because Majhor is more likely to receive effective assistance of counsel with Stave on the defense team.

 

B. American Bar Association Guidelines

 

[4-5] We find that Majhor incorrectly relies on American Bar Association (“ABA”) guidelines to show that Stave’s assistance is deficient. Given Supreme Court acceptance, ABA guidelines are generally convincing standards for assessing the reasonableness of an attorney’s performance. Wiggins v. Smith, 123 S. Ct. 2527, 2536 (2003). However, they are only guides. See Tamafili, 6 A.S.R.2d at 20. We may deviate from ABA guidelines when we determine that the deviation will not cause the defendant constitutional harm.

 

[6] The ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003) (hereinafter “ABA Guidelines”)

 

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state that “every” attorney representing a capital defendant should have “a license or permission to practice in the jurisdiction,” a commitment to defending capital cases, and death penalty training. ABA Guideline 5.1. Majhor argues that the language of the guideline referring to every defense team attorney prohibits Stave from participating in Majhor’s defense. Although Stave does not have the qualifications listed in ABA Guideline 5.1, we disagree. An attorney with little death penalty experience does not detract from an otherwise experienced capital defense team. As here, when experienced lead counsel and his law firm will participate on the defense team, there is no sense in requiring that all skills and experience required for the defense reside in every attorney of the defense team. More experienced attorneys can supervise and train Stave. Also, we have no choice but to include an attorney lacking experience on Majhor’s defense team for the purpose of having local co-counsel for the pro hac vice attorneys. Majhor’s pro hac vice defense team requires a member of the American Samoa Bar Association as local co-counsel. H.C.R. 145; ABA Guideline 5.1 (requiring death penalty qualified counsel to have permission to practice in the relevant jurisdiction). Stave can serve as local co-counsel, for we know of no other potential co-counsel admitted to the American Samoa Bar that meets the qualifications of ABA Guideline 5.1. The advantages of local co-counsel on Majhor’s defense team outweigh any problems associated with Stave’s inexperience. Moreover, as Majhor will have a defense team that otherwise meets the standards of the ABA Guidelines, his application of ABA Guideline 5.1 is overly broad and unreasonable. The experience required by the guidelines can only be gained through experience on death penalty cases. If every attorney on a defense team needs to show commitment to defending death penalty cases and death penalty training in full satisfaction of the ABA Guidelines, it would impose an unnecessary restriction on an attorney’s ability to gain death penalty experience. This is a particular concern for the bar of American Samoa, which lacks death penalty experience.

 

Before appointing members of a defense team, the views of lead counsel “should ordinarily” be solicited. ABA Guideline 10.4. Majhor argues that Stave is ineffective because Stave was not selected by qualified lead counsel according to ABA Guideline 10.4. We disagree because ABA Guideline 10.4 has nothing to do with whether Majhor actually receives effective counsel. In any event, the language of the guideline is not mandatory.

 

Majhor argues that Stave is not qualified to select lead counsel for the capital defense. This does not provide a reason for Stave to withdraw for ineffectiveness; we select and appoint counsel for Majhor.

 

Counsel for the defense should “conduct a full examination of the defense provided to the client at all prior phases of the case” and ensure 181

 

“that the official record of the proceedings is complete.” ABA Guideline 10.7. Majhor argues that an investigation by the pro hac vice attorney into the effectiveness of Majhor’s prior counsel will create morale problems for Majhor’s defense team and the Public Defender’s office because Stave and Majhor’s other prior attorneys will undergo an investigation of their effectiveness. Majhor believes that an investigation of prior counsel cannot be properly conducted with Stave on the defense team. This argument provides no support for Stave’s withdrawal. None of Majhor’s prior attorneys, except Stave, remain with the Public Defender’s office. Concerning Stave, as he is still on Majhor’s defense team, we do not consider him to be prior counsel under the scope of the guideline. In any event, the investigation only presents a potential conflict between Stave and other future members of Majhor’s defense. We have inquired into Stave’s effectiveness here, and found him adequate in light of the evidence before us. Furthermore, the assistance of attorneys on Majhor’s defense team will be scrutinized as the case progresses.

 

We find that Stave is competent to act as local co-counsel for Majhor’s pro hac vice capital defense team. In this role, Stave is likely to provide adequate assistance of counsel for Majhor.

 

II. Conflict of Interest

 

Majhor argues that Stave, an Assistant Public Defender, cannot represent Majhor because of Stave’s conflicts of interest. We ascertain no conflict of interest that currently prohibits Stave from acting as local co-counsel for Majhor’s defense team.

 

[7-9] The Sixth Amendment guarantees a defendant “adequate and fair representation,” not “perfect representation.” American Samoa Gov’t v. Amani, 2 A.S.R.3d 71 (Trial Div. 1998) (quoting Strickland, 466 U.S. at 690). When considering motions to withdraw, we review “the ‘facts of the particular case’ to determine if a Sixth Amendment violation is present and . . . acts must be assessed according to an objective standard of reasonableness.” Id. (citations omitted). Representation of co-defendants by different attorneys in the same public defender’s office does not violate the Sixth Amendment per se. Id. at 75; see, e.g., Graves v. State, 619 A.2d 123, 127 (Md. Ct. Spec. App. 1993).

 

[10-14] Attorneys practicing in American Samoa are subject to the ABA Model Rules of Professional Conduct. H.C.R. 104. As an objective standard, a model rule violation can indicate ineffective assistance of counsel. The model rules provide that “a lawyer shall not represent a client if the representation of that client will be directly adverse to another client.” MODEL RULES OF PROF’L CONDUCT R. 1.7 (2002). The lawyer may continue representation if he believes continued

 

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representation will not harm the other client or if “each client consents after consultation.” Id. The conflict of interest must be actual; a possible or potential conflict of interest is not sufficient to show an ethical violation or ineffective assistance. See Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). The rules also provide that “while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so.” MODEL RULES OF PROF’L CONDUCT R. 1.10 (2002). The comment to Rule 1.10 states that “whether two or more lawyers constitute a firm within this definition can depend on the specific facts.” Id. at R. 1.10 cmt. [1]; see id. at R. 1.0 cmt. [2]-[4]; State v. Webb, 680 A.2d 147, 166.

 

A. Office Conflict—Imputed

 

Majhor contends that under Rule 1.10 a conflict of interest belonging to Fa`alevao is imputed to Stave, because Fa`alevao and Stave are associated in the Public Defender’s office. Fa`alevao cannot represent Majhor under Rule 1.7 because Fa`alevao represents Seumanu, who agreed to testify against Majhor. In addition, Majhor contends that Stave is further tainted as a member of the Public Defender’s office through imputation under Rule 1.10 because of former Assistant Public Defenders Adams and Rancourt. In sum, Majhor argues that privileged knowledge about Majhor’s co-defendants, now witnesses, is imputed to every attorney in the Public Defender’s office, conflicting any of them from representing Majhor.

 

Disagreeing with Majhor, we find that the imputation rule is inapplicable to this case because the attorneys in this case are not associated and because the policy behind the imputation under Rule 1.10 does not require the rule’s application. Numerous courts have made exceptions to imputation rules. See, e.g., Nemours Foundation v. Gilbane, 632 F.Supp. 418, 430 (D. Del. 1986) (creating exception to Deleware’s imputation rule for transitory attorneys). Similarly, some courts have declined to impute knowledge to attorneys who represent co-defendants while in the same Public Defender’s office when circumstances of the case permit. United States v. Reynoso, 6 F.Supp.2d 269, 271 (S.D.N.Y. 1998) (applying DR 5-105(D), the ABA Model Code provision that corresponds to Rule 1.10); State v. Webb, 680 A.2d 147, 166 (Conn. Sup. Ct. 1996); State v. Pitt, 884 P.2d 1150, 1156 (Hawaii App. Ct. 1994) (applying Hawaii Rules of Professional Conduct, Rule 1.10); Graves v. State, 619 A.2d 123, 127, 133 (Md. Ct. Spec. App. 1993). Following the lead of these courts, we read Rule 1.10 expansively as applied to the Public Defender’s office in this case, effectively an exception, because “although rigid application of the law firm disqualification rule might afford an easy solution . . . a rule this broad would result in many unnecessary withdrawals, limit mobility of the legal profession, and restrict the state in the assignment of counsel where no [harm] has in fact 183

 

occurred.” Webb, 680 A.2d at 166 (citations omitted, alteration in original).

 

[15-16] We adopt the rule of the Graves court to determine when public defenders are associated for the purposes of imputation. The Graves court made a thorough survey of case law concerning the imputation of knowledge among public defenders of the same office before concluding that courts should only decline to impute knowledge within public defenders’ offices where there was low risk of attorneys sharing privileged client information. Graves, 619 A.2d at 128-132. The Graves court established a rule that public defender attorneys are not associated where the public defender’s office sufficiently insulates attorneys representing co-defendants. Id. at 133; see Pitt, 884 P.2d at 1156. The Graves court suggests that attorneys can be insulated from each other by way of “early screening of cases, structural and procedural separation, assignments to completely separate units in the same office, and other innovations in the handling of cases involving co-defendants.” Graves, 619 A.2d at 133.

 

We find that the public defender attorneys in this case are not associated because they are sufficiently insulated from each other. The American Samoa Public Defender’s office is on notice to operate as discrete units in co-defendant situations. Amani, 2 A.S.R.3d at 77-78. They screen and identify conflicts of interest early to implement “ethical wall” procedures. Furthermore, the office regularly deals with conflicts of interest as a result of the small American Samoa legal community.

 

Structural barriers will prevent the transfer of client information between most of the attorneys representing Majhor’s co-defendants. Majhor’s defense team will be physically separated from Adams and Rancourt, for these two attorneys are no longer with the Public Defender’s office. Rancourt left the office before Stave joined it, so there was no risk of information sharing between these two attorneys. A natural barrier exists between Fa`alevao and the off-island attorneys outside the Public Defender’s office.

 

Procedural barriers insulate Fa`alevao and Stave from each other. There is no need for Stave to meet or discuss Majhor’s defense with Fa`alevao. See Amani, 2 A.S.R.3d at 78. The pro hac vice counsel, assisted by Stave, can negotiate plea agreements. See id. at 79 (discussing procedure for how the Public Defender’s office can avoid conflicts of interest during plea negotiations). Stave can consult the pro hac vice attorney for advice on the case. Stave and Fa`alevao, as with the other attorneys involved here, have ethical obligations to protect privileged client information from disclosure. MODEL RULES OF PROF’L CONDUCT R. 1.6 (2002). In addition to these procedures, the current circumstances of the case aid Fa`alevao and Stave in protecting against the sharing of 184

 

client information. Fa`alevao’s client pled to the charges of this case before Stave arrived to American Samoa and assumed responsibility for Majhor’s defense. With minimal ongoing activity in Fa`alevao’s case, there is less risk of accidental disclosure. Fa`alevao can safely secure his client’s files. Also, the inactivity minimizes the likelihood that Stave will inadvertently hear information about Fa`alevao’s case.

 

As a result of how the attorneys involved in this case are insulated, there is little likelihood that Majhor or other defendants will actually be prejudiced by information sharing between attorneys. We expect that the new defense team will assist Stave to adhere to his duties and to direct the use of Stave away from situations where possible conflict may be a problem, such as in cross-examination preparation. The Public Defender’s office and Majhor’s defense team should implement additional measures to insulate other public defender attorneys as are reasonable.

 

[17] We find that effectively applying an exception for the Public Defender’s office under these circumstances does not frustrate the policy behind the imputation rule. Imputation under Rule 1.10 gives “effect to the principle of loyalty to the client.” MODEL RULES OF PROF’L CONDUCT R. 1.10 cmt. [2]. The rule promotes loyalty by: (1) preventing associated lawyers from sharing client information; and (2) cultivating a positive public perception of legal representation. Reynoso, 6 F.Supp.2d at 271. We are concerned about public perception because defendants will distrust attorneys if they perceive that sensitive information is not kept confidential. First, as discussed, we find that the insulation between public defender attorneys will prevent the sharing of client information. Second, we find that denying Stave’s withdrawal will not undermine public perception of lawyers’ conduct for numerous reasons. The segregation of the attorneys involved in this case is sufficient to assure the public of client information confidentiality. In cases unlike the one at hand, where attorneys are associated, we will impute conflicts of interest to protect client knowledge. Public defenders “do not have a financial interest in matters handled by their colleagues which might give them a motive to share confidential information.” Id. Clients cannot manipulate the legal system by using public defender attorneys for the privileged information that they may have. Id. Furthermore, the public perception of another change in Majhor’s local representation may diminish the public’s perception of attorneys in the American Samoa bar. The many changes may appear to the public as if Majhor is not receiving loyal attorney assistance. In this case, granting Stave’s withdrawal has the appearance of being a disservice to Majhor. Majhor will lose an attorney who has secured the court’s authorization for expert funds from ASG, is well acquainted with the pro hac vice defense team, and has generally developed a good working relationship with Majhor.

 

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B. Office Conflict—Actual

 

Majhor contends that the “ethical wall” insulating the attorneys at the Public Defender’s office has been pierced. We disagree because we have no evidence that client information has actually been exchanged among any of the defense attorneys. Majhor only identifies potential or illusory conflicts of interest. His inability to provide better evidence of an actual conflict gives us further reason to believe that the attorneys for the co-defendants, including the public defender attorneys, were and are adequately insulated from each other.

 

Majhor asserts that the budgetary requirements of his defense conflict with the budgetary concerns of the Public Defender’s office. Majhor believes that the resources of the Public Defender’s office are insufficient to provide for his defense. However, Majhor has shown no instance where a budgetary decision prejudiced his defense. We have authorized funds necessary for Majhor’s defense. By further motion, Majhor can continue to request funding where required to prepare an adequate defense. American Samoa Gov’t v. Siitu, CR No. 06-03, slip op. at 1-3 (Trial Div. July 9, 2003).

 

[18] Majhor asserts that the investigator and secretary of the Public Defender’s office conflict Stave from representing Majhor. Majhor contends that Stave uses the same investigator and secretary as involved with the other defendants. Majhor has not shown that he has been prejudiced by “‘an actual conflict of interest that affected his lawyer’s performance’” or the performance of the investigator or secretary. Burger v. Kemp, 483 U.S. 776, 783 (1987) (quoting Strickland, 466 U.S. at 692 (citations omitted)). This is an unnecessary conflict. As Majhor can use another investigator and can seek funds for investigation, Majhor does not have to use the services of a conflicted investigator. As for the secretary, there is no conflict with a secretary performing basic clerical services for Stave, like answering the phone, because “members of the support staff are expected to maintain professionalism, discretion, and confidentiality.” Amani, 2 A.S.R.3d at 80. Where Majhor’s defense team or Fa`alevao doubt the continued confidentiality of particular pieces of privileged information, the attorneys can take steps to withhold information from the secretary. For example, Stave can communicate directly with the Governor’s office regarding Majhor’s defense funding or utilize the staff of the pro hac vice attorney for substantive secretarial support where necessary.

 

[19] Majhor asserts that Fa`alevao’s candidacy for Governor prejudices Majhor’s defense. Majhor believes that Fa`alevao will interfere with Majhor’s defense so as not to appear weak on the death penalty before the voters. This type of argument is “speculative and nothing more than a conclusion.” State v. Lovelace, 140 Idaho 53, 61, 90 P.3d 278, 286 186

 

(Idaho Sup. Ct. 2003) (rejecting argument that a defense attorney elected to a prosecutorial position would not want to appear “soft on crime” and was conflicted). Majhor presents no evidence that Fa`alevao’s campaign has actually involved the death penalty or that he has acted against Majhor’s interests. In addition, Fa`alevao is insulated from Majhor’s case.

 

Majhor argues that Stave has a conflict of interest because Assistant Public Defender Monica Abello is leaving the Public Defender’s office to join the Attorney General’s office.1 This argument is meritless, because any actual conflict would impact Majhor even if Stave withdrew.

 

Majhor contends that Stave’s workload is too heavy to accommodate Majhor’s capital case. With Stave’s anticipated position as local co-counsel on a capital defense team, Stave can arrange his workload so as not to prejudice Major’s defense.

 

III. Constitutionality of Stave’s Representation

 

After considering Majhor’s conflict of interest arguments with “special care and deliberation,” we find that Stave has no conflict of interest that will deny Majhor, or his co-defendants, effective assistance of counsel. Thompson v. Oklahoma, 487 U.S. 815, 856 (1988). Stave’s representation of Majhor has not been deficient because he has no imputed conflict of interest or actual conflict of interest. The attorneys involved are separated to sufficiently minimize the risk that information will be shared. The allegedly conflicted investigator does not need to be used by the defense and the use of the secretary can be controlled to avoid conflict. There is no conflict because of the Public Defender’s budgetary issues, Fa`alevao’s candidacy, or Stave’s workload.

 

Stave’s representation has not prejudiced Majhor. Majhor failed to present any evidence showing that any one involved, whether attorney, investigator, or secretary, has improperly shared client information or acted against his best interests. Moreover, with the critical stage of Majhor’s defense team formation, allowing Stave to withdraw could interfere or delay the appointment of more experienced counsel for Majhor that will ensure him an adequate defense.

 

Majhor’s reliance on Burger v. Kemp was unhelpful to demonstrate 1 We release the portion of our opinion concerning Abello’s move to the

 

attorney general’s office to both parties because it contains no privileged

 

information. The Attorney General is fully aware that his office is hiring

 

Abello and that she may bring conflicts of interest with her from the

 

Public Defender’s office.

 

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Stave’s alleged conflicts of interest. 483 U.S. 776 (1987). The Burger Court found that the attorney in question had no conflict of interest because the participation of the attorney did not “constitute an active representation of competing interests.” Id. at 783. Here, we find that Stave does not represent competing interests.

 

IV. Drug Case

 

For many of the same reasons as in the homicide case, CR No. 10-03, we find no conflict preventing Stave from representing Majhor in the controlled substance case, CR No. 21-03.

 

V. Conclusion

 

We decline to allow Stave to withdraw at this critical time in the formation of the defense team. Stave can continue as counsel for Majhor until we have further evidence that privileged client information has been transferred between the counsel of the co-defendants, that the screening procedures are ineffective, or that there is any other actual conflict of interest.

 

Order

 

Defendant’s motion to withdraw is denied without prejudice.

 

It is so ordered.

 

American Samoa Gov’t. v. Majhor_1


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,

 

v.

 

RICHARD PATRICK MAJHOR, Defendant.

 

High Court of American Samoa

 

Trial Division

 

CR No. 10-03

 

CR No. 21-03

 

June 16, 2004

 

[1] Due process entitles a criminal defendant to a panel of impartial, indifferent jurors.

 

[2] Where a criminal defendant did not introduce any evidence of prejudicial radio coverage, television coverage, or pervasive general public sentiment against him, but only offered newspaper articles that refrained from making conclusions on his guilt or innocence, the defendant failed to meet his burden of showing an atmosphere of presumed prejudice.

 

[3] The Court orders funding for a defense expert when the defense requires the services of the expert to effectively present the defense and will be prejudiced without such expert assistance.

 

173

 

[4] Where defense attorneys had opportunity to voir dire potential jury members to prove actual jury prejudice, and to use media reports to prove presumed prejudice, the appointment of an expert for purposes of surveying the population for bias was not necessary.

 

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

 

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

 

Assistant Attorney General, and Harvey Kincaid, Assistant

 

Attorney General

 

For Defendant, Andrew T. Stave, Assistant Public Defender

 

ORDER DENYING MOTION FOR CHANGE

 

OF VENUE AND A SURVEY EXPERT

 

On Feburary 5, 2004, Defendant Richard Majhor (“Majhor”) moved for change of venue and for appointment of a survey expert. Along with a host of other motions, we heard argument for the two motions on March 4, 2004. For the reasons below, we deny both motions.

 

Discussion

 

[1] Due process entitles a defendant to “a panel of impartial, ‘indifferent’ jurors.” American Samoa Gov’t v. Wei Li Fang, 7 A.S.R.3d 104,106 (Trial Div. 2003) (citations omitted). An inquiry into actual jury bias is premature when jury voir dire has not yet been conducted. Id. at 107. To show jury bias at this stage, the defendant must meet the burden of showing an atmosphere of presumed prejudice. Id. Rarely shown, presumed prejudice “is reserved for exceptional cases where the influence of the news media negatively pervades the proceedings, either in the community or courtroom.” Id. (citations omitted). Stated another way, the defendants “carry a heavy burden of showing oversaturation of highly sensationalized news coverage.” Id.

 

[2] Applying an analysis similar to that used in Wei Li Fang, we find that Majhor has failed to meet his burden. Majhor fails to introduce any evidence of prejudiced radio, television coverage, or general public sentiment to show oversaturation. Refraining from making conclusions on Majhor’s guilt or innocence, the tendered newspaper articles make clear that Majhor has allegedly committed crimes, is charged with these crimes, and faces ongoing court proceedings.

 

By characterizing possibly inflammatory statements as beliefs and by primarily reporting facts, the most opinionated article lacks high sensationalism. It reports that “today commemorates the . . . possible murder of Wyatt Jr. [the victim] at the hands of seven defendants.” (Def.

 

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Supplemental Br. for Mot. for Change of Venue, Ex. A at 1.) The article also explains that residents are concerned about “the possibility of truth behind rumors” about what happened to the victim. (Id.) The article quotes statements of the victim’s family and describes their beliefs concerning the case. (Id. at 1, 15.) In addition, the article reports that several eyewitnesses gave accounts of the victim’s death to the victim’s family. (Id. at 15.) Overall, the article is not highly sensational news coverage.

 

The other tendered articles do not undermine Majhor’s right to an impartial jury. Many of the articles do not describe the substance of the case, but report on collateral issues, such as attorney changes or FBI involvement. (Def. Mot. for Change of Venue, Ex. A at 3, 9.) Two of the articles focus on other defendants and only mention Majhor in passing. (Id. at 2, 4.) One article fails to mention Majhor at all. (Id. at 7.) Also unsensational, some news reports discuss the Majhor case directly. One such article restricts itself to reporting on court proceedings. (Id. at 5.) Written prior to Majhor’s initial appearance, the first-in-time article accurately describes the Attorney General’s position on the case, the impact of the case on the victim’s family, and the court-imposed confidentiality order. (Id. at 1.) Finding that the news media is not negatively pervasive, we deny the motion to change venue.

 

[3-4] We also deny the defense request for an expert to conduct an independent survey to evaluate any opinions or bias in the jury pool of American Samoa. We order funding for a defense expert when the defense requires the services of the expert “to effectively present the defense and will be prejudiced without expert assistance.” American Samoa Gov’t v. Aigasalemamala, CR No. 39-99, slip op. at 3 (Trial Div. Mar. 2, 2000). A defense survey expert is unnecessary to effectively present the defense. With voir dire available to the defense to prove actual jury prejudice, the defense has an effective tool for discovering juror prejudice. State v. Weatherford, 416 N.W.2d 47, 52 (S.D. Sup. Ct. 1987). Furthermore, the defense has the opportunity to prove presumed prejudice with evidence of media reports available to the public, as in the change of venue motion considered here. State v. Powers, 537 P.2d 1369, 1374 (Idaho Sup. Ct. 1975).

 

Order

 

1. Majhor’s motion for change of venue is denied.

 

2. Majhor’s motion for an appointment of a survey expert is denied.

 

It is so ordered.

 

American Samoa Gov’t. v. Majhor


 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

RICHARD PATRICK MAJHOR, Defendant.

 

High Court of American Samoa

 

Trial Division

 

CR No. 10-03

 

May 21, 2004

 

[1] To ensure the right of effective assistance of counsel as required by Article 1, Section 6 of the Revised Constitution of American Samoa, the court grants requests for funds to hire experts made by indigent defendants when expert services are necessary to prepare an adequate defense. The circumstances of each case are evaluated to ensure that the defendant has a fair opportunity to present his defense.

 

[2] A Legal Representation Plan should provide for assembly of a defense team that will provide high quality representation. The defense team should consist of no fewer than two attorneys qualified in accordance with Guideline 5.1, an investigator, and a mitigation specialist. The defense team should contain at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments.

 

[3] Counsel on a death penalty defense team should have a “license or permission to practice in the jurisdiction,” a commitment to defending capital cases, and death penalty training.

 

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

 

149

 

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

 

Assistant Attorney General, and Harvey Kincaid, Assistant

 

Attorney General

 

For Defendant, Andrew T. Stave, Assistant Public Defender

 

ORDER GRANTING MOTION TO EMPLOY AN EXPERT, CAPITAL CASE DEFENSE COUNSEL, AND OTHER EXPERTS NECESSARY FOR EFFECTIVE ASSISTANCE OF COUNSEL; CONFIRMING THE GOVERNMENT’S OBLIGATION TO FUND THE COST; AND DENYING THE PRESENT MOTION TO CONTINUE JURY TRIAL

 

On February 5, 2004, Defendant Richard Majhor (“Majhor”) brought an ex parte and in camera motion for funds to employ an expert capital case defense attorney, a mitigation expert, and other necessary experts. We permitted Majhor to proceed ex parte and in camera because he intended to reveal privileged information in the motion. We held an ex parte hearing on the motion. Allowing Majhor time to seek off-island defense assistance and to develop a proposed budget, we waited until now to rule on the motion.

 

Requesting more preparation time for anticipated members of the defense team, Majhor brought a related motion to continue the trial by jury. On May 13, 2004, we conducted a hearing for the motion along with a motion to withdraw. Before closing the proceeding, we orally discussed how we intended to rule. We ordered Majhor to identify an experienced capital case attorney willing to join in Majhor’s defense and to submit a proposed budget for Majhor’s defense. We also put the Government on notice that it will be responsible for the capital case defense costs initially estimated at around $500,000.

 

This opinion and order articulates our rulings on the motion for funding and motion to continue the jury trial, and further explains our verbal pronouncements at the end of the May 13, 2004 hearing. We address the present defense counsel’s pending motion to withdraw in a separate opinion and order.

 

Relevant Procedural History

 

Charging Majhor with Murder in the First Degree along with other charges, the Government filed a criminal complaint in the District Court on March 2, 2003, DCCR No. 10-03, and following the bind over to this Court, an information in this Court on March 20, 2003, CR No. 10-03. The Government seeks the death penalty for the murder charge, filing a formal notice of its intention on February 4, 2004. On May 29, 2003, the Government filed another information in this Court, charging Majhor and his wife with methamphetamine possession, respectively CR No. 21-

 

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03 and CR No. 20-03. The controlled substance prosecution is proceeding separately and is presently scheduled for trial after completion of the trial of the homicide case.

 

After we permitted a number of attorneys to withdraw for cause, we appointed Assistant Public Defender Andrew T. Stave (“Stave”) as attorney in both cases against Majhor on December 18, 2003. Stave has access to the staff, including the investigators, and resources of the American Samoa Public Defender’s Office to defend Majhor.

 

Discussion

 

I. Death Penalty Qualified Defense Team

 

[1] To ensure the right of effective assistance of counsel as required by AMERICAN SAMOA REV. CONST. art. 1 § 6, we grant requests for funds to hire experts made by indigent defendants when expert services are necessary to prepare an adequate defense. American Samoa Gov’t v. Siitu, CR No. 06-03, slip op. at 1-3 (Trial Div. July 9, 2003). We evaluate the circumstances of each case to ensure “that the defendant has a fair opportunity to present his defense.” Id. (quoting Ake v. Oklahoma, 470 U.S. 68, 76 (1985)). In determining what is necessary, we look to American Bar Association (“ABA”) standards for guidance. See Strickland v. Washington, 466 U.S. 668, 688 (1984); Wiggins v. Smith, 123 S.Ct. 2527, 2536-37 (2003) (quoting Strickland and citing ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989)). As guides, ABA standards do not bind us. If we determine that a defendant will suffer no constitutional harm, we will not hesitate to disregard ABA standards.

 

However, without revealing privileged information, the circumstances of Majhor’s case convince us of the need for funding for an off-island attorney expert in capital cases, mitigation expert, investigator, and possibly other experts. Free from the conflicts, capital case inexperience, and other legitimate concerns that have plagued Majhor’s prior counsel, off-island representation will stabilize Majhor’s defense team. In addition, some investigation for the mitigation phase must be conducted off-island.

 

[2] The ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003) (hereinafter “ABA Death Penalty Case Guidelines”) also suggest that additional experts are essential to prepare an adequate defense. ABA Death Penalty Case Guideline 4.1 states:

 

The Legal Representation Plan should provide for assembly of a defense team that will provide high quality representation.

 

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1. The defense team should consist of no fewer than two attorneys qualified in accordance with Guideline 5.1, an investigator, and a mitigation specialist.

 

2. The defense team should contain at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments.

 

[3] According to ABA Death Penalty Case Guideline 5.1(B), counsel on a death penalty defense team should have a “license or permission to practice in the jurisdiction,” a commitment to defending capital cases, and death penalty training. Without holding that complete adherence to the ABA Death Penalty Case Guidelines is necessary for an adequate capital defense, we conclude that the composition of Majhor’s defense team should more closely match the defense team composition suggested by the ABA Death Penalty Case Guidelines.

 

As additional counsel is essential to Majhor’s adequate defense, we order Majhor to identify a qualified capital case defense attorney prepared to serve in his defense on or before May 27, 2004, and to submit the attorney’s cost proposal to include the hourly fee, initial fee payment requirement, and an estimated total defense budget.1 After we appoint additional counsel, Majhor can request funding for additional experts as necessary.

 

This opinion and order puts the Government on notice to prepare to pay for Majhor’s defense. We currently estimate that Majhor’s defense costs could run as high as $500,000, and possibly more. (See, e.g., Def. Mem. in Support of Mot. to Continue Jury Trial, Ex. A at 3.) As the case progresses, we will review defense expenditures and issue orders for the Government to provide funds as required.

 

II. Continuance of Jury Trial

 

We recognize that newly appointed counsel will require additional time to prepare the defense. However, at this time, we deny the motion to continue jury trial because, with the appointment of additional counsel, we anticipate a significant change in defense strategy and leadership. Rather than leave the date open or risk modifying the trial date repeatedly, we leave it for Majhor’s new defense team to request the time that they will need to prepare. Adequate time will be available after the appointment of new counsel for Majhor to make another motion to continue.

 

1 We verbally gave this order in significant part to Majhor at the May 13,

 

2004 hearing.

 

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Order

 

1. Majhor’s motion for funds to employ outside counsel expert in capital case defense, a mitigation expert, an investigator and other necessary experts is granted. We order Majhor to identify a qualified attorney prepared to serve in his defense on or before May 27, 2004, and to submit a proposal containing the attorney’s hourly fee, initial fee payment requirement, and an estimated total defense budget. This opinion and order places the Government on notice that it is responsible for funding Majhor’s defense, which may cost over $500,000.

 

2. Majhor’s motion to continue the jury trial is denied without prejudice. Majhor shall also submit the qualified attorney’s estimated trial preparation time on or before May 27, 2004.

 

It is so ordered.

 

American Samoa Gov’t. v. Fuimaono


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,

 

v.

 

DON FUIMAONO, Defendant.

 

High Court of American Samoa

 

Trial Division

 

CR No. 38-03

 

April 21, 2004

 

[1] If a criminal defendant seeks a bill of particulars, he or she must so move before arraignment, within ten days after arraignment, or with leave of the court.

 

[2] As long as a criminal defendant has enough information to adequately prepare for his defense, to avoid surprise at trial, and to protect against a second prosecution for an inadequately described offense, a bill of particulars is not required.

 

[3] Criminal defendants are not entitled to know the specific dates, times, places, and persons present at particular events.

 

[4] Bills of particulars are not to be used as a discovery tool by the defendant.

 

[5] Any information using only statutory language is permissible as long as the statute sets forth fully, directly and expressly, without any uncertainty or ambiguity, all the elements necessary to constitute the 135

 

offense intended to be punished.

 

[6] Motions to dismiss before trial directed to the sufficiency of the evidence are improper.

 

[7] The purpose of a motion to dismiss is to test the sufficiency of the information or indictment.

 

[8] A motion to dismiss is not a device for summary trial of the evidence, and facts not appearing on the face of the information cannot be considered in such a motion.

 

[9] In determining a motion to dismiss under T.C.R.Cr.P. 12, the court must accept all factual allegations in the information as true.

 

[10] So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file, generally rests entirely in his discretion.

 

[11] The decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.

 

[12] To establish a claim for selective prosecution, a defendant must show that others similarly situated have not been prosecuted and that the prosecution is based on an impermissible motive.

 

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

 

Counsel: For Plaintiff, Jeremy M. Kirkland, Assistant Attorney General

 

For Defendant, Deanna S.F. Sanitoa

 

ORDER ON MOTIONS FOR BILL OF

 

PARTICULARS AND DISMISSAL

 

Defendant Don Fuimaono (“Fuimaono”) is charged with Felony Stealing in violation of A.S.C.A. § 46.4103 and with Deceptive Business Practices in violation of A.S.C.A. § 46.4120(a)(5). Fuimaono now moves for a bill of particulars and also moves to dismiss the charges against him. For the following reasons, Fuimaono’s motions are denied.

 

I. Bill of Particulars

 

[1] On February 26, 2004, Fuimaono moved for a bill of particulars. Defendant did not cite to any legal authority in his motion. According to T.C.R.Cr.P. 7(f),

 

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Bill of Particulars. The court may direct the filing of a bill of particulars. A motion for a bill of the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within ten days after arraignment or at such later time as the court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires.

 

(emphasis supplied). As an initial matter, Fuimaono was arraigned on November 3, 2003. He did not move for a bill of particulars before or within ten days of his arraignment but, rather, waited until nearly four months after his arraignment to move for a bill of particulars. In his motion, he did not seek leave to file a motion for a bill of particulars or ask the court’s permission to deviate from Rule 7(f)’s time requirement. We could refuse to entertain the motion on this basis. However, we will address the merits of his motion.1

 

Fuimaono specifically requests “the details and particulars of Counts One and Two, such as times, dates, places, actions, transactions, correspondence, statements, etc. with Defendant as alleged.” (Def.’s Mot. at 1.) His attorney states that the bill of particulars is “necessary to enable Defendant to adequately prepare for trial” and “to avoid surprise at trial, and to insure a trial on the merits.” (Id. at 2.)

 

[2-4] We have said before,

 

[s]o long as the defendant has enough information to adequately prepare for his defense, to avoid surprise at trial and to protect against [sic] him against a second prosecution for an inadequately described offense, a bill of particulars is not required.

 

American Samoa Gov’t v. Meleisea, 24 A.S.R.2d 32, 34 (Trial Div. 1993) (citations omitted); see also American Samoa Gov’t v. Wilson, 24 A.S.R.2d 26, 29 (Trial Div. 1993) (same). Moreover, “[d]efendants are not entitled to know the specific dates, times, places, and persons present at particular events.” U.S. v. Dumeisi, No. 03 CR 664-1 (N.D. Ill. Nov. 20, 2003) (order denying motion for bill of particulars) (citations omitted, alteration in original); see also Meleisea, 24 A.S.R.2d at 34 (noting “[b]ills of particulars are not to be used as a discovery tool by the defendant”) (citations omitted).

 

A number of exhibits were presented by the government at Fuimaono’s preliminary exam. We believe that the Information, along with the other

 

1 We also note that although the government responded to Fuimaono’s

 

motion to dismiss, it failed to file a written response to this motion.

 

137

 

information already made known to Fuimaono by the government, adequately informs Fuimaono of the charges against him. Accordingly, Fuimaono’s motion for a bill of particulars is denied.

 

II. Motion to Dismiss

 

Fuimaono brings his motion to dismiss claiming: (1) the complaint fails to state a claim; (2) this matter is a contractual dispute, not a criminal matter; (3) his actions do not fall within the statutes; and (4) he is being selectively prosecuted.

 

A. Failure to State a Claim

 

[5] Fuimaono seeks dismissal of the Information because he claims it fails to state the “‘essential facts’ constituting the offense charged.” (Def.’s Mot. to Dismiss at 1.)

 

That a criminal charge is couched in the language of the statute, is not, of itself, grounds for the dismissal of an information. It is settled law that an information using only statutory language is quite permissible as long as the statute sets forth fully, directly and expressly, without any uncertainty or ambiguity, . . . all the elements necessary to constitute the offence intended to be punished.

 

American Samoa Gov’t v. Afamasaga, 17 A.S.R.2d 145, 149-50 (Trial Div. 1990) (citations omitted, alteration in original). As presented in his motion, Fuimaono is only challenging the lack of “essential facts” and is complaining that the charges merely track the statutes. (Def.’s Mot. to Dismiss at 1.) The Information is sufficient in this regard. Thus, as presented, Fuimaono’s motion to dismiss the charges for a failure to include “essential facts” is denied.2

 

B. Contract v. Crime; Actions Within Statute

 

In support of his second and third reasons for the dismissal of the charges against him, Fuimaono essentially argues that the underlying

 

2 However, we note that Count I of the Information does not comply with

 

the District Court’s November 1, 2003 Order Binding Defendant to Answer

 

in the High Court for felony stealing. Although not argued by defense

 

counsel in Defendant’s Motion to Dismiss, Count I of the Information only

 

charges Fuimaono with misdemeanor stealing and fails to charge any of the

 

statutory elements under A.S.C.A. § 46.4103(b) that would elevate Count I

 

to a felony. Unless an appropriate motion, addressing this apparent

 

discrepancy, is filed within ten days of the entry of this order, this case may

 

be transferred to the District Court. See A.S.C.A. § 46.0602.

 

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facts do not demonstrate violations of the law. (Def.’s Mot. to Dismiss at 1-2.) The government responds by arguing that these factual issues should be resolved at trial. (Pl.’s Resp. at 2-3.) We agree with the government.

 

[6-9] “Motions to dismiss, before trial, directed to the sufficiency of the evidence, are improper.” State v. Houser, 622 N.E.2d 987, 988 (Ind. Ct. App. 1994) (citations omitted). Indeed, “the purpose of a motion to dismiss is to test the sufficiency of the information or indictment. It is not a device for summary trial of the evidence, and facts not appearing on the face of the information cannot be considered.” State v. Davenport, 536 N.W.2d 686, 689 (N.D. 1995) (citations omitted). In determining a motion to dismiss under Rule 12, “the court must accept all factual allegations in the [Information] as true.” U.S. v. Bicoastal Corp., 819 F. Supp. 156, 158 (N.D.N.Y. 1993). In this case, the charges, as alleged in the Information, are sufficient to withstand Fuimaono’s motion to dismiss. See discussion supra. We find Fuimaono’s second and third arguments for the dismissal of the charges against him lack merit.

 

C. Selective Prosecution

 

Fuimaono contends that he is being selectively prosecuted by the government. In support of his contention, he suggests that “many employees of Plaintiff have admitted under oath to ‘taking’ School Lunch property for personal use” but have not been charged with stealing. (Def.’s Mot. to Dismiss at 3 (emphasis omitted).) He also claims that the government’s prosecution of him is motivated by a discriminatory purpose: “Plaintiff is swayed by its employees’ prejudices against Defendant and his way of doing business.” (Id. at 4.) The government responds that several of the individuals listed in Fuimaono’s motion “have been charged and others remain under investigation.” (Pl.’s Resp. at 4.) Additionally, the government claims “there is no evidence to show that there were any prejudices by the Plaintiff which altered its approach to this case.” Id.

 

[10-12] In Wayte v. U.S., 470 U.S. 598 (1985), the United States Supreme Court noted,

 

In our criminal justice system, the Government retains broad discretion as to whom to prosecute. [S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file . . . , generally rests entirely in his discretion. This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review.

 

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Id. at 607 (citations omitted, alteration in original). However, the Court also noted that this discretion is not unlimited and “the decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Id. at 608 (citations omitted). Thus, in order to establish a claim for selective prosecution, “a defendant must show that others similarly situated have not been prosecuted and that the prosecution is based on an impermissible motive.” U.S. v. Wayte, 710 F.2d 1385, 1387 (9th Cir 1983), aff’d, 470 U.S. 598 (1985) (emphasis added).

 

Fuimaono’s contention that the government’s prosecution of him is discriminatory against his way of doing business is simply not the sort of “impermissible motive” or “unjustifiable standard” that establishes a claim for selective prosecution. Indeed, Defendant’s arguments fall far short of establishing a claim of selective prosecution. This argument has no merit, and Fuimaono’s motion to dismiss for selective prosecution is denied.

 

Order

 

Fuimaono’s motion for a bill of particulars is denied. Fuimaono’s motion to dismiss is denied.

 

It is so ordered.

 

American Samoa Gov’t v. Tavale


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,

 

v.

 

NAPOLEON TAVALE, Defendant.

 

High Court of American Samoa

 

Trial Division

 

CR No. 34-03

 

February 25, 2004

 

[1] Statements given by a person during custodial interrogation without a prior warning are in violation of constitutionally protected rights and are subject to the exclusionary rule.

 

[2] A statement made by a person who is not in a custodial situation is not subject to suppression on Miranda grounds.

 

119

 

[3] Custodial interrogation occurs when questioning is initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

 

[4] Courts look at the totality of the circumstances to determine whether a person is in custody.

 

[5] The ultimate inquiry of whether a person is in custody is whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.

 

[6] Miranda warnings are not to be imposed simply because the questioning takes place in the station house or because the questioned person is one whom the police suspect.

 

[7] Being questioned at the police station without being handcuffed, threatened, placed under arrest, or being told that one may not leave, does not constitute a custodial interrogation for Miranda purposes, and therefore, does not require Miranda warnings.

 

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

 

Counsel: For Plaintiff, Harvey L. Kincaid, Assistant Attorney General

 

For Defendant, David P. Vargas

 

ORDER DENYING MOTION TO SUPPRESS

 

Defendant Napoleon Tavale (“Tavale”) is charged with fabricating physical evidence in violation of A.S.C.A. § 46.4611(a)(2). Tavale moves, pursuant to T.C.R.Cr.P. 12(b)(3), to suppress statements he made to detectives on November 14, 2002. All counsel and Tavale were present at the hearing February 20, 2004. For the reasons stated below, we deny Tavale’s motion to suppress.

 

On November 14, 2002, around 6:00 a.m., Detective Liusila Brown and another detective arrived at Tavale’s home. Upon their arrival, Detective Brown spoke with Tavale and Tavale’s parents explaining that he was investigating the homicide of Ma`alona Felisi. Detective Brown requested Tavale accompany him to the police station in Fagatogo. Tavale accompanied the officers and rode in the backseat of the police car to the station. At the station, Tavale was escorted to the office of Captain Seau V. Laumoli. Without reading Tavale his Miranda rights, Captain Laumoli interviewed Tavale regarding the events surrounding the death of Ma`alona Felisi, which occurred the previous afternoon. At the same time, Lieutenant Ta`ase Sagapolutele was recording Tavale’s statements in Samoan. The interview lasted approximately 45 minutes. 120

 

After the interview, Tavale agreed to provide a written statement in English. During this entire time, Tavale was never handcuffed, threatened, placed under arrest, or told that he could not leave. At the end of the interview, Tavale freely left the station.

 

Tavale was never arrested or charged with a crime in connection with the death of Ma`alona Felisi. Rather, Tavale subsequently gave a conflicting statement regarding the events of November 13, 2002. As a result of this subsequent statement, the government brought the current charge against Tavale. Tavale now claims that his November 14, 2002 statements were made while in custody, during an interrogation, and without adequate advisement of his rights. Because he was not administered the Miranda rights, Tavale argues that the statements were illegally obtained in violation of his Fifth, Sixth, and Fourteenth Amendment rights of the United States Constitution, as well as Article I, Sections 2, 5 and 6 of the Revised Constitution of American Samoa and, therefore, must be suppressed. The government disagrees, arguing that there was no violation of Tavale’s rights because Tavale was not in custody when he made the statements and because he was interviewed as a witness and not a suspect.

 

[1-2] As well established by Miranda v. Arizona, 384 U.S. 436 (1966), statements given by a person during custodial interrogation without a prior warning are in violation of constitutionally-protected rights and are subject to the exclusionary rule. However, in order to trigger Miranda, an individual must be in custody and must be subject to interrogation. A statement made by a person who was not in a custodial situation is not subject to suppression on Miranda grounds. See Am. Samoa Gov’t v. Fealofa`i, 24 A.S.R.2d 10, 11-12 (Trial Div. 1993).

 

[3-6] Custodial interrogation occurs when “questioning [is] initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444. Courts look at the “totality of the circumstances” when making a determination as to whether a person is “in custody.” California v. Beheler, 463 U.S. 1121, 1125 (1983). However, “the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Id. (citations omitted). In Oregon v. Mathiason, 429 U.S. 492 (1977), the Supreme Court found that a suspect who voluntarily went to a police station and freely left after a 30 minute interview was not “in custody” for Miranda purposes. The Court explained that “[Miranda] warnings [are not] to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.” Id. at 495. Likewise, in Beheler, the Court found the defendant was not “in custody” when he voluntarily accompanied the police to the police station, was interviewed

 

121

 

for about 30 minutes, and then allowed to leave. 463 U.S. at 1122-23. The Court noted that “Beheler was neither taken into custody nor deprived of his freedom of action. Indeed, Beheler’s freedom was not restricted in any way whatsoever.” Id. at 1123.

 

[7] In the current case, based on the aforementioned facts adduced at the suppression hearing, we find that Tavale was not in custody at the time he made his statements to the officers.1 Accordingly, Tavale’s statements are admissible.

 

Order

 

The motion to suppress Defendant Tavale’s November 14, 2002 statements to police officers is denied. It is so ordered.

 

American Samoa Gov’t v. Feagaimaali`i


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,

 

v.

 

MOTU FEAGAIMAALI’I, JR., Defendant.

 

High Court of American Samoa

 

Trial Division

 

CR No. 07-04

 

April 26, 2004

 

[1] Defense attorneys are permitted to make requests for experts ex parte to protect defense work product and the attorney-client privilege.

 

140

 

[2] The court will deny ex parte hearing requests on motions for experts that can be made without the disclosure of privileged material.

 

[3] Motions that can be argued effectively without revealing privileged information should not be attached to an ex parte motion for an expert.

 

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

 

Counsel: For Plaintiff, Jeremy M. Kirkland, Assistant Attorney General

 

For Defendant, Andrew T. Stave, Assistant Public Defender

 

ORDER GRANTING EX PARTE MOTION ON REQUEST FOR EXPERT, DENYING MOTION FOR EXPEDITED HEARING & OTHER EX PARTE MOTIONS, AND NOTICE OF HEARING

 

On April 12, 2004, and April 14, 2004, counsel for Defendant Motu Feagaimaali`i, Jr. (“Motu”) filed a battery of motions under the umbrella of a “Verified Confidential Application For Expert.” Containing the arguments for the motions, the actual application for expert, and one supplement, the package was filed ex parte and in camera. In order to respect the defense’s expectations when filing, we will not reveal motions unknown to Plaintiff ASG at this time. Attempting to explain the legal basis for the ex parte motions, a second supplement to the application was filed and served to ASG. The deadline for the filing of pretrial motions lapsed on April 12, 2004.

 

[1-2] Generally, we permit the defense to make requests for experts ex parte to protect defense work product and the attorney-client privilege. See Hightower v. Schofield, No. 00-15807, 2004 WL 764596 at *14 (11th Cir. Apr. 12, 2004). However, we discourage ex parte communication and deny ex parte hearing requests on motions for experts which can be made without the disclosure of privileged material.

 

In this case, we grant the ex parte and in camera hearing request on the motion for expert. Containing privileged information, the motion was properly filed ex parte. Exercising our discretion, we deny an expedited hearing on this motion.

 

[3] Without prejudice, we deny all other motions filed by the defense on April 12, 2004 and April 14, 2004. In reviewing these filings, it appears that defense counsel considers that his ex parte request for expert permits him to bring other motions before us. Unnecessarily attaching other motions to the ex parte motion for expert is unfair to ASG and unacceptable. As filed, the motions improperly deny ASG an opportunity to respond because these motions can be effectively argued without revealing privileged information. 141

 

To allow the defense an opportunity to properly bring only the motions at issue here, we grant a limited extension of the deadline for filing motions. The defense may serve and re-file these motions in accordance with standard procedure by May 7, 2003.1

 

Order

 

1. Defendant’s motion for ex parte and in camera hearing on the motion for expert is granted.

 

2. Defendant’s motion for expedited hearing on the motion for expert is denied.

 

3. Defendant’s other ex parte motions filed on April 12 and 14, 2004 are denied.

 

4. A hearing on the motion for expert will be held at a later date.

 

Am. Samoa Gov’t v. Tuaolo


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,

 

v.

 

PUNEFU TUAOLO, Defendant.

 

High Court of American Samoa

 

Trial Division

 

CR No. 30-98

 

January 31, 2000

 

[1] An expert witness who is qualified by knowledge, skill, experience, training, or education is permitted to testify by giving an opinion on a matter involving scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue.

 

[2] The standard for the admissibility of DNA evidence is governed by Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

 

[3] The court must determine, preliminarily in a jury trial, that the basis of proposed expert opinion testimony is reliable and relevant.

 

[4] In evaluating the admissibility of expert testimony under T.C.R.Ev. 702, the trial court must look for such factors as: (a) whether the theory or technique in question has been or can be tested and has been subjected to peer review and publication; (b) the known or potential rate of error of the particular theory or technique and whether operational control means exist for it; and (c) the extent to which the theory or technique has been accepted.

 

[5] Evidence must be sufficiently related to the facts at issue to assist the trier of fact.

 

[6] The probative value of evidence must substantially outweigh the dangers of unfair prejudice, confusion of the issues, or misleading the trier of fact.

 

Before RICHMOND, Associate Justice, ATIULAGI, Associate Judge and TAUANU’U, Temporary Associate Judge.

 

Counsel: For Plaintiff, John W. Cassell, Assistant Attorney General 297

 

For Defendant, Tautai A.F. Faalevao, Public Defender

 

OPINION AND ORDER

 

Plaintiff American Samoa Government (“ASG”) charged defendant Punefu Tuaolo (“Tuaolo”) with the crimes of robbery in the first degree (Count 1), felonious stealing (Count 2), felonious restraint (Count 3), and assault in the second degree (Count 4) by the information filed on May 11, 1998. A Daubert hearing on the admissibility of certain expert opinion evidence was conducted on December 1-2, 1999. Tuaolo then waived his right to a jury trial. The bench trial commenced on the same date and concluded on December 10, 1999. Tuaolo and both counsel were present throughout the hearing and trial.

 

The Daubert Hearing and the Court’s Rulings

 

This criminal prosecution presented evidentiary issues of first impression in this jurisdiction: the admissibility of the results of forensic deoxyribonucleic acid (“DNA”) comparisons with questioned items of evidence. The DNA examinations, as well as other forensic testing, were done at the Federal Bureau of Investigation (“FBI”) laboratory in Washington, D.C. Five members of the FBI laboratory staff were required to present this evidence by testimony before the court. Hence, pursuant to T.C.R.Ev. 104(a) - (c), the parties proposed, and we agreed, that a pretrial hearing on the admissibility issues be conducted during the week before the trial.

 

[1-2] T.C.R.Ev. 702 applies to expert opinion testimony. Rule 702 permits a witness who is qualified by knowledge, skill, experience, training, or education to testify by giving an opinion on a matter involving scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue. F.R.Ev. 702 is identical to our local Rule 702. Thus, the parties also agreed, and we concur, that the standard for the admissibility of DNA evidence is governed by Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

 

[3-6] The court must determine, preliminarily in a jury trial, that the basis of the proposed expert opinion testimony is reliable and relevant. Daubert, 509 U.S. at 590-91, 594. The Supreme Court held that Federal Rule 702 rejects the traditional test of general acceptance in the relevant scientific community as the basis for admitting novel scientific evidence, as required by Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Under Rule 702, the trial court must still look for such reliability factors as: (a) whether the theory or technique in question has been or can be tested and has been subjected to peer review and publication; (b) the known or potential rate of error of the particular theory or technique and

 

298

 

whether operational control means exist for it; and (c) the extent to which the theory or technique has been accepted. Daubert, 509 U.S. at 593-94. Once reliability is satisfactorily established, the court must determine that the evidence is sufficiently related to the facts at issue to assist the trier of fact, and that its probative value substantially outweighs the dangers of unfair prejudice, confusion of the issues, or misleading the trier of fact. Id., at 595; see T.C.R.Ev. 401-403.

 

Following receipt of the FBI laboratory reports, and prior to the Daubert hearing, the parties filed two written stipulations. In essence, the parties stipulated to the admissibility in evidence by way of expert opinion testimony of the results of DNA testing of certain evidence in this case performed by Julie Ann Kidd (“Kidd”) and Dr. John E. Stewart (“Stewart”), both FBI laboratory personnel.

 

However, as part of our learning process, we agreed with ASG’s strategy to have Stewart and Kidd testify about their professional qualifications, DNA theory and practice, and the results of their DNA analyses in this case. Based upon the parties’ stipulations and particularly the testimonial amplification, we specifically made and reiterate the following findings. First, Stewart and Kidd are qualified by education, training and experience to provide expert opinion testimony in the DNA field. Second, DNA examinations and the DNA analytical protocols applied to the evidence in this case have a scientific basis and are reliable under the Daubert standard. Third, Stewart properly performed the DNA procedure called mitochondrial. Kidd properly performed the DNA procedures called restriction fragment length polymorphism (“RFLP”) and polymerase chain reaction (“PCR”). Fourth, Stewart’s and Kidd’s expert opinions on the results of their examinations are relevant, and will assist the trier of fact to understand the DNA evidence and to determine identity of the perpetrator(s) of the crimes charged. The probative value of this evidence substantially outweighs any prejudice and other dangers of unfairness.

 

During the Daubert hearing, ASG also called Monica Knuckles (“Knuckles”) of the FBI laboratory to testify as a forensic chemist with respect to her comparative analyses of items of masking tape recovered as evidence in this case. Based upon her testimony, we found and still find the following facts. Knuckles is qualified as a forensic chemist by education, training and experience. The types of analyses she made of the items of masking tape are scientifically reliable under the Daubert standard. The results of Knuckles’ examinations are relevant to assist the trier of fact to identify the perpetrator(s) of the crimes charged and significantly exceed any prejudicial effects.

 

The Trial and the Court’s Findings and Conclusions

 

 

 

A. Jury Waiver and Further Stipulations

 

Shortly after the Daubert hearing was concluded, Tuaolo filed a written waiver of his right to trial by jury. On December 6, 1999, before the trial commenced, we again admonished Tuaolo of his right to trial by jury. Tuaolo orally reaffirmed his written decision to waive that right and proceed with a bench trial.

 

The parties also provided three more stipulations for purposes of the trial. First, before filing the written jury waiver, they stipulated that the statement of Aukusitino Fanene (“Fanene”) given to Sgt. Lavata’i T. Sagapolutele (“Sagapolutele”) on or about October 26, 1999 may be read to the jury. During the bench trial, without objection, Sagapolutele read Fanene’ s statement to the court.

 

During the first day of the bench trial, December 6, 1999, the parties stipulated that the court may take judicial notice of the testimony given by Stewart and Kidd during the Daubert hearing in lieu of taking further testimony from them. We take judicial notice of this evidence.

 

Lastly, during the second day of the bench trial, December 7, 1999, the parties stipulated that based upon Fanene’s statement to Sagapolutele, the FBI’s DNA analyses, and other evidence, ASG would seek an arrest warrant for Fanene as a principal or accessory to the charges in this case after the bench trial concluded.

 

B. The Crimes

 

Well beyond any reasonable doubt, the four crimes charged in this case were committed. At least two accomplices directly participated. A third accomplice was possibly involved either as a principal or abettor.

 

The offenses occurred at the poker machine center in the Tautua Hall during nighttime, shortly after 3:00 a.m. on April 30, 1998. Tautua Hall is located near the northwesterly side of Pago Park in the Village of Pago Pago. Two victims were present, Ho Min, an owner and the operator of the center, and Beam Fa’alogo (“Fa’alogo”), one of his employees. Both heard noise at one of the entrance doors to the center, just as someone turned off the lights in the center. Two perpetrators wearing black masks entered the center. One of them, a large male, struck Ho Min’s head with a shotgun. He pushed Ho Min to the floor and kicked him several times. He demanded money and threatened to kill Ho Min. Ho Min told Fa’alogo to give the perpetrators all the money in the center. The large perpetrator bound Ho Min’s hands, feet and face with masking tape. Ho Min heard three shotgun shots. He probably then lost consciousness for a short time. Upon waking, Ho Min was able to remove the tape. He called the police from a telephone outside the center.

 

 

 

The second masked perpetrator went to Fa’alogo. She was in the cashier’s office at the center. He had a flashlight and held a shiny handgun on her. She heard Min being struck and scream. Fa’alogo tried to close the door to the office, but her attacker kicked or pushed open the door. He told Fa’alogo, who had fallen to the floor, to kneel and put all the money in the knapsack he threw in front of her. After Fa’alogo put the money in the knapsack, this perpetrator bound her hands, feet and mouth with masking tape. Fa’alogo heard two gun blasts and feared for her life. However, the perpetrators suddenly left the center. She unbound herself and went to help Ho Min. She saw that Ho Min was bleeding from a head injury and appeared to be unconscious. After Ho Min regained consciousness, the police were called.

 

Three poker machines were damaged by the shotgun blasts. Approximately $1,500 in United States quarter coins were taken from these machines. United States currency in other denominations, totaling approximately $500.00, was taken from the cashier’s office. Ho Min’s wallet, containing about $650.00 and a VISA credit card, was taken from his person. His and his wife’s cellular telephones were also stolen.

 

C. The Perpetrators’ Identities

 

We must still solve beyond a reasonable doubt the genuine puzzle of the perpetrators’ identities. On May 1, 1998, almost immediately after the crimes were committed, Tuaolo was arrested for the crimes charged. He is, of course, the only accused presently on trial. Fa’alogo identified Tuaolo as her masked attacker, and ASG initiated his prosecution principally on this basis. At the trial, Fa’alogo maintained that Tuaolo is that culprit. This is the strongest evidence of Tuaolo’s guilt. Certain factors tend to corroborate Fa’alogo’s identification of Tuaolo. Other factors raise questions about her identification. We will review the evidence in substantial detail in analyzing her identification.

 

1. The Surrounding Circumstances

 

Tuaolo was also employed at the poker machine center. He first worked there during the weekend before the crimes were committed and knew the layout of the premises. However, he did not come to work the night of the charged offenses. On his first night on the job, Tuaolo had a shiny handgun, which he showed to Ho Min and identified as a .38 caliber gun. He took the handgun with him when he left work that night. The handgun was similar to the gun Fa’alogo’s attacker held on her. Fa’alogo’s attacker was similar to Tuaolo in height, build, and voice. During the attack, she called her attacker “Punefu” and said she was surprised at his conduct.

 

 

 

According to Fa’alogo, her attacker wore the off-white shirt and camouflaged “army” pants in evidence. She said that the shirt was yellow, but Fa’alogo saw the shirt by the yellow lens or bulb of her attacker’s flashlight. The police arrived at the crime scene within minutes after they were called. A short time later, Tuaolo drove up to the scene in a red pickup. Bobby Tuiletufuga (“Tuiletufuga”) is the registered owner of this pickup. Tuaolo was then wearing the off-white shirt and “army” pants.

 

Tuaolo, Tuiletufuga, and Fanene are long-standing friends. Tuaolo is also a former employee, perhaps as long as eight to 10 years, of ASG’s Emergency Medical Service (“EMS”) and a long-term friend of EMS employees Teofilo Mageo (“Mageo”), Aukusitino Fruean (“Fruean”), and Christy Moa (“Moa”). Tuaolo attended Mageo’s birthday party in Aua during the evening of April 29, 1998. He was driven to the party by Tuiletufuga, who also picked him up there in the early morning of April 30. Fruean and Moa were also at the party. Mageo, Fruean, and Moa consumed considerable quantities of beer at the party.

 

According to Mageo, Fruean, and Moa, they went to Tuaolo’s pool hall in Pago Pago about 2:00 a.m. on April 30. Tuaolo and his wife Mina Tuaolo (“Mina”) live in a two-story building behind the pool hall. These two buildings are located very near, not more than a five-minute walk to, Tautua Hall. Tuaolo and Mina were in the pool hall when Mageo, Fruean, and Moa arrived there. They consumed more beer and played pool with Tuaolo. Two other EMS employees stopped by briefly but did not join the pool game. They were on their way to StarKist Samoa for a training exercise involving EMS personnel. At some point during the pool game, Mina retired to her home.

 

Again according to Mageo, Fruean, and Moa, after Mina and the other EMS visitors left, and some time after 3:00 a.m., Tuiletufuga and Fanene arrived at the pool hall in Tuiletufuga’ s pickup. Tuiletufuga was screaming or crying out for help and asking Tuaolo to take him and Fanene to the ASG’s LBJ Tropical Medical Center (“LBJ”) in Faga’alu. They told Tuaolo that they had been shot. Despite their EMS training and experience, Mageo, Fruean, and Moa were not asked to assist Tuiletufuga and Fanene. Instead, Tuaolo drove off with them.

 

Tuaolo drove Tuiletufuga and Fanene to the LBJ and left them there for medical treatment. Tuaolo then drove the pickup back to Pago Pago and stopped at Tautua Hall during the ongoing initial police investigation at the crime scene. It was then that Fa’alogo observed Tuaolo wearing “army” pants and an off-white shirt.

 

Mina was also there, apparently having been awakened by crying or other noise from the direction of Tautua Hall. After Tuaolo arrived, he

 

 

 

instructed Mina to drive Tuiletufuga’s pickup to their home. She did so. Mina claimed that a roll of new masking tape fell outside when she exited the pickup, and that she took the tape inside, later used it to repair a hand fan, and left it in the bedroom used by Tuaolo and her.

 

2. The Physical Evidence

 

Police Captain Vaaomalo Sunia (“Sunia”), the head of the Criminal Investigation Division and as such in ultimate charge of the investigation of this case, seized the roll of masking tape from Tuaolo’s and Mina’s bedroom during the course of the execution of a search warrant on May 1, 1998.1

 

There are numerous other items of physical evidence. We take note of the police investigators’ observations and recovery of those items that are particularly significant to this discussion. At the crime scene, they observed Ho Min’s injuries, the three damaged poker machines, and a blood stain on the floor near the door to the cashier’s office. They recovered from the customer area of poker machine premises, among other items, three empty shotgun cartridges, strips of masking tape near the one entry door to the center, and strips and a roll of masking tape within the cashier’s office.

 

The investigators impounded Tuiletufuga’s pickup from Tuaolo’s residence. Inside the pickup, they found and took for evidence a black mask from the front right floor, a tee shirt and black pants on the seat, and another black mask underneath this clothing. A cellular telephone was inside the right back pocket of the pants. A pocket knife and two bullets were also found in the pickup. The police also seized the “army” pants and off-white shirt worn by Tuaolo when he returned to the crime scene.

 

Body samples were also taken, using proper procedures, to provide known submissions for the FBI’s DNA analyses. These samples included blood, hair, and saliva from Tuaolo; blood, hair, and saliva from Tuiletufuga; blood and hair from Fanene; and blood from Ho Min. In addition, fingerprints from Tuaolo, Tuiletufuga, Fanene, Ho Min, and Fa’alogo were imprinted and sent to the FBI for comparison.

 

1 Sunia also interviewed Mina on May 6, 1998. During that interview,

 

she told Sunia that Tuaolo owned a stainless steel revolver, which she

 

last saw on April 28, 1998, and that she did not know where Tuaolo may

 

have “hid” the gun. Mina put her credibility at serious issue during

 

cross-examination when she denied that Tuaolo owned a gun and denied

 

that she made the prior inconsistent statement to Sunia that Tuaolo

 

owned a stainless steel revolver.

 

 

 

3. The Statements by Tuaolo and Fanene

 

After he drove to the crime scene, Tuaolo made oral statements to the police at the crime scene and, later on April 30, a written statement to the police at the central police station. Both statements were admitted into evidence without objection. Tuaolo’s statements were essentially consistent with the other evidence in the case.2

 

Fanene and Tuaolo appear similar in height and build. ASG intends to charge Fanene with the same offenses for which Tuaolo in now on trial.3 Fanene’s statement to the police is one basis for this intended action. On October 26, 1999, police Lt. Sagapolutele wrote what Fanene told him about the offenses. Fanene then signed this document. This statement was admitted into evidence pursuant to the parties’ pretrial stipulation.

 

We will set forth the presently important aspects of Fanene’s statement. Fanene claimed that Tuiletufuga, threatening him with a shiny handgun, forced Fanene to join Tuiletufuga’s plan to commit the offenses. Both wore masks at Tautua Hall. Fanene then had the handgun and a flashlight, and wore black pants and a white shirt, all furnished by Tuiletufuga. Tuiletufuga turned off the lights in the poker machine center and beat the Korean. Fanene admitted that he had the female 2 There are two noteworthy inconsistencies between Tuaolo’s written

 

statement and Mina’s testimony. First, Tuaolo wrote that Tuiletufuga

 

drove him to Mageo’s birthday party in Aua at about 11:00 p.m. on April

 

29. Mina testified that Tuaolo went to the party at about 6:00 or 7:00

 

p.m. Second, Tuaolo wrote that after he was picked up at the party,

 

Tuiletufuga drove him to and dropped him off at Tautua Hall. Tuaolo

 

stated he walked into the poker machine center and was there briefly to

 

tell a person identified as Boy Faumuina to look after the center. Then

 

he walked home. Mina, on the other hand, testified that shortly after

 

Tuaolo came to the pool hall from the party, at about 1:00 a.m. on April

 

30, and before Mageo, Fruean, and Moa arrived, Tuaolo walked to the

 

poker machine premises and returned about 10 minutes later, around

 

1:30 a. m. Like her prior inconsistent statement to Sunia, Mina’ s

 

credibility is put at issue by these inconsistencies. At the very least, they

 

indicate that Mina was prepared to stretch the truth in her effort to help

 

her husband Tuaolo. In fact, Fa’alogo testified that she did not see

 

Tuaolo at the poker machine premises at any time during the evening

 

before the crimes were committed. Tuaolo’s visit to the poker machine

 

premises about 90 minutes before the offenses were committed, if it

 

happened, may have been in preparation for commission of the crimes.

 

However, under the evidence, such a finding would be highly

 

speculative.

 

3 ASG has charged Tuiletufuga with these crimes. A warrant for his

 

arrest is outstanding.

 

 

 

cashier put money in a bag, and then tied her hands and mouth with masking tape, as Tuiletufuga had instructed him to do. While tying the cashier, he became afraid when the cashier called him Punefu and said she was surprised at what he had done to her, but he finished tying her. A third person appeared, locked the front door, and opened the back door (apparently but not clearly Tautua Hall rather than the center’s doors). This third person wore “army” pants and a shirt Fanene said he could not describe. Fanene claimed that he heard five gunshots, one before and four after he left Tautua Hall with the bag of money. A short time later, he and Tuiletufuga met at their car parked near the Mauga guesthouse at the easterly side of Pago Park. He first and then Tuiletufuga drove the car through the park. As they reached Korea House near the far easterly end of the park, Tuiletufuga tried to put on the handgun’s safety, but the car hit a cement block. When Fanene grabbed the steering wheel, the gun discharged. Fanene’s left arm and Tuiletufuga’s right hand were wounded by the discharge. They then headed west. At the Seagull store, Tuiletufuga drove up the hill into that part of Pago Pago village and threw their two guns and the bag of money into a stream bed. Tuiletufuga then drove to Tuaolo’s pool hall and asked Tuaolo to take them to the hospital. Fanene denied receiving any money from the robbery, and claimed that Tuiletufuga told him three days later that Tuiletufuga had instructed Tuaolo to recover the guns and bag of money from the stream bed.

 

C. Evaluation of Fa’alogo’s Eyewitness Identification

 

The evidence supporting Fa’alogo’s eyewitness identification of Tuaolo is significant. She knew Tuaolo as a fellow employee. He was familiar with the premises at Tautua Hall and the poker machine center. She saw him in possession of a shiny handgun, like the gun her attacker held, a few days before the crimes were committed. Her attacker had Tuaolo’s height, build, and voice. She believed that her attacker wore “army” pants and, by a yellow light, a yellow shirt. She saw Tuaolo at the crime scene a short time later when he drove there in Tuiletufuga’s pickup. He was then wearing “army” pants and an off-white shirt.

 

Tuaolo, Tuiletufuga, and Fanene were friends. Tuaolo and Tuiletufuga were companions at times during the evening before the crimes occurred. Tuaolo operated a pool hall and lived nearby Tautua Hall. Though not then seen by Fa’alogo, he may have been at the hall, and perhaps in the poker machine center, for a short time about 90 minutes before the crimes were committed. Fanene implicated a third person wearing “army” pants who assisted in committing the crimes. After the crimes took place, Tuiletufuga drove the pickup, with Fanene the passenger, to the pool hall and sought Tuaolo’ s assistance to take him and Fanene to LBJ for medical treatment of their self-inflicted gunshot wounds. Fanene suggested that Tuaolo was later instructed by Tuiletufuga to

 

 

 

retrieve the perpetrators’ guns and the stolen money from the hiding place in the stream bed. Tuaolo certainly had opportunity to directly participate in the crimes.

 

On the other hand, Fa’alogo’s attacker wore a mask and was similar in height and build to both Tuaolo and Fanene. Thus, we consider her eyewitness identification of Tuaolo with caution. Fanene clearly admits that he was Fa’alogo’s attacker, while he possessed a shiny handgun and flashlight. He claimed that he wore a white shirt and black pants. Such clothing was found in the pickup. He also clearly identified Tuiletufuga as the second perpetrator who beat Ho Min and suggested that Tuaolo was present as a third culprit. Fanene recited details which only participants in the crimes would likely know. However, Fanene is an accomplice, and we must also evaluate his statement connecting others in the commission of the crimes with caution. Fanene’s credibility, to some extent, is also put in question by his unconvincing claim that Tuiletufuga forced him to participate in the crimes.

 

Despite his physical proximity to the crime scene, Tuaolo’s friends and former EMS associates placed Tuaolo at the pool hall at the time of the crimes. Mina, Tuaolo’s wife, corroborated the presence of these friends at the pool hall. These witnesses are clearly biased in Tuaolo’s favor. Mina’s credibility is also doubtful by her prior inconsistent statement concerning Tuaolo’s ownership of a shiny handgun. Tuaolo could easily have fabricated this story with Mina and his friends later. However, their testimony still provided an alibi at least for Tuaolo’s direct participation in the crimes.

 

In sum, the accuracy of Fa’alogo’s identification of Tuaolo as her attacker must be questioned.

 

D. The Expert Opinion Testimony

 

It is the considerable and varied expert opinion evidence in this case that provides the most satisfactory basis for deciding Tuaolo’s guilt or innocence. The DNA evidence is particularly illuminating. Using the mitochondrial protocol, Stewart compared the DNA in a hair found in one of the masks recovered by the police from Tuiletufuga’s pickup with DNA in the blood samples obtained from Tuaolo, Tuiletufuga, Fanene, and Ho Min. Fanene and Ho Min were excluded as the source of the hair. Tuiletufuga cannot be excluded as the source. The results were inconclusive as to Tuaolo being the source.

 

Kidd applied both the RFLP and PCR testing procedures. With the RFLP method, she compared the DNA in four blood stains on the tee shirt and several blood stains on the pants recovered by the police from Tuiletufuga’s pickup with the DNA in the four known blood samples. 306

 

Ho Min was the source of one blood stain on the tee shirt. Tuiletufuga was the source of another blood stain on the tee shirt and one blood stain on the black pants. Fanene was the source of two blood stains on the tee shirt and the remaining blood stains on the pants. Because of these matches, Tuaolo was excluded as the source of any of the blood stains on the tee shirt and pants.

 

Kidd used the PCR procedure to compare the DNA in several samples of substance found in both masks with the DNA in the four known blood samples. This substance from both masks could be saliva, perspiration and/or nasal secretion. Four samples of this substance were found in the same mask where the hair was found. The results were totally inconclusive with respect to two of these four samples. However, the results showed that there were both major and minor contributors to the other two samples. Fanene is the potential major contributor. Tuaolo, Tuiletufuga, and Ho Min cannot be either determined or excluded as the minor contributor.

 

Three samples of the substance were removed from the second mask. The testing results showed that Tuiletufuga was the potential major contributor to a reasonable degree of scientific certainty. Because of this finding, Tuaolo, Fanene, and Ho Min are excluded as the sources of the samples in the second mask.

 

Kidd also used the PCR technique to compare the DNA in a blood stain on the masking tape removed from Tuaolo’s bedroom with the four known blood samples. The results showed that both Tuiletufuga and Ho Min are potential sources of this blood stain, but excluded Tuaolo and Fanene as the source.

 

Knuckles examined the masking tape items recovered by the police at the crime scene. She compared the strips of masking tape found on the floor of the customer area and on the floor of the cashier’s office at the poker machine center with the roll of masking tape found in the cashier’s office. The strips were different in color, width, and texture from the roll and thus did not originate from the roll. She asked if any other roll of masking tape was seized and later received the roll recovered from Tuaolo’s bedroom. The strips of masking tape and this second roll of masking tape are of consistent color, texture, and other physical characteristics, and in chemical composition. However, there was no identifiable tear match between the strips and the second roll. Thus, Knuckles concluded that the strips could have originated from the second roll or tape of similar manufacture.

 

Terry G. Amburgey (“Amburgey”), also employed in the FBI laboratory, was qualified as an expert in comparative fingerprint identifications. He used several methods most likely to be productive in lifting latent 307

 

fingerprints on the two strips of masking tape, the three shotgun shells, the cellular telephone, and the roll of masking tape recovered from Tuaolo’s bedroom. He found only one latent fingerprint, the extreme tip of a finger on one set of masking tape strips, but none of probative value on the other items. Amburgey compared the one latent fingerprint with the submitted fingerprints of Tuaolo, Tuiletufuga, Fanene, Ho Min, and Fa’alogo and determined that it was not the fingerprint of any of these persons.

 

Robert Fram (“Fram”), another FBI laboratory employee, was qualified as an expert in trace evidence comparisons of questioned hair with known hair. Hair comparisons are not a basis for absolute identification of persons. They only determine that for identification purposes, the hairs examined are similar or dissimilar with each other, based on consistent or inconsistent characteristics, or are insufficient for this purpose, due to the presence of both similar and dissimilar characteristics. Fram compared the hair removed from the masks with known hair samples of Tuaolo, Tuiletufuga, and Fanene. The removed hair is similar to Tuaolo’s hair and dissimilar to Tuiletufuga’s and Fanene’s hairs.

 

The expert opinion testimony concerning fingerprints does not connect Tuaolo to the crimes charged and, in fact, is not helpful in this particular case. The expert opinion testimony concerning trace and DNA mitochondrial examinations of the hair found in the mask is essentially inconclusive with respect to Tuaolo. Even though Tuaolo could be the source of this hair, it is also known that he was in Tuiletufuga’s pickup at least after the crimes were committed. The expert opinion testimony concerning the masking tape comparisons shows that the tape apparently used to tie Ho Min or Fa’alogo, or both, may have originated from the roll of masking tape seized at Tuaolo’s bedroom or may have only been produced by the same manufacturer. We know that this roll was in Tuiletufuga’s pickup after the crimes were committed, but Mina, Tuaolo’s wife, explained, reasonably and innocently if believed, how the roll happened to be in the bedroom.

 

However, the results of the DNA RFLP and PCR examinations are telling. The RFLP testing positively identified Tuiletufuga and Fanene as the sources of the blood stains on the white tee shirt and black pants recovered from Tuiletufuga’s pickup and, by his admission, worn by Fanene during the criminal acts. This testing excluded Tuaolo and Ho Min as sources of these blood stains. The PCR process showed that Fanene was potential major contributor of the saliva, perspiration and/or nasal secretion substance removed from one of the masks found in the pickup, and did not exclude Tuaolo, Tuiletufuga, or Ho Min as the minor contributor of the substance. The same process demonstrated that Tuiletufuga was the potential major contributor of the same type of 308

 

substance taken from the second mask. The examination supported this finding to a reasonable degree of scientific certainty and thus excluded Tuaolo, Fanene, and Ho Min as sources of the substance in the second mask. The PCR technique also identified Tuiletufuga and Ho Min as potential sources of the blood stain on the roll of masking tape found in Tuaolo’s bedroom, and at the same time, excluded Tuaolo and Fanene as sources of this blood stain.

 

E. Reasonable Doubt

 

The DNA connections of Tuiletufuga and Fanene with the two masks leads us to have reasonable doubt about Tuaolo’s guilt as a principal. This evidence strongly points to them as the certain principal perpetrators of the crimes charged. When coupled, in particular, with Fanene’s admissions of committing the crimes with Tuiletufuga, recited in explicit detail, our doubt is reinforced. However, Fanene’s implication of Tuaolo’s participation in the crimes is questionable and adds to our doubt. In this light, Tuaolo’s alibi is also plausible. The evidence certainly falls far short of proving beyond a reasonable doubt that Tuaolo was an accessory to the crimes.

 

DECISION

 

We find Tuaolo not guilty of the four crimes charged in the information.

 

It is so ordered.

 

********** 309

 

TUMUA ANOA’I, Plaintiff,

 

v.

 

MICHAEL LIEN SHU LAI, Defendant.

 

____________________

 

MICHAEL LIEN SHU LAI, Plaintiff,

 

v.

 

TUMUA ANOA’I, Defendant.

 

High Court of American Samoa

 

Land & Titles Division

 

LT No. 02-01

 

CA No. 48-99

 

January 15, 2002

 

[1] The sa’o of a communal family has pule or the authority to make decisions about family lands; conversely, an untitled family member has no pule or authority to unilaterally deal in family property.

 

[2] A lessor without the authority of law or custom cannot lease out family property to a lessee. Consequently, the lessee under the aforementioned lease equally has nothing in the way of a leasehold interest to sublet.

 

[3] The Alienation of Land Act allows only the native proprietor(s) of communal land to lease said land; only after gubernatorial-approval of the lease (signified in writing) can any provisional agreement to lease said land take effect. Notwithstanding such, the term of the communal land lease cannot extend for more than 55 years (except when the lease’s purpose concerns mineral and timber).

 

[4] For the purposes of A.S.C.A. § 37.0221, the term “native proprietor” normally references the family sa’o or senior matai.

 

[5] Labeling a lease a “house lease” does not exclude a transaction from the requirements of the Alienation of Land Act applicable to native land leases, as communal land on which a structure is located is necessarily encumbered.

 

[6] The Separation of Structures from Communal Land Act allows the 310

 

facilitating of secured financing for communal family members who build on communal land, and nothing more. The Separation of Structures from Communal Land Act does not repeal the mandates of the

 

Alienation of Land Act (including gubernatorial-approval), as the latter regulates the leasing of native lands.

 

[7] The Separation of Structures from Communal Land Act clearly does not facilitate the automatic encumbrance of the situs realty without the agreement of the landowner (that is, the sa’o of the landowning family). For instance, a mortgagee who takes a mortgage on a separated structure has, without more, only the salvage value of the separated structure in the event of a foreclosure—nothing more. The mortgagee has no interest in the underlying land without agreement of the landowner (the Samoan family through its sa’o) when properly transferred in accordance with the Land Alienation Act.

 

[8] In the leasehold context, the lease of a separated house or building involves the transfer of possession of the situs realty. The Separation of Structures from Communal Land Act does not claim that the lease of a house or building does not involve the transfer of possession of the situs realty itself, nor attendant real property rights (like ingress and egress).

 

[9] From a policy point of view, mischief is possible if the “house-lease” rule somehow allowed an untitled person to permit strangers to live on communal land. It would then have the potential of eroding the notion of matai pule, a “cornerstone” of the fa’a Samoa (the Samoan way of life).

 

[10] The Alienation of Land Act limits the leasing of communal land to terms not exceeding 55 years. If these limits are not applicable to a “house-lease” devoid of any term limits, then the house-lease rule would controvert the Alienation of Land Act. Additionally, the house-lease ruse would open the door to communal property dealings which bypass legislative policy regulating the leasing of communal property and it would open the door for unsupervised “improvident” communal land dealings.

 

[11] Subleases in violation of the Alienation of Land Act, A.S.C.A. § 37.0221(b), are nullities.

 

[12] A nonnative failing to comply with the mandatory provision of the Alienation of Land Act is without a remedy.

 

[13] Where objectors filed objections in the Land Commission that have not been heard and not voluntarily withdrawn, the objections still remain pending. Without any of the other objectors before the court, full and final relief sought by one objector’s interpleader action is unavailable. 311

 

Consequently, the court will invoke the procedural flexibility permitted the Land and Titles Division by A.S.C.A. § 3.0242(b) by finding it “most consistent with natural justice and convenience” to continue and remand such an action to the Land Commission. A.S.C.A. § 3.0242(b ).

 

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

 

Counsel: For Tumua Anoa’i, Katopau T. Ainu’u

 

For Michael Lien Shu Lai, Jennifer L. Joneson

 

For Ta’amuvaigafa T. Iakopo, Asaua Fuimaono

 

OPINION & ORDER CONTINUING PROCEEDINGS

 

AND REMANDING MATTER TO LAND COMMISSION

 

I. INTRODUCTION

 

This matter concerns a small commercial building in Fagatogo, commonly known as the BP Building (“the building”), located on land claimed by the Ta’amuvaigafa (“Ta’amu”) family. The building was built by the Burns Philp (South Seas) Co. Ltd. (“BP”), in the early 1950s and it was used as one of BP’s merchandizing outlets. At the time, BP had leased the site from the then sa’o of the Ta’amu family, Ta’amu Faiumu. The lease term was originally for twenty years but it was subsequently extended in May 1972, for an additional ten years, by Ta’amu Iosefo Elisara. In both instances of lease and renewal, the lease process was handled strictly in accordance with the statute governing the alienation and leasing of native (communal) land, A.S.C.A. §§ 27.0221, et seq., (the “Alienation of Land Act”). That is, the lease agreement was routed through the Land Commission and approved by the Governor.

 

BP’s tenancy finally ended in 1982. In accordance with the terms of the lease, the building became part of the lessor’s property. Thereafter, the building remained under the control and direction of the family sa’o up until the demise of Ta’amu Iosefa Elisara. Following the death of Ta’amu Iosefa Elisara, the family’s matai title remained vacant for many years until the succession of defendant Ta’amu Ta’alolo Iakopo in June 1998. In the interim, however, Le’ala Pili (“Le’ala”), a member of the Ta’amu family, took it upon herself to rent the building out to third-parties. She initially let the premises out to Mrs. Nive Reed for an unspecified rent and term, applying the rental proceeds derived from that tenancy to the use of her immediate side of the family; namely, the heirs of Ta’amu Ma’alona.

 

Le’ala subsequently entered into another lease agreement, again on behalf of “the Ta’amu Ma’alona heirs, “with plaintiff/cross-defendant 312

 

Tumua Anoa’i (“Anoa’i”) for a term of 10 years at a monthly rental of $800. This instrument, dated April 25, 1995, was accepted by the Territorial Registrar for recording as a “House Lease,” without regard to the requirements of the Alienation of Land Act, as more fully discussed below.

 

According to Le’ala, she has never received any rents from Anoa’i, but it was also evident that she did not pursue the unpaid rents with any vigor. Anoa’i in turn sublet the building to defendant/cross-claimant Michael Lien Shu Lai (“Lai”), a “nonnative.” A.S.C.A. § 37.0201(e). This sublease, executed with Lai on June 15, 1996, provided for a term of 5 years with a graduated monthly rental rate of $2,100 during the first year, $2,200 during the second, and $2,300 for the remaining years.

 

Shortly after the current Ta’amu took office, he intervened on the family’s behalf, making a demand upon Lai, who then decided to deal with the Ta’amu family’s matai. Consequently, Ta’amu, on behalf of the Ta’amu family, and Lai, as “President Evergreen Corporation, Inc.,” entered into an entirely separate lease agreement commencing January 1, 1999, for a term of 5 years, at a monthly rental of $2,300.

 

II. FINDINGS & DECISION

 

The proceedings now before the Court first arose with Anoa’i filing suit against Lai on their sublease agreement. Lai responded with a counterclaim seeking damages against Anoa’i, alleging the latter’s failure to renovate the building with rental advances made to him for that purpose. Additionally, Lai filed an interpleader action joining both Anoa’i and Ta’amu. Pending final disposition of the matter, the Court earlier issued an interim order requiring Lai to deposit into registry of the Court the rental proceeds on interpleader.

 

Le’ala was called by Anoa’i to explain her dealings with the building. She testified that the building was not on Ta’amu land, but on communal land of the Tiumalu family, of which she is also a member. According to her understanding, Ta’amu Ma’alona, who was also a member of the Tiumalu family, dealt with BP not as sa’o of the Ta’amu family but as a member of the Tiumalu family. Le’ala thus, somehow, claims entitlement to lease the building on behalf of the Ta’amu Ma’alona’s immediate descendants.1

 

1 Le’ala’s legal theory escapes us. Even if the land is the communal

 

property of the Tiumalu family as claimed, we fail to see how the land

 

could have possibly devolved to the issue of Ta’amu Ma’alona, as the

 

territory’s law on descent and distribution does not apply to “communal

 

land.” See A.S.C.A. § 40.0106 and § 40.0206.

 

 

 

The evidence, however, quite clearly shows that the former Ta’amu titleholders who dealt with BP were dealing as Ta’amu titleholders rather than as some dubious sort of agent for the Tiumalu family. The alienation process giving rise to the BP’s leases, which included proceedings before the Land Commission and approval by the Governor, is conspicuously void of any suggestion whatsoever that the demised premises in question was anything but Ta’amu family property. We further find that the Ta’amu titleholders who dealt with the Land Commission in 1953 and 1972 were Ta’amu Faiumu and Ta’amu Elisara respectively. Also conspicuous over the years to this day is the lack of any objection or adverse claim to the leasehold site from any of the Tiumalu titleholders.

 

We find that the building is the property of the Ta’amu family.

 

A. Le’ala-to-Anoa’i Lease, Anoa’i-to-Lai Sublease

 

[1] It is black letter law that the sa’o has pule or the authority to make decisions about family lands. See Sagapolutele v. Sagapolutele, 20 A.S.R.3d 16 (Land & Titles Div. 1991); Lutu v. Taesaliali’i 11 A.S.R.2d 80 (Land & Titles Div. 1989); Gi v. Temu, 11 A.S.R.2d 137 (Land & Titles Div. 1989); Coffin v. Mageo 4 A.S.R. 14 (Trial Div. 1970); Lutu v. Fuimaona, 4 A.S.R. 450 (Trial Div. 1964); Tiumalu v. Scanlan 4 A.S.R. 194 (Trial Div. 1961). Conversely, an untitled family member has no pule or authority to unilaterally deal in family property. Malaga v. Alaga, 4 A.S.R. 735, 737 (Trial Div. 1966) (“‘Who can act as a matai?’ The law in American Samoa is quite clear…only a matai has the powers, the authority, the pule of the matai”); Lolo v. Heirs of Sekio, 4 A.S.R. 477, 481 (Trial Div. 1964) (“[U]nder Samoan Custom, family lands are under the jurisdiction of the matai.... A young man has no authority to permit strangers to live on communal family lands”). See also Gi, 11 A.S.R.2d at 141 (“A unilateral and...secret attempt by [a matai] to give his daughter sole authority over family land to the exclusion of his successors in title would seem to have been inconsistent with Samoa tradition, and would certainly have been contrary to statutory law of American Samoa with regard to the alienation of family land”).

 

[2-3] Quite clearly, Le’ala had no authority, cognizable either in law or in custom, to lease out Ta’amu family property to Anoa’i. As she was without right to convey a leasehold estate to Anoa’i, the latter equally had nothing in the way of a leasehold interest to sublet. Moreover, the building, as we have found, is a part of the communal property of Ta’amu family. As such, any lease thereof is subject to the requirements of the Alienation of Land Act, which in pertinent part provides:

 

(a) Native [or communal] land may, with the approval of the Governor, be leased to any person for any term not exceeding 55 years for any purpose, except for the

 

 

 

working of mineral and cutting timber.

 

(b) Provisional agreements for the leasing of native land as provided in subsection (a) may be entered into with the native proprietor or proprietors. Every such provisional agreement, stating in full its terms and conditions, shall be submitted with a plan showing the situation of the land to the Governor for approval, and it shall have no validity until such approval has been signified in writing.

 

A.S.C.A. § 37.0221 (emphasis added).

 

[4] None of the lease instruments presented to the court are in compliance with statute. The documents pertaining to the lease and sublease involving Anoa’i are not even in contemplation of § 37.0321(b) so as to at least qualify for “provisional agreement[s]” pending gubernatorial approval. That is because the claimed lessor Le’ala does not qualify as a “native proprietor,” as that term appears in the enactment. From the cases above discussed, the term “native proprietor” necessarily references in this instance the family sa’o or senior matai Ta’amu.

 

[3, 5-6] Even if the building was the separate property of the heirs of Ta’amu Ma’alona, and it is clearly not, we fail to see how calling a lease a “house lease” thereby excludes the transaction from the requirements of the Alienation of Land Act, applicable to native land leases. First, the Alienation of Land Act requires the Land Commission to meet periodically for the purposes of “making recommendations respecting the approval or disapproval of instruments affecting...possession of [communal] land....” A.S.C.A. § 37.0203(b) (emphasis added). Leaseholds clearly come within the reach of this enactment. Moreover, the house-lease stratagem too conveniently ignores the reality that the communal land on which a structure is located, is necessarily encumbered. Buildings do not exist in a vacuum, notwithstanding the Separation of Structures From Communal Land Act, A.S.C.A. §§ 37.1501, (the “Separation Act”). This statute provides a vehicle for treating what would otherwise be realty into personalty for the sole statutory aim of facilitating secured financing for family members who build on communal land. The Separation Act does not purport to do anything more. It certainly does not attempt to in any way to repeal the mandates of the Alienation of Land Act as it regulates the leasing of native land.2

 

2 Cf. Tiumalu v. Levi, 4 A.S.R.3d 291, 294 (Land & Titles Div. 2000)

 

(leases “for…buildings or portions of a building…are not subject to the

 

requirement that leases of communal land be approved by the

 

Governor”).

 

 

 

[7] The Separation Act clearly does not facilitate the automatic encumbrance of the situs realty without the agreement of the landowner (that is, the sa’o of the landowning family). For instance, a mortgagee who takes a mortgage on a separated structure has, without more, only the salvage value of the separated structure in the event of a foreclosure. Nothing more. The mortgagee has no interest in the underlying land without agreement of the landowner (the Samoan family through its sa’o) when properly transferred in accordance with the Land Alienation Act.

 

[8] Similarly with a leasehold situation, it cannot be sensibly suggested that the lease of a separated house or building does not involve the situs realty. To the contrary, the lease of a house or building also inextricably involves the transfer of “possession,” A.S.C.A. § 37.0203(c), of the situs realty. This hard and fast reality simply cannot be blissfully ignored on some vague assumption that the Separation Act has somehow otherwise adjusted property rights.

 

[8] Moreover, the functionality of any house or building is meaningful only in context that include such real property incidents such as rights of ingress/egress and access to a certain cartilage area for parking and other attendant needs. Again, buildings do not exist in a vacuum, and there is absolutely nothing in the Separation Act that remotely suggests that these sort of rights are part and parcel of the fictional statutory state of separation.

 

[9-10] Furthermore, and from a policy3 point of view, it does not take too much imagination to picture the sort of mischief potential with the “house-lease” ruse. Among other things, this stratagem is anti-fa’a Samoa. It is in derogation of Samoan custom that recognizes that an untitled person does not have the right to permit strangers to live on

 

3 AM. SAMOA REV. CONST. art. 1, § 3 provides :

 

It shall be the policy of the Government of American

 

Samoa to protect persons of Samoan ancestry against

 

alienation of their lands and the destruction of the

 

Samoan way of life and language, contrary to their

 

best interests. Such legislation as may be necessary

 

may be enacted to protect the lands, customs, culture,

 

and traditional Samoan family organization of persons

 

of Samoan ancestry, and to encourage business

 

enterprises by such persons. No change in the law

 

respecting the alienation or transfer of land or any

 

interest therein shall be effective unless the same be

 

approved by two successive legislatures by a twothirds

 

vote of the entire membership of each house and

 

by the Governor.

 

 

 

communal land. Lolo v. Heirs of Sekio, supra. It thus has the potential for eroding the notion of matai pule, and hence a “cornerstone” of the fa’a Samoa (the Samoan way of life). Fairholt v. Aulava, 1 A.S.R.2d 73, 78 (Land & Titles Div. 1983) (“The Samoan way of life has twin cornerstones, the matai system and communal land tenure”). It opens the door to extended encumbrance of communal lands (situs realty) to the exclusion of the matai and family. The Alienation of Land Act limits the leasing of communal land to terms not exceeding 55 years. A.S.CA. § 37.0221(a). If these limits are not applicable to a “house-lease,” such would appear to without any limits as to term. Additionally, the house-lease ruse would open the door to communal property dealings which bypass legislative policy regulating the leasing of communal property, see A.S.C.A. § 37.0221, and it would open the door for unsupervised “improvident” communal land dealings, A.S.C.A. § 37.0203(c).4

 

B. Ta’amuvaigafa-to-Lai Lease

 

With respect to the Ta’amu and Lai lease, this instrument, although seemingly dated--it was executed February 22, 1999-- and qualifies as a “provisional agreement” pending gubernatorial approval in contemplation of the Alienation of Land Act, A.S.C.A. § 37.0221(b). The evidence shows that the contracting parties, Ta’amu and Lai with capacity to enter into a lease of communal land submitted their concluded, but provisional, lease agreement, together with a plan of the demised premises as required by § 37.0221(b), to the Land Commission for approval processing in accordance with the requirements of § 37.0203(b). Notwithstanding this statutory mandate, the Land Commission inexplicably altered the whole statutory process by withholding the parties’ leasehold instrument from the Governor solely on the unelaborated observation that the “Taamuvaigafa matter is being removed because this is a house lease.” See LAND COMMISSION MINUTES, Feb. 18, 2000. This exceptionary treatment appears even less merited given the actual terms of the proposed lease agreement which refer to the demised premises as “that pieces (sic) of land situated in the village of Fagatogo,” followed by a detailed description of that land in metes and bounds. The Land Commission thus committed gross error with its apparent theory that land is not land if you call it something else. We remind the Land Commission of the civil penalties that flow from any violations of Chapter 02, of Title 37, see A.S.C.A. § 37.0230,5 which

 

4 This enactment charges the Land Commission with the duty of

 

preventing the “improvident alienation” of communal lands. It goes

 

without saying that provision in the Ta’amu-to-BP lease that kept the

 

building part of the lessor’s property upon the expiration lease, was a

 

critical term of the lease that would have featured in the Land

 

Commission’s favorable deliberations and the Governor’s approval.

 

5 This enactment in pertinent part provides that “any person committing,

 

317

 

apply equally to private individuals and public officials whose acts thwart the Governor’s statutory duties.

 

III. CONCLUSIONS

 

A. Le’ala-to-Anoa’i Lease, Anoa’i-to-Lai Sublease.

 

[11-12] We conclude that the Anoa’i lease and sublease are nullities, being in violation of Alienation of Land Act, A.S.C.A. § 37.0221(b), and being nullities concluded between competent contracting parties, neither can be heard to complain. Anoa’i having had nothing to lease to Lai, he has no claim upon which relief can be based and his complaint should, therefore, be dismissed. As a nonnative failing to comply with the mandatory provisions of the Alienation of Land Act, he is without a remedy. Specifically, A.S.C.A. § 37.0230 provides in pertinent part:

 

[A]ny nonnative failing to conform to [Title 37] [] chapter [02]...shall be liable to the forfeiture to the owner of land, of all improvements he may have erected or made on the land and no action shall lie for recovery of any payment he may have made or other expenditure he may have incurred in respect thereof.

 

(emphasis added).

 

B. Ta’amuvaigafa-to-Lai Lease

 

[13] We conclude on Lai’s interpleader action that Ta’amu, on behalf of the Ta’amu family, has clearly shown superior rights to the land, and hence the building, over Anoa’i’s claim. We note, however, from the Land Commission’s file on the Ta’amu and Lai proposed lease, in evidence as Ex. “8,” that there were a number of objections lodged with the Land Commission, besides Anoa’i’s. While Anoa’i has had his day in court, it is not clear to us on the record before us that the other objectors have. Presumably with the tact taken by the Land Commission to avoid meeting on the merits of the Ta’amu and Lai proposed lease, the claims of the other objectors, if not voluntarily withdrawn, still remain pending. Without any of the other objectors before us, full and final relief sought here by Lai’s interpleader action is not available at this time. In aid of our jurisdiction, this matter should be continued. We invoke the procedural flexibility permitted the Land and Titles Division by A.S.C.A. § 3.0242(b), and find it “most consistent with natural justice and convenience,” to continue and remand to the Land Commission.

 

IV. ORDER

 

or attempting to commit, a breach of a provision of [Title 37] [] chapter

 

[02]…shall be liable to a fine not to exceed $200.”

 

 

 

For reasons given, and in aid of our jurisdiction in this matter, the following orders are entered:

 

1) Anoa’i’s complaint against Lai on the sublease is dismissed and Anoa’i shall take nothing thereby.

 

2) Lai’s cross-complaint against Anoa’i on the sublease is dismissed and Lai shall take nothing thereby.

 

3) The Ta’amu/Lai proposed lease is remanded to the Land Commission and Governor for approval processing in accordance with the requirements of the Land Alienation Act.

 

4) This matter is continued sine die pending proceedings before the Land Commission and Governor.

 

It is so ordered.

 

Am. Samoa Gov’t v. Tavete


 

AMERICAN SAMOA GOVERNMENT, Plaintiff,

 

v.

 

SUI SAPE TAVETE, Defendant.

 

High Court of American Samoa

 

Trial Division

 

CR No. 14-02

 

May 8, 2002

 

[1] Under the Juvenile Justice Act, Title 45, A.S.C.A., statements made by a child during interrogation are not admissible unless, “a parent, guardian, or legal custodian of the child was present at the interrogation,” and they were made aware of the child’s rights. A.S.C.A. § 45.0204 (c).

 

[2] Proceedings under the Juvenile Justice Act, are not criminal proceedings but juvenile delinquency proceedings, and a “delinquent child” is defined by A.S.C.A. § 45.0103(9)(A) as “any child 10 years or age or older, who . . . has violated federal, state, or territorial law.”

 

[3] The Juvenile Justice Act does not change the common law applicable to children who allegedly commit crimes of violence.

 

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

 

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

 

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

 

 

 

ORDER DENYING MOTIONS TO SUPPRESS STATEMENTS AND FOR MENTAL EXAMINATION

 

We deny the motion to suppress statements made by the defendant and the motion seeking a mental examination of the defendant, both of which were submitted by the defendant, Sui Sape Tavete, on March 11, 2002, and heard by this court on March 28, 2002. Defendant and both counsel were present at the hearing.

 

[1-2] We first deal with defendant’s motion to suppress his statements made to the police during interrogation. Defendant is being charged with 1st Degree Burglary, 1st Degree Assault, and attempted 1st degree Robbery. He was seventeen years old at the time of his arrest for these crimes. Defendant was apprised of his rights Miranda rights which he voluntarily waived before making his statements to the police during interrogation. Under a provision of the Juvenile Justice Act, Title 45, A.S.C.A., statements made by a child during interrogation are not admissible unless, “a parent, guardian, or legal custodian of the child was present at the interrogation,” and they were made aware of the child’s rights. A.S.C.A. § 45.0204 (c). However, in this matter the Attorney General’s Office not has charged defendant as a juvenile under the Juvenile Justice Act, but as an “adult” under the Criminal Justice Act, Title 46 A.S.C.A. This action is within the Attorney General’s unfettered prosecutorial discretion, preserved under A.S.C.A. § 45.0115(c)(2). American Samoa Government v. Julio, 9 A.S.R.2d 128 (1988). Proceedings under the Juvenile Justice Act, are not criminal proceedings but juvenile delinquency proceedings, see A.S.C.A. § 45.0115(a)(1), and a “delinquent child” is defined by § 45.0103(9)(A) as “any child 10 years or age or older, who . . . has violated federal, state, or territorial law.” However, the Juvenile Justice Act goes on to make clear that the term “delinquent child” did “not apply to children 14 years of age or older who allegedly commit crimes of violence.” A.S.C.A. § 45.0103(9)(B).

 

[3] Therefore, we conclude that at least in terms of children who allegedly commit crimes of violence, the Juvenile Justice Act does not change the common law applicable in these matters. Therefore, the defendant’s motion does not present a question of law to the court and we find that it is not dispositive on this matter.

 

A juvenile’s waiver of Miranda rights, like an adult’s waiver of Miranda rights, is reviewed on the totality of the circumstances, including the background, experience, and conduct of the defendant. United States v. Doe, 155 F.3d 1070, 1073 (9th Cir.1998). Lack of parental notification is one factor to consider. Id. While an important factor to consider, it is only one of the many factors the court would examine if presented with the issue. However, the defendant did not present this issue to us and we 331

 

decline to examine it at this time.

 

Next we consider the defendant’s motion seeking a mental examination to determine his competency to stand trial for the offenses charged. Defendant has not put forth sufficient evidence for the court to fully consider whether a mental examination would be desirable in this instance. Defendant’s counsel’s concerns about his client and some brief reference to familial trauma do not rise to a level that would compel this court to act. To the contrary, statute dictates that the defendant is presumed mentally competent. A.S.C.A. § 46.1306. Furthermore, competency to stand trial goes to the issue of whether a defendant has a “sufficient and present ability to consult with his lawyer with a reasonable degree of rational understanding or a rational as well as factual understanding of the proceedings against him.” American Samoa Government v. Taylor, 18 A.S.R.2d 42, 44. (Trial Div. 1990). We have had nothing to suggest that the defendant is presently unable to assist counsel in the defense.

 

Order

 

Because we find the defendant’s arguments lacking in merit, we deny the motion to suppress defendant’s statements and the motion for mental examination.

 

It is so ordered.