TAVAI MOLELI, et al., Appellants,
v.
PELEAFEI TEVESI LAUVI, Appellees.
High Court of American Samoa
Appellate Division
AP No. 11-04
February 6, 2006
[1] A.C.R. 31(a) provides that an appellant's brief is due 40 days after the
record is filed.
[2] If an appellant fails to file his brief within the required time period,
an appellee may move to dismiss the appeal or the appellate division or a
judge thereof may on its or his own motion dismiss the appeal. A.C.R.
31(c).
[3] The Clerk of Courts shall file the record upon receipt of the reporter's
transcript and completion of the record on appeal, and shall immediately
give notice to all parties of the date on which it was filed. A.C.R. 12(b).
[4] A.C.R. 12(b)'s reference to "clerk" means the one and only Clerk of
Courts statutorily responsible for custody of all of the High Court
Divisions' records. A.S.C.A. § 3.0206.
[5] When a record below from the trial court is amplified with the
reporter's transcript, for appellate purposes, it is no less a "filed" record
for A.C.R. 12(b) purposes simply because the Clerk of Courts has failed
to send out notices to the parties. If the parties already know about the
completeness of the record for appeal, any A.C.R. 12(b) action by the
Clerk of Courts would be superfluous for notice purposes.
[6] Even without an A.C.R. 12(b) notice from the Clerk of Courts, the
burden remains with Appellants to perfect and prosecute their appeal.
Before: KRUSE, Chief Justice, WARD,* Acting Associate Justice,
LOGOAI, Chief Associate Judge, and SU`APAIA, Associate Judge.
Counsel: For Appellants, Tofa Robert K. Maez
For Appellees, S. Salanoa Aumoeualogo
*
Honorable John L. Ward II, Judge, District Court of American Samoa,
serving by designation of the Secretary of the Interior.
1
ORDER GRANTING MOTION TO DISMISS APPEAL AND
DENYING MOTION FOR EXTENSION OF TIME TO FILE BRIEF
On August 2, 2004, after a trial on the merits, the Land and Titles
Division of the High Court of American Samoa issued an opinion and
order denying Appellants' petition to remove the Peleafei family's sa`o
title of the village of Lauli`i from Defendant Peleafei Tavesi Lauvi
("Peleafei"), and dismissing the action. On November 2, 2004, the court
issued an order denying Appellants' motion for reconsideration or new
trial.1
Subsequently, on November 12, 2004, Appellants timely filed their
Notice of Appeal in this matter and requested an estimate for the
reporter's transcript of the trial proceedings (the "transcript"). On
January 5, 2005, the Clerk of Courts notified the court and parties that
the transcript would not be filed until possibly late February. Thereafter,
the reporter completed and filed the transcript with the Clerk of Courts,
and then served both parties with copies of the transcript on February 2,
2005.
To date, almost one year since the transcript was filed and served,
Appellants have still not filed their opening brief. This has prompted
Appellees to file a motion to dismiss the appeal for lack of prosecution.
Appellants claim they never received notice of the record being filed, in
accordance with A.C.R. 12(b), and therefore move the court for an
extension to file their brief. For reasons given, we deny the motion for
an extension of time to file appellant's brief and grant Appellee's motion
to dismiss.
Discussion
[1-3] A.C.R. 31(a) provides that an appellant's brief is due 40 days after
the record is filed. If an appellant fails to file his brief within this time
period, an appellee may move to dismiss the appeal or the appellate
division or a judge thereof may on its or his own motion dismiss the
appeal. A.C.R. 31(c). The Clerk of Courts shall file the record upon
receipt of the reporter's transcript and completion of the record on
appeal, and shall immediately give notice to all parties of the date on
which it was filed. A.C.R. 12(b).
Since the record was filed on February 2, 2005, Appellants had until
March 14, 2005 to timely file their brief. To date, Appellants they have
not done so. In their defense, Appellants argue that they never received
1
Opinion and Order, MT No. 05-03 (Land & Titles Div. Nov. 2, 2004).
2
the A.C.R. 12(b) notice from the Clerk of Courts--that the record had
been filed--and thus contend that the 40-day time period had never began
to run. We disagree.
Appellants' argument is disingenuous. First, even if the Clerk of Courts
had not actually sent out an A.C.R.12(b) notice, the Appellants were
actually served with a filed copy of the transcript on February 2, 2005.
See Reporter's Affidavit of Service. Second, the Appellate Division of
the High Court is physically located in the very same premises as the
High Court's Land and Titles Division. As counsel and parties well
know, the divisions of the High Court share a common clerk2 and
common clerical facilities. Accordingly, the record below, as well as the
record on appeal--that below amplified by the transcript--are kept and
maintained by one and the same official. 3 There is, thus, no special
formality entailed with the transmission of the record below to the
appellate division, since that record continues to remain with the Clerk
of Courts under his continuing custody, locked away in the same file
cabinet.
[4-5] The reality in American Samoa is A.C.R. 12(b)'s reference to
"clerk" means the one and only Clerk of Courts statutorily responsible
for custody of all of the High Court Divisions' records. A.S.C.A. §
3.0206. Thus, when a record below from the trial court is amplified with
the reporter's transcript, for appellate purposes, it is no less a "filed"
record for A.C.R. 12(b) purposes simply because the Clerk of Courts has
failed to send out notices to the parties. At this point in time, since the
parties already know about the completeness of the record for appeal,
any A.C.R. 12(b) action by the Clerk of Courts would be superfluous for
notice purposes.
[6] In the circumstances, therefore, we hold that Appellants had "actual"
notice of the filing of the record for appeal as of February 2, 2005, when
they picked up a copy of the filed transcript from the reporter from
whom they had ordered it. After the lapse of some fourteen months
since Appellants filed their notice of appeal, and being almost twelve
months since they received the transcript, any claim to lack of notice is
entirely spurious. At some point in time, despite the lack of A.C.R.
12(b) notice from the Clerk of Courts, the burden remains with
Appellants to perfect and prosecute their appeal, just as at some point in
time, Appellees should be able to get on with their lives with the
litigation behind them.
A.S.C.A. § 3.0205. “The High Court shall have a clerk . . . .” (emphasis
added).
3
A.S.C.A § 3.0206. “The clerk of the High Court shall record its
proceedings and shall be custodian of the records . . . of the court.”
2
3
It strains credulity to suggest that the absence of A.C.R. 12(b) notice
impaired Appellants' ability to prepare their brief. With the transcript in
hand, Appellants have no excuse for failing to file their brief in a timely
manner.
No grounds having been shown for the inordinate delay in getting out
their brief, we DENY Appellants' motion to extend time of filing and
grant Appellees' motion to dismiss.
It is so ordered.
**********
G.H.C. REID & CO., LTD., Petitioners,
v.
CHIEF PROCUREMENT OFFICER OF THE AMERICAN
SAMOA GOVERNMENT OFFICE OF PROCUREMENT,
Respondent,
and
ISLAND'S CHOICE, INC., Intervenor.
High Court of American Samoa
Appellate Division
AP No. 08-04
AP No. 09-04
February 8, 2006
[1] Section 4.0604(e) of the Administrative Law Judge Act of 1998,
gives the ALJ jurisdiction to take appeals of procurement officer's final
decision in a procurement bidding dispute.
[2] Decisions of the Administrative Law Judge may be appealed to the
appellate division of the High Court of American Samoa. A.S.C.A.
§ 4.0604(g).
4
[3] A person who has exhausted all administrative remedies available
within an agency and who is aggrieved by a final decision in a contested
case shall be entitled to judicial review. A.S.C.A § 4.1040(a).
[4] Appeals made to the High Court's Appellate Division under Section
4.1040 must be made within 30 days after the issuance of the decision to
be reviewed, or if rehearing or reconsideration is requested, within 30
days after the decision thereon. A.S.C.A. § 4.1041.
[5] Judicial review may not be sought for any proceeding for which, or
by any person for whom, the law specifically provides other adequate
means of judicial review. A.S.C.A. § 4.1040(b).
[6] The Office of the Administrative Law Judge is an independent
agency of the executive branch of government. A.S.C.A. § 4.0602(a).
[7] The Administrative Procedures Act governs proceedings for judicial
review of final decisions of the ALJ in procurement cases, issued
pursuant to A.S.C.A. § 4.0604(e).
Before: KRUSE, Chief Justice, WARD,* Acting Associate Justice,
LOGOAI, Chief Associate Judge, and SU`APAIA, Associate Judge.
Counsel: For Petitioner, Jennifer L. Joneson
For Respondent, David Cassetty, Assistant Attorney General
For Intervenor, Roy J.D. Hall, Jr., Jeff Waller
ORDER DENYING MOTIONS TO DISMISS APPEALS
The issue presented here is whether an appeal to the Appellate Division
of the High Court from a final decision of the Administrative Law Judge
("ALJ") in a procurement case is governed by: 1) the provisions of the
Administrative Procedures Act ("APA"), A.S.C.A. §§ 4.1001 et seq.,
with a 30-day time limitation for the filing of an appeal; or, 2) the
provisions of A.S.C.A. §§ 43.0801 et seq., which sets out the procedure
for appeals from decisions of the lower courts, and which imposes a 10day limitation period for noticing an appeal. For reasons discussed
below, we hold that appeals from such decisions of the ALJ are governed
by the provisions of the APA.
Background
On June 29, 2004, the Acting Chief Procurement Officer of the
American Samoa Government ("CPO") notified G.H.C. Reid and
*
Honorable John L. Ward II, Judge, District Court of American Samoa,
serving by designation of the Secretary of the Interior.
5
Company, Ltd. ("Reid") that he had awarded Island's Choice, Inc. ("ICI")
with the contracts to provide milk and juice for the Department of
Education ("DOE") School Lunch Program for the 2004-2005 school
year. On July 28, 2004, pursuant to A.S.C.A. § 4.0604(e), Reid filed
petitions for review of the CPO's decisions. On September 10, 2004, and
September 14, 2004, the ALJ issued orders affirming the CPO's
decisions. See ALJ Nos. 02-04 and 01-04. Subsequently, on September
20, 2004, Reid filed a motion for reconsideration and/or new trial. On
October 5, 2004, the ALJ issued an order denying Reid's motion. On
November 4, 2004, Reid appealed the ALJ's decisions by filing its
petition for review of milk procurement dispute (AP No. 08-04) and
petition for review of juice procurement dispute (AP No. 09-04) with
this Court. On March 9, 2005, ICI moved to dismiss, arguing the
appeals were untimely filed.
Discussion
[1-2] Section 4.0604(e) of the Administrative Law Judge Act of 1998,
A.S.C.A. §§ 4.0601 et seq. (the "ALJ Act"), gives the ALJ jurisdiction
"[t]o take appeals of procurement officer's final decision in a
procurement bidding dispute." Under § 4.0604(g), "[d]ecisions of the
Administrative Law Judge may be appealed to the appellate division of
the High Court of American Samoa."
[3-5] Also pertinent to this discussion is § 4.1040(a) of the APA, which
provides that "[a] person who has exhausted all administrative remedies
available within an agency and who is aggrieved by a final decision in a
contested case shall be entitled to judicial review under [§ 4.1040] and
4.1041 through 4.1044." A.S.C.A. § 4.1041 states that appeals made to
the High Court's Appellate Division under Section 4.1040 must be made
"within 30 days after the issuance of the decision to be reviewed, or if
rehearing or reconsideration is requested, within 30 days after the
decision thereon." Additionally, a subsequent provision of the APA,
A.S.C.A. § 4.1040(b), provides in relevant part that "judicial review may
not be sought under this section and 4.1041 through 4.1044 of any
proceeding for which, or by any person for whom, the law specifically
provides other adequate means of judicial review."
[6] The ALJ Act establishes the office of ALJ as an independent agency
of the executive branch of government. A.S.C.A. § 4.0602(a). This
subsection further references the APA in establishing the ALJ's powers
to hear and decide or recommend decisions in contested cases under the
APA. While A.S.C.A. § 4.0604(g) provides that "[d]ecisions of the
Administrative Law Judge may be appealed to the appellate division of
the High Court of American Samoa," we find nothing in the ALJ Act
that suggests the Legislature intended to specifically provide a means of
judicial review other than the existing APA provisions governing
6
appellate court review for final administrative decisions in procurement
cases.
A careful reading of A.S.C.A. § 4.0604(e) reveals that the Legislature
simply substituted a law-trained ALJ to hear and decide administrative
appeals from final decisions of the CPO, in lieu of the former 3-member
ad hoc hearing panels appointed by the Governor.1 In other words, the
ALJ Act merely reconstituted the administrative review tier; the ALJ Act
did not revise the Appellate Procedure statute, A.S.C.A. §§ 43.0802, to
include review procedures and standards for appeals from final decisions
of the ALJ.
Conclusion
[7] We conclude that proceedings for judicial review of final decisions of
the ALJ in procurement cases, issued pursuant to A.S.C.A. § 4.0604(e),
are governed by the APA. Reid has accordingly timely filed its petition.
ICI's motion to dismiss is DENIED.
It is so ordered.
**********
1
Indeed, A.S.C.A. § 4.0604(e) is clear that the ALJ's jurisdiction over
procurement disputes replaces "[t]he Governor's authority to appoint a
three member board to hear disputes of matters pertaining to
procurement disputes."
7
NATIONAL PARK RENTAL ASSESSMENT PROCEEDING FOR
THE VILLAGE OF AFONO and concerning AOELUA
VALOVALO and AOELUA COMMUNAL FAMILY, Appellants,
v.
HC TELA MALAGA and SUA MATAUTIA on behalf of the
AFONO Village Council, Appellees.
High Court of American Samoa
Appellate Division
AP No. 04-05
June 30, 2006
[1] The High Court has exclusive jurisdiction to determine disbursement
amounts to a particular village or Samoan family from land leased by the
U.S. National Park system. 16 U.S.C.A. § 410qq – 1(d)(2).
[2] The Chief Justice, under the authority vested in him by A.S.C.A.
§ 3.0242(a), promulgated the Supplemental Rules for Determination of
Rental Compensation under the National Park Lease Agreement.
[3] Traditionally, a Samoan village claims dominion over land from the
sea to the mountaintops.
[4] Under the statutory category "village land," the Court is under no
duty to determine a particular individual or particular family's eligibility
to receive rental income.
[5] When land within the Park is designated "village land," the High
Court's duties under Section 410qq – 1(d)(2) are twofold: (1) the court
must determine the amount necessary to compensate the village for the
leased land; and (2) the court must certify the village council as the
named payee.
[6] Once a village council is certified as the named payee, it is then free,
pursuant to RCR D(2)(d), to expend the compensation in any manner the
council, in its discretion, deems appropriate.
[7] The Appellate Division cannot consider an issue raised for the first
time on appeal.
8
Before: KRUSE, Chief Justice, McKEOWN,* Acting Associate Justice,
CLIFTON,** Acting Associate Justice, LEFITI, Associate Judge, and
SU`APAIA, Associate Judge.
Counsel: For Appellants, Charles V. Ala`ilima
For Appellees, Arthur Ripley, Jr
OPINION AND ORDER
KRUSE, Chief Justice.
Introduction
The National Park of American Samoa (the "Park"), created by Congress
with the enactment of Public Law 100-571--Oct. 31, 1988 (16 U.S.C. §§
410qq to 410qq-4), is a part of the U.S. National Park system. The Park
is unusual in many respects, including the fact that none of the land
involved is federally owned, but rather leased, in a fashion, from Samoan
village and county councils, as well as from native land owners both
communal and individual.
On the island of Tutuila, the Park
encompasses in large part uninhabited and uncultivated steep
mountainous land areas, situated on the outer fringes of the villages of
Pago Pago, Fagasa, Vatia, and Afono.
After he was awarded the Aoelua matai title in 1995, Appellant Aoelua
Valovalo ("Aoelua"), on behalf of himself and the Aoelua Family of
Afono, filed suit seeking a share of the rental proceeds paid, and payable,
to Afono for parkland within village environs. He claims that he and his
family are entitled to share directly in Park rents based primarily on his
contention that the Aoelua matai title is one of the principal matai of
Afono.
Aoelua's claim is contested by the Village Council of Afono, represented
in these proceedings by council members Tela Malaga and Sua Matautia.
The gist of the Council's opposition is that the Aoelua title, within the
village social order, is a lesser matai of the Tela family and is
subservient to the Tela title. As such, Aoelua would take derivatively
through Tela and not independently.
*
The Honorable M. Margaret McKeown, Circuit Judge, United States
Court of Appeal for the Ninth Circuit, serving by designation of the
Secretary of the Interior.
**
The Honorable Richard R. Clifton, Circuit Judge, United States Court
of Appeal for the Ninth Circuit, serving by designation of the Secretary
of the Interior.
9
Before discussing Aoelua's claim specifically, a brief sketch of the
National Park lease and the rules pertinent to the distribution of rental
proceeds is required.
A. The National Park Lease & the Rules Governing Rent Disbursements
The Park, as a leasehold, is unique within the U.S. National Park system.
That the Park land is largely either communally owned or subject to
village claims of dominion, its leasehold feature also presents equally
unique problems with allocating rental proceeds.
[1-2] Under the enabling legislation, the High Court has exclusive
jurisdiction to determine disbursement amounts to a particular village or
Samoan family. 16 U.S.C.A. § 410qq – 1(d)(2).1 To effectuate the
orderly distribution of rental proceeds, the Chief Justice, under the
authority vested in him by A.S.C.A. § 3.0242(a), promulgated the
Supplemental Rules for Determination of Rental Compensation under
the National Park Lease Agreement (the "Rules" or "RCR").2
The process by which the Court approves a payee depends on whether
the portion of the parkland is designated as individual, government,
communal or village land. For example, with respect to communal land,
village or county councils are asked to designate the communal family's
sa`o (senior matai) or other authorized representative as payee of that
family's communal land. RCR D(2)(b). The council is then asked to
designate a representative to communicate the family sa`o or
representative names to the Court for certification. Id.
1
This enactment provides:
(2) The Secretary shall place all lease payments made
by the United States under the lease in an interest
bearing escrow account in American Samoa. Funds in
such account may be disbursed only by the Governor,
in amounts determined by the High Court of American
Samoa, to those villages and families located within
the boundaries of the park. The High Court of
American Samoa shall have exclusive jurisdiction to
determine the amount to be disbursed under this
section to any person.
2
A.S.C.A. § 3.0242(a) provides:
The Chief Justice shall, by order, prescribe rules and
forms to govern the conduct of proceedings before the
land and titles division. The Federal Rules of Civil
Procedure, Title 28, U.S.C., shall have no application
to proceedings before the land and titles division.
10
The Rules, however, contemplate a somewhat different distribution
scheme for land designated "village land." U.S.C. § 410qq – 1(d)
expressly contemplates payment to villages for "village land"
incorporated into the Park and, accordingly, the Rules define "village
land" as "land which is not commonly recognized by the inhabitants of a
village as either the communal land of some family or as the individual
land of any particular person(s)." RCR D(2)(d).
[3] The designation "village land" is, for reasons discussed below, a
necessary distinction for the orderly distribution of rental proceeds.
Traditionally, a Samoan village claims dominion over land from the sea
to the mountaintops. However, owing largely to the Islands' steep
mountain slopes, much of that land is not arable, and as such, it often
remains uninhabited by villagers. Thus, while the uncultivated and
uninhabited land is not owned by any particular family, 3 it is
nevertheless claimed by the village as a whole.4 These non-arable
hinterlands make up the vast acreage of leased parkland and with regard
to these uncultivated and unoccupied lands, the Rules provide that when
land within the Park is designated "village land," the village or county
council becomes the named payee. RCR D(2)(d). The village or county
council is then free to expend the compensation in any manner the
council, in its discretion, deems appropriate. Id.
Thus, in contrast to communal land where the family sa`o is presented to
the village council for inclusion in the proposed certification list, the
village council is, by necessity, the designated payee in the case of
"village land."
Regardless of whether land is designated communal or village, the
Court, after receiving a council's list of prospective payees, and after
resolving issues, if any, with those named payees, certifies the list and
approves the payment. RCR E. Additionally, the Rules provide for
recertification on an annual basis, affording each council the opportunity
to alter the list of payees presented to the court. RCR F.
3
The notion of Samoan "ownership" of land is a legal construct.
Territory caselaw declares that "Samoans acquired title to their land
through first occupancy coupled with a claim of ownership." Tuia v.
Savea, 4 A.S.R. 483, 485 (Trial Div. 1964); citing Soliai v. Lagafua, No.
5-1949 (H.C. of Am. S.); Fa`ataliga v. Fano, No. 80-1948 (H.C. of Am.
S.); 2 BLACKSTONE 8; MAINE'S ANCIENT LAW (3rd Am. Ed.) 238. By
definition therefore, unoccupied and uncultivated land remains unowned,
although subject to a village's claims of dominion.
4
Quite clearly, this arrangement is intended to keep out neighboring
villagers from making inroads within village limits.
11
B. Afono Village Specifically
Afono land within Park bounds is neither "communal land of some
family or . . . the individually owned land of any particular person(s),"
and was therefore designated village land pursuant to Rule D(2)(d). The
Afono certification process resulted in the High Court's designation of
five members of the Afono Village Council, each the sa`o of an Afono
Family, as payees of the rental proceeds.5 With one exception, since the
inception of the lease in 1994, the Afono Council has designated the
same five council members as payees of the Park rents. 6 Aoelua, who
was awarded his title in 1995, does not sit on the Council. In fact, it
appears the Afono Council banished the Aoelua titleholder decades ago
following a village fracas, the facts of which were not clearly elucidated
below. Moreover, subsequent land litigation between Aoelua and Tela
only served to heighten tension between Aoelua and the Council,
whereby Aoelua remains excluded from the Afono Council to this very
day.
C. The Decision below
Aoelua's claim to rental entitlement is twofold. First, he claims rent on
the basis of communal property rights in the leased park land. Second, he
seeks payment on the basis of his claimed independent matai stature as
recognized by certain High Court land decisions. Aoelua feels he is
entitled to at least a portion of the rental payments equal to that payable
to the other leading Afono Council members.
In contrast, the Council argues that the Park did not incorporate any
communal lands of the Aoelua family. Additionally, the Council
maintains that notwithstanding certain court decisions sustaining
Aoelua's claim to independent status for purposes of certain communal
land holdings within the village, the Aoelua title nevertheless is,
according to the traditional hierarchical structure of Afono, a lesser matai
of the Tela family subservient to the Tela title.
The Trial Court specifically rejected Aoelua's first claim. While the
Court agreed that an earlier land dispute between Aoelua and Tela was
5
In addition to the five Afono Council members, a sixth title, Fualua,
apparently the head of a prominent Afono family who was not then
seated on the Council, was also added to the list as a payee. Sometime
between 1994 and the date of this action, however, Faulua's title was
removed from the list.
6
Sometime between 1994 and the present, Council members removed
the I`aulualo title and substituted the Laupola title as a designated payee.
Trial testimony indicates the Council deems these two titles to be part of
the same family.
12
resolved in Aoelua's favor and established his pule, independent of Tela,
over certain land in Afono,7 the Court expressly found that none of this
land was within Park limits. Accordingly, the Court held Aoelua was
not entitled to compensation on this basis.
The Trial Court also agreed with the Council's version of Afono village's
social structure and hierarchy, finding that "the Aoelua title is
customarily and clearly under the Tela title in Afono's customary social
order." National Park Rental Assessment Proceeding, NP No. 04-93,
slip op. at 6 (Land & Titles Div. Jan. 26, 2005). Based on these facts,
the Court would not intervene and certify Aoelua to Afono's list of
payees. The Court further noted the resolution of Aoelua's role in the
customary affairs of the village (i.e., whether he regains admission to sit
on the Afono Council) was ultimately a matter for the Council, and not
the courts.
Issues on Appeal
Aoelua raises three points on appeal. First, he argues the Trial Court
improperly delegated its authority to determine eligibility for Park rents
under 16 U.S.C.A § 410qq – 1(d)(2) to the Afono Council. Second, he
contends that the Trial Court ignored past precedent establishing Aoelua
as an independent matai free to own communal land in Afono, and
therefore entitled to rental proceeds as communal landowners. Finally,
Aoelua argues that the concept of village land ownership is contrary to
Samoan custom, as only chiefs and communal families may own land.
Aoelua contends that because the Aoelua family has property rights in
Afono based on its status as communal landowners, and because this is
the only basis the court should consider in the disbursement of rental
proceeds, it is error to ignore the Aoelua family simply because of its
current social status within the village.
Discussion
A. Improper Delegation of Duty to Disburse Rental Proceeds
As set forth above, 16 U.S.C.A § 410qq – 1(d)(2) gives the High Court
exclusive jurisdiction to determine the amounts disbursed to "those
villages and families located within the boundaries of the park." 16
U.S.C.A § 410qq – 1(d)(2) (emphasis added).
By authorizing
compensation to "those villages" located within the Park's boundaries,
the Act contemplates both the idea of village held land, for Park
7
See Aoelua Family v. Tela, LT No. 31-80, slip op. (Land & Titles Div.
Nov. 24, 1982); aff'd Tela v. Aoelua Family, AP No. 40-82, slip op.
(Appallate Div. May 21, 1984).
13
purposes, and compensation accordingly to the village for such land
within the Park.
Here, the High Court determined at the outset of the lease that the Park
encompassed 312 acres of Afono land. Based on this acreage, the Court,
exercising its duty under U.S.C. § 410qq – 1(d)(2), determined a specific
dollar amount payable to the village of Afono in yearly rent. Contrary to
Aoelua's claim, the High Court did not abdicate its duty to determine the
amount each village was entitled to, but rather carried it out to the letter.
[4-6] Aoelua's error argument is based on a misunderstanding of the
High Court's actual duties under 16 U.S.C.A. § 410qq. As to the
statutory category "village land," the Court is under no duty to determine
a particular individual or particular family's eligibility to receive rental
income. When, as here, land within the Park is designated "village
land," the High Court's duties under Section 410qq – 1(d)(2) are twofold.
First, the court must determine the amount necessary to compensate the
village for the leased land; and second, it must certify the village council
as the named payee. Where "village land" is concerned, there is nothing
in either Section 410qq or the Rules requiring the High Court to
determine which village members receive the funds, and more
specifically, what percentage of the total rent those individuals should
receive. Once the village council is certified as the named payee, it is
then free, pursuant to RCR D(2)(d), to expend the compensation in any
manner the council, in its discretion, deems appropriate.
Thus, because the Trial Court properly carried out its duties under 16
U.S.C.A. § 410qq, there is no error.
B. Trial Court Ignoring Past Land and Titles Decisions
Aoelua next argues that the Trial Court, in finding the Aoelua title to be
a lesser Tela family title, ignored past decisions regarding Afono's social
hierarchy, specifically the relationship between the Aoelua and Tela
titles. In Aoelua Family v. Tela, LT No. 31-80 (Land & Titles Div.
1982), aff'd Tela v. Aoelua Family, AP No. 40-82 (App. Div. 1984) the
court, in a tersely worded one-paragraph opinion, held that the Aoelua
title was separate from the Tela title, and that the Aoelua family was
entitled to register Aoelua communal land in its name. Aoelua argues
this case clearly establishes: 1) that the Aoelua title is separate from
Tela, and 2) that the Aoelua family has recognized communal property
rights in Afono that entitles it to a separate share of the rental proceeds.
The argument is without merit.
Even if Aoelua could demonstrate that the Aoelua title is independent of
Tela's, the appeal would still fail, because independent status would not
entitle the Aoelua family to a share of the rent payments. The Rules
14
clearly authorize the Afono Council to "expend . . . payments for village
land in any manner which the council, in its discretion, deems
appropriate." RCR D(2)(d). Nothing in the National Park Act or the
High Court's rules requires that these payments be equally distributed
among the principal families of a village. A village council can
distribute those funds in any way it sees fit. Because the allocation of
those funds is left to the council's discretion, the Aoelua family's
allegedly independent status would not give them the right to one-sixth
of the proceeds. There is no legal basis for disrupting Afono's rent
distribution scheme, and the Land and Titles Division committed no
error in deferring to the council's decisionmaking process. 8
Finally, Aoelua's claim that the family's communal property rights in
Afono alone entitle them to a share of the rents is unavailing. On this
point, the Trial Court specifically found the Park did not incorporate any
Aoelua Family communal land. Thus, a claim to rents on this ground is
insupportable. There was no clear error.
C. Village Landownership Contrary to Samoan Custom
In a somewhat roundabout way, Aoelua argues that past precedent
establishes that only chiefs of communal families can own land, and that
the court below therefore erred in allocating Park rents to the Afono
Council, and not the chiefs of Afono communal families.
[7] Since this contention is raised for the first time on appeal, we cannot
consider the issue here. See Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d
146, 149 (App. Div. 1988) (holding that a motion for new trial is a
statutory prerequisite to appeal, and no issue can be raised on appeal that
was not raised in motion for new trial.); see also Amerika Samoa Bank v.
Haleck, 6 A.S.R.2d 54, 57 (App. Div. 1987) (holding that appellate
courts do not address issues unless raised in the Trial Court
proceedings).
Conclusion
For the reasons given, the Trial Court's decision is AFFIRMED.
It is so ordered.
**********
8
In light of our disposition, we need not decide whether the Aoelua title
is independent of Tela's.
15
H&H, INC., SEONG LIM HEO and WILLIAM M. STEFFANY,
Plaintiffs,
v.
SAMOA ENTERPRISES, INC., and HEUNG MAN LIM,
Defendants.
High Court of American Samoa
Trial Division
CA No. 93-03
January 4, 2006
[1] Quantum meruit contains the same elements as required for recovery
under unjust enrichment; the difference is the manner in which damages
are computed.
[2] In an unjust enrichment situation, damages are conferred in the
amount the defendant benefited.
[3] In a quantum meruit situation, damages are the measure of the value
of the plaintiff's services.
[4] In determining an award in a quantum meruit situation, the focus is
on value or price that a plaintiff's materials and services would fetch on
the open market.
[5] In a quantum meruit action, plaintiff bears the burden of proving the
value of his labor and materials furnished and establish a prima facie
case for quantum meruit recovery.
[6] Once plaintiff makes out his prima facie case, however, the burden of
proof shifts to the defendant to show unreasonableness.
[7] In a quantum meruit action, a plaintiff can prove the value of his
labor and materials furnished in a number of ways, and courts have
broad discretion in allowing evidence to prove reasonable value.
[8] In a quantum meruit action, a plaintiff can prove the value of his
labor and materials furnished by producing expert testimony about the
customary charges of others in his field; by producing invoices and
receipts outlining expenses and labor expended on a particular job; or by
the testimony of the parties.
16
[9] The price a person is willing to pay for a service, and the price a
person is willing to perform that service for, is the very definition of
reasonable value.
Before: KRUSE, Chief Justice, and ATIULAGI, Associate Judge.
Counsel: For Plaintiffs, Robert K. Maez
For Defendants, Jeffery Waller
ORDER DENYING MOTION FOR RECONSIDERATION
OR NEW TRIAL
Introduction
Plaintiff Seong Lim Heo ("Heo") was awarded damages in quantum
meruit against defendants Heung Man Lim and Samoan Enterprises,
Inc., ("Defendants") in the sum of $53,303.20. This amount, we found,
reflected the reasonable value of materials and services that Heo had
furnished Defendants.
Defendants have moved for reconsideration and/or new trial, citing error
in the award on the following grounds: 1) Heo's work had only nominal
value to Defendants; 2) Heo did not perform in a workmanlike manner;
3) compensation for the compressors was unjustified because they had to
be replaced; and 4) Plaintiffs did not introduce evidence establishing
"reasonable value" for Heo's services.
Discussion
For ease of reference, we separately discuss each claimed item error.
A. "Nominal Value" Argument
The Defendants' argument here is that since the refrigeration system
installed by Heo had never work properly, it only had nominal value to
Defendants. As such, the faulty system could not be the basis for the
damages award. In particular, the Defendants contend that as the system
would only cool, and not freeze, fish, requiring the continued use of ice
during voyages to keep the fish from spoiling, the Defendants were not
enriched by Heo's work and should not, therefore, have to pay for it.
This argument, however, was raised at trial; it runs through no less than
four pages of Defendants' closing argument and it is an argument that we
specifically considered and rejected. We found that a system that would
freeze fish as opposed to cool them would cost twice as much as what
Defendants wanted to spend--a fact Defendants were well aware of
before Heo installed the system. Furthermore, we found that while the
17
refrigeration system's design could have been better, it was the
Defendants who directed Heo, against his better advice, to install the
system in the manner in which he did. Thus, whatever "value," or lack
thereof, the refrigeration system added to the vessels was the result of: 1)
Defendants' unwillingness to pay for a better system that would produce
the desired result of freezing fish; and 2) Defendants' insistence on
installing the system in a manner that produced inefficient cooling. In
the end, the Defendants got exactly what they bargained and paid for,
and the law does not require penalizing Heo for merely following
Defendants' instructions.
Because this issue was already litigated, and because Defendants offer
no new evidence or authority to contradict our findings, reconsideration
or new trial on this ground is denied.
B. Un-workmanlike Performance.
Defendants next claim that Heo had not performed in a workmanlike
manner and that recovery should be circumscribed accordingly. First,
this position is nothing more than the "nominal value" argument in
disguise. Second, the quality of Heo's work was an issue raised at trial,
and again it was considered and also rejected. There, we specifically
found that Defendants designed the layout of the refrigeration system
and insisted on it being installed in the manner which Heo installed it.
Further, we found that the problems associated with the system's
function were more the product of Defendants' poor design, rather than
Heo's installation manner.
Defendants' motion for reconsideration/new trial on this ground must
also be denied.
C. Error In Compensating Replaced Compressors
Defendants claim that they should not have to pay for the compressors
Heo installed on the vessels since they eventually had to be replaced, and
Defendants did not, therefore, benefit from them.
[1-4] Defendants again, as they did in their closing argument, confuse
recovery under unjust enrichment principles with recovery in quantum
meruit. While courts use the terms restitution and quantum meruit
interchangeably, unjust enrichment, on the other hand, is an entirely
different measure of damages. Chodos v. West Publishing Co., 292 F.3d
992 (9th Cir. 2002). Whereas quantum meruit "contains the same
elements as required for recovery under unjust enrichment, the
difference is the manner in which damages are computed. In unjust
enrichment, damages are conferred in the amount the defendant
benefited. In quantum meruit, damages are the measure of the value of
18
the plaintiff's services." Hartley v. Dayton Computer Supply, 106
F.Supp.2d 976, 984 (S.D.Ohio 1999). Other jurisdictions, including
California, have adopted a subsidiary definition of the reasonable value
of a plaintiff's services: the amount that it would have cost the defendant
to obtain the goods or services from another person. Maglica v.
Maglica, 66 Cal.App.4th 442, 452 (1998) (upholding jury instruction
based on this definition); see also Restatement (Second) of Contracts §
371 (1979). Thus, we are not concerned (as we would be if damages
were awarded under an unjust enrichment theory), with the precise
amount Defendant believes he benefited from Plaintiff's goods or
services. Rather, in quantum meruit, we are concerned with value or
price that Plaintiff's materials and services would fetch on the open
market. Maglica, 66 Cal.App.4th at 452.
Here, Defendants do not contest the reasonableness of the price of the
compressors. Instead, they simply argue that they did not derive much
benefit from the compressors since they eventually had to be replaced.
Since the amount a defendant benefited from goods and services is not
the measure under quantum meruit, Defendants motion for
reconsideration or new trial on this point is denied. 1
D. Absence of Proof on Reasonable Value
Defendants also claim that the amount awarded is not supported by the
evidence. Specifically, Defendants argue that the burden of proof was
on Plaintiffs and that Heo had failed to introduce evidence proving that
the value of his services were reasonable. Consequently, Defendant
submits that a new trial on damages is warranted.
[5-6] Defendants have only partially stated the standard. Indeed, in a
quantum meruit action, plaintiff bears the burden of proving the value of
his labor and materials furnished. But once he does so, he makes out a
prima facie case for quantum meruit recovery. Coastal Timbers, Inc. v.
Regard, 483 So.2d 1110, 1115 (La. App. 1986). Once plaintiff makes
out his prima facie case, however, the burden of proof shifts to the
defendant to show unreasonableness. See id. (holding that if, after a
plaintiff introduces evidence of the reasonable value of his services, the
defendant claims the amount is unreasonable then "the burden of proof
rests on defendant, and not the plaintiff, to prove that the sum claimed . .
. exceeds the amount [defendant] was enriched." (emphasis added). See
1
On this point, we also note that there was substantial evidence
suggesting that the compressors had failed not so much because of
improper installation, but because Defendants had failed to properly
maintain the compressors after installation. On these grounds alone, the
motion must fail since Defendants did not offer new evidence or
controlling authority on this issue.
19
also, Cabot, Cabot & Forbes v. Brian, Simon, Peragine, Smith &
Redfearn, 568 F.Supp. 371, 376 (D.C. La. 1983).
[7-8] A plaintiff can meet this burden a number of ways, and courts have
broad discretion in allowing evidence to prove reasonable value.
Valentine v. Read, 50 Cal.App.4th 787, 795 (1996). For example, a
plaintiff can produce expert testimony about the customary charges of
others in his field. Coastal Timbers, Inc. v. Regard, 483 So.2d 1110,
1113-14 (La. App. 1986) (upholding quantum meruit damages award
where, although plaintiff failed to keep accurate records of his expenses,
he nevertheless introduced expert testimony from a competing contractor
about the value of services rendered). Or, as here, he can produce
invoices and receipts outlining expenses and labor expended on a
particular job. See e.g., Maloy v. Ewing, 276 S.E.2d 145, 147 (Ga. App.
1981) (upholding quantum meruit damages award where only evidence
of value was plaintiff's testimony and his invoices outlining the price of
his labor and cost of materials). Further, evidence of reasonable value
can also be determined simply by testimony of the parties. See Chodos
v. West Publishing Co., Inc., 92 Fed.Appx. 471 (9th Cir. 2004) (holding
that in an action for quantum meruit damages, testimony from a
publisher about what he would pay for a manuscript, coupled with
testimony from its author about what he would charge for it constituted
sufficient evidence of reasonable value).
For our purposes then, the question is: did plaintiff introduce evidence
establishing reasonable value in any of the manners described above?
We hold that he did. First, Heo introduced invoices detailing the hours
worked on each vessel and the cost of his labor and materials. Similarly,
Heo introduced invoices detailing the cost of labor and materials for
work performed at Nu`u`uli Mart. Under Maloy, these invoices,
standing alone, would provide evidence of reasonable value, thus
shifting the burden to Defendants to introduce evidence that the amount
was unreasonable.
[9] Similarly, the testimony itself pointed to reasonable value. Here, it
showed that the Defendant was looking to convert the cooling
mechanisms in the three vessels from ice systems to refrigeration
systems and Heo was approached by the defendant Lim about installing
a refrigeration system, stipulating that he was only willing to spend
around $15,000 per vessel. Plaintiff testified that he agreed to install the
system as outlined by Lim for the amount budgeted. Clearly, this is
evidence of reasonable value, as the price a person is willing to pay for a
service, and the price a person is willing to perform that service for, is
the very definition of reasonable value. See Chodos, 92 Fed. Appx. at
471.
20
Based on the testimony, and the invoices, we were able to find that
Plaintiffs had introduced ample evidence to support the damages
awarded.
Order
For reasons given, Defendants' motion for reconsideration/new trial is
DENIED.
It is so ordered.
**********
LOLO MOLIGA as President of the Senate and SENATE OF
AMERICAN SAMOA, Plaintiffs,
v.
AMERICAN SAMOA MEDICAL CENTER, an agency of the
Executive Branch of the American Samoa Government, Defendants.
High Court of American Samoa
Trial Division
CA No. 10-06
February 1, 2006
[1] Article III of the United States Constitution limits judicial power to
the resolution of "cases" and "controversies." U.S. CONST. Art III.
[2] One element of the case-or-controversy requirement is that plaintiffs,
based on their complaint, must establish that they have standing to sue.
[3] The limitation imposed by the standing requirement is based on the
separation of powers that underlies the federal government.
[4] The standing requirement applies to the judiciary of American
Samoa.
[5] To establish standing, a plaintiff must satisfy three requirements.
First, show an "injury in fact," which is concrete, distinct and palpable,
and actual or imminent. Second, establish a causal connection between
21
the injury and the conduct complained of--the injury has to be fairly
traceable to the challenged action of the defendant, and not the result of
some third party not before the court. Third, demonstrate the substantial
likelihood that the requested relief will remedy the alleged injury in fact.
[6] The standing inquiry should be especially rigorous when reaching the
merits of a dispute would cause a court to decide the legality of an action
taken by one of the other two government branches.
[7] The America Samoa House or Senate have standing to maintain a
suit against the executive branch where either the House or Senate is
trying to protect its lawmaking powers--more specifically, when they are
seeking to maintain the validity of their votes.
[8] Members of the House or Senate do not have standing when seeking
to challenge the executive's failure to obey a statute.
Before: KRUSE, Chief Justice
Counsel: For Plaintiffs, Roy J.D. Hall, Jr., and Jeff Waller
ORDER DISMISSING COMPLAINT FOR DECLARATORY RELIEF
DENYING PETITION FOR WRIT OF MANDAMUS AND
APPLICATION FOR INJUNCTIVE RELIEF
Introduction
Defendant American Samoa Medical Center ("ASMC"), otherwise
known as the LBJ Tropical Medical Center, is an agency of the
American Samoa Government's executive branch. Sometime prior to
November 15, 2005, ASMC amended Title 11, Chapter 3 of the
American Samoa Administrative Code ("A.S.A.C."), permitting ASMC
to change and adjust medical treatment fees as necessary. ASMC then
introduced new hospital fees and increased certain existing fees. ASMC
began to collect these fees on or about November 1, 2005.
Lolo Moliga, "as President of the Senate," and the Senate of American
Samoa (collectively, "Plaintiffs"), filed this action against ASMC,
challenging the legality of these amendments and fee increases.
Essentially, Plaintiffs contend that ASMC's actions violated various
provisions of the American Samoa Code Annotated and failed to comply
with the Administrative Procedures Act ("APA"). Thus, Plaintiffs argue
that both the amendments and new and increased fees are invalid.
Accordingly, Plaintiffs seek the following:
(1) a determination that ASMC's amendments violated
A.S.C.A. § 13.0102(12) because they permit the
22
introduction and changing of fees without adhering to
APA requirements;
(2) a determination that the new and increased fees
were a "rule" under the APA affecting a private right,
and that because they were not adopted pursuant to
APA rules, the fees are invalid and void;
(3) a temporary restraining order enjoining ASMC
from enforcing fees associated with the amendments to
the administrative code;
(4) a preliminary injunction enjoining ASMC from
enforcing fees associated with the amendments to the
administrative code;
(5) permanent injunctive relief, after a trial on the
merits, enjoining ASMC from enforcing fees
associated with the amendments to the administrative
code;
(6) declaratory judgment holding that ASMC did not
comply with APA requirements;
(7) writ of mandamus directing the ASMC to refund
all fees collected under the amended regulations and
promulgated new and increased fees;
(8) award to Plaintiffs its costs and disbursements;
(9) award to Plaintiffs any other relief the court deems
just and proper.
For reasons discussed below, we hold that Plaintiffs lack standing to
bring this action, and accordingly dismiss the complaint without
reaching the merits of the allegations. For the same reasons, Plaintiffs'
petition for writ of mandamus and application for injunctive relief will
also be denied.
Discussion
[1-4] Article III limits "judicial power" to the resolution of "cases" and
"controversies." One element of the case-or-controversy requirement is
that plaintiffs, based on their complaint, must establish that they have
standing to sue. Raines v. Byrd, 521 U.S. 811, 818 (1997). The
limitation imposed by the standing requirement is based on the
separation of powers that underlies the federal government.
23
Northeastern Fla. Chapter of the Assoc. Gen. Contractors of America v.
City of Jacksonville, Fla., 508 U.S. 656, 663 (1993) (citing Allen v.
Wright, 468 U.S. 737, 750 (1992)). Because the government and
constitution of American Samoa are based on the U.S. model, those
principles generally apply to the judiciary of this territory.
Mulitauaopele v. Togafau, 26 A.S.R.2d 52, 53 (Trial Div. 1994).
[5-6] To establish standing, a plaintiff must satisfy three requirements.
First, show an "injury in fact," which is "concrete," "distinct and
palpable," and "actual or imminent." Whitmore v. Arkansas, 495 U.S.
149, 155 (1990) (internal quotation marks and citation omitted). Second,
establish "a causal connection between the injury and the conduct
complained of--the injury has to be `fairly trace[able] to the challenged
action of the defendant, and not . . . th[e] result [of] some third party not
before the court.'" Lujan v. Defenders of Wildlife, 504 U.S. 555 at 560561 (1992) (quoting Simon v. Eastern Ky. Welfare Rights Organization,
426 U.S. 26, 41-42 (1976)). Third, demonstrate the "`substantial
likelihood' that the requested relief will remedy the alleged injury in
fact." Vermont Agency of Natural Resources v. United States ex. Rel
Stevens, 529 U.S. 765, 771 (2000). This standing inquiry should be
especially rigorous when reaching the merits of a dispute would cause a
court to decide the legality of an action taken by one of the other two
government branches. See Raines, 521 U.S. at 819-20 (the Court further
noted that reaching the merits of such a case implicates the "overriding
and time-honored concern about keeping the Judiciary's power within its
proper constitutional sphere.").
[7-8] To be sure, the ability of the America Samoa House or Senate to
maintain a suit against the executive branch is, in the proper
circumstances, beyond question. Senate v. Lutali, 26 A.S.R. 2d 125, 127
(Trial Div. 1994). However, these circumstances are limited to
situations where either the House or Senate is trying to protect its
lawmaking powers--more specifically, when they are seeking to maintain
the validity of their votes. See id. (Senate possessed standing where they
alleged that Governor's plan to raise ASG employees' salaries did not go
through the proper legislative channels). Where members of the House
or Senate merely seek to challenge the executive's failure to obey a
statute, we have found standing to be lacking. Muavaefa`atasi v. ASG,
CA No. 30-99 (Trial Div. 1999) (legislator lacked standing to sue in his
official capacity for executive branch's alleged violations of the antigambling statute, A.S.C.A. §§ 46.4301).
Similarly, the lower federal courts have historically limited standing for
Members of Congress qua member to circumstances where their
participation in the lawmaking process has been injured. See Kennedy v.
Sampson, 511 F.2d 430, 433-36 (D.C. Cir. 1974) (United States Senator
had standing to challenge an unconstitutional pocket veto on the ground
24
that it had nullified his original vote in favor of the legislation in
question); Moore v. House of Representatives, 733 F.2d 946, 951 (D.C.
Cir. 1984) (House representatives had standing to challenge
constitutionality of revenue bill that originated in Senate instead of
House). However, even where Members of Congress have asserted
injury to their institutional power as legislators, the courts have not
always been willing to grant standing. See Holtzman v. Schlesinger, 484
F.2d 1307, 1315 (2nd Cir. 1973), cert. denied 416 U.S. 936 (1974)
(Member of Congress had no standing qua Congresswoman to attack
constitutionality of Vietnam war where she was not denied right to vote);
Harrington v. Schlesinger, 528 F.2d 455, 459 (4th Cir. 1975) (same).
While the Supreme Court has not ruled definitively on the matter, the
Court did weigh in on the legislative standing issue in Raines v. Byrd.
There, the Court held that individual Members of Congress lacked
standing to challenge a line-item veto statute because they "alleged no
injury to themselves as individuals [and] the institutional injury [to
political power] they alleged [was] wholly abstract and widely
dispersed." 521 U.S. 811, 829 (1997). While this decision does not
necessarily foreclose suits by Members of Congress to protect their
lawmaking powers--the Court does not expressly overrule Kennedy v.
Sampson or Moore v. United States House of Representatives--it
illustrates that injuries claimed by Members of Congress in their official
capacity, as opposed to their private capacity, are less likely to be
"concrete" enough to establish standing.
Clearly, in light of both territorial precedent and Raines, the case before
us does not fall within those limited circumstances where members of
the House or Senate may challenge action(s) taken by the executive
branch. Plaintiffs, suing as members of the Senate, fail to meet their
burden of establishing a personal, distinct and concrete injury. Although
Plaintiffs argue that ASMC's amendments to the A.S.A.C. and resulting
fee increases violated various statutes, they do not explain how such
actions injured them in their official capacities. That is, unlike Senate v.
Lutali or Kennedy v. Sampson, this is not a case where the executive
branch of the Government has allegedly overstepped its bounds and
usurped legislative power (i.e. the executive branch undermining the
validity of the Senators' votes). Rather, the subject of this suit is
ASMC's alleged failure to comply with statutory procedure. This is not a
proper basis for standing, as any injury to Plaintiffs stemming from
ASMC's alleged statutory violations is far too speculative in nature.
We conclude that Lolo Moliga and the Senate of American Samoa do
not have a sufficient personal stake in this dispute and have not alleged a
25
sufficiently concrete injury to establish Article III standing. Plaintiffs'
complaint must therefore be dismissed. 1
Order
Because Plaintiffs lack standing to bring this action, we DISMISS their
complaint without reaching the merits of Plaintiffs' allegations. For the
same reasons, we also DENY Plaintiffs' petition for writ of mandamus
and application for injunctive relief.
It is so ordered.
**********
1
In view of the court's obligation to ensure that the parties have
standing, even if the parties are willing to concede the issue, Bender v.
Williamsport Area School District, 475 U.S. 534, 541 (1986), rehearing
denied 476 U.S. 1132 (1992), we are baffled by Plaintiffs' failure to even
consider pleading or briefing the issue of standing. To be sure, standing
is a non-issue in the great majority of cases brought before this court.
However, when one branch of government is challenging the actions of
another branch of government (i.e. separation of powers), raising
potential constitutional issues, counsel would do well to be mindful of
standing concerns before launching into extensive legal argument
directed at the merits of a dispute.
26
LAUIFI P. TAUILIILI, FUAMATU JOE V. FUAMATU, PUAILOA
TAEI M. MAAE, RICHARD J. MEREDITH, TAUSILI ALE,
PONAUSUIA LUSI FALE, ULUFALE FUIMAONO, Plaintiffs,
v.
TUITELELEAPAGA PESETA IOANE FUE. President of Samoa
Veterans Association (SVA), GAOTEOTE TOFAU PALAIE, Vice
President of SVA, FA`AFETAI IALIVA, Secretary of SVA,
MATAGI RAY M. McMOORE, Treasurer of SVA, ATIULAGI
PESE, Chairman, Board of Directors for SVA, FA`AMAUSILI
POLA, Vice-Chairman, Board of Directors for SVA, SAMOANA
FELLOWSHIP, INC., (SFI), SESE McMOORE, owner SFI,
MATAGI RAY M. McMOORE, owner of SFI, Defendants.
High Court of American Samoa
Trial Division
CA No. 08-06
February 21, 2006
[1] Sufficient grounds for the issuance of a preliminary injunction 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. A.S.C.A. § 43.1301(j)
[2] All gambling activity is criminal except for the occasional playing of
bingo or the selling of chances for the raffling of an item of value for
religious, educational, or charitable purposes. A.S.C.A. §§ 46.43014302.
Before: KRUSE, Chief Justice, MAMEA, Associate Judge, and SAOLE,
Associate Judge.
Counsel: For Plaintiffs, Robert K. Maez
For Defendants Samoa Veterans Assocation, Henry W. Kappel
For Defendants Samoana Fellowship, Inc., Fiti A. Sunia
ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
Introduction
This matter came on regularly for hearing on February 17, 2006, upon
plaintiffs' motion for provisional injunctive relief. Plaintiffs duly
27
appeared with counsel Robert K. Maez, while SVA and its officers
appeared with counsel Henry W. Kappel, and SFI and its officers
appeared with counsel Fiti A. Sunia.
Plaintiffs who are all United States Navy retirees seek to enjoin the
defendants Samoa Veterans Association (SVA), and its named officers,
together with Samoana Fellowship, Inc., (SFI) and its named officers,
from, inter alia, “using the SVA property and clubhouse located at the
Tafuna Industrial Park, Tafuna from being used for illegal bingo
operation . . .” Plaintiffs' Complaint Declaratory and Injunctive Relief.
The SVA premises at issue here is tract of public land, slightly under
one-half acre, that the American Samoa Government ("ASG") has leased
to SVA (the "Lease") for 30 years at a rental of $1.00 per annum. The
Lease, which will terminate in 2017, requires SVA
to use and maintain [the premises] . . . exclusively for
recreational facilities for its members, retired members
of the military, those who served in the armed forces
and who have been honorably discharged, and active
members of (sic) U.S. armed forces visiting American
Samoa. (Emphasis added).
See Exhibit "6," at page 2. The Lease further acknowledges that the
premises is "prime industrial land, reserved for such use by the
Government," and that ASG reserved the right to unilaterally terminate
the lease upon 30 days notice to SVA. Id.
Plaintiffs were until recently paying members of SVA. They stopped
paying dues because they were never issued "Membership Cards," as
required by SVA's bylaws, and because they had no idea as to what
became of their paid-in dues.
Defendant SVA is an eleemosynary corporation which was organized in
1973 under the laws of American Samoa, for a stated life of 50 years, "to
provide aid and assistance to veterans and their dependents, as well as
orphans and widows of deceased veterans." See Exhibit "3," at page 1.
Defendant SFI was also organized under the laws of American Samoa as
an eleemosynary corporation, in 1991. SFI has principally conducted
bingo games in the territory, and for the most part at the SVA premises.1
SFI's tax exempt status, however, as an eleemosynary organization, was
revoked recently nunc pro tunc by the revenue authorities.
1
An account of SFI's bingo origins may be found in United
Congregation Church in the South Bay in Samoa v. McMoore, 28
A.S.R.2d 195 (Land & Titles Div. 1995).
28
Plaintiffs' suit to put a stop to SFI's nightly bingo games at the SVA
premises claims that the bingo operation is not only illegal but it has
effectively precluded all veteran-related activity at the SVA clubhouse.
Defendants in response to the motion contend that plaintiffs' are without
standing to sue and are unable to demonstrate requisite injury justifying
the issuance of an injunction.
Discussion
[1] In these matters, we are guided by A.S.C.A. § 43.1301(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.
For reasons explained below, we grant plaintiffs' motion for a
preliminary injunction.
First, we find no basis to defendants' standing argument. Plaintiffs as
"retired members of the military," see Exhibit "6," are, by virtue of the
express terms of the Lease, within that designated class of persons for
whom the use and maintenance of the SVA premises were intended.
Second, we are satisfied on the evidence that plaintiffs' interests, as
"retired members of the military," in the SVA premises are being
adversely impacted by potentially ruinous decisions made by SVA's
current board members. Among other things, SVA's written agreement
with SFI allowing the latter to use the leased premises for bingo
operations, see Exhibit "2," violates the Lease's unequivocal requirement
that the premises be used and maintained "exclusively" for the
recreational use of SVA members, veterans, active personnel, and guests.
Indeed, the evidence shows that the premises has been used and
maintained preclusively of its intended beneficiaries; and that SFI's bingo
schedule has taken precedence over plaintiffs' access, as "retired
members of the military," to SVA facilities. Thus, plaintiffs' request to
use the clubhouse, during the Territory's Centennial celebrations, to host
visiting veterans and military personnel, was granted subject to plaintiffs'
ceasing all activities before the regularly appointed bingo hours. While
29
SVA continues to allow ongoing third-party operations on the premises, 2
it is in breach of the Lease.
Additionally, the Lease requires that SVA "not (sic) Sub-lease, assign or
attempt to assign th[e] lease, or in any manner turn over to any other
person the use of the premises . . . without first obtaining the written
consent of the Government." Notwithstanding this unambiguous
prohibition contained in the Lease, SVA nevertheless entered into that
written agreement turning over the premises to SFI's bingo operations,
see Exhibit "2," without first obtaining ASG's consent.
Finally, we concur with plaintiffs' position that SFI's bingo operations
are illegal. The Criminal Justice Act proscribes all gambling activity as
criminal "except for the occasional playing of bingo or the selling of
chances for the raffling of an item of value for religious, educational, or
charitable purposes." A.S.C.A. §§ 46.4301-4302. Here, there can be
nothing legal about SFI's bingo operations at SVA's premises because
there is nothing "occasional" about SFI's six nights a week, week-in
week-out, bingo games. Moreover, and in view of SFI's loss of tax
exempt status--being deemed a "for profit" organization for tax
purposes--any continuing claim SFI may have had, as a front to its bingo
operations, to being an eleemosynary organization, rings hollow even
louder. Consequently, when SVA's board agreed to allow SFI to hold
bingo games at SVA's premises, SVA too ran afoul of the anti-gambling
statutes. Section 46.4301 additionally makes it a crime "to let any
establishment, structure, place . . . for gambling." This ill-informed
decision on the part of SVA's officials exposes the organization to
criminal prosecution as longs as it continues to suffer SFI's bingo
operation in and about its "establishment, structure [or] place."
The current state of affairs with the SVA premises only bespeaks the
presently tenuous nature of the SVA's leasehold interest. As noted, the
Lease reserves a 30 day termination option to ASG, because the subject
of the lease is a parcel of "prime" commercial land. While this valuable
public asset, set aside by ASG at $1.00 per annum, may be seen by some
as a tribute to our veterans and the men and women who continue to
serve our nation in uniform, others are bound to view this worthy public
goal as having been effectively hijacked for unlawful activity--unquestionably grounds for premature termination of the Lease by ASG.
2
SFI's bingo games are not limited to veterans and guests, but open to
all. Mrs. Sese McMoore of SFI categorized her constituents as le
atunu`u (the community at large).
30
Order
In the circumstances, we find that plaintiffs have sufficiently shown
substantial likelihood of prevailing on the merits, as well as sufficiently
palpable and irreversible damage to their rights, "as retired members of
the military," to the continued use of the SVA premises. We conclude
sufficient grounds shown warranting the issuance of a preliminary
injunction. Plaintiffs' motion is, therefore, GRANTED.
It is so ordered.
**********
ALEX GALEA’I, Plaintiff,
v.
TUIKA TUIKA, MAFA TUIKA and DOES 1-10, inclusive,
Defendants.
High Court of American Samoa
Trial Division
CA No. 17-04
March 7, 2006
[1] The standard for granting a motion for reconsideration is strict and
should be denied, unless the moving party can point to controlling
decisions or data that the court overlooked.
[2] Reconsideration is only based upon manifest error or law or mistake
of fact, and a judgment should not be set aside except for substantial
reasons.
[3] The party moving for reconsideration bears the burden of showing
substantial reasons why the requested relief should be granted.
[4] In a motion for reconsideration, the moving party must state the
grounds for relief with particularity and detail; thus affording the trial
judge an opportunity to differentiate manifest errors of law or fact from
otherwise harmless errors. At a minimum, this requires the moving party
31
to cite specific allegations of error and to point to controlling law to
support their contentions.
[5] A party moving for reconsideration cannot merely attempt to
relitigate issues that were already decided, but rather must point to
evidence or new controlling authority the that court overlooked in
reaching its conclusions. The moving party must refrain from merely
presenting the court with unresearched and unsupported conclusory
opinions.
[6] Fed. R. Civ. P. 11 is the federal counterpart to T.C.R.C.P 11.
[7] T.C.R.C.P. 11 prohibits lawyers and unrepresented parties from filing
“frivolous” motions or lawsuits.
[8] T.C.R.C.P. 11 requires attorneys or unrepresented parties to attest
that the arguments or legal contentions in their pleadings are warranted
by existing law, and further that factual contentions and denials of
factual contentions have evidentiary support. T.C.R.C.P 11(b)(2-4).
[9] A violation of T.C.R.C.P. 11 gives the court discretion to assess
sanctions and award attorney’s fees to the non-offending party.
T.C.R.C.P 11(c).
[10] A necessary prelude to awarding attorney’s fees under T.C.R.C.P.
11 is the actual filing of a separate T.C.R.C.P. 11 motion. T.C.R.C.P.
11(c)(1)(A).
[11] A T.C.R.C.P. 11 motion is not to be filed with the court, unless,
within 21 days after service, the challenged allegation is not withdrawn
or appropriately corrected.
Before: RICHMOND, Associate Justice, and SAGAPOLUTELE,
Associate Judge.
ORDER DENYING MOTION FOR RECONSIDERATION AND
DENYING MOTION FOR ATTORNEY’S FEES
Introduction
On July 25, 2005, after a trial on the merits, we found that the written
agreement between Plaintiff Alex Galea`i and Defendants Tuika Tuika
and Mafa Tuika was an agreement for the sale, payable in monthly
installments, of the at issue property. Accordingly, we credited
Plaintiff’s $50,000 payment to DBAS, his past monthly payments, and
monthly payments held in trust by the court during this action’s
pendency, as being made toward the purchase price. We further found
32
that Plaintiff was entitled to specific performance of the agreement, and
ordered Defendants to hand over title, subject to full payment of the
purchase price. In so holding, we rejected the Defendants’ general
claims for damages, and we specifically rejected their contention that the
written agreement was a lease and not a contract for the sale of the
property.
Nine days later, on August 4, 2005, Defendants, through counsel, moved
for reconsideration or new trial raising several issues with our
conclusions. That same day Defendants, under a pro se heading, filed
another motion for reconsideration. That motion, for the most part, is
unintelligible. The parts that are somewhat coherent contain vague and
unsubstantiated allegations of frauds and conspiracies among the parties,
members of the court, and numerous people who do not appear
connected in anyway to the facts or issues in this case.
During a September 26, 2005 hearing, we struck the pro se motion for at
least two reasons. First, at the time the motion was filed, counsel Maez
represented Defendants.1 Because it is well settled that parties speak
through their attorneys, we deemed Defendants’ pro se filing to be
extrajudicial and inappropriately filed.
Second, T.C.R.C.P. 11 requires all pleadings “be signed by at least one
attorney of record in the attorney's individual name.” Rule 11 makes the
signing of a pleading by an attorney, whenever one represents a party, an
essential condition to the validity of a pleading. See Old Hickory
Engineering and Mach. Co., Inc. v. Henry, 937 S.W.2d 782, 785 (Tenn.
Sup. Ct. 1996) (construing similar rule). Thus, because counsel Maez
represented Defendants at the time the motion was filed, and because his
signature does not appear on the pro se motion, we struck it in its entirety
during a September 26, 2005 hearing.
Therefore, the only motion currently under review is the one filed and
signed by counsel Maez on August 4, 2005. In very general terms and
without citation to controlling authority, that motion seemingly alleges
five points of error. Namely, that we erred in finding that Plaintiff did
not breach the agreement, that Plaintiff’s payment to the Development
Bank should not have been credited toward the purchase price, that the
trial judge should have recused himself, that Plaintiff’s improvements on
the subject land were unjustifiable, and finally that certain defense
witness subpoenas should not have been quashed.
1
On September 13, 2005, Plaintiff Tuika Tuika formally terminated his
relationship with Maez.
However, according to that notice of
termination, counsel Maez still represented Mafa Tuika. See September
13, 2005 Notice of Termination of Legal Counsel.
33
Plaintiff counters that the motion is baseless, that its contentions are
vague and unsupported, and that it therefore is frivolous. Accordingly,
Plaintiff requests denial and seeks attorneys’ fees to discourage
Defendants from filing similar motions in the future. 2
Discussion
A. Motion for Reconsideration
[1-3] The standard for granting a motion for reconsideration is strict and
should be denied, “unless the moving party can point to controlling
decisions or data that the court overlooked.” Shrader v. CSX Transp.
Inc., 70 F.3d 255, 257 (2d Cir. 1995); Morser v. AT & T Information
Systems, 715 F. Supp. 516, 517 (S.D.N.Y. 989) (requiring the moving
party to present “matters or controlling decisions the court overlooked
that might materially have influenced its earlier decision.”).
Reconsideration is only based upon “manifest error or law or mistake of
fact, and a judgment should not be set aside except for substantial
reasons.” American Samoa Gov’t v. South Pacific Island Airsystem, Inc.,
28 A.S.R.2d 170, 171. The moving party bears the burden of showing
substantial reasons why the requested relief should be granted. Id.
[4] To meet this burden, it is incumbent on the moving party to state the
grounds for relief with particularity and detail; thus affording the trial
judge an opportunity to differentiate manifest errors of law or fact from
otherwise harmless errors. Id. at 171-172; see also T.C.R.C.P 7(b)(1).3
At a minimum, this requires the moving party to cite specific allegations
of error and to point to controlling law to support their contentions. In
Re Minor Child, 30 A.S.R.2d 22, 23 (1996).
[5] In other words, the moving party cannot merely attempt to relitigate
issues that were already decided, but rather must point to evidence or
new controlling authority the that court overlooked in reaching its
conclusions. Shrader, 70 F.3d at 257. Finally, the moving party must
refrain from merely presenting the “court with unresearched and
Plaintiff pursued the issue of attorneys’ fees as sanctions during a
September 26, 2005 hearing.
3
T.C.R.C.P 7(b)(1) provides that “[a]n application to the court for an
order shall be by motion which, unless made during a hearing or trial,
shall be made in writing, shall state with particularity the grounds
therefore, and shall set forth the relief or order sought. Each motion shall
be accompanied by affidavits or declarations under penalty of perjury
sufficient to support any material factual contentions, by an appropriate
memorandum or brief which concisely states the arguments supporting
the motions and cites authorities on each point, and by a copy of a
proposed form of order.”
2
34
unsupported conclusory opinions.” In Re Minor Child, 30 A.S.R.2d at
23. Failure to do so will result in denial.
Shrader is illustrative of the type of case where reconsideration is
appropriate. There, the Second Circuit held that reconsideration of a
summary judgment motion was not an abuse of discretion because the
moving party presented the district court with “data the court had not
previously considered,” namely, extensive legislative history on the
disputed statute as well as new case law. Shrader, 70 F.3d at 257.
Similarly, in Morser, the court granted reconsideration because
subsequently decided Second Circuit cases might reasonably have
altered the result had they been considered in the initial summary
judgment motion. Morser, 715 F.Supp. at 518.
Here, markedly unlike Shrader and Morser, Defendants point to no new
data and cite no new controlling authority. In fact, not only do
Defendants fail to cite new controlling authority, they fail to cite any
authority at all for their conclusions. Instead, their three-page motion
merely presents Defendants’ unresearched and unsupported conclusory
opinions in a thinly veiled attempt to relitigate issues already decided at
trial. For example, Defendants argue, as they did throughout trial, that
the agreement was a lease and not a contract for sale and that Plintiff’s
payment to the DBAS should not be credited towards the purchase price.
However, other than reasserting these positions, Defendants offer
nothing new to compel reconsideration of our findings. Similarly,
Defendants cite no legal or factual authority to upset our conclusion that
Plaintiff’s improvements on the land were justified, or that our decision
limiting the number of defense witness and quashing certain subpoenas
was proper. Finally, although Defendants argue the trial judge erred in
not recusing himself, this mere assertion, without more, does not support
a motion for reconsideration or new trial.
Because much more than unsupported arguments is required before the
Court will reconsider its factual findings and legal conclusions,
Defendants’ motion is denied. See In Re Minor Child, 30 A.S.R.2d at
23.
B. Motion for Attorney’s Fees
Plaintiff requests attorney’s fees in connection with countering the
present motion, arguing that it is frivolous and fees should be awarded to
deter Defendants and their counsel from filing similar motions in future.
Though not expressly stated, we characterize Plaintiff’s request as being
made pursuant to T.C.R.C.P 11.
[6-9] T.C.R.C.P 11(b), like its federal counterpart, has been read to
prohibit lawyers and unrepresented parties from filing so-called
35
“frivolous” motions or lawsuits. The rule requires attorneys or
unrepresented parties to attest that the arguments or legal contentions in
their pleadings are warranted by existing law, and further that factual
contentions and denials of factual contentions have evidentiary support.
T.C.R.C.P 11(b)(2-4). If the rule is violated, the Court may, in its
discretion, assess sanctions, and further, it may award attorney’s fees to
the prevailing party on a Rule 11 motion. See T.C.R.C.P 11(c).
[10] However, as Rule 11 itself makes patently clear, a necessary prelude
to awarding attorney’s fees in connection with a Rule 11 motion is the
actual filing of a separate Rule 11 motion. In other words, requests for
sanctions must be made as a separate motion, and not, as here, simply
included as an additional prayer for relief contained in another motion.
Indeed, subsection (c)(1)(A), clearly states “motion[s] for sanctions
under this rule shall be made separately from other motions or request
and shall describe the specific conduct alleged to violate subdivision
(b).” T.C.R.C.P. 11(c)(1)(A) (emphasis added).
[11] Furthermore, while the rule requires that the separate motion be
served on the opposing party, the motion is not to be filed with the court,
unless, “within 21 days after service, the challenged . . . allegation . . . is
not withdrawn or appropriately corrected.” Id. According to the
Advisory Committee notes on Federal Rule of Civil Procedure 11 (on
which our own Rule is modeled), these procedural requirements (a
separate motion, notice and a 21-day window) are designed to provide a
“safe harbor,” in that a party will not be subject to sanctions unless, after
receiving the motion, he refuses to withdraw or provide support for his
contentions. See Fed. R. Civ. P. 11, Advisory Committee Notes (1993
Amendments).
Only after these initial procedural requirements are met can the Court,
after a full hearing on the alleged Rule 11 violation, determine if
sanctioning the offending party is proper. Finally, while we are
empowered to award attorney’s fees under Rule 11, that award is based
on the defense or prosecution of the separate Rule 11 motion.
T.C.R.C.P. 11(c)(1)(A) (providing that “if warranted, the court may
award to the party prevailing on the motion the reasonable expenses and
attorney’s fees incurred in presenting or opposing the motion.”)
(emphasis added).
Here, while we in no way condone Defendants’ shoddy motion practice,
we must deny Plaintiff’s request for attorney’s fees. Because Plaintiff
did not file a separate Rule 11 motion, as Rule 11 clearly requires, his
request is procedurally deficient and must be denied. See, e.g., Gordon
v. Unifund CCR Partners, 345 F.3d 1028, 1029 (8th Cir. 2003)
(reversing award of attorney’s fees for alleged Rule 11 violation when no
independent Rule 11 motion was made).
36
Order
Because Defendants point to no new data or controlling authority to
support their motion for reconsideration or new trial, it is DENIED.
Because Plaintiff’s motion for attorney’s fees is procedurally deficient, it
too is DENIED.
It is so ordered.
**********
MORU MANE, PULETU KOKO, and JULIE MATA`U, Plaintiffs,
v.
TUFAGA SAPATI and CORPORATION OF THE PRESIDING
BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER
DAY SAINTS, Defendants.
High Court of American Samoa
Trial Division
CA No. 109-03
March 14, 2006
[1] Where a party claims an interest concerning the property or
transaction at issue and the action’s disposition may impair or impede
her ability to protect that interest, a party shall be permitted to intervene
in the action unless the applicant's interest is adequately represented by
existing parties. T.C.R.C.P. 24(a).
[2] A motion for intervention must be submitted in a timely manner.
[3] Intervention in an action after judgment is barred if the movants
possessed pre-judgment knowledge of the action.
[4] Post-judgment intervention is generally allowed only upon a strong
showing of entitlement by the applicant.
37
Before: RICHMOND, Associate Justice, MAMEA, Associate Judge, and
SAOLE, Associate Judge.
Counsel: For Plaintiffs, Charles V. Ala`ilima and Marie Ala’ilima
For Defendants, Arthur Ripley, Jr.
For Prospective Intervener, David P. Vargas
ORDER DENYING MOTION TO INTERVENE
Background
This case involves the disbursement of funds received by Defendant
Tufaga Sapati (“Tufaga”) in consideration for the sale of the Tufaga
family’s communal land to Defendant Corporation of the Presiding
Bishop of the Church of Jesus Christ of Latter Day Saints (“LDS
Church”). Pursuant to a stipulated settlement agreement of LT No. 1403, Tufaga, the family sa`o having pule [management authority] over the
land, and the Tufaga communal family were to meet and agree on a fair
distribution of the proceeds among all the Tufaga family clans. 1
On December 22, 2003, Plaintiffs Moru Mane (“Mane”), Puletu Koko
(“Puletu”) and Julie Mata’u (“Matau”), members of the Tufaga family,
brought an action to recover their alleged share of the consideration. At
issue was Tufaga’s distribution of $76,100.00 without involving a
meeting of all the family’s clans and a familial agreement on a fair
distribution among the clans. On January 14, 2004, the Court granted
Plaintiffs’ application and issued a preliminary injunction requiring the
LDS Church to deposit the unpaid portion of the consideration into the
Court registry. On January 26, 2004, the LDS Church complied with the
preliminary injunction by depositing $229,016.00 with the High Court.
These funds remain in the registry.
On June 14, 2005, after conducting a trial on the merits, we issued an
opinion and order finding Tufaga’s distribution of the $76,100.00
improper and requiring that the parties, with the input of other Tufaga
family members, submit a written report containing the estimated
number of Tufaga family members in each clan and a proposal for the
distribution of the Registry funds within each clan. Upon submission of
this report, the Court would then determine the final fund distribution
and issue an order for that purpose.
Va’ai Talamoni (“Talamoni”), for himself and on behalf of the Mamoe
clan, now moves to intervene in this matter. He claims that in addition
1
According to the stipulated agreement, the distribution amount would
be calculated after payment of both sides’ attorney’s fees and costs
incurred in LT No. 14-03.
38
to the four known Tufaga family clans-- Sepulona, Sinapioa, Po`u, and
Gogo--there is a fifth clan, the Mamoe clan, that should also be included
in the Registry fund distribution. For the reasons set forth below, we
deny Talamoni’s motion.
Discussion
[1-4] Where a party claims an interest concerning the property or
transaction at issue and the action’s disposition may impair or impede
her ability to protect that interest, a party shall be permitted to intervene
in the action unless the applicant's interest is adequately represented by
existing parties. T.C.R.C.P. 24(a). However, a party must submit her
application in a timely manner. Id. This court has held that intervention
in an action after we have entered a judgment is barred if the movants
possessed pre-judgment knowledge of the action. Development Bank of
American Samoa v. Lagarejos, 27 A.S.R.2d 91, 92 (Trial Div. 1995).
Moreover, post-judgment intervention is generally allowed only upon a
strong showing of entitlement by the applicant. Id.
Talamoni seeks to intervene in this matter based on the following: (1) he
is a blood member of the Mamoe clan; (2) the Mamoe clan is one of the
Tufaga family clans; and (3) the Mamoe clan of the Tufaga communal
family2 has been excluded from participation in the land sale proceeds
distribution. According to Talamoni, the Mamoe clan needs to
participate in the proceedings in order to protect the Mamoe clan’s
identity as a Tufaga family clan, and to ensure the clan receives a fair
share of the $229,016.00 in funds currently being held in the Court
Registry. Thus, Talamoni argues the Court should permit him to
intervene in this matter. We disagree.
As an initial matter, Talamoni’s motion to intervene is clearly untimely.
He did not file his motion until November 3, 2005, almost five months
after we issued our opinion and order, and nearly two years after this
case began. Given this length of time, as well as the number of court
hearings and family meetings that have taken place since this case began,
Talamoni did or should have possessed knowledge of this case prior to
the June 14 order. Consequently, he should have sought to intervene at a
much earlier date.
Moreover, we are not convinced Talamoni’s interests in having the
Mamoe clan recognized as part of the Tufaga family and in the land sale
proceeds would be foreclosed by denying intervention. If Talamoni and
the Mamoe clan are blood related to the Sepulona clan, a claim
2
Specifically, he claims that the Mamoe clan is related by blood to the
Sepulona clan, which comprises the major family unit of the Tufaga
family.
39
vigorously by some Tufaga family members, they can and should
approach Tufaga about receiving a fair share of whatever Registry funds
are distributed to the Sepulona clan. In addition, denying intervention
does not inhibit their ability to assert and establish a legitimate family
connection as a clan within the Tufaga family when its recognition as a
clan is relevant to any subsequent judicial proceeding.
Order
Because Talamoni’s motion to intervene was untimely filed, and because
his intervention is not necessary to protect the Mamoe clan’s interest in
the land sale proceeds or in preserving clan identity within the Tufaga
family, we DENY Talamoni’s motion to intervene.
It is so ordered.
**********
LOLO MOLIGA as President of the Senate and SENATE OF
AMERICAN SAMOA, Plaintiffs,
v.
AMERICAN SAMOA MEDICAL CENTER, an agency of the
Executive Branch of the American Samoa Government, Defendants.
High Court of American Samoa
Trial Division
CA No. 10-06
March 31, 2006
[1] The standard for granting a motion for reconsideration is strict and
the motion should be denied unless the moving party can point to
controlling decisions or data that the court overlooked.
[2] Reconsideration is only based upon manifest error or law or mistake
of fact, and a judgment should not be set aside except for substantial
reasons.
[3] The party moving for reconsideration bears the burden of showing
substantial reasons why the requested relief should be granted.
40
[4] A party moving for reconsideration cannot merely attempt to
relitigate issues that were already decided, but rather must point to
evidence or new controlling authority the that court overlooked in
reaching its conclusions.
[5] A motion for reconsideration may not be used to plug gaps in an
original argument or to argue in the alternative once a decision has been
made.
[6] The court is usually liberal in granting motions to amend complaints
under T.C.R.C.P. 15(a), the court will not do so where such amendment
will have no effect.
Before KRUSE, Chief Justice
Counsel: For Plaintiffs, Jeff Waller
ORDER DENYING MOTION FOR RECONSIDERATION AND
FOR LEAVE TO AMEND COMPLAINT
Introduction
Defendant American Samoa Medical Center ("ASMC"), otherwise
known as the LBJ Tropical Medical Center, is an agency of the
American Samoa Government's executive branch. ASMC amended Title
11, Chapter 3 of the American Samoa Administrative Code, permitting
ASMC to change and adjust medical treatment fees as necessary.
ASMC then introduced new hospital fees, as well as increasing certain
existing fees, and began to collect on these fees on or about November 1,
2005. Lolo Moliga, as President of the Senate, and the Senate of
American Samoa (collectively, "Plaintiffs"), brought this action against
ASMC, challenging the legality of these amendments and fee increases,
and seeking injunctive relief.
In our Order of February 1, 2006,1 we dismissed the complaint for lack
of standing, finding Plaintiffs did not have a sufficient personal stake in
the dispute and did not allege a sufficiently concrete injury to establish
Article III standing. Plaintiffs now move for reconsideration of our
dismissal, or in the alternative, seek leave to amend the complaint. For
the reasons discussed below, we deny their motion.
1
CA No. 10-06, Order Dismissing Complaint for Declaratory Relief and
Denying Petition for Writ of Mandamus and Application for Injunctive
Relief, February 1, 2006.
41
Discussion
[1-3] The standard for granting a motion for reconsideration is strict and
the motion should be denied "unless the moving party can point to
controlling decisions or data that the court overlooked." Shrader v. CSX
Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995). Reconsideration should
only be based upon "manifest error or law or mistake of fact, and a
judgment should not be set aside except for substantial reasons." ASG v.
South Pacific Island Airsystem, Inc., 28 A.S.R.2d 170, 171 (Trial Div.
1995). The moving party bears the burden of showing substantial
reasons why the requested relief should be granted. Id.
[4-5] To meet this burden, the moving party cannot merely attempt to
relitigate issues that were already decided, but rather must point to
evidence or controlling authority the that court overlooked. Shrader, 70
F.3d at 257. In other words, "a motion for reconsideration may not be
used to plug gaps in an original argument or to argue in the alternative
once a decision has been made." Horsehead Resource Dev. Co., Inc., v.
B.U.S. Envtl. Serv., Inc., 928 F. Supp. 287, 289 (S.D.N.Y. 1996)
(internal quotations and citations omitted).
Plaintiffs argue the amended regulations and new rates directly injured
them both as members of the Senate and as individuals. They contend
the court overlooked portions of the complaint asserting the increased
fees violated the Senators' statutory entitlement to free medical care.
The motion also adds the new claim, with supporting affidavits, that
individual Senators and their family members have paid increased fees at
the hospital, causing individual harm.
Neither of these arguments constitutes a substantial reason for setting
aside the dismissal. The former is merely an attempt to relitigate an
issue already decided, while the latter impermissibly states a new claim
for relief. In dismissing the complaint, we stated in clear terms that
Plaintiffs, suing in their official capacity, did not have standing to
challenge ASMC's actions. We held a Member of the Senate qua
member could not sue the Executive Branch for alleged violations of
statutory entitlements unless such violations allegedly usurped legislative
power. This is not the case here.2 Moreover, Plaintiffs' attempt to
introduce new evidence of personal injury (as opposed to injury in their
official capacity) constitutes an illegitimate use of a reconsideration
motion. A motion for reconsideration is not the proper vehicle for
stating a new claim for relief or arguing in the alternative. Therefore, we
deny Plaintiffs' motion for reconsideration.
2
See Order Dismissing Complaint, supra note 1, at pp. 4-7.
42
[6] We also deny Plaintiffs' request for leave to amend their complaint.
Although the court is usually liberal in granting motions to amend
complaints under T.C.R.C.P. 15(a)--especially where, as here, an answer
has yet to be filed--the court will not do so where such amendment will
have no effect. See Ape v. ASG, 25 A.S.R.2d 106 (Trial Div.
1993)(leave to amend should be granted unless amendment is futile).
The Senators, even if they amend the complaint to contain only personal
injury allegations, would still lack standing to bring the lawsuit, as the
Senate's [tax-payers'] purse is financing the litigation. 3 As long as
Senate funds are used to pay for the lawsuit, Plaintiffs will be regarded
as suing in their official capacity. We are loathe to permit Plaintiffs to
do circuitously what we forbid them from doing directly. Accordingly,
any amendment to the complaint, as it currently stands, would be futile.
While nothing prevents Plaintiffs from suing in their individual
capacities, they must proceed as any other individual would--by
retaining counsel with their own funds. The court will not otherwise
lend its process to publicly funded "private" lawsuits.
Order
Plaintiffs' motion for reconsideration is DENIED. Plaintiffs' motion to
amend the complaint is also DENIED.
It is so ordered.
*********
3
Although counsel's billing for services rendered in this matter remains,
as it turns out, unpaid and outstanding, a review of counsel's billing
records nonetheless reveals that it is the Senate alone, and not any of the
individual Senators, that has been billed with attorney's fees and costs of
litigation.
43
PROGRESSIVE INSURANCE COMPANY (PAGO PAGO)
LIMITED, Plaintiff,
v.
DEPARTMENT OF PUBLIC SAFETY FIRE BUREAU of the
AMERICAN FOR SAMOA GOVERNMENT and AMERICAN
SAMOA POWER AUTHORITY of the AMERICAN SAMOA
GOVERNMENT, and NATIONAL PACIFIC INSURANCE
LIMITED, jointly and severally, Defendants.
High Court of American Samoa
Trial Division
CA No. 36-04
April 7, 2006
[1] Any order that does not dispose of an entire proceeding can be
reviewed, revisited and corrected any time before a final judgment is
entered. T.C.R.C.P 54(b).
[2] A motion for reconsideration of an interlocutory order under
T.C.R.C.P. 54(b), may be granted when the moving party demonstrates:
(1) a material difference in fact or law from that presented to the court at
the time of hearing that could not have been reasonably known to the
party seeking reconsideration; (2) emergence of new material facts or a
change of law occurring after the hearing; or (3) a manifest showing of a
failure to consider material facts presented to the court at the hearing.
Before: RICHMOND, Associate Justice, and SAGAPOLUTELE,
Associate Judge.
Counsel: For Plaintiff, William H. Reardon and Devin A. McRae, Pro
Hac Vice
For Defendant, American Samoa Government, David Cassetty,
Assistant Attorney General
ORDER DENYING MOTION FOR RECONSIDERATION
Introduction
We will once again assume the reader is familiar with the facts of this
case. On May 10, 2005, Plaintiff Progressive Insurance Company
(“Progressive”) filed a motion for partial summary judgment against
Defendant Department of Public Safety Fire Bureau of the American
Samoa Government (“ASG”) contending there is no genuine issue as to
44
any material fact ASG owed a duty, and breached any duty when it
responded to the April 20, 2002 fire at the Laufou Shopping Center. On
June 10, 2005, we tentatively agreed to bifurcate Progressive’s motion to
first address the legal issue of “duty.” On July 11, 2005 we issued an
order rejoining the issues of duty, breach of duty and liability so we
could evaluate the full record within the context of the Government Tort
Liability Act (“GTLA”).
On September 29, 2005, we issued an order granting in part and denying
in part Progressive’s motion (the “Order”).1 With respect to the issue of
duty, we concluded the GTLA subjects ASG, acting through its agencies,
to the same standard of duty as a private person acting under similar
circumstances. Based on the undisputed facts in this case, we found the
Fire Bureau firefighters’ efforts to take control of the fire in turn
established a duty to put out the fire in a nonnegligent manner.
Regarding the breach of duty issue, we concluded the applicable
standard of care is the firefighting conduct of similar professionals in
similar geographic and economic communities. Because we lacked
sufficient testimony establishing this standard, we denied summary
judgment on the issue of breach and left the matter to the trier of fact.
However, in the event the trier of fact finds negligence, we ruled the
GTLA discretionary function exception to liability will not apply, and
ASG will be liable in the same manner as a private person under like
circumstances.
ASG now moves for reconsideration of the partial summary judgment
and argues: (1) Progressive failed to establish ASG owed a duty of care;
(2) Progressive did not provide a proper basis for the Court’s rejection of
the discretionary function exception; and (3) the Court should reconsider
its rejection of the public duty doctrine.
Before addressing the merits, we feel compelled to clarify the rule under
which we should analyze the motion, as ASG does not base its
reconsideration motion on any procedural rule, and Progressive
erroneously assumes the motion should be addressed under T.C.R.C.P.
59(e). In fact, Rule 59(e) only applies to motions for amendment,
alteration, or reconsideration of final judgments or orders. An order
granting partial summary judgment, as the Court granted here, is
interlocutory in nature and does not terminate the action as to all the
claims or parties. Accordingly, ASG should have brought its motion for
reconsideration under Rule 54(b). The Court, therefore, considers the
motion pursuant to Rule 54(b).
1
CA No. 36-04, Order Granting in Part and Denying in Part Plaintiff’s
Motion for Partial Summary Judgment, September 29, 2005.
45
Legal Standard
[1] Rule 54(b) provides any order that does not adjudicate all of the
claims of the parties "is subject to revision at any time before the entry of
judgment . . . ." Thus, any order that does not dispose of an entire
proceeding can be reviewed, revisited and corrected any time before a
final judgment is entered.
Neither Rule 54(b) nor territorial precedent outline standards the Court
should apply when reconsidering interlocutory orders. Thus, we turn to
federal law for guidance. Under federal law, the standard for granting a
reconsideration motion under F.R.C.P. 54(b) is less rigid than that under
F.R.C.P. 60(b) governing reconsideration of final judgments. See
Persistance Software Inc. v. Object People, Inc., 200 F.R.D. 626, 627
(N.D. Cal. 2001) (referring to vacating judgments); FED. R. CIV. PROC.
54(b) advisory committee’s notes; Farr Man & Co. v. M/V Rozita, 903
F.2d 871, 875 (1st Cir. 1990) (“[R]elief from final judgments is more
difficult to obtain than relief from interlocutory judgments.”).
Although federal case law does not tread beyond the above standard,
many district courts have promulgated local rules that provide more
detailed guidance. In the Ninth Circuit, the rules of the Central District
of California regarding reconsideration of interlocutory orders are given
the most deference. See Motorola Inc. v. J.B. Rodgers Mechanical
Contractors, 215 F.R.D. 581, 583-86 (D. Ariz. 2003) (the court
concluded the rules of Central District of California "capture the most
common elements of the various local rules [of the Ninth Circuit].").
[2] Central District Local Rule 7-18 provides a motion for
reconsideration may be made only when the moving party demonstrates:
(1) a “material difference in fact or law from that presented to the court”
at the time of hearing that could not have been reasonably known to the
party seeking reconsideration; (2) emergence of new material facts or a
change of law occurring after the hearing; or (3) “a manifest showing of
a failure to consider material facts” presented to the court at the hearing.
C.D. Cal. L.R. 7-18. Using our discretion, the Court adopts the
standards set forth in the Central District of California local rules for
determining whether to grant a motion for reconsideration of an
interlocutory order under Rule 54(b).
Discussion
A. ASG’s Duty of Care
ASG asserts Progressive failed to plead or argue facts demonstrating
reliance, a necessary element in establishing duty.
It contends
46
Progressive did not argue reliance in its moving papers, but rather in an
affidavit filed concurrently with Progressive’s reply brief, in
contravention of T.C.R.C.P. 56. Moreover, it claims the affidavit only
provided a conclusory statement as to its presence (i.e., the affidavit
contained no facts concerning alternative methods of fire protection),2
making the statement inadmissible and in violation of Rule 56(e). Thus,
according to ASG, duty was not established and the Order should be
amended to require a determination of reliance.
Yet ASG fails to demonstrate how the above arguments warrant
reconsideration of the Court’s holding that ASG owed a duty of care.
First, none of the above arguments constitute new material facts or
changes of law that emerged after the hearing. Second, ASG does not
even argue these are facts unknown to ASG at the time of the hearing.
Lastly, because the arguments were not presented to the Court at the
hearing (i.e., through an objection), the Court could not have failed to
consider them. Thus, ASG provides no basis for reconsideration under
Rule 54(b).3
The statement at issue was contained in Barry Forsgren’s affidavit, and
reads as follows: “Based on Forsgren’s awareness of [the fact that ASG
employed a full-time fire department], it relied on ASG to control and
put out the fire that occurred at the Laufou Shopping Centre on April 20,
2002.
3
Though the Court need not go any further in its analysis, we note that
even if Progressive did not explicitly address reliance in their initial
summary judgment motion--a decision we need not make, there were
other facts available for the Court to consider. The Order clearly states
that by arriving on the scene and volunteering their services, “the
firefighters’ actions sufficiently induced reliance by the building owner
to forgo alternative methods of fire protection,” and in turn “imposed
upon it a duty to act in a nonnegligent manner in putting out the fire.”
Order at pp. 13-14. This legal conclusion is based upon undisputed facts
regarding the firefighters’ actions, and was not predicated on any
specific reference to “reliance” made by Progressive.
Furthermore, even if we had relied on Barry Forsgren’s affidavit,
such reliance would have been proper, as ASG has failed to demonstrate
how the time of its filing or its contents violates Rule 56. Progressive
was free to submit papers, such as Barry Forsgren’s affidavit, to address
issues raised in ASG’s opposition papers. See Bayway Ref. Co. v.
Oxygenated Mktg. & Trading A.G., 215 F.3d 219, 226-27 (2d Cir.
2000)(“reply papers may properly address new material issues raised in
opposition papers so as to avoid giving unfair advantage to the
answering party”). ASG also fails to substantiate their blind assertion
that Forsgren’s claim of reliance was inadmissible as a legal conclusion.
If anything, ASG should have made such an objection prior to their
reconsideration motion, not after partial summary judgment was entered.
2
47
B. Discretionary Function Exception
In a footnote, ASG requests the Court to vacate its rejection of the
discretionary immunity exception to the GTLA. They argue the issue
has not been fully litigated, as Progressive’s motion for summary
judgment on the issue was styled as a “Cross-Motion” when there was
no motion by ASG to “cross.” ASG makes no claim that the Court
misinterpreted any material facts or erred in its legal analysis. Rather,
ASG asks for reconsideration based on the date of Progressive’s reply
papers. As noted above, this is not a proper basis for reconsideration of
an interlocutory order.4 Accordingly, we see no reason to revisit our
decision to reject the discretionary immunity exception to the GTLA.
C. Public Duty Doctrine
In the Order, after an extensive analysis of governmental duty under the
common law, the GTLA, and the FTCA, we ultimately held the public
duty doctrine was “no longer valid in the territory to the extent that it
holds the government to a different standard of duty than a private
individual.” Order at p. 12. ASG now asks the Court to reconsider our
rejection of the public duty doctrine, as it remains the majority view.
This is merely an attempt to relitigate an issue already decided, and does
not constitute a basis for reconsideration of an interlocutory order. As
ASG is surely aware, a reconsideration motion--under Rule 59(e), Rule
60(b), or Rule 54(b)--is not the proper vehicle for expressing mere
disagreement with the Court’s decision. Thus, we refuse ASG’s request
to revisit our rejection of the public duty doctrine.
Order
Because ASG fails to provide substantial reasons for the Court to
reconsider its order granting partial summary judgment, ASG’s motion
for reconsideration is denied.
It is so ordered.
**********
4
We also remind ASG, again, that reply papers may address material
facts raised in the opposing party’s papers.
48
MARIANNE RING, Plaintiff,
v.
AMERICAN SAMOA COMMUNITY COLLEGE,
and DOES I through X, Defendants.
High Court of American Samoa
Trial Division
CA NO. 105-05
April 12, 2006
[1] A motion to dismiss under T.C.R.C.P. 12(b)(6) tests the sufficiency
of the complaint.
[2] Dismissal of a claim under T.C.R.C.P. 12(b)(6) is appropriate only
where it appears the plaintiff can prove no set of facts that would entitle
him or her to relief.
[3] The defendant has the burden of proving that no claim exists under
T.C.R.C.P. 12(b)(6).
[4] A complaint may be dismissed as a matter of law for two reasons: (1)
lack of cognizable legal theory, or (2) insufficient facts under a
cognizable theory.
[5] In considering a 12(b)(6) motion, the court must assume the truth of
all factual allegations and must construe them in the light most favorable
to plaintiff.
[6] In order to assert a valid breach of contract claim, the complaint
needs to allege: (1) the existence of an agreement; (2) adequate
performance of the contract by the plaintiff; (3) breach of contract by the
defendant; and (4) damages.
[7] Although a plaintiff is required only to make a “short and plain
statement” of the breach of contract claim pursuant to T.C.R.C.P. 8(a),
the plaintiff still must give the defendant fair notice of what plaintiff's
claim is and the grounds upon which it rests.
[8] In testing the sufficiency of the complaint, the court does not weigh
the evidence; to be sufficient, a plaintiff must state a claim in a manner
that puts the opposing party on notice, not prove an issue of fact.
[9] The American Samoa Government does not waive sovereign
immunity with respect to claims against them arising out of assault,
49
battery, false imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or interference with
contract rights. A.S.C.A. § 43.1203(b)(5)
[10] The only intentional torts prohibited as causes of action against the
American Samoa Government are those listed in A.S.C.A. §
43.1203(b)(5)
[11] Government Tort Liability Act does not bar the tort of intentional
infliction of emotion distress.
Before: RICHMOND, Associate Justice, SAGAPOLUTELE, Associate
Judge, and MAMEA, Associate Judge.
Counsel: For Plaintiff, Mark F. Ude
For Defendant, American Samoa Community College, Terry
Lovelace, Assistant Attorney General
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS
Introduction
On December 22, 2005, Marianne Ring (“Plaintiff”) filed a complaint
against American Samoa Community College (“ASCC”) and John Does
1-10. The complaint alleges ASCC (1) breached its contract with
Plaintiff when it demoted her from her then-current position, (2) failed to
comply with the American With Disabilities Act (42 U.S.C. §§ 1210112213) (the “ADA”), and (3) intentionally caused Plaintiff emotional
distress. Plaintiff seeks general damages for all counts and punitive
damages with respect to the first two counts.
ASCC now moves to dismiss the complaint pursuant to T.C.R.C.P.
12(b)(6), arguing Plaintiff fails to state a claim upon which relief can be
granted. Having heard arguments on these issues and considered the
parties’ submissions, we grant in part and deny in part ASCC’s motion.
Discussion
A. Motion to Dismiss Standard
[1-3] A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the
complaint. See North Star Int’l. v. Arizona Corp. Comm’n, 720 F.2d
578, 581 (9th Cir. 1983). Dismissal of a claim under this rule is
appropriate only where it appears the plaintiff can prove no set of facts
that would entitle him or her to relief. Moeisogi v. Faleafine, 5 A.S.R.2d
131, 134 (1987); Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The
50
defendant has the burden of proving that no claim exists. See Parks
School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.
1995).
[4-5] A complaint may be dismissed as a matter of law for two reasons:
(1) lack of cognizable legal theory, or (2) insufficient facts under a
cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d
530, 534 (9th Cir. 1984); Nietzke v. Williams, 490 U.S. 319, 326-27
(1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis
of a dispositive issue of law.”). In considering a 12(b)(6) motion, the
court must assume the truth of all factual allegations and must construe
them in the light most favorable to plaintiff. Gompper v. VISX, Inc., 298
F.3d 893 (9th Cir. 2002).
B. Claims for Relief
1. Breach of Contract
[6-7] In order to assert a valid breach of contract claim, the "complaint
need only allege (1) the existence of an agreement, (2) adequate
performance of the contract by the plaintiff, (3) breach of contract by the
defendant, and (4) damages." Eternity Global Master Fund Ltd. v.
Morgan Guar. Trust Co. of New York, 375 F.3d 168, 177 (2d Cir. 2004)
(quoting Harsco Corp. v. Segui, 91 F.3d 337, 347 (2d Cir. 1996));
Internet Law Library, Inc. v. Southridge Capital Mgmt., LLC, et al, 223
F. Supp. 2d 474, 490 (S.D.N.Y. 2002). Thus, "at a minimum, the terms
of the contract, each element of the alleged breach and the resultant
damages," must be alleged. Kaplan v. Aspen Knolls Corp., 290 F. Supp.
2d 335, 337 (E.D.N.Y. 2003). Although a plaintiff is required only to
make a "short and plain statement" of the breach of contract claim
pursuant to Rule 8(a), the plaintiff still must "give the defendant fair
notice of what plaintiff's claim is and the grounds upon which it rests."
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002) (quoting Conley
v. Gibson, 355 U.S. 41, 47 (1957)).
In count one of the complaint, Plaintiff alleges ASCC demoted her from
her position as Chair of Language and Literature without cause or
reason. She also details her extensive education and training. However,
even if we construe the facts liberally in favor of Plaintiff, the complaint
fails to allege the existence of an agreement, the contract provisions
upon which the claim for relief is based, or adequate performance by the
Plaintiff. Therefore, we dismiss the breach of contract claim against
ASCC without prejudice, with leave to amend the complaint within 20
days.
51
2. Non-Compliance with ADA
ASCC argues the complaint does not establish Plaintiff has a disability
as defined by the ADA, and thus any claim ASCC violated ADA
guidelines should be dismissed. We disagree. We find Plaintiff has
sufficiently pled facts on the basis of which a violation of the ADA may
be predicated.
3. Intentional Infliction of Emotional Distress
[8] In count three of the complaint, Plaintiff alleges ASCC made
numerous inappropriate comments and engaged in other outrageous
conduct that caused damage to Plaintiff’s mental health and reputation.
However, ASCC argues Plaintiff fails to allege any conduct outrageous
enough upon which to base a claim of intentional infliction of emotional
distress. We disagree. In testing the sufficiency of the complaint, we are
not weighing the evidence; Plaintiff must state a claim in a manner that
puts the opposing party on notice, not prove an issue of fact. When
taken as true and viewed in the light most favorable to Plaintiff, we find
the facts describing ASCC’s actions sufficiently state a claim for
intentional infliction of emotional distress.
ASCC also argues for dismissal on the ground that claims of intentional
infliction of emotional distress are barred by the doctrine of sovereign
immunity. They contend the Government Tort Liability Act’s (A.S.C.A
§§ 43.1201-.1213) limited waiver of sovereign immunity does not apply
to intentional torts such as the intentional infliction of emotion distress.
We disagree.
[9] Section 43.1203(b)(5) provides that the American Samoa
Government does not waive sovereign immunity with respect to claims
against the ASG “arising out of assault, battery, false imprisonment,
false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights.”1 It makes
Section 43.1203 governs both the scope of the ASG’s liability and the
exceptions to liability. It provides:
1
(a) The government is liable, except as other-wise
provided in this chapter, in the same manner and to
the same extent as a private individual under like
circumstances, but is not liable for interest prior to
judgment or for punitive damages, except that in a
case wherein death is caused and the law of the place
where the act or omission complained of occurred
provides, or has been construed to provide, for
52
no mention of intentional infliction of emotional distress. Our analysis,
however, does not end there. We note that the GTLA is modeled almost
entirely on the Federal Tort Claims Act (the “FTCA”) (28 U.S.C. §§
1346(b) and 2671 et seq.), and the section in play here, § 43.1203(b)(5)’s
exceptions to liability, was copied almost verbatim from the FTCA.
Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 88 (1992).
Accordingly, we look to federal courts interpreting these parallel
statutory provisions for guidance.
Several circuits have held that the FTCA does not exclude suits for
intentional infliction of emotional distress as a matter of law. Sheehan v.
United States, 896 F.2d 1168, 1172 (9th Cir. 1990); Kohn v. Untied
States, 680 F.2d 922, 926 (2d Cir. 1982); Gross v. United States, 676
F.2d 295, 304 (8th Cir. 1982); Truman v. United States, 26 F.3d 592, 595
(5th Cir. 1994). As stated in Rayonier, Inc. v. United States, 352 U.S.
315, 320 (1957), there is no justification for any court "to read
exemptions into the [Federal Tort Claims] Act beyond those provided by
Congress." Only the Legislature may expand the scope of the exceptions
to liability beyond the exact words of the statute. See Gross, 676 F.2d at
304.
[10-11] Applying this rationale, only those intentional torts listed in §
43.1203(b)(5) should be recognized as excepted causes of action under
the GTLA. Because § 43.1203(b)(5) makes no mention of intentional
infliction of emotion distress, we should not read the statute as barring
such a claim. Accordingly, because Plaintiff bases her intentional
infliction of emotional distress claim on conduct that does not constitute
a claim "arising out of" a tort specified in § 43.1203(b)(5), we find her
suit is not barred by an exception to the GTLA. 2 ASCC’s request to
dismiss the intentional infliction of emotional distress claim is denied.
damages only punitive in nature, the government is
liable for actual or compensatory damages, measured
by the pecuniary injuries resulting from such death to
the persons respectively for whose benefit the action
was brought.
(b) The provisions of this chapter do not apply to:
(5) any claim arising out of assault,
battery, false imprisonment, false
arrest, malicious prosecution, abuse of
process,
libel,
slander,
misrepresentation,
deceit
or
interference with contract rights.
2
In order to alleviate any confusion, we address here our recent decision
in Gibbons v. ASG, CA 128-93, “Order Denying Relief From Judgment,”
slip op. (Trial Div. November 2, 2005), which also dealt with the scope
of the GTLA’s exceptions to liability. Relying on federal precedent, we
53
Order
Regarding the breach of contract claim, we grant ASCC’s motion to
dismiss, but give Plaintiff 20 days to amend her complaint.
With respect to the ADA and intentional infliction of emotional distress
claims, we deny ASCC’s motion to dismiss.
It is so ordered.
*********
held there that the GTLA’s “intentional tort exception” was inapplicable
to the actions of a non-governmental employee; in other words, a
government’s liability was not to be predicated on any third party’s
intentional act. Id. at 8-9. While this holding has no bearing on the
instant case, we recognize that part of our discussion in Gibbons is ripe
for misunderstanding. In describing the GTLA, we characterized the
exceptions to liability as the “intentional tort exception,” noting that §
43.1203(b)(5) “[g]enerally speaking. . .retains immunity for intentional
acts.” Id. at 3-4. Clearly, however, this language was not an attempt to
read into the statute torts that are not listed in § 43.1203(b)(5); rather, it
was merely employed out of convenience. This language had no bearing
on the holding, was not grounded in federal precedent and, moreover,
intentional infliction of emotional distress was not even at issue in the
case. Thus, it should only be read as referring to those intentional torts
specifically listed in § 43.1203(b)(5).
54
LOLO MOLIGA as President of the Senate and SENATE OF
AMERICAN SAMOA, Plaintiffs,
v.
TOGIOLA T. TULAFONO, Governor of American Samoa and the
EXECUTIVE BRANCH OF THE AMERICAN SAMOA
GOVERNMENT, Defendants.
and
AMERICAN SAMOA 2000, INCORPORATED, Necessary Party
Defendant.
High Court of American Samoa
Trial Division
CA No. 78-05
April 13, 2006
[1] A lease for a period of less than 10 years may be effective without
Fono review.
Before: KRUSE, Chief Justice, LEFITI, Associate Judge, and MAMEA,
Associate Judge.
Counsel: For Plaintiffs, Jeffery Waller, Roy J.D. Hall, Jr.,
For Defendants, David Cassetty, Assistant Attorney General,
Toetasi Tuiteleleapaga
For Necessary Party Defendant, Marshal Ashley, Dean Hansill,
Sharron C. Corda
ORDER ON MOTIONS TO DISMISS
Defendants and Necessary Party Defendant have filed motions to dismiss
Plaintiffs' complaint.
On motion to dismiss for lack of standing, the motion is denied. To the
contrary, we find that Plaintiffs, as legislators, have standing to sue. See
Senate v. Lutali, 26 A.S.R.2d 125, 127 (Trial Div. 1994). Necessary
Party Defendant's reliance on Moliga v. American Samoa Medical
Center, CA No. 1-06 (Trial Div. 2006) is misplaced; this case is
inapposite.
On motion to dismiss for mootness, the motion is, at this time, denied
and the matter will proceed to a hearing on the merits. To this end, the
55
parties would do well to focus attention, and verbiage, on the real issue
here; viz, A.S.C.A. §37.2030. In other words, the exercise is one of
statutory construction, rather than the lease itself (and the artfulness of
its author[s]). Thus, the court would be better assisted with attention and
effort redirected toward underlying legislative policy statements
embodied with the enactment of section 37.2030, rather than a tangled
discourse into arcane landlaw concepts of English commonlaw.
For instance, the time frame that the statute at issue was conceived is of
note, the transition period between Department of the Interior appointed
governors and popularly elected governors; as well as the specific time
frame of its enactment, immediately after the first elected administration
took office. Given the radical transition to self rule 1 and the realities of a
small insular society with close family and inter-personal connections,
occupying a very limited arable land mass, it takes little imagination to
discern the public purpose behind this peculiar piece of legislation.
Obviously, the law must have been prompted by the perception or
reservation, founded or unfounded, that a Samoan elected governor's
personal ties should, to some extent, be kept in check in the arena of
public land dealings. Accordingly, county and village input, as
embodied by the Fono, 2 was legislatively given a veto opportunity, so to
speak, where the elected governor's public land leasehold dealings
sought to encumber public lands for an extended period of time. Thus,
the newly elected governor's authority to singularly deal with the leasing
of public lands was effectively curtailed where public land is sought to
be encumbered beyond a 4-year period, mandating rental review for
inflation, A.S.C.A. § 37.2020, a 6-year period, A.S.C.A. § 37.2025,
mandating rental review for relevant market factors other than inflation,
and any leases beyond a 10-year period are subject to Fono disapproval,
A.S.C.A. § 37.2030.
1
It took no less than three plebiscites before the people of American
Samoa finally decided to accept the idea of an elected governor. See
FOFO I.F. SUNIA, THE STORY OF THE LEGISLATURE OF AMERICAN SAMOA
(1988) at 236.
2
See discussion in Tuika v. Tuika, 4 A.S.R.2d 85, 94-5 regarding role of
traditional leadership as "guardians" of the land. Cf. Diamond Hotel Co.,
Ltd. v. Matsunaga, 1995 WL 45828 (1995) ("The purpose of Article XII
[of the CNMI Constitution regulating the alienation of land to nonNorther Mariana Islanders] is to furnish substantive protection to persons
of Northern Marianas descent, to further the preservation of their culture,
and to protect the underlying social order of the Northern Mariana
Islands. Any agreement by which a non-NMI is given, receives, or
obtains a right, conditional or otherwise, to acquire title to or an interest
in land longer than a 55-year leasehold, would violate Article XII." Id.
at *5.
56
The latter enactment reads:
No lease of real property owned or controlled by the
government which extends for a period of 10 years or
longer may be effective until it has been submitted to
the Fono . . .
[1] Quite clearly, a "lease" for a period of less than 10 years may be
effective without Fono review. The instrument at bar, however, is not
merely a lease for a period of less than 10 years, because the agreement
also furnishes the lessee options that potentially extend the lease "upon
the same terms and conditions" for an additional period totalling 55
years.3 Under these circumstances, we believe that more thought is
warranted beyond the bald submission that the term "lease," as that term
appears in A.S.C.A. § 37.2030, can have different applications
depending on how a skilled draftsman can layer an extended lease of
government land in terms of multiple options.
Motions are DENIED.
It is so ordered.
**********
3
Paragraph "B" of the "Terms of Lease" section in the March 2005
agreement provides:
LESSOR and LESSEE agree that LESSEE has the
option to extend the term of this Lease, upon the same
terms and conditions set forth herein, for a total period
of thirty (30) years, if, during the original term, this
Lease and the extended lease term are reviewed and
approved by the Fono . . . pursuant to A.S.C.A. §
37.2030.
Paragraph "C" of the "Terms of Lease" section in the March 2005
agreement provides:
At the expiration of the original term, LESSEE shall
have the option to renew this Lease, upon the same
terms and conditions set forth herein, for an additional
period of twenty-five (25) years provided LESSEE
notifies LESSOR by written notice of intent to exercise
said options not less than thirty (30) days prior to the
end of the initial term of the Lease.
57
MORU MANE, PULETU KOKO, and JULIE MATA`U, Plaintiffs,
v.
TUFAGA SAPATI and CORPORATION OF THE PRESIDING
BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER
DAY SAINTS, Defendants.
High Court of American Samoa
Trial Division
CA No. 109-03
May 2, 2006
[1] T.C.R.C.P. 59(a) does not specify the grounds for a new trial.
[2] A court may alter or amend a judgment under T.C.R.C.P. 59(e) if it
has made a clear error of law or fact.
[3] The standard for granting a motion for reconsideration or new trial is
strict, and should be denied unless the moving party can point to data or
controlling decisions that the court overlooked.
[4] A motion for reconsideration should not be granted where the
moving party seeks solely to relitigate an issue already decided.
Before: RICHMOND, Associate Justice, and MAMEA, Associate Judge
Counsel: For Plaintiffs, Charles V. Ala’ilima
For Defendants, Arthur Ripley, Jr.
ORDER DENYING MOTION FOR NEW TRIAL
Background
The pertinent parties to the case, Plaintiffs Moru Mane, Puletu Koko and
Julie Mata’u, Defendant Tufaga Sapati, as well as other Tufaga family
members,1 are already familiar with this case’s history.
In our order of March 16, 2006, having received reports and submissions
from members of both the Sepulona and Sinapioa clans, we ordered
distribution of the Registry funds among these two clans and their
1
Defendant Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter Day Saints (“LDS Church”) had no reason to directly
participate in the trial and did not do so.
58
respective sub-clans.2 In doing so, we deducted attorney’s fees and
costs, and also took into consideration the portion of the land sale
proceeds already distributed by Defendant.
Defendant now moves for a new trial, arguing the Court clearly erred in
its findings, and that the Court’s proposed distribution was arbitrary and
capricious, including our awarding of Plaintiffs’ attorney’s fees. For the
reasons below, we deny the motion.
Discussion
[1-4] T.C.R.C.P. 59(a) does not specify the grounds for a new trial, but
in nonjury actions, a great majority of federal jurisdictions hold that a
new trial may be granted where the record shows a manifest error of law
or fact. See, e.g., Milwee v. Peachtree Cypress Inv. Co., 510 F. Supp.
284 (D.C. Tenn. 1978), aff’d 644 F.2d 885. Similarly, a court may alter
or amend a judgment under T.C.R.C.P. 59(e) if it has made a clear error
of law or fact. See, e.g., Knepp v. Lane, 859 F. Supp. 173 (E.D. Pa.
1994). Thus, the standard for granting a motion for reconsideration or
new trial is strict, and should be denied unless the moving party can
point to data or controlling decisions that the court overlooked. See
Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995).
Furthermore, a “motion for reconsideration should not be granted where
the moving party seeks solely to relitigate an issue already decided.”
Shrader, 70 F.3d at 257.
Defendant’s contention that the Court erred in its findings and proposed
distribution is clearly an attempt to relitigate the issues. He points to no
authority or facts that the Court overlooked, choosing instead to re-argue
matters already decided by the Court.
Moreover, Defendant’s assertion that awarding Plaintiffs $21,000.00 in
attorney’s fees is somehow grounds for a new trial or reconsideration is,
simply put, false. Plaintiffs brought this action to enforce the settlement
agreement in LT No. 14-03, which provided for reimbursement of the
parties’ attorney’s fees and costs. They are entitled to the same amount
for their attorney’s fees and costs as Defendant, regardless of which
stage of the entire proceeding the fees were incurred. 3
2
Order Correcting Clerical Mistake and Directing Distribution of
Funds, CA No. 109-03 (Trial Div. March 16, 2006).
3
Not unreasonably, Plaintiffs suggest that their attorney’s fees and costs
for this enforcement action should be reimbursed in the billed specific
amount of $4,458.07 and be taken from the amount of the Registry funds
paid to Defendant personally. We will, however, stay with our decision
to provide for an equal total amount of attorney’s and costs for both sides
59
Therefore, we deny the motion.
Order
Defendant’s motion for a new trial is DENIED.
It is so ordered.
*********
and the settlement agreement’s provision for fees and costs
reimbursement before distribution of the land sale proceeds.
60
LEALIIFANO DR. IOPU TANIELU, Plaintiff,
v.
AMERICAN SAMOA GOVERNMENT and LBJ TROPICAL
MEDICAL CENTER, Defendants.
High Court of American Samoa
Trial Division
CA No. 99-05
May 3, 2006
[1] A motion to dismiss under T.C.R.C.P. 12(b)(6) tests the sufficiency
of the complaint.
[2] Dismissal of a claim under T.C.R.C.P. 12(b)(6) is appropriate only
where it appears the plaintiff can prove no set of facts that would entitle
him or her to relief.
[3] The defendant has the burden of proving that no claim exists under
T.C.R.C.P. 12(b)(6).
[4] A complaint may be dismissed as a matter of law for two reasons: (1)
lack of cognizable legal theory, or (2) insufficient facts under a
cognizable theory.
[5] In considering a 12(b)(6) motion, the court must assume the truth of
all factual allegations and must construe them in the light most favorable
to plaintiff.
[6] A court is generally confined to considering the allegations in the
pleadings, but it may consider documents attached to the complaint in
evaluating the merits of a T.C.R.C.P. 12(b)(6) claim.
[7] In order to assert a valid breach of contract claim, the complaint
needs to allege: (1) the existence of an agreement; (2) adequate
performance of the contract by the plaintiff; (3) breach of contract by the
defendant; and (4) damages. At a minimum, the terms of the contract,
each element of the alleged breach and the resultant damages must be
alleged.
[8] Although a plaintiff is required only to make a “short and plain
statement” of the breach of contract claim pursuant to T.C.R.C.P. 8(a),
the plaintiff still must give the defendant fair notice of what plaintiff's
claim is and the grounds upon which it rests.
61
Before: RICHMOND, Associate Justice, LOGOAI, Chief Associate
Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Katopau T. Ainu`u
For Defendant American Samoa Government, Terry Lovelace,
Assistant Attorney General
ORDER DENYING MOTION TO DISMISS
Introduction
On January 30, 2006, Lealiifano Dr. Iopu Tanielu (“Plaintiff”) filed his
first amended complaint against the American Samoa Government
(“ASG”) and LBJ Tropical Medical Center (“LBJ”), an “independent
agency” of ASG’s executive branch (together “Defendants”). 1 The
complaint alleges LBJ breached its employment contract with Plaintiff
when it failed to pay him the balance of his contract, and seeks
$42,320.35 in damages. Plaintiff attaches a copy of the employment
contract to the complaint.
Defendants now move to dismiss the complaint pursuant to T.C.R.C.P.
12(b)(6), arguing Plaintiff fails to state a claim upon which relief can be
granted. Having conducted hearings on these issues and considered the
parties’ submissions, we deny the motion.
Discussion
A. Motion to Dismiss Standard
[1-3] A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the
complaint. See North Star Int’l. v. Arizona Corp. Comm’n., 720 F.2d
578, 581 (9th Cir. 1983). Dismissal of a claim under this rule is
appropriate only where it appears the plaintiff can prove no set of facts
that would entitle him or her to relief. Moeisogi v. Faleafine, 5 A.S.R.2d
131, 134 (1987); Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The
defendant has the burden of proving that no claim exists. See Parks
School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.
1995).
1
The actual title of this agency is the American Samoa Medical Center.
A.S.C.A. § 13.0101. However, the former title “LBJ Tropical Medical
Center” and present title “American Samoa Medical Center” are still
commonly used interchangeably. ASG’s Attorney General is required to
represent the agency in all legal matters, but the agency has discretion to
retain private counsel. A.S.C.A. § 13.0113.
62
[4-5] A complaint may be dismissed as a matter of law for two reasons:
(1) lack of cognizable legal theory, or (2) insufficient facts under a
cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d
530, 534 (9th Cir. 1984); Nietzke v. Williams, 490 U.S. 319, 326-27
(1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis
of a dispositive issue of law.”). In considering a 12(b)(6) motion, the
court must assume the truth of all factual allegations and must construe
them in the light most favorable to plaintiff. Gompper v. VISX, Inc., 298
F.3d 893 (9th Cir. 2002).
[6] Additionally, although the court is generally confined to considering
the allegations in the pleadings, it may consider documents attached to
the complaint in evaluating the merits of a 12(b)(6) claim. Durning v.
First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).
B. Breach of Contract
[7-8] In order to assert a valid breach of contract claim, the "complaint
need only allege (1) the existence of an agreement, (2) adequate
performance of the contract by the plaintiff, (3) breach of contract by the
defendant, and (4) damages." Eternity Global Master Fund Ltd. v.
Morgan Guar. Trust Co. of New York, 375 F.3d 168, 177 (2d Cir. 2004)
(quoting Harsco Corp. v. Segui, 91 F.3d 337, 347 (2d Cir. 1996));
Internet Law Library, Inc. v. Southridge Capital Mgmt., LLC, et al, 223
F. Supp. 2d 474, 490 (S.D.N.Y. 2002). "[A]t a minimum, the terms of
the contract, each element of the alleged breach and the resultant
damages" must be alleged. Kaplan v. Aspen Knolls Corp., 290 F. Supp.
2d 335, 337 (E.D.N.Y. 2003). Although a plaintiff is required only to
make a "short and plain statement" of the breach of contract claim
pursuant to Rule 8(a), the plaintiff still must "give the defendant fair
notice of what plaintiff's claim is and the grounds upon which it rests."
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002) (quoting Conley
v. Gibson, 355 U.S. 41, 47 (1957)).
Plaintiff alleges he entered into an employment contract with LBJ on
August 12, 2002, whereby Plaintiff would work for LBJ for a term of
two years. He alleges that on November 3, 2003, nine months before the
contract expired, LBJ terminated his employment pursuant to section
7(c) of the contract. Upon termination, Plaintiff claims LBJ failed to
pay the balance of the contract, and other benefits, as provided for under
the contract, and requests $42,320.35 in damages.
Despite their assertion to the contrary, Defendants fail to show how
Plaintiff’s allegations are insufficient to establish a breach of contract
claim. We find the complaint sufficiently alleges the existence of an
agreement, the contract provisions upon which the claim for relief is
63
based, adequate performance by the Plaintiff, and damages. Therefore,
Defendants’ motion is denied.
Order
Because Plaintiff presents sufficient facts under a cognizable legal
theory, we DENY Defendants’ motion to dismiss Plaintiff’s first
amended complaint.
It is so ordered.
*********
JOHN BRIGGS, Plaintiff,
v.
LONGLINE SERVICES, Defendant.
High Court of American Samoa
Trial Division
CA No. 70-04
May 16, 2006
[1] If a party fails to obey a discovery order, the Court may, as a
sanction, issue: an order staying further proceedings until the order is
obeyed, or dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient party.
T.C.R.C.P. 37(b)(2)(C).
[2] While Rule 37(b)(2)(C) clearly authorizes dismissal for failure to
comply with discovery orders, the rule should not be construed to
authorize dismissal of a complaint for noncompliance with a pretrial
production order when it has been established that failure to comply has
been due to inability, and not to willfulness, bad faith, or any fault of
petitioner.
[3] To demonstrate willfulness and bad faith, the moving party must
show that the noncomplying party demonstrated a callous disregard or
arrogant disrespect for the rules of discovery.
64
[4] The Court has a longstanding philosophy of favoring trying actions
on their merits, and avoiding summary dismissals except in the most
egregious of circumstances.
[5] Before filing motions to compel and motions for sanctions related to
discovery matters, the parties should exhaust any and all non-judicial
avenues first.
Before: KRUSE, Chief Justice, LEFITI, Associate Judge, and MAMEA,
Associate Judge.
Counsel: For Plaintiff, Katopau T. Ainu`u
For Defendant, Mark F. Ude
ORDER DENYING MOTION TO DISMISS
Introduction
On September 22, 2005 Defendant Longline Services, Inc. ("Longline")
served its second set of interrogatories on Plaintiff John Briggs
("Briggs"). This second set of interrogatories, totaling over 220 separate
questions, came on the heals of the first set, containing over 115 separate
questions.
On October 24, 2005, citing that Plaintiff, a fisherman, had been at sea,
Plaintiff's counsel Katopua Ainu`u requested a five day extension to
answer the interrogatories. Defendant reluctantly agreed.
On November 2, 2005 Plaintiff moved to substitute Fiti Sunia as his
counsel, thereby replacing Mr. Ainu`u. Defendant stipulated and the
Court approved the substitution. The following day, the initial deadline
for answering the interrogatories as well as the five-day extension
coming to pass, Defendant welcomed Plaintiff's new counsel to the case
by filing a motion to compel responses.
The Court heard the motion to compel on December 2, 2005. In a bench
ruling we ordered Plaintiff to respond within 30 days. The Court clerk
announced to all present that because January 2, 2006 was a Court
holiday, responses were not due until January 3, 2006. Plaintiff filed and
served Defendant written responses on January 3, 2006.
Defendant now moves to dismiss, arguing the responses were untimely,
and therefore Defendant is entitled to dismissal pursuant to T.C.R.C.P.
37(b)(2)(C).1 We disagree.
1
Defendant also argues it is entitled to dismissal under a lack of
prosecution theory, although it cites no authority supporting its position.
65
Discussion
[1-3] Rule 37(b)(2)(C) provides that if a party fails to obey a discovery
order, the Court may, as a sanction, issue: "[a]n order ... staying further
proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a judgement [sic] by default
against the disobedient party." T.C.R.C.P. 37(b)(2)(C). While Rule
37(b)(2)(C) clearly authorizes dismissal for failure to comply with
discovery orders, the U.S. Supreme Court has cautioned that Federal
Rule of Civil Procedure 37 (upon which our own rule is modeled)
"should not be construed to authorize dismissal of [a] complaint [for]
noncompliance with a pretrial production order when it has been
established that failure to comply has been due to inability, and not to
willfulness, bad faith, or any fault of petitioner." Nat'l Hockey League v.
Metropolitan Hockey Club, Inc., 427 U.S. 639, 640 (1976). Courts have
translated National Hockey's requirement of willfulness and bad faith to
mean that the moving party, in order to prevail, must show that the
noncomplying party demonstrated "a callous disregard" or "arrogant
disrespect" for the rules of discovery. Damiani v. Rhode Island
Hospital, 704 F.2d 12, 16 (1st Cir. 1983).
Thus, for Longline to prevail on the present motion, it must fulfill two
necessary requirements. First, in order to even consider dismissal under
Rule 37(b)(2)(C), Longline must show that Plaintiff in fact failed to
comply with a discovery order. Second, Longline must convincingly
show that Plaintiff's noncompliance, if proved, was willful or in bad
faith, and demonstrated a callous and arrogant disregard for the rules of
discovery. Longline can establish neither.
Here, as set forth above, at the hearing on Defendant's motion to compel
responses the Court notified counsel that responses were due on January
3, 2006. Plaintiff filed his responses on January 3, 2006. Thus, his
It is well settled that where a plaintiff fails to take action on a case for an
extended period of time, a court is entitled to dismiss for failure to
prosecute. See e.g., In Shannon v. General Electric Co., 186 F.3d 186
(2d Cir. 1999); see also T.C.R.C.P. 41(b)("failure of the plaintiff the
prosecute or to comply with these rules or any order of court, a
defendant may move for dismissal of an action or of any claim against
him."). Here, however, Plaintiff has not only filed his complaint, but
also: 1) engaged in discovery, 2) moved to set a trial date, and 3) moved
for summary judgment. We hardly see how these actions constitute a
failure to prosecute, and Defendant points us to no authority indicating
otherwise. Therefore, Defendant's motion on failure to prosecute ground
is denied.
66
responses were timely and in full compliance with the court imposed
deadline. In other words, there was no failure to comply, and we
therefore cannot entertain a motion to dismiss under Rule 37(b)(2)(C).
[4] Before launching into a dubious 50-plus page motion to dismiss,
counsel should keep in mind this Court's longstanding philosophy of
favoring trying actions on their merits, and avoiding summary dismissals
except in the most egregious of circumstances. See e.g., Makro v.
Progressive Ins. Co. (Pago Pago) Ltd., CA No. 56-99, slip op (Trial
Div. October 25, 2004) (dismissing action as discovery sanction when
counsel failed to answer interrogatories for over four years, neglected a
Court order compelling more definite responses, and failed to attend
hearings); see also Montgomery v. Pepsi-Cola Gen. Bottlers, Inc., 2004
WL 2091483 at *5 (holding dismissal is proper after party provided
inadequate responses and repeatedly failed to correct answers despite
court orders to do so).
[5] Finally, we recognize that at bottom, Longline's present motion
quibbles with the quality of Plaintiff's responses, characterizing them as
"evasively answered," "incomplete" and in some instances not answered
at all. However, the proper vehicle for rectifying this situation is a
motion to compel more definitive responses, not a motion to dismiss.
We suggest however, that before Defendant merely changes the caption
and re-files the present motion as a motion compel more definite
responses, that the parties exhaust any and all non-judicial avenues first.
This should include, at a minimum, a meet and confer to discuss not only
the sufficiency of the responses, but also any document production and
response to admissions issues. Discovery rules exist to facilitate the
discovery of admissible evidence. This broad goal is best accomplished
when counsel works with, not against each other, and when parties,
whenever possible, solve discovery issues on their own without
involving the overburdened, and thus slow moving machinery of the
courts.
Order
Defendant's motion to dismiss is DENIED. The parties are ordered to
meet and confer within 30 days from the date of this order to resolve
issues surrounding Plaintiff's interrogatory responses, as well as any
document production or admissions issues. The Court will not entertain
a motion to compel until the parties meet and attempt to hash out these
issues on their own.
It is so ordered.
*********
67
FRANK LEFITI, Plaintiff,
v.
FORD MOTOR COMPANY, and DOES I through X, Defendants.
High Court of American Samoa
Trial Division
CA No. 90-04
May 31, 2006
[1] The extent of discovery and the use of protective orders is clearly
within the trial judge’s discretion.
[2] Discovery is a liberal process under T.C.R.C.P. 26(b)(1), and may
include any relevant, non-privileged material.
[3] T.C.R.C.P. 26(c) offers parties some protection against the broad
discovery rights of T.C.R.C.P 26(b).
[4] Upon good cause shown, the Court may issue an order limiting or
preventing discovery to protect a party from oppression, annoyance,
embarrassment, or undue burden or expense. T.C.R.C.P 26(c).
[5] Courts determine “undue burden” by considering factors such as (1)
relevance, (2) relative benefit to party of obtaining information, (3)
breadth of document request, (4) time period covered by request, (5)
specificity of discovery requests, and (6) burden imposed.
[6] In dealing with objections that discovery requests are burdensome or
onerous to answer, too many in number, or related to matter immaterial
to any issue raised by the pleadings, relevancy is the principal inquiry.
[7] Relevancy must be broadly construed at the discovery stage; to wit,
information is discoverable if there is any possibility it might be relevant
to the action’s subject matter.
[8] Discovery requests that are too indefinite or all-inclusive will be
deemed irrelevant.
[9] An order the Court issues under the last paragraph of T.C.R.C.P.
26(c) is not dependent on a showing of good cause, and while it may not
grant any of the eight items of relief listed in the first paragraph, such an
order may direct discovery on such terms and conditions as are just.
68
[10] The Court has broad discretion when deciding whether to compel
discovery.
[11] In ruling on a motion to compel, the trial court should independently
determine the proper course of discovery based upon arguments of
parties.
Before RICHMOND, Associate Justice, LOGOAI, Chief Associate
Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Jeffrey Waller
For Defendant, Marie A. Ala’ilima
ORDER DIRECTING DISCOVERY
Introduction
On November 5, 1999, Plaintiff Frank Lefiti (“Lefiti”), a resident of
American Samoa, purchased a new 2000-year model Ford F-150 truck at
a Ford dealership in Honolulu, Hawaii. He subsequently transferred the
truck to American Samoa. On October 14, 2003, Lefiti observed that his
truck, parked outside his house, was on fire. He later received an
investigative report by the Department of Public safety purporting that
the fire was the result of an electric malfunction in the truck’s engine
compartment. On September 22, 2004, Lefiti filed an action in this
Court against Defendant Ford Motor Company (“Ford”), as well as
several unidentified defendants for (1) breach of implied warranty for
fitness of use; (2) breach of implied warranty of fitness for particular
purpose; (3) breach of implied warranty for merchantability; (4)
negligence; (5) strict liability; and (6) “malfunction of vehicle.”
On January 10, 2006, Lefiti served Ford with his first set of
interrogatories and request for production of documents and things,
which contained 130 interrogatories plus sub-parts, and a request that all
documents/things described in Ford’s responses be produced. Ford now
moves for a protective order releasing them from their obligation to
answer the interrogatories and produce documents/things related to the
interrogatories. Ford argues Lefiti’s interrogatories are oppressive in
number, place an undue burden on Ford, are not made in good faith, and
seek irrelevant information not reasonably calculated to lead to the
discovery of admissible evidence. They also attach an affidavit from an
automotive engineering expert in support of their motion. Lefiti, in
addition to opposing a protective order, moves to compel responses to
certain discovery he believes not covered by Ford’s requested protective
order.
69
Using our discretion, we deny both parties’ motions and instead limit
Lefiti’s interrogatories to 60 including sub-parts.
Discussion
A. Legal Standards
[1-2] The extent of discovery and the use of protective orders is clearly
within the trial judge’s discretion. Chemical & Industrial Corp. v.
Druffel, 301 F.2d 126, 133 (6th Cir. 1962); see also Yancey v Hooten,
180 F.R.D. 203, 207 (D.C. Conn. 1998) (trial court enjoys broad
discretion when resolving discovery disputes). Still, we recognize that
discovery is a liberal process under T.C.R.C.P. 26(b)(1), and may
include any relevant, non-privileged material. Johnson v. Coulter, 25
A.S.R.2d 84, 85 (Trial Div. 1993); T.C.R.C.P. 26 (b)(1) (information
sought need only be “reasonably calculated to lead to the discovery of
admissible evidence.”).
B. Protective Order
[3-5] T.C.R.C.P. 26(c) offers parties some protection against the broad
discovery rights of Rule 26(b). See United States v. Columbia
Broadcasting System, Inc., 666 F.2d 364, 368-69 (9th Cir. 1982), cert.
den’d, 457 U.S. 1118 (1982)(Rule 26(c) was enacted as safeguard for
protection of parties and witnesses in view of broad discovery rights
authorized in Rule 26(b)). Rule 26(c) provides that upon good cause
shown, the Court may issue an order limiting or preventing discovery to
protect a party from oppression, annoyance, embarrassment, or undue
burden or expense.1 Courts determine “undue burden” by considering
1
T.C.R.C.P. 26(c) states in full:
Upon motion by a party or by the person from whom
discovery is sought, and for good cause shown, the
court in which the action is pending may make any
order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or
undue burden or expense, including one or more of the
following: (1) that the discovery not be had; (2) that
the discovery may be had only on specified terms and
conditions, including a designation of the time or
place; (3) that the discovery may be had only by a
method of discovery other than that selected by the
party seeking discovery; (4) that certain matters not be
inquired into, or that the scope of the discovery be
limited to certain matters; (5)that discovery be
conducted with not one present except persons
70
factors such as (1) relevance, (2) relative benefit to party of obtaining
information, (3) breadth of document request, (4) time period covered by
request, (5) specificity of discovery requests, and (6) burden imposed.
See N.C. Right to Life, Inc. v. Leake, 231 F.R.D. 49, 51 (D.D.C. 2005).
[6-8] In dealing with objections that discovery requests are “burdensome
or onerous to answer, too many in number, or related to matter
immaterial to any issue raised by the pleadings,” relevancy is the
principal inquiry. Greene v Raymond, 41 F.R.D. 11, 14 (D.C. Colo.
1966). Relevancy must be broadly construed at the discovery stage; to
wit, information is discoverable if there is “any possibility” it might be
relevant to the action’s subject matter. EEOC v. Electro-Term, 167
F.R.D. 344, 346 (D.C. Mass. 1996); Sonnino v Univ. of Kan. Hosp.
Auth., 220 F.R.D. 633, 646 (D.C. Kan. 2004). Nonetheless, requests that
are too indefinite or all-inclusive will be deemed irrelevant. See Greene,
41 F.R.D. at 14.
[9] Finally, even if a party fails to show "good cause" necessary to issue
a protective order, "including one or more" of eight enumerated orders,
the matter does not end there. The last paragraph of Rule 26(c) provides:
If the motion for a protective order is denied in whole
or in part, the court may, on such terms and conditions
as are just, order that any party or person provide or
permit discovery.
Thus, an order the Court issues under the last paragraph of Rule 26(c) is
not dependent on a showing of good cause, and while it may not grant
any of the eight items of relief listed in the first paragraph, such an order
designated by the court; (6) that a deposition after
being sealed by opened only by order of the court; (7)
that a trade secret or other confidential research,
development, or commercial information not be
disclosed or be disclosed only in a designated way; (8)
that the parties simultaneously file specified
documents of information enclosed in sealed envelopes
to opened as directed by the court.
If the motion for a protective order is denied in whole
or in part, the court may, on such terms and conditions
as are just, order that any party or person provide or
permit discovery. The provisions of 37(a)(4) TCRCP
apply to the award of expenses incurred in relation to
the motion.”
71
may direct discovery “on such terms and conditions as are just." See
Krause v. Rhodes, 535 F. Supp. 338, 347 (N.D. Ohio 1979).
C. Compelling Discovery
[10-11] The Court has broad discretion when deciding whether to
compel discovery. See Pizel v. Monaco Coach Corp., 224 F.R.D. 642,
643-44 (N.D. Ind. 2004). Indeed, in ruling on a motion to compel, the
trial court should independently determine the proper course of
discovery based upon arguments of parties. Id.
(2) Application
Despite the verbiage directed towards the relevancy of Lefiti’s
interrogatories and document requests, we find neither party’s argument
persuasive. Nevertheless, mindful of the presumption in favor of broad
discovery, we do not find Ford has shown good cause to issue a
protective order. We also see no need to issue a motion to compel.
But the matter does not end there. Although we are not convinced Lefiti
is conducting discovery in bad faith or in such a manner as to annoy,
embarrass, or oppress Ford, we do believe Lefiti’s discovery requests,
when viewed as a whole, are too indefinite and voluminous in nature.
Thus, while we will not specifically limit the scope of Lefiti’s
interrogatories, certain limitations are necessary.
Using our discretion under Rule 26(c), we find that Lefiti’s
interrogatories should be limited to 60 including sub-parts. This
restriction will force Lefiti to narrow his focus--thus preventing any
possible undue burden from being placed on Ford--while still enabling
him to acquire information relevant and necessary for preparation of his
case for trial. Moreover, reducing the number of interrogatories to 60
will serve the interests of a just, speedy, and less expensive
determination of this complex dispute by hopefully alleviating the need
for and delay occasioned by extensive and repeated judicial intervention.
Discovery rules exist to help unearth admissible evidence. This broad
goal is best accomplished when counsel work with, not against each
other, and when parties, whenever possible, solve discovery issues on
their own without involving the overburdened, and thus slow moving
machinery of the courts. Accordingly, it is imperative the parties work
together to fashion a discovery program that does not end up in
voluminous motions for protective orders and motions to compel.
72
Order
Ford’s motion for a protective order is denied and Lefiti’s motion to
compel discovery is DENIED. Rather, the parties will work together in
limiting Lefiti’s interrogatories to 60 including sub-parts.
It is so ordered.
**********
MORU MANE, PULETU KOKO, and JULIE MATA`U, Plaintiffs,
v.
TUFAGA SAPATI and CORPORATION OF THE PRESIDING
BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER
DAY SAINTS, Defendants.
High Court of American Samoa
Trial Division
CA No. 109-03
June 14, 2006
[1] The sa’o at the head of a Samoan family has the authority to make
responsible decisions for the security and general welfare of the
extended family members.
[2] The sa’o exercises pule over the family’s communal lands, in a trustlike fashion, for the benefit of the family as a whole.
[3] The sa’o’s decisions, if fair and reasonable, are not subject to judicial
interdiction.
[4] The sa’o’s power is not absolute; his actions, if arbitrary or
capricious, are subject to judicial oversight and legal remedies.
Before: RICHMOND, Associate Justice, MAMEA, Associate Judge, and
TAPOPO, Acting Associate Judge.
Counsel: For Plaintiffs, Charles V. Ala`ilima
73
For Defendant, Tufaga Sapati, Arthur Ripley, Jr.
For Defendant, Corporation of the Presiding Bishop of the
Church of Jesus Christ of Latter Day Saints, Robert K. Maez
OPINION AND ORDER
Introduction
Plaintiffs Moru Mane (“Mane”), Puletu Koko (“Puletu”), and Julie
Mata`u (“Matau”), members of the Tafaga family, brought this action to,
in essence, recover their alleged share, pursuant to a stipulated settlement
of LT No. 14-03 involving, essentially, the same parties, of the
consideration to be paid by Defendant Corporation of the Presiding
Bishop of the Church of Jesus Christ of Latter Day Saints (“LDS
Church”) for acquisition of the Tufaga Family’s communal land to
Defendant Tufaga Sapati (“Tufaga”), the family sa`o having pule
[management authority] over the land. On January 14, 2004, the Court
granted Plaintiffs application and issued a preliminary injunction
requiring the LDS Church to deposit the unpaid portion of the
consideration into the Court Registry pending the Court’s further order.
On January 26, 2004, the LDS Church complied with the preliminary
injunction by depositing $229,016.00 with the High Court. These funds
remain in the Registry.
The trial was conducted on February 7, 8, 9, and 10, 2005. Plaintiffs and
their counsel were present throughout the trial, as were Tufaga and his
counsel. The LDS Church had no reason to directly participate in the
trial and did not do so.
Discussion
In LT No. 14-03, Mane, Puletu, and Mata`u, joined by Mikaele Tagalu
and Tagalu Siutulei, sued Tufaga and the LDS Church to invalidate the
sale of two portions, totaling approximately 3.566 acres, of the Tufaga
family’s communal land “Taufusi” in Aua, American Samoa, by Tufaga
to the LDS Church. The LDS Church was obligated to pay a total of
$350,000.00 for the land purchase, $229,016.00 for one parcel of
approximately 2.333 acres and $120,984.00 for the second parcel of
approximately 1.233 acres. Ultimately, the parties settled LT No. 14-03
by the plaintiffs’ dismissal of the action to allow the LDS Church’s
acquisition of the land, based on the parties’ stipulated agreement. 1
1
Members of the Tufaga family met on October 7, 2003, and 27 family
members signed a petition acknowledging that differences within the
family were satisfactorily resolved at the meeting and supporting the
request to dismiss LT No. 14-03.
74
Section f, the relevant portion of the agreement for purposes of this
action, reads:
Tufaga Sapati and the Tufaga communal family agree
that when the proceeds from the deed of the land are
received they shall meet and agree on a fair
distribution among all the clans of the Tufaga family
after reimbursement of the attorney fees and costs
incurred by Tufaga Sapati and plaintiffs in this matter.
The LDS Church made partial payments of the purchase price for the
two land parcels to Tufaga, as the Tufaga family sa`o, both before and
after the dismissal of LT No. 14-03.2 Some payments were indirect,
such costs as Tufaga’s round trip airfares from California, where Tufaga
physically resides most of the time, to American Samoa and surveying
the land parcels. The LDS Church paid these costs directly to the
provider and deducted them from the total purchase price.
The amount of the pre-dismissal payments totaled approximately
$10,215.00, and involved payment in 2002 for the survey of the two
parcels and, as designated by Tufaga, “earnest money” for his round trip
airfare and other expenses at that time. The amount of the post-dismissal
payments totaled $10,769.00. These two sums added to the deposited
Registry funds of $229,016.00 equal $350,000.00 and account for the
stated total consideration for the two land parcels.
The LDS Church again directly paid a portion of the post-dismissal
payment for Tufaga’s round trip airfare in December 2003. Additional
funds were used for Tufaga’s personal and other expenses. The total
expended for and these two purposes was $10,769.00. Tufaga also used
$21,000.00 to pay the attorneys their fees in LT No. 14-03, per the
settlement agreement. Tufaga then paid out the remaining $76,100.00
without involving a meeting of all of the family’s clans and their
agreement on a fair distribution among the clans. His payment decisions
were based solely on his evaluation of the recipients’ entitlements. By
and large, he favored members of his clan, based on their residency on
2
In addition to the purchase price for the two land parcels, the LDS
Church also directly paid certain occupants of land parcels the agreed
value of their buildings and other structures on the land. The total
amount of these payments is not entirely clear under the evidence, but it
appears to have been approximately $288,000, including about $45,000
for an umu [cooking house]. The Court’s direct concern in this case, of
course, is only with the funds paid in consideration of the sale of the land
and not, except for general relevance to the overall distribution of funds
related to the transaction at issue, with the payments made to the owners
for the value of improvements they may separately own on the land.
75
family communal land in Aua and the extent of their tautua [service] to
him as the family sa`o.
The Tufaga family has four clans, named “Sepulona” or “Sepurona,”
“Sinapioa,” “Po`u” and “Gogo.“ Tufaga himself is a member of the
Sepulona clan. Mane and Puletu are blood members of the Tufaga
family and belong to the Sinapioa clan. Mata`u is a blood member of
Tufaga family and also belongs to the Sepulona clan. Tufaga distributed
the $76,100.00 by the following categories:
$2,000.00 to four non-family member LDS Church officials
$1,800.00 to Mane and Puletu as Sinapioa clan members
$72,300.00 to 59 Sepulona clan members
[1-4] The sa`o at the head of a Samoan family has the authority to make
responsible decisions for the security and general welfare of the
extended family members. Seventh Day Adventist Church of American
Samoa v. Maneafaiga, 150, 154 (Land & Titles Div. 1993). He exercises
pule over the family’s communal lands, in a trust-like fashion, for the
benefit of the family as a whole. Pen v. Lavata`i, 25 A.S.R.2d 165, 168
(Land & Titles Div. 1994). The sa`o’s decisions, if fair and reasonable,
are not subject to judicial interdiction. Fairholt v. Aulava, I A.S.R.2d 73,
79 (Land & Titles Div. 1983). His power, however, is not absolute; his
actions, if arbitrary or capricious, are subject to judicial oversight and
legal remedies. Pen, 25 A.S.R.2d at 168.
Tufaga abused his discretion in this instance. 3 His decision to distribute
$72,100.00 of the $76,100.00 among members of his Sepulona clan,
approximately 95% of the funds he then controlled for this purpose, to
the total exclusion of two of the remaining three clans and virtual
exclusion of the fourth clan, is arbitrary on its face. It appears that Mane
and Puletu received funds as token recognition of the Sinapioa clan
because of the pressure they brought to bear in fashioning the settlement
of LT No. 13-03. Mata`u was excluded from the Tufaga’s distribution,
even though she is a Sepulona clan member. Likewise the other two
plaintiffs in LT No. 14-03, Mikaele Tagalu and Tagalu Siutulei, were
excluded from the distribution. Tufaga’s essentially total disregard of the
written settlement agreement in LT No. 14-03, in failing to utilize a
family meeting to agree upon a fair distribution of the funds among the
Tufaga family’s four clans, only compounds the arbitrary and capricious
3
Tufaga is elderly and not in the best of health, including diminishing
eyesight. However, he knew and understood very well, at the time of
occurrence, the nature of events, including the contents of the documents
he signed, and their consequences.
76
nature of his distribution decisions. Tufaga signed that agreement, as he
did the petition seeking dismissal of LT No. 14-03 based on the accord
reached at the family meeting immediately preceding and leading to the
settlement agreement.
The Court needs to fashion, in order to implement the LT No. 14-03
settlement agreement, a program for the distribution of the $229,016.00,
plus accrued interest, in the Court Registry in a fair and reasonable
manner among the four Tufaga family clans. Tufaga suggested during
his testimony that he wanted to set aside $25,000 or so of the Registry
funds to refurbish and improve the Tufaga family’s principal guesthouse
in Aua. Tufaga also suggested that he would distribute most, if not all,
of the funds remaining after the guesthouse upgrade to family members
residing outside of American Samoa based on their past and continuing
tautua to him as the family sa`o.
Neither proposal comports with the terms of LT No. 14-03 settlement
agreement. Therefore, given Tufaga’s demonstrated unwillingness to
abide by the terms of the agreement, we will apportion an equitable
amount of the Registry funds for distribution to each of the four clans,
taking into account the overwhelming amount already distributed to the
Sepulona clan. However, before making this distribution determination,
we need to know the approximate number of living Tufaga family
members in each clan, who reside in and outside of American Samoa, by
designated age groups and matai status within the family.
For this purpose, we will require the Tufaga family to create a committee
structured and tasked as set forth in the order below.
Order
Tufaga shall chair a committee of four other Tufaga family members,
one from each of the four Tufaga clans. No later than 14 days after entry
of this order, each clan shall select a clan member who resides in
American Samoa to be a committee member and represent the clan, and
shall notify the Court of the name of the person selected. No later than
45 days after the entry of this order, the committee shall report to the
Court in writing the estimated number of living Tufaga family members
in each clan. The report shall subdivide the estimate to indicate the
number of such members in each clan in three age groups: under age 25,
age 25 to 49, and age 50 and older; and to indicate for each age group the
number of family members who reside in and the number who reside
outside American Samoa. The report shall further indicate the number in
each clan holding legitimate matai status within the family.
The report shall also contain a proposal on the procedure to be followed
for the actual distribution of the funds within each clan and shall identify
77
the person in each clan who should be designated to be responsible for
the ultimate fund distribution within the clan.
Any committee member who disagrees with the information proposed to
be submitted to the Court may submit a separate report specifically
indicating the areas of disagreement.
Upon receiving the report or reports, the Court, if it deems necessary or
if any party so requests, will schedule a further hearing for oral
arguments pertaining to the distribution of the remaining funds. In any
event, however, the Court will determine the final fund distribution and
issue an appropriate order for that purpose.
It is so ordered.
*********
ALEX GALEA’I, Plaintiff,
v.
TUIKA TUIKA, MAFA TUIKA and DOES 1-10, inclusive,
Defendants.
High Court of American Samoa
Trial Division
CA No. 17-04
June 19, 2006
[1] Courts can relieve a party or his legal representative from a final
judgment, order or proceeding in appropriate cases. T.C.R.C.P. 60(b).
[2] T.C.R.C.P. 60(b) enumerates several specific grounds for relief,
including: (1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial; (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, release, or discharged, or prior judgment
upon which it is based has been reversed or otherwise vacated, or it is no
longer equitable that the judgment should have prospective application;
78
or (6) any other reason justifying relief from the operation of the
judgment.
[3] In a T.C.R.C.P. 60(b) motion the burden of persuasion is onerous,
and to succeed a party must set forth facts or law of a strongly
convincing nature to induce the court to reverse its prior decision.
[4] The Court, at its discretion, can grant a stay of judgment pending
appeal in damages cases when the appellant deposits, and the court
approves, an adequate supersedeas bond. T.C.R.C.P. 62(d).
[5] Stays pending appeal are available in non-damages cases where the
moving party demonstrates both the likelihood of success on appeal and
that the balance of equities weighs in their favor. T.C.R.C.P. 62(d).
[6] To discourage litigants from pursuing otherwise frivolous appeals
simply to postpone the inevitable, motions to stay are rarely granted.
[7] A stay pending appeal merely maintains the pre-decision status quo.
Before: RICHMOND, Associate Justice, and SAGAPOLUTELE,
Associate Judge.
Counsel: For Plaintiff, David P. Vargas
For Defendants, Pro Se
ORDER DENYING MOTIONS FOR RELIEF FROM JUDGMENT
AND FOR STAY PENDING APPEAL
Introduction
Pro se Defendants moved for relief from judgment and for stay of
judgment pending appeal. The motions came regularly before the Court
on March 28, 2006.
Having considered the arguments, and for the reasons set forth below,
we presently deny both motions.
A. Motion for Relief from Judgment
[1-3] Rule 60(b) allows courts to “relieve a party or his legal
representative from a final judgment, order or proceeding” in appropriate
cases. T.C.R.C.P. 60(b). The rule enumerates several specific grounds
for relief, including: “(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial . . .; (3) fraud
(whether
heretofore
denominated
intrinsic
or
extrinsic),
79
misrepresentation, or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satisfied, release, or
discharged, or prior judgment upon which it is based has been reversed
or otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or (6) any other reason justifying
relief from the operation of the judgment.” Id. The burden of persuasion
is onerous, and to succeed a party must set forth facts or law of a
strongly convincing nature to induce the court to reverse its prior
decision. Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp.
656, 665 (E.D. Cal. 1986) (interpreting T.C.R.C.P. 60(b)’s federal
counterpart), aff’d in part, rev’d in part on other grounds, 828 F.2d 514
(9th Cir. 1987).
Here, Defendants fail to specify the Rule 60(b) subsection under which
they move. This is not an insignificant omission as each subsection
carries its own unique standards and burdens. Notwithstanding this
failure to articulate the proper standard, we are nevertheless unpersuaded
by Defendants’ arguments in favor of relief from judgment. Therefore,
their motion for relief is denied.
B. Stay of Execution of Judgment Pending Appeal
[4-6] In lieu of relief from judgment, Defendants move to stay
enforcement of the judgment pending appeal. Trial Court Rule of Civil
Procedure 62(d) authorizes the court, in its discretion, to grant a stay of
judgment pending appeal in damages cases when the appellant deposits,
and the court approves, an adequate supersedeas bond. In addition, we
have interpreted Rule 62(d) to authorize stays pending appeal in nondamages cases, such as this one, where the moving party demonstrates
both the likelihood of success on appeal and that the balance of equities
weighs in their favor. See Asifoa v. Lualemana, 17 A.S.R.2d 10, 12
(App. Div. 1990); Lutali v. Foster, 24 A.S.R.2d 81 (Trial Div. 1993). To
discourage litigants from pursuing otherwise frivolous appeals simply to
postpone the inevitable, motions to stay are rarely granted. Asifoa, 17
A.S.R.2d at 12.
[7] Here, frankly, we are unclear as to what Defendants hope to gain
from a stay. In simple terms, a stay pending appeal does just that; it
merely maintains or “stays” the pre-decision status quo. Flynn v.
Sandahl, 58 F.3d 283, 287 (7th Cir. 1995). Here, prior to our written
order, the status quo ante meant that Plaintiff placed his monthly
payments in trust pending our determination of whether those payments
were monthly rental payments, or payments expended toward the
property’s purchase price. Having determined the latter, we ordered the
accumulated trust payments released to Defendants, subject to payment
of the outstanding balance Defendants owed the United States Small
Business Administration, and directed Plaintiff to thereafter make all
80
future purchase payments directly to Defendants. Thus, in seeking to
stay our decision, Defendants now essentially ask the Court to order
Plaintiff’s monthly payments again be placed in trust, rather than in their
pockets. This seems somewhat nonsensical.
The more important issue, transferring title to the subject property, has
not yet come to pass.1 To date, Plaintiff has not paid the balance of the
purchase price, and consequently, Defendants retain title. Thus, other
than putting the payments in trust or giving them directly to Defendants,
we see nothing to stay at this time. Accordingly, the stay motion is
denied.
Order
Defendants’ motions for relief from judgment and for stay pending
appeal are denied.
It is so ordered.
**********
1
In our July 25, 2005 opinion and order, we held that title to the subject
property would not pass to Plaintiff until Plaintiff rendered the balance
due on the purchase price. Pursuant to the agreement, payment occurs in
monthly installments of $2,500, and consequently, under the agreement’s
terms, payment of the full purchase price likely will not occur until
August 2012. In other words, the all-important title to the property
likely will not pass until the remaining balance of the 10-year purchase
period expires; i.e. approximately seven more years.
However,
Paragraph 13 of the agreement provides that Defendants will transfer
title “at any time” after Plaintiff paid the balance. In other words, there
does not appear to be anything in the agreement preventing prepayment,
thus requiring Defendants to transfer title sometime earlier than the
August 2012 date referred to in the agreement. In the event prepayment
occurs prior to the Appellate Division hearing Defendants’ appeal, we
will, upon Defendants’ motion, revisit the stay issue.
81
MORU MANE, PULETU KOKO, and JULIE MATA`U, Plaintiffs,
v.
TUFAGA SAPATI and CORPORATION OF THE PRESIDING
BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER
DAY SAINTS, Defendants.
High Court of American Samoa
Trial Division
CA No. 109-03
June 22, 2006
[1] T.C.R.C.P. 62 grants the court discretion to stay the execution of a
judgment when an appeal is taken and appellant gives a supersedeas
bond.
[2] Stays are not granted as a matter of right, but rather represent a
departure from the norm whereby the Court, upon showing of cause why
preservation of the status quo is necessary pending the outcome of an
appeal, orders that execution of judgment be temporarily suspended.
[3] In determining the granting of a stay of judgment pending appeal, the
Court considers four factors: (1) likelihood that the moving party would
prevail in the appeal; (2) irreparable harm to the appellant if a stay is not
granted; (3) irreparable harm to appellee if a stay is granted; (4) whether
the public interest would be affected by a stay.
[4] The Court may intervene and make orders where it has found that a
sa`o or matai’s actions amount to an abuse of his authority and
discretion.
[5] Under the abuse of discretion standard, a reviewing court cannot
reverse unless it has a definite and firm conviction that the court below
committed a clear error of judgment in the conclusion it reached upon a
weighing of the relevant factors.
Before: RICHMOND, Associate Justice, and MAMEA, Associate Judge.
Counsel: For Plaintiffs, Charles V. Ala’ilima
For Defendant, Tufaga Sapati, Arthur Ripley, Jr.
ORDER DENYING MOTION TO STAY EXECUTION OF
JUDGMENT PENDING APPEAL
82
Background
The pertinent parties to the case, Plaintiffs Moru Mane (“Mane”), Puletu
Koko (“Puletu”) and Julie Mata’u (“Mata’u”), Defendant Tufaga Sapati
(“Tufaga”), as well as other Tufaga family members, 1 are already
familiar with this case’s history.
In our order of March 16, 2006, having received reports and submissions
from members of both the Sepulona and Sinapioa clans, we ordered a
proposed distribution of the Registry funds among these two clans and
their respective sub-clans.2 In doing so, we deducted attorney’s fees and
costs, and also took into consideration the portion of the land sale
proceeds already distributed by Tufaga. On May 2, 2006, we denied
Tufaga’s motion for new trial.
Tufaga now moves to stay execution of the judgment pending appeal.
For the reasons below, we deny the motion.
Discussion
[1-2] T.C.R.C.P. 62 grants the court discretion to stay the execution of a
judgment when an appeal is taken and appellant gives a supersedeas
bond. However, stays are not granted as a matter of right, but rather
represent a departure from the norm whereby the Court, upon showing of
cause why preservation of the status quo is necessary pending the
outcome of an appeal, orders that execution of judgment be temporarily
suspended. See A.S.C.A. § 43.0803. The Court expressed this notion in
Asifoa v. Lualemana, 17 A.S.R.2d 10 (Appellate Div. 1990), stating, “[a]
court should not grant a stay of judgment pending appeal automatically
or casually.” Id. at 12.
[3] To guide its review, the Court has adopted by analogy the balancing
test for preliminary injunctions, requiring consideration of four factors:
(1) likelihood that the moving party would prevail in
the appeal;
(2) irreparable harm to the appellant if a stay is not
granted;
(3) irreparable harm to appellee if a stay is granted;
(4) whether the public interest would be affected by a
stay.
1
Defendant Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter Day Saints (“LDS Church”) had no reason to directly
participate in the trial and did not do so.
2
Order Correcting Clerical Mistake and Directing Distribution of
Funds, CA No. 109-03, March 16, 2006.
83
Asifoa v. Lualemana, 17 A.S.R.2d 100, 102 (Appellate Div. 1990); 7 J.
MOORE, MOORE’S FEDERAL PRACTICE GUIDE ¶ 62.05 (3d ed. 1999). We
now consider these four factors in turn.
Regarding the likelihood of success upon appeal, Tufaga claims his
chances are fair. We believe, however, there is little chance of Tufaga
prevailing on appeal. The papers on Tufaga’s motion for new trial and
the pending motion suggest Tufaga’s principal contentions for appeal
are: the Court’s findings of fact being sufficiently grounded; the Court
usurping Tufaga’s authority as a sa`o; and the Court’s proposed
distribution being arbitrary and capricious.
[4] None of these contentions involve a question of law, and for the most
part simply quarrel with our view of the facts. These sorts of grounds
seldom furnish a reason to overturn a decision of the Land and Titles
Division. Additionally, the notion that the Court usurped Tufaga’s
power is disingenuous. American Samoa law is clear that the Court may
intervene and make orders where it has found that a sa`o or matai’s
actions amount to an abuse of his authority and discretion. Fairholt v.
Aulava, 1 A.S.R.2d 73, 79 (Land & Titles Div. 1983) (the court has
power to enjoin arbitrary, capricious, or illegal actions of matai, or where
matai has abused his discretion); Pen v. Lavata`i, 25 A.S.R.2d 164, 168
(Land & Titles Div. 1994). Indeed, the Court’s intervention was
necessitated by Tufaga’s violation of the settlement agreement, not
because of some desire to sit in the place of a sa`o.
[5] Moreover, Tufaga’s bald assertion that the Court’s distribution was
arbitrary and capricious is also without support. Under the abuse of
discretion standard, a reviewing court cannot reverse unless it has a
definite and firm conviction that the court below committed a clear error
of judgment in the conclusion it reached upon a weighing of the relevant
factors. See SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001); United
States v. Finley, 301 F.3d 1000, 1007 (9th Cir. 2002); Harman v. Apfel,
211 F.3d 1172, 1174 (9th Cir. 2000). We firmly believe our distribution
fell within a broad range of permissible conclusions, see Cooter & Gell
v. Hartmarx Corp., 496 U.S. 384, 400 (1990), and thus find it extremely
doubtful that the distribution would be overturned on appeal. Therefore,
the chances of Tufaga prevailing on appeal must be described as slight.
The second and third factors involve weighing the danger of irreparable
harm to the parties. The obvious harm to Plaintiffs is the delay in
receiving monies duly owed them; this matter and the preceding land
case have been pending before this Court for almost four years, and if
Plaintiffs must wait for an appeal, at least two more years would pass.
The argument in this case, however, focused primarily on the hardship
Tufaga would face if he prevailed on appeal and had to retrieve the
84
money distributed under the court’s order. We find it doubtful that
enforcing the judgment will result in irreparable harm to Tufaga. Indeed,
even if there is difficulty in retrieving the money, Tufaga will maintains
his ability to sue for any wrongful action. Moreover, Tufaga has already
distributed a healthy portion of the land sale proceeds among himself and
his immediate family members. Thus, we find the danger of irreparable
harm in denying the stay to be more fancied than fact.
The fourth and final factor regarding the public interest also merits
discussion. Tufaga bases his legal argument in favor of granting the stay
primarily on a claim that the Court usurped his authority as a sa`o to
conduct family affairs, specifically the distribution of communal funds. 3
But there remains a countervailing policy issue that goes to the heart of
the concern for public interest; namely, that there is a clear and tangible
benefit to having inter-family disputes dissolved as quickly as possible.
As this Court has seen many times, ongoing litigation can severely
damage family relations. Thus, because the general well being of the
family often depends on an eventual end or resolution to the inter-family
dispute, the Court, where possible, must aim to facilitate this goal.
Ostensibly, this was achieved through the settlement agreement. Now,
2.5 years later, the wound still bleeds.
Therefore, the court is wary to permit a rule whereby a stay of judgment
pending appeal is granted automatically. Simply put, this would
“encourage losing litigants to file appeals in which they had no serious
hope of prevailing, simply in order to postpone the effective date of
judgment.” Asifoa, 17 A.S.R.2d at 12. It would also allow losing parties
“to prosecute appeals to no likely effect other than delay.”4 Id. at 14.
Cognizant of these concerns, we feel the public interest weighs in favor
of denying stays in situations such as the present.
In sum, because no combination of the above factors overcomes the
presumption in favor of allowing Plaintiffs the present enjoyment of
what has been held to be their lawful rights, we deny Tufaga’s motion.
Order
Tufaga’s motion for stay of execution of judgment pending appeal is
DENIED.
3
As mentioned above, Tufaga cites no authority in support of this claim.
Although the Appellate Division overturned the Trial Court in Asifoa, it
did so on the specific grounds that appellant in that case had a reasonable
chance of prevailing in his appeal; because we find appellant’s
likelihood of success in the instant case to be slim, the concern that the
motion to stay is a mere tool for delay is heightened. Asifoa v.
Lualemana, 17 A.S.R.2d 100, 102-3.
4
85
It is so ordered.
*********
AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
VILITONE MOALA TAULAU, aka VILITONI TAULAU
LOTOLUA, EVELYN VAIMASINA TUIA, VILITONI TUIA,
KAILI TAULAU, and VITALIANO IOANE, Defendants.
High Court of American Samoa
Trial Division
CR No. 90-05
CR No. 91-05
CR No. 92-05
CR No. 93-05
CR No. 94-05
January 5, 2006
[1] Two or more offenses can charged in the same information if the
crimes are based on the same transaction or part of a common scheme or
plan. T.C.R.Cr.P. 8.
[2] The burden rests on the moving party to demonstrate that a
substantial nexus exists between the charged crimes, and evidence of this
nexis or commonality of crimes must be apparent from the face of a
single charging instrument.
[3] Joinder under T.C.R.Cr.P. 8 is permissive, not compulsive, and trial
courts have broad discretion when granting or denying the motion.
Before: KRUSE, Chief Justice, SAGAPOLUTELE Associate Judge, and
SAOLE, Associate Judge.
Counsel: For Plaintiff, Frederick J. O'Brien, Assistant Attorney General
For Defendant, Vilitone Taulau, Aviata F. Fa`alevao, Public Defender
For Defendant, Evelyn Tuia, David P. Vargas
For Defendant, Vilatoni Tuia, Sharron I. Rancourt
86
For Defendant, Kalili Tualau, Lawerence F. Wilson, Assistant Public
Defender
For Defendant, Vitaliano Ioane, Andrew T. Stave, Assistant Public
Defender
ORDER DENYING MOTION FOR JOINDER
Introduction
On October 7, 2005, officers of the Department of Public Safety ("DPS")
executed a search warrant at Defendant Evelyn Tuia’s family residence
in Nu`uuli. During the search, officers seized three small plastic bags of
methamphetamine and six marijuana cigarettes from Defendant Vilitoni
Tuai. Officers also found a clear plastic bag containing what was later
determined to be marijuana on Defendant Tualau. As officers conducted
the search, Defendant Evelyn Tuia arrived at the home in a maroon pickup truck.1 A subsequent search of the truck resulted in the seizure of
three marijuana cigarettes from Evelyn's purse.
After searching the Defendants and the maroon pick-up truck, officers
turned their attention to the residence. Inside, they located two .22
caliber rifles and a box of .22 caliber ammunition, as well as various
drug paraphernalia, including rolling papers, a glass smoking pipe and
cut straws.
Just prior to executing the warrant, DPS officers noticed a green pick-up
truck leave the Tuia residence. Officers followed the pick-up and later
observed it park in front of the LCS store in Malaeimi. Officers
approached the driver and passenger, placed them in custody, and took
them back to the Nu`uuli residence. Once there, officers searched the
driver, Defendant Vitaliano, and found a glass smoking pipe and a clear
plastic bag of methamphetamine. According to DPS officers, Vitaliano
admitted to purchasing the methamphetamine from the passenger,
Defendant Kaili Tualua, for $60.00 just before the two initially left the
residence. Officers then searched Kaili and located $85.00 in cash. A
subsequent inventory search of the green pick-up at the police station
revealed a medical vial containing six small plastic bags of
methamphetamine.
The following day, October 8, 2005, the American Samoa Government
charged Defendants Vilitoni Taulau, Evelyn Tuia, and Vilitoni Tuia with
unlawful possession of marijuana (A.S.C.A. § 13.1022 and 13.1006).
Defendants Vilitoni Tuia, Kaili Taulau, and Vitaliano Inone were
charged with unlawful possession of methamphetamine (A.S.C.A.
§ 13.1022 and § 13.1009(3)). The government also charged Kaili Taulau
1
The truck was listed as an area to be searched in warrant.
87
with one count of distribution of a methamphetamine in violation of
A.S.C.A. § 13.1020 and § 13.1009(3).
On October 19, 2005, almost two weeks after formally filing the felony
drug charges, the government initiated misdemeanor weapons charges
against three of the five Defendants.2 In a separate information, the
government charged Defendants Vilitoni Taulau, Evelyn Tuia and
Vilitoni Tuia with two counts of possession of an unlicensed firearm
(A.S.C.A. § 46.4221), and one court of unlawful possession of
ammunition. (A.S.C.A. § 46.4221).3
On October 31, 2005, the government moved to join the misdemeanor
weapons charges with felony drug charges. A hearing on the matter
came before the Court on December 9, 2005. All five Defendants and
their counsel were present at the hearing and opposed the motion.
Discussion
[1] T.C.R.Cr.P 8 allows two or more offenses to be charged in the same
information (whether felonies, misdemeanors or both) if the crimes are
based on the same transaction or part of a common scheme or plan.
T.C.R.Cr.P. 8.4 The government argues that the felony drug charges and
misdemeanor weapons charges arose out of the same transaction--the
execution of the search warrant--thus joinder is proper. Further, the
government argues that judicial economy is best served by joinder, since
joinder would result in one trial instead of two.
[2] We disagree. For reasons given below, we deny the government's
motion for joinder. First as a purely technical matter, Rule 8 permits
joining two or more offenses "in the same information" when the
offenses are based on the same transaction or occurrence, or arise out of
2
Because Defendants Vitaliano and Kaili were not present when the
residence was searched, they were not charged with the misdemeanor
weapons offenses.
3
Because Vilitoni Taulua apparently had .357 caliber ammunition on
his person, in addition to the 22. caliber ammunition found in the
residence, he was also charged with an additional count of unlawful
possession of ammunition.
4
T.C.R.Cr.P 8(a), governing joinder of offenses, specifically provides
that:
Two or more offenses may be charged in the same information in a
separate count for each offense if the offenses charged, whether felonies
or misdemeanors or both, are of the same or similar character or are
based on the same act or transaction or on two or more acts or
transactions connected together or constituting parts of a common
scheme or plan.
88
a common scheme or plan. T.C.R.Cr.P. 8(a) (emphasis added). The
burden rests on the moving party to demonstrate that a substantial nexus
exists between the charged crimes, and evidence of this nexis or
commonality of crimes must be apparent from the face of a single
charging instrument. See e.g., United States v. Terry, 911 F.2d 272, 276
(9th Cir. 1990) (holding that because F.R.Cr.P 8, on which our Rule 8 is
modeled, "is concerned with the propriety of joining offenses in the
indictment, the validity of the joinder is determined solely by the
allegations in the indictment.") (emphasis added).
Given Rule 8's express language, the government does not, and indeed
cannot, meet its burden of showing commonality of offenses exists in the
charging instrument because, as mentioned above, they filed two
separate informations: the first, filed on October 8, 2005 regarding the
drug felony charges; and the second, relating to the weapons charges,
filed 11 days later. Rule 8 does not mention, nor do we think it
contemplates, joining charges filed in separate informations.
Consequently, because, as a purely procedural matter, the information[s]
here fail to comport with the Rule 8's express requirements, the motion
for joinder must be denied.
[3] Second, even if the government had satisfied Rule 8's requirements,
we would still be inclined to deny joinder in the interest of justice and
judicial economy. Joinder under Rule 8 is permissive, not compulsive,
and trial courts have broad discretion when granting or denying the
motion. United States v. Jackson, 562 F.2d 789, 797 (D.C. Cir. 1977).
Under the circumstances of this case, we are satisfied that trying the
felony drug charges will be more expedient if uncluttered by facts
relating to the misdemeanor weapons charges, particularly when two of
the five defendants are not facing weapons charges. Thus, in the
interests of justice and judicial economy, we exercise our discretion and
deny Plaintiff's motion.
Order
Plaintiff's motion for joinder is DENIED.
It is so ordered.
*********
89
90
91
AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
NATHAN LOTONUU, Defendant.
High Court of American Samoa
Trial Division
CR No. 74-05
January 24, 2006
[1] American Samoa Government bears the burden of proving by a
preponderance of the evidence that a defendant waived his Miranda
rights.
[2] American Samoa Government bears the burden of proving by a
preponderance of the evidence that a statement was voluntary.
[3] The Court’s ultimate determination of waiver of Miranda rights and
voluntariness of a statement is based on the totality of the circumstances.
[4] Even if a suspect waives his Miranda rights, a court must still
determine whether his confession was voluntary under the Due Process
Clause of the Fourteenth Amendment of the United States.
[5] Voluntariness turns solely on the circumstances surrounding the
confession and not the probable trustworthiness of the statement.
[6] Voluntariness is determined by whether the confession was extracted
by any sort of threats or violence, or by any direct or implied promises,
however slight, or by the exertion of any improper influences.
[7] A confession is not voluntary if any of these circumstances show that
the defendant’s will has been overborne or his capacity for selfdetermination critically impaired.
Before: RICHMOND, Associate Justice, SU`APAIA, Associate Judge,
and SAOLE, Associate Judge.
Counsel: For Plaintiff, Donald A. Pitzer, Assistant Attorney General
For Defendant, Andrew T. Stave, Assistant Public Defender
ORDER DENYING MOTION TO SUPPRESS
92
Background
Defendant Nathan Lotonuu (“Defendant”) is charged with two counts of
child molesting, class A felonies, punishable by imprisonment for a term
not less than 10 years without probation or parole and not to exceed 30
years.
On August 18, 2005, after the alleged offenses were reported to the
police, officers located Defendant and, in furtherance of the
investigation, took him to the Central Police Station. At the time he was
placed in the police unit, he was unquestionably in custody for
interrogation purposes. At the station, the officers turned Defendant
over to other officers for questioning. Before Defendant was questioned,
the interrogating officers advised Defendant of his Miranda rights by
reading to him the Samoan language form used for that purpose.
Defendant acknowledged that he understood his Miranda rights verbally
and by singing the form. The officers then questioned Defendant, who
made oral statements in response. In addition, approximately two hours
later, Defendant made a written statement.
It appears that Defendant may have been questioned over a substantial
time period. Although Defendant was not intoxicated, he appeared to be
nervous and cried at times. Moreover, the interrogating officers
acknowledged that Defendant wrote his brief written statement with a
shaky hand.
Defendant now moves to suppress the statements he allegedly made on,
but not limited to, August 18, 2005, on the following grounds: (1) he did
not knowingly and intelligently waive his Miranda rights; and (2) his
statements during the course of interrogations by the investigating police
officers were coerced and made involuntarily. The motion came before
the court on December 28, 2005. Defendant personally appeared, and
both counsel were present.
Discussion
Plaintiff American Samoa Government (“ASG”) “bears the burden of
proving by a preponderance of the evidence that a defendant waived his
Miranda rights.” U.S. v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998); see
Colorado v. Connelly, 479 U.S. 157, 168 (1986). Likewise, ASG “bears
the burden of proving by a preponderance of the evidence that [a]
statement was voluntary.” U.S. v. Braxton, 112 F.3d 777, 781 (4th Cir.
1997). Our ultimate determination of both these issues is based on the
totality of the circumstances. See Garibay, 143 F.3d at 536 (waiver); see
Braxton, 112 F.3d at 781 (voluntariness).
93
A. Waiver
[1-3] To meet its burden, the government must show that the
Defendant’s Miranda waiver was both voluntary and knowingly and
intelligently made. See Colorado v. Spring, 479 U.S. 564, 573 (1987).
A waiver is voluntary if it is “the product of a rational intellect and a free
will.” Blackburn v. Alabama, 361 U.S. 199, 208 (1960); see also
Connelly, 479 U.S. at 164 (the mental condition of the defendant is the
key factor in determining voluntariness). A waiver is considered
“knowing and intelligent” if it is “made with a full awareness both of the
nature of the right being abandoned and the consequences of the decision
to abandon it.” Spring, 479 U.S. at 573 (citation omitted).
Based on the evidence before the court, we find that Defendant’s waiver
was a free and intelligent choice. Although Defendant seemed nervous,
cried at times, and may have been questioned over a substantial period of
time, none of these observations are unusual given the circumstances.
Moreover, the evidence indicates that Defendant understood and
cooperated with instructions, and had no apparent difficulty
communicating with the police. Similarly, Defendant’s verbal and
written statements were logically coherent. These facts indicate that
Defendant was acting knowingly and intelligently when he was advised
of and waived his Miranda rights. Thus, we find that ASG has met their
burden and that there was no constitutional bar to the police officers’
subsequent interrogation.
B. Voluntariness
[4-7] Even if a suspect waives his Miranda rights, a court must still
determine whether his confession was voluntary under the Due Process
Clause of the Fourteenth Amendment of the United States. See Withrow
v. Williams, 507 U.S. 680, 688-89 (1993); Connelly, 479 U.S. at 163;
Miller v. Fenton, 474 U.S. 104, 109-110 (1985); People v. Massie, 967
P.2d 29, 46 (Cal. 1998). Voluntariness turns solely on the circumstances
surrounding the confession and not the probable trustworthiness of the
statement. See Rogers v. Richmond, 365 U.S. 534, 540-44 (1961);
Jackson v. Denno, 378 U.S. 368, 376-77 (1964). Our determination is
based on the totality of the circumstances. See Williams, 507 U.S. at
688-89.
Those potential circumstances include not only the
crucial element of police coercion, the length of the
interrogation, its location, its continuity, the
defendant’s maturity, education, physical condition,
and mental health. They also include the failure of
police to advise the defendant of his rights to remain
94
silent and to have counsel present during custodial
interrogation.
Id. at 693-694 (1993) (citations omitted). Additionally, voluntariness is
determined by “whether the confession was extracted by any sort of
threats or violence, [or] by any direct or implied promises, however
slight, [or] by the exertion of any improper influences.” Braxton, 112
F.3d at 780 (internal quotations omitted). A confession is not voluntary
if any of these circumstances show that “the defendant’s will has been
overborne or his capacity for self-determination critically impaired.” Id.
(internal quotations omitted).
Given the circumstances presented by the evidence, we find that
Defendant’s statements were indeed voluntary. Other than the length of
the interrogation, no other factors speak in Defendant’s favor. The
police officers did not use physical threats or violence, nor did they
induce Defendant. Furthermore, Defendant made no claims, nor does
the evidence support any, concerning other factors, such as age,
education, or location of interrogation. These facts more than establish
that Defendant’s statements were voluntary.
Order
Because Defendant’s Miranda waiver and subsequent statements were
voluntarily and knowingly made, they are valid and admissible into
evidence at trial. Accordingly, Defendant’s motion to suppress is
DENIED.
It is so ordered.
**********
95
AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
KOLOPA LAM YUEN, Defendant.
High Court of American Samoa
Trial Division
CR No. 56-05
February 2, 2006
[1] Multiple defendants may be charged in the same information
provided they allegedly committed the act or acts constituting the
offense or offenses. T.C.R.Cr.P. 8.
[2] If defendants or the government are prejudiced by a joint trial then
the court can order the action severed. T.C.R.C.P. 14.
[3] Trial courts should grant a severance only if there is a serious risk
that a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about
guilt or innocence.
[4] Severance may be appropriate when there is: (1) a complex case
involving many defendants with markedly different degrees of
culpability; (2) a case where evidence that is probative of one defendant's
guilt is technically admissible only against a co-defendant; and (3) a case
where evidence that exculpates one defendant is unavailable in a joint
trial.
[5] A hearsay statement can be admitted if at the time it was made the
statement was so far against the declarant's penal interest that he would
not have made it unless it were true. T.C.R.Ev. 804(b)(3)
[6] Before a statement against penal interest is admissible under
T.C.R.Ev. 804(b)(3), it must be shown that: (1) the declarant is
unavailable as a witness, (2) the statement must so far tend to subject the
declarant to criminal liability that a reasonable person in the declarant's
position would not have made the statement unless he or she believed it
to be true, and (3) corroborating circumstances clearly indicate the
trustworthiness of the statement.
[7] In instances where the government is attempting to introduce an
inculpatory statement against an accused, satisfying the corroboration
requirement is a heavy burden as the accused's confrontation clause
96
rights come into play when his penal interest is implicated by the
declarant's out-of-court statement.
[8] When the statement is being offered by the accused to exculpate
herself, the confrontation clause is not implicated, and the corroboration
requirement is weighed less heavily. Under these circumstances, the
out-of-court statement is already marked by significant indicia of
reliability: a reasonable person who was not guilty of a crime would not
normally falsely inculpate himself for the purpose of falsely exculpating
another.
Before: KRUSE, Chief Justice, SAGAPOLUTELE, Associate Judge,
and SAOLE, Associate Judge.
Counsel: For Plaintiff, Frederick J. O'Brien, Assistant Attorney General
For Defendant Kolopa Lam Yuen, Sharron I. Rancourt
ORDER GRANTING MOTION TO SEVER
Background
On June 3, 2005, acting on a tip from a confidential informant, DPS
officers executed a search warrant at Pepe and Kolopa Yuen's residence
in Pava`ai`i. The search produced significant amounts of marijuana and
drug paraphernalia, as well as a .22 caliber handgun and ammunition.
The marijuana was found in two separate places: the couple's bedroom
and also in a woman's wallet containing Kolopa's identification.
After seizing the contraband, but before formally arresting him, police
informed Pepe about the marijuana, firearm and ammunition found in the
bedroom. In response, Pepe allegedly told the officers that the seized
items were "his stuff." At this point, officers gave Pepe his Miranda
warnings and placed him under arrest. The government eventually
charged both Pepe and Kolopa with possession of a controlled substance,
possession of an unlicensed firearm, and unlawful possession of
ammunition. Both Pepe and Kolopa were charged in the same
information and are set to be tried jointly.
We earlier denied the bulk of a joint motion by Pepe and to suppress
physical evidence as well as statements made during and after the search.
However, we did suppress Pepe's pre-arrest statement claiming that the
gun, ammunition, and the marijuana found in the bedroom were his.
Kolopa now moves for severance of trial, arguing prejudice if jointly
tried with Pepe.
The motion to sever must be granted as a joint trial will, in our view,
compromise Kolopa's ability to mount an adequate defense. This is so
97
because Pepe's excludable statement--attributing to himself ownership of
the gun, ammunition and marijuana located in the bedroom--will be
inadmissible at a joint trial. However, while the statement is inculpatory
to Pepe, it is, conversely, of exculpatory value to Kolopa as long as she
is also being jointly charged with unlawful possession of the firearm,
ammunition, and marijuana found in the bedroom.
Discussion
A. Severance
[1-2] Under T.C.R.Cr.P. 8, multiple defendants may be charged in the
same information provided they allegedly committed the act or acts
constituting the offense or offenses.1 T.C.R.C.P. 14, on the other hand,
provides that if the defendants or the government are prejudiced by a
joint trial then the court can order the action severed. 2
[3-4] What constitutes prejudice justifying severance was laid out by the
Supreme Court in Zafiro v. United States, 506 U.S. 534 (1993). There,
the Court began by noting the general preference for joint trials because
it "promote[s] efficiency and serve[s] the interests of justice by avoiding
the scandal and inequity of inconsistent verdicts." Zafiro, 506 U.S. at
537 (quoting Richardson v. Marsh, 481 U.S. 200, 209 (1987)).
Accordingly, the Court instructed that trial courts should grant a
1
T.C.R.Cr.P. 8 governs joinder of defendants and provides that:
Two or more defendants may be charged in the same
information if they are alleged to have participated in
the same act or transaction or in the same series of acts
or transactions constituting an offense or offenses.
Such defendants may be charged in one or more counts
together or separately and all of the defendants need
not be charged in each count.
2
T.C.R.Cr.P. 14 governs relief from prejudicial joinder and provides
that:
If it appears that a defendant or the government is
prejudiced by a joinder of offenses or of defendants in
a complaint or an information or by such joinder for
trial together, the court may order an election or
separate trials of counts, grant a severance of
defendants or provide whatever other relief justice
requires. In ruling on a motion by a defendant for
severance the court may order the attorney for the
government to deliver to the court for inspection in
camera any statements or confessions made by the
defendants which the government intends to introduce
in evidence at the trial.
98
severance under Fed.R.Crim.P. 14 "only if there is a serious risk that a
joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about
guilt or innocence." Zafiro, 506 U.S. at 538-39. The Court then cited
three specific examples in which this might take place: (1) "a complex
case" involving "many defendants" with "markedly different degrees of
culpability," (2) a case where evidence that is probative of one
defendant's guilt is technically admissible only against a co-defendant,
and (3) a case where evidence that exculpates one defendant is
unavailable in a joint trial. United States v. Balter, 91 F.3d 427, 433 (3d
Cir. 1996) (quoting Zafiro, 506 U.S. at 539).
While the first two Zafiro factors have little influence on the instant case,
the third unquestionably does. As explained above, Pepe's pre-arrest
statement that the guns, ammunition, and at least part of the marijuana
were his tends to exonerate Kolopa. However, because Pepe made the
statement while he was in custody but had not been Mirandized, the
statement is inadmissible at a joint trial. Thus, a joint trial prejudices
Kolopa because in order to protect Pepe's Fourth Amendment rights she
is barred from presenting exculpatory evidence in her defense.
However, precluding Pepe's statement in the joint trial prejudices Kolopa
only if the statement would otherwise be admissible in an individual
trial. In other words, if Pepe's statement would be inadmissible in
Kolopa's trial as well, then there is no prejudice in trying the defendants
jointly. Here, although Pepe's statement is hearsay, and at first blush
inadmissible, our review leads us to conclude that Kolopa should be able
to introduce Pepe's statement where she is tried alone.
B. Hearsay and Exception
[5] Technically, Pepe's statement is hearsay under Rule 801 as it is was a
made by an out-of-court declarant (Pepe), and is now being offered in
court for its truth (i.e., that the contraband was Pepe's and not Kolopa's). 3
However, a likely exception to the hearsay rule is found in Rule
804(b)(3)'s exception for statements against interest.4 Under rule
3
If we grant her severance motion, Kolopa should subpoena the officer
who heard Pepe's statement. However, eliciting this testimony on the
stand (i.e., "officer, what if anything did Pepe say to you") should garner
a hearsay objection.
4
Trial Court Rule of Evidence 804(b)(3) governs statement against
interest and provides:
A statement which was at the time of its making so far contrary to the
declarant's pecuniary or proprietary interest, or so far tended to subject
him to civil or criminal liability, or to render invalid a claim by him
against another, that a reasonable man in his position would not have
99
804(b)(3) a hearsay statement can be admitted if at the time it was made
the statement was so far against the declarant's penal interest that he
would not have made it unless it were true. In the vast majority of
instances in which Rule 804(b)(3) is used, it is the defendant who relies
upon the Rule to admit a statement, otherwise hearsay, which operates to
exculpate him by inculpating the statement's declarant. See, e.g., United
States v. Price, 134 F.3d 340 (6th Cir.), cert. denied, 525 U.S. 845, 119
S.Ct. 114, 142 L.Ed.2d 91 (1998); United States v. Paguio, 114 F.3d 928
(9th Cir.1997); United States v. Innamorati, 996 F.2d 456 (1st Cir.1993).
[6] Generally, before a statement against penal interest is admissible
under Rule 804(b)(3), it must be shown that: (1) the declarant is
unavailable as a witness, (2) the statement must so far tend to subject the
declarant to criminal liability that a reasonable person in the declarant's
position would not have made the statement unless he or she believed it
to be true, and (3) corroborating circumstances clearly indicate the
trustworthiness of the statement. See United States v. Riley, 657 F.2d
1377, 1383 (8th Cir. 1981).
All three requirements are present here. First, Pepe, the declarant, would
likely be considered an "unavailable witness" as described in Rule 804. 5
If subpoenaed in Kolopa's trial Pepe could simply refuse to testify or he
could assert his Fifth Amendment privilege against self incrimination.
made the statement unless he believed it to be true. A statement tending
to expose the declarant to criminal liability and offered to exculpate the
accused is not admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.
5
Trial Court Rule of Evidence 804(a) provides that witness are deemed
"unavailable" in the following circumstances:
(1) is exempted by ruling of the court on the ground of privilege from
testifying concerning the subject matter of his statement; or
(2) persists in refusing to testify concerning the subject matter of his
statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of his statement; or
(4) is unable to be present or to testify at the hearing because of death or
then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of his
statement has been unable to procure his attendance (or
in the case of a hearsay exception under subdivision
(b)(2), (3), or (4), his attendance or testimony) by
process or other reasonable means. A declarant is not
unavailable as a witness if his exemption, refusal,
claim of lack of memory, inability, or absence is due to
the procurement or wrongdoing of the proponent of his
statement for the purpose of preventing the witness
from attending or testifying.
100
Either way, Pepe would be considered unavailable under the rule and
Kolopa should be able to meet this first prong.
Second, clearly the statement that the contraband was his was against
Pepe's penal interest as, under the circumstances, it inculpated him. No
reasonable person would tell officers during a search that the illegal
substances they found were his unless he believed it to be true.
[7-8] Finally, the third criterion, the corroboration requirement, is given
different weight depending on who is attempting to introduce the
statement. United States v. Paguio, 114 F.3d 928 (9th Cir. 1997). In
instances where the government is attempting to introduce an inculpatory
statement against an accused, satisfying the corroboration requirement is
a heavy burden as the accused's confrontation clause rights come into
play when his penal interest is implicated by the declarant's out-of-court
statement. However, when the statement is being offered by the accused
to exculpate herself, the confrontation clause is not implicated, and the
corroboration requirement is weighed less heavily. Under these
circumstances, the out-of-court statement is already marked by
significant indicia of reliability: a reasonable person who was not guilty
of a crime would not normally falsely inculpate himself for the purpose
of falsely exculpating another. United States v. McCleskey, 228 F.3d
640, 644 (6th Cir. 2002). Thus, here, because Pepe would likely not
make the statement that the contraband was his unless it was true, it is
reliable and admissible under Rule 804(b)(3)'s exception to the hearsay
rule.
Order
Because a joint trial is prejudicial and prevents Kolopa from presenting
evidence that could exonerate her, her motion to sever should be granted.
Protecting the criminally accused's right to mount and adequate defense
far outweighs the interest in judicial economy served by a joint trial.
Finally, although it is hearsay, Pepe's statement should be admissible in
Kolopa's individual trial via Rule 804(b)(3)'s exception for statements
against interest. This very real prejudice--the inability to present
possible exculpatory evidence--outweighs any benefit derived from
trying the defendants jointly.
Motion to sever is GRANTED.
It is so ordered.
**********
101
102
AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
MARLON ULI, Defendant.
High Court of American Samoa
Trial Division
CR No. 126-05
February 24, 2006
[1] Except for persons charged with infamous crimes (murder and rape),
all persons shall be bailable by sufficient sureties. Rev. Const. Am.
Sam., Art. 1, § 6.
[2] The judicial authorities shall have discretion in setting bail, with the
limitation that bail not be excessive.
[3] A defendant may be released on his own recognizance at the
discretion of the trial judge. T.C.R.Cr.P. 46(a).
[4] Any financial condition that the defendant cannot satisfy is not
automatically unlawful.
Before: RICHMOND, Associate Justice, and MAMEA, Associate Judge.
Counsel: For Plaintiff, Donald A. Pitzer, Assistant Attorney General
For Defendant, Tautai A. Faalevao, Public Defender
ORDER DENYING MOTION FOR RELEASE ON OWN
RECOGNIZANCE OR REDUCTION IN BAIL
Background
Defendant Marlon Uli is charged with two counts of possession of
controlled substance, each punishable by imprisonment for a term not
less than 5 years and not to exceed 10 years. Bail was originally set at
$150,000.00 and later reduced to $100,000.00 at Defendant’s
preliminary examination. Defendant now moves to release him on his
103
own recognizance or in the alternative reduce his bail. For the reasons
below we deny Defendant’s motion.
Discussion
Defendant claims that because he is charged with possession of illegal
substances, a non-violent crime, and because of his ties to the
community, he should be released on his own recognizance or have bail
reduced to $10,000-$20,000.
He argues $100,000.00 bail is
disproportionately high for a possession of illegal substances charge, and
points to previous cases where we have set bail at lower amounts. We
disagree.
[1-3] Revised Constitution of American Samoa, Article 1, Section 6,
states that with the exception of persons charged with infamous crimes
(murder and rape), “[a]ll persons shall be bailable by sufficient sureties.”
The “judicial authorities” shall have discretion in setting bail, with the
limitation bail not be excessive. Id. Subject to these restraints, “a
defendant may be released on his own recognizance at the discretion of
the trial judge.” T.C.R.Cr.P. 46(a).
[4] Federal law also guides our decision. Under the Bail Reform Act of
1984, a judge “may not impose a financial condition that results in the
pretrial detention of the person.” 18 U.S.C. § 3142(c)(2). However, this
does not mean that any financial condition that the defendant cannot
satisfy is automatically unlawful. See United States v. Fidler, 419 F.3d
1026, 1028 (9th Cir. 2005); United States v. Westbrook, 780 F.2d 1185,
1188-89 (5th Cir. 1986); United States v. McConnell, 842 F.2d 105, 10809 (5th Cir. 1988); United States v. Szott, 768 F.2d 159, 160 (7th Cir.
1985) (per curiam); United States v. Wong-Alvarez, 779 F.2d 583, 585
(11th Cir. 1985) (per curiam); United States v. Jessup, 757 F.2d 378,
388-89 (1st Cir. 1985), abrogated on other grounds by United States v.
O'Brien, 895 F.2d 810 (1st Cir. 1990). In fact, where “the risk of flight
is too great,” the amount of bail need not be lowered. Jessup, 757 F.2d
at 389.
Such is the case here. Given the seriousness of the crimes charged and
the strength of the evidence against Defendant, including the amount of
drugs and drug paraphernalia seized, there is clearly a risk that
Defendant will flee. See United States v. Palmer-Contreras, 835 F.2d
15, 18 (1st Cir. 1987) (per curiam) (where the court concludes “the
evidence against defendant[] is strong, the incentive for relocation is
increased”). Consequently, bail in the amount of $100,000.00 is
reasonably required to guarantee Defendant’s presence at trial. See
Jessup, 757 F.2d at 1028 (trial court should determine the amount of
bond necessary to “reasonably assure the defendant’s attendance at trial
or [to ensure] the safety of the community.”). Thus, despite Defendant’s
104
contentions that he has ties to the community, is willing to release his
travel documents and birth certificate, we do not believe bail should be
lowered.
Order
Having considered Defendant’s motion and reviewed the record, we find
Defendant’s risk of flight too great to warrant a release on his own
recognizance or bail reduction. Defendant’s motion is therefore
DENIED.
It is so ordered.
**********
AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
MARLON ULI, Defendant.
CR No. 126-05
_________________________________
AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
MERLIN ULI, Defendant.
CR No. 127-05
High Court of American Samoa
Trial Division
April 25, 2006
[1] The knock and announce requirement is an element of the Fourth
Amendment reasonableness inquiry involving searches of property.
[2] Law enforcement officers must identify themselves and give notice
of their authority and the purpose of their search before entering a
dwelling under the knock and announce requirement.
105
[3] The knock and announce rule is designed to fulfill three purposes: (1)
protect the safety of occupants of a dwelling and the police by reducing
violence; (2) prevent the destruction of property; and (3) protect the
privacy of occupants.
[4] The knock and announce requirement is a reasonableness standard
and is not mandated if particular factual circumstances make the
execution dangerous or futile, or allow the destruction of evidence.
[5] Exigent circumstances can also justify noncompliance with the knock
and announce requirement; that is, situations where the officer knows
that announcement of purpose will constitute a useless gesture because
the persons to be apprehended already know the officers' purpose.
[6] In executing a search warrant, a search may include people and
things not indicated in the warrant if special circumstances exist.
[7] A person's mere propinquity to others independently suspected of
criminal activity does not, without more, give rise to probable cause to
search that person; rather, a search or seizure of a person must be
supported by probable cause particularized with respect to that person.
[8] Where officers believe a person had, is, or might be participating in
criminal activity, or where that person makes movements that might
suggest an attempt to conceal contraband, probable cause may exist to
search the person.
[9] If there is probable cause to search the premises themselves for
evidence of criminal activity, there is probable cause to justify detention
of an occupant of those premises.
[10] Once the probability is confirmed and contraband is found on the
premises, the occupant's person may be searched as well.
[11] In executing a search warrant in a home, the police can search
anywhere the objects of the search are reasonably likely to be found.
[12] Probable cause to search does not require there be probable cause to
believe the owner or possessor of the property searched committed a
crime.
[13] Probable cause to arrest is not the equivalent of a conviction.
[14] Standards such as proof beyond a reasonable doubt or by a
preponderance of the evidence have no place in probable cause
determinations.
106
[15] The Government bears the burden of proving by a preponderance of
the evidence that a defendant waived his Miranda rights.
[16] To demonstrate that the defendant waived his Miranda rights, the
government must show that a defendant’s Miranda waiver was both
voluntary and knowingly and intelligently made.
[17] The Government bears the burden of proving by a preponderance of
the evidence that a statement was voluntary.
[18] Even if a suspect waives his Miranda rights, a court must still
determine whether his confession, or statements implicating him in a
crime, was voluntary under the Due Process Clause of the Fourteenth
Amendment of the United States.
[19] The Court’s ultimate determination of waiver and voluntariness is
based on the totality of the circumstances.
[20] Interrogation is permissible after administering Miranda warnings.
Once Miranda warnings are given, it is up to the defendant whether to
waive those rights and answer questions, or to assert his rights by
remaining silent or asking for an attorney.
[21] After a defendant invokes his right to counsel interrogation should
cease.
Before: RICHMOND, Associate Justice, MAMEA, Associate Judge, and
SAOLE, Associate Judge.
Counsel: For Plaintiff, Donald A. Pitzer, Assistant Attorney General
For Defendant, Marlon Uli, Tautai A. Faalevao, Public
Defender
For Defendant, Merlin Uli, Andrew T. Stave, Assistant Public
Defender
ORDER DENYING DEFENSE MOTIONS TO SUPPRESS
Background
On November 15, 2005, acting on information from a confidential
informant (“CI”), police Lieutenant Paulo Leuma (“Lt. Leuma”)
prepared an affidavit and application for a warrant to search Defendant
Marlon Uli’s (“Marlon”) residence in Lepuapua. The affidavit notes the
CI witnessed Marlon cutting and packing methamphetamine for sale,
observed people coming to the premises to purchase methamphetamine
107
and marijuana, and made a “controlled purchase” of methamphetamine
from Marlon’s home.
The search warrant, issued on November 15, 2005, listed
methamphetamine, marijuana and drug paraphernalia as items to be
seized, and permitted a search of “that certain light pink, blue-roofed
two-story home of the Uli family in Lepuapua.” It also noted the
house’s location “at the end of the dirt road which runs from the Leone
Public Highway seaward past the Alamai shore.”
The ensuing search took place on Friday, November 18, 2005. Marlon
was not home when the officers arrived, but his brother, Defendant
Merlin Uli (“Merlin”), and Pita Aumavae were present. As the officers
approached the house, Merlin fled out the back door. Officers captured
him after a short chase; he was then handcuffed, returned to the house,
and advised of his Miranda rights. Outside the door Merlin fled through
officers found a medicine vial containing 12 small Ziploc bags of
methamphetamine, and an Altoid’s chewing gum tin containing 14
marijuana cigarettes.
Officers then conducted a search with Merlin and Pita Aumavae as
witnesses. As the search commenced, Merlin spontaneously commented
“There’s nothing here; everything is gone with our last sale.”
Ultimately, a search of the house produced a backpack, which contained,
among other things, a bank deposit bag holding five marijuana
cigarettes, a yellow pouch holding one large and three small ziploc bags
of methamphetamine, and bras, panties and baby clothes. 1 Other ziploc
bags containing methamephtamine were also found inside the house, as
well as a small safe, a loose bag of marijuana, a cut straw, a broken
glass-smoking pipe, $310.00 in cash, and 49 empty small clear Ziploc
bags. Additionally, in the trashcan outside the front door, the officers
found five ziploc bags with crystalline residue, a broken glass-smoking
pipe, and a cut straw.
Upon completing the search, Lt. Leuma took Merlin outside to a police
van. Merlin again impulsively remarked, “At least I don’t sell to school
kids.” Lt. Leuma responded, “Well then, who do you sell to?” and
Merlin answered, “I only sell to adults.” Lt. Leuma reminded Merlin of
his Miranda rights, and Merlin said nothing more.
After leaving the premises, the officers encountered Marlon at MJ Audio
in Pava`iai, took him into custody, and advised him of his Miranda
1
In his Affidavit in Support of Criminal Complaint, CR Nos. 126 & 12705, November 19, 2005, Officer Norman Heather notes Marlon has a
wife and baby girl, whereas Merlin has no children and a wife living in
Apia, Independent Samoa.
108
rights. After being told about the search and its results, Marlon
responded he had nothing to do with items seized from his home, as he
does not live there anymore. He did, however, acknowledge he owned
the safe.2
Plaintiff American Samoa Government (“ASG”) charged Marlon and
Merlin (collectively “Defendants”) with two counts of unlawful
possession of controlled substances (methamphetamine and marijuana).
On December 5, 2005, at a preliminary hearing, the District Court Judge
found probable cause to believe Defendants committed the charged
crimes, and they were bound over to this Court.
Defendants now seek to suppress all physical evidence seized from the
Uli residence, as well as any statements made by Defendants that ASG
intends to use against them. Defendants claim the search and seizure
violated Article I Section 5 of the Revised Constitution of American
Samoa, and the Fourth, Fifth, and Fourteenth Amendments of the United
States Constitution. Having conducted a hearing on the matter, we deny
Defendants’ motion.
Discussion
Regarding the November 18 search and seizure, Defendants argue the
following: (1) the police failed to adhere to the “knock and announce”
rule; (2) the police lacked probable cause to search Merlin’s person or
detain him; (3) the Uli residence is shared by other members of the Uli
family, and thus the drugs seized cannot be attributed to Marlon; and (4)
all statements obtained from Defendants were taken in violation of
Miranda v. Arizona and therefore must be suppressed. We address each
of these claims in turn.
A. Failure to Adhere to “Knock and Announce” Rule
[1-3] The knock and announcement requirement is an element of the
Fourth Amendment reasonableness inquiry involving searches of
property. Wilson v. Arkansas, 514 U.S. 927, 934 (1995). It requires that
law enforcement officers identify themselves and give notice of their
authority and the purpose of their search before entering a dwelling. See
id. at 931-34; 18 U.S.C. § 3109 (2005) (federal knock and announce
statute permitting an officer to break into a house only after giving notice
of his authority and purpose). This rule is designed to fulfill three
purposes: (1) protect the safety of occupants of a dwelling and the police
by reducing violence; (2) prevent the destruction of property; and (3)
2
As of November 19, 2005, the safe has not yet been opened, as Marlon
refuses to reveal the combination thereto.
109
protect the privacy of occupants. Bonner v. Anderson, 81 F.3d 472, 475
(4th Cir. 1996).
[4-5] However, the “knock and announce” requirement is a
reasonableness standard and is not mandated if particular factual
circumstances make the execution “dangerous or futile, or . . . allow the
destruction of evidence.” United States v. Banks, 540 S.Ct. 31, 35-36
(2003).
Additionally, exigent circumstances can also justify
noncompliance with the knock and announce requirement; that is,
situations where the officer knows that announcement of purpose will
constitute a “useless gesture” because the persons to be apprehended
already know the officers' purpose. United States v. Miller, 357 U.S.
301, 310 (1958); United States v. Tracy, 835 F.2d 1267 (8th Cir.), cert.
denied 486 U.S. 1014 (1988).
Here, Defendants contend the police officers entered the Uli residence
without warning or announcement, thus failing to adhere to the knock
and announce requirement. We disagree. Upon approaching the Uli
residence, a location where the CI had recently witnessed much drug
activity, police officers saw a man run towards and out of the home’s
back door. The officers gave chase and caught Merlin in the residence’s
backyard. Given that Merlin was fleeing the house, the officers had
every reason to believe Merlin was aware of their presence and purpose;
indeed, it is reasonable to assume that is why Merlin fled. Thus, it would
have been a “futile” or “useless gesture” for the officers to announce
their presence at that time. Moreover, the officers’ choice not to
announce their presence did nothing to frustrate the purposes behind the
requirement. It did not compromise the safety of the dwelling’s
occupants, it did not cause any destruction of property, and it did nothing
to interfere with the privacy of the dwelling’s occupants.
Clearly, Merlin’s visual awareness of the police officers’ presence, in
conjunction with Merlin running out the back door, obviated any need to
“knock and announce.” Thus, with respect to any police officers’ entry
into the Uli residence, we find a “no-knock and announce” entry
reasonable under the circumstances.
B. Probable Cause to Search and Detain Merlin Uli
Merlin argues the officers had no probable cause to search and detain
him, as he was not described in the search warrant, and his fleeing from
the Uli residence does not, by itself, constitute probable cause. We
disagree.
1. Pre-Arrest Search of Merlin
110
As an initial matter, Merlin fails to present evidence that his person was
actually searched, or that any drugs or drug paraphernalia were seized
from his person. We will, however, briefly discuss the constitutionality
of the alleged pre-arrest search of Merlin’s person.
[6-8] In executing a search warrant, a search may include people and
things not indicated in the warrant if special circumstances exist. In
Ybarra v. Illinois, the Court noted “a person's mere propinquity to others
independently suspected of criminal activity does not, without more,
give rise to probable cause to search that person”; rather, “a search or
seizure of a person must be supported by probable cause particularized
with respect to that person.” 444 U.S. 85, 91 (1979). But where officers
believe a person had, is, or might be participating in criminal activity, or
where that person makes “movements that might suggest an attempt to
conceal contraband,” probable cause may exist to search the person. Id.
Such is the case here. Upon approaching the Uli home, a private
residence where the CI witnessed much drug activity, officers saw a man
flee from the house, a man who turned out to be Marlon’s brother.
Marlon was described in the search warrant. Clearly then, any search of
Merlin was reasonable, as the officers had probable cause to believe
Merlin had or might be committing a crime.3 Furthermore, although
Merlin is correct in stating the flight of a person from an officer’s
presence is not enough to establish probable cause by itself, we find
Merlin’s flight from a known area of criminal activity does give rise to
probable cause.
2. Merlin’s Detainment
[9] If there is probable cause to search the premises themselves for
evidence of criminal activity, there is probable cause to justify detention
of an occupant of those premises. Michigan v. Summers, 452 U.S. 692,
705 (1981). Thus, when executing a valid search warrant, as was done
here, the police officers had the authority to detain Merlin while they
searched the Uli residence.
[10] Furthermore, once the probability is confirmed and contraband is
found on the premises, the occupant's person may be searched as well.
Id. Consequently, after finding drugs inside the house, on the doorstep,
3
Determining Fourth Amendment reasonableness and probable cause is
a factual inquiry, where we look to see whether the officer’s response
was understandable and reasonable according to the particular situation
at hand. See Wong Sun v. United States, 371 U.S. 471, 479 (1963) (the
quantum of information necessary to constitute probable cause must be
measured by the facts and circumstances of the particular case).
111
and in the trash, thereby confirming the probable cause, the officers had
every right to search Merlin’s person.
C. Uli Residence Shared by Other Members of Uli Family
Marlon argues the whole family commonly uses the Uli residence, and
thus the residence was not under his exclusive control or possession at
the time of the search. Presumably, Marlon is arguing to suppress
evidence on this ground. We disagree.
[11] First, in executing a search warrant for Marlon’s home, the police
can search anywhere the objects of the search are reasonably likely to be
found. See United States v. Ross, 456 U.S. 798, 824 (1982) (the scope of
a search “is defined by the object of the search and the places in which
there is probable cause to believe that it may be found.”). Indeed,
Marlon does not accuse the police of improperly exceeding the scope of
their search. Second, after seizing drugs and drug paraphernalia from the
home, the police clearly had probable cause to believe the items seized
were Marlon’s; prior to executing the warrant, the CI told officers he had
seen Marlon cutting and packaging methamphetamine in the home.
[12-14] Probable cause to search does not require there be probable
cause to believe the owner or possessor of the property searched
committed a crime. Zurcher v. Stanford Daily, 436 U.S. 547, 560
(1978); accord Wyoming v. Houghton, 526 U.S. 295, 301-02 (1999).
Moreover, probable cause to arrest is not the equivalent of a conviction.
See Brinegar v. United States, 338 U.S. 160, 175 (1949) (while “more
than bare suspicion” is necessary, there need not be “evidence which
would justify condemnation or conviction.”); see also Maryland v.
Pringle, 540 U.S. 366, 371 (2003). Indeed, standards such as “proof
beyond a reasonable doubt or by a preponderance of the evidence” have
no place in probable cause determinations. Illinois v. Gates, 462 U.S.
213, 235 (1983). 4
D. Suppression of Defendants’ Statements
[15-16] ASG “bears the burden of proving by a preponderance of the
evidence that a defendant waived his Miranda rights.” United States v.
Garibay, 143 F.3d 534, 536 (9th Cir. 1998); see Colorado v. Connelly,
479 U.S. 157, 168 (1986). To meet its burden, the government must
show that a defendant’s Miranda waiver was both voluntary and
4
Marlon also argues that he no longer lives at the Uli residence in
Leone but now lives in Pago Pago. For the same reasons as stated
above, this argument does not undermine a finding of probable cause to
arrest Marlon for unlawful possession of illegal drugs. Marlon is free, of
course, to argue the drugs were not his at trial.
112
knowingly and intelligently made. See Colorado v. Spring, 479 U.S.
564, 573 (1987).
[17-18] Likewise, ASG “bears the burden of proving by a preponderance
of the evidence that [a] statement was voluntary.” United States v.
Braxton, 112 F.3d 777, 781 (4th Cir. 1997). That is, even if a suspect
waives his Miranda rights, a court must still determine whether his
confession (or statements implicating a him in a crime) was voluntary
under the Due Process Clause of the Fourteenth Amendment of the
United States. See Withrow v. Williams, 507 U.S. 680, 688-89 (1993);
Colorado v. Connelly, 479 U.S. 157, 163 (1986); Miller v. Fenton, 474
U.S. 104, 109-110 (1985); People v. Massie, 967 P.2d 29, 46 (Cal.
1998).
[19] Our ultimate determination of both these issues is based on the
totality of the circumstances. See Garibay, 143 F.3d at 536 (waiver); see
Braxton, 112 F.3d at 781 (voluntariness).
1. Marlon’s Statements
[20-21] Marlon contends his statements were involuntary under the Due
Process Clause of the 14th Amendment, as they were made after he was
given his Miranda rights. Interrogation is permissible, however, after
administering Miranda warnings. Once Miranda warnings are given, it
is up to the defendant whether to waive those rights and answer
questions, or to assert his rights by remaining silent or asking for an
attorney. Indeed, only after a defendant invokes his right to counsel
should interrogation cease. See American Samoa Gov’t v. Taylor, 19
A.S.R.2d 105 (1991). Marlon does not maintain he asked for an
attorney; thus, we find the police officers were free to continue
questioning him. Because ASG has sufficiently shown Marlon waived
his right to be silent, and Marlon fails to present evidence to the contrary,
we refuse to suppress any statements elicited from the officers’
questioning.
2. Merlin’s Statements
Merlin argues he was not given time to consider his Miranda warnings
and his statements to the police officers were not made voluntarily. Yet
Merlin provides no evidence to contradict the police officers’ claim that
his waiver was knowingly and intelligently made, and his statements
were voluntarily made. Conclusory assertions to this effect are not a
proper substitute for fact-based arguments. Accordingly, we refuse to
suppress Merlin’s statements.
Order
113
We find the police officers’ entry into the Uli residence was permissible,
any search and detainment of Merlin was constitutional, and the search
of the Uli home constituted a valid execution of a valid search warrant.
Consequently, we DENY Defendants’ motion to suppress the physical
evidence seized from the Uli residence.
Furthermore, we DENY Defendants’ motion to suppress statements
made to the police, as no evidence established they did not waive their
rights or the statements were made involuntarily.
It is so ordered.
**********
AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
RICHARD MAJHOR, Defendant.
High Court of American Samoa
Trial Division
CR No. 10-03
May 8, 2006
[1] The court can set aside guilty verdicts and enter judgment of acquittal
in very limited circumstances. T.C.R.Cr.P. 29(c).
[2] Generally, T.C.R.Cr.P. 29 motions are granted only if the court
concludes there is no evidence upon which a reasonable mind might
fairly conclude guilt beyond a reasonable doubt.
[3] To succeed in a request for post-verdict acquittal, a defendant bears a
heavy burden, and must show that when viewing the evidence in its
totality, in a light most favorable to the government, and drawing all
inferences in favor of the prosecution, no rational trier of fact could have
found the defendant guilty.
[4] The Court on motion of a defendant may grant a new trial to him if
required in the interest of justice. T.C.R.Cr.P. 33
114
[5] Granting a new trial is not favored and is done only when the
defendant can demonstrate that a miscarriage of justice would otherwise
result.
[6] It is axiomatic that a motion for new trial is addressed to the sound
discretion of the trial court.
[7] Post-verdict orders for new trials on account of suspected, but
unproven juror bias are granted only where probability for juror bias is
so great that in fairness it cannot be ignored.
[8] Something more than unverified conjecture regarding juror bias is
required to justify granting a new trial. At a minimum, a defendant must
proffer specific examples of juror bias.
[9] The Sixth Amendment’s impartial jury requirement entitles a
criminal defendant to a venire that fairly represents a cross-section of the
community.
[10] The Sixth Amendment’s impartial jury requirement does not
attempt to secure a representative jury, which the Constitution does not
demand, but an impartial one, which the Constitution does require.
[11] A three-pronged test exists to establish a prima facie violation of the
fair cross-section requirement. To succeed, the defendant must show:
(1) that the group alleged to be excluded is a distinctive group in the
community; (2) that the representation of this group in venires from
which juries are selected is not fair and reasonable in relation to the
number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the juryselection process.
[12] A group is distinct if: (1) that the group is defined and limited by
some factor, for example the group has a definite composition such as by
race or sex; (2) that a common thread or basic similarity in attitude,
ideas, or experience runs through the group; and (3) that there is a
community of interests among members of the group such that the
group’s interest cannot be adequately represented if the group is
excluded from the jury selection process.
[13] College students do not qualify as a cognizable group as the group
is not defined and or limited by a single factor.
[14] The prosecution’s failure to disclose evidence rises to the level of a
due process violation only if the government's evidentiary suppression
undermines confidence in the outcome of the trial. The question is not
whether the defendant would more likely than not have received a
115
different verdict had he been made aware of the undisclosed statements,
but whether in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.
[15] A valid assertion of the Fifth Amendment privilege exists where a
witness has reasonable cause to apprehend a real danger of
incrimination, and the witness must be able to demonstrate that danger,
not a just the possibility of prosecution.
[16] The right to call witnesses on the defense’s behalf is well
established, the right is not without limitation.
[17] The court is required to decide whether a witness’s silence is
justified and require him to answer if it clearly appears to the court that
the witness asserting the Fifth Amendment privilege is mistaken as to its
validity.
[18] When it is evident from the circumstances of the case and the facts
in evidence that a response would be incriminating, the witness need not
take the stand and invoke the privilege question by question. However,
if the witness cannot clearly demonstrate the incriminatory nature of the
sought after testimony, or unless the court can divine it on its own, the
privilege cannot be claimed in advance of the questions. Thus, when it is
clear there is no real danger of incrimination, a witness with respect to
particular questions, and in each instance must assert the privilege, and
the court must determine the propriety of the refusal to testify.
Before: RICHMOND, Associate Justice, and SAGAPOLUTELE,
Associate Judge, and TAPOPO, Associate Judge.
Counsel: For Plaintiff, Donald Pitzer, Assistant Attorney
General
For Defendant, Eric A. Seitz and Andrew T. Stave, Assistant Public
Defender
ORDER DENYING DEFENDANT’S RENEWED MOTION FOR
JUDGMENT OF ACQUITTAL AND MOTION FOR NEW TRIAL
Introduction
Defendant timely moves for a post-verdict judgment of acquittal or a new trial. 1
1
T.C.R.Cr.P. 29 governs motions for judgment of acquittal and provides
in relevant part:
(c) Motion After Discharge of Jury. If the jury a
verdict of guilty . . ., a motion for judgment of
116
Defendant broadly alleges acquittal/new trial is proper because of alleged
juror bias. In addition, he moves for acquittal/new trial on several
specific grounds, alleging: 1) the jury selection process was tainted
because American Samoa Community College (“ASCC”) students were
acquittal may be made or
renewed within 7 days
after the jury is discharged or within such
further
time as the court may fix during the 7-day period. If a
verdict guilty is returned the court may enter judgment
of acquittal.
T.C.R.Cr.P. 33 provides for motions for new trial and states in relevant
part:
The court on motion of a defendant may grant a new
trial to him if required in the interest of justice . . . . A
motion for a new trial based on the ground of newly
discovered evidence may be
made only before or
within two years after final judgment, but if any appeal
is pending the court may grant the motion only on
remand of the case. A motion for a new trial on any
other
grounds shall be made within 10 days after
verdict or finding of guilty (emphasis added).
A.S.C.A. § 46.2402(a) also applies to new trial motions. It
provides:
Before filing a notice of appeal, a motion for a new
trial shall be filed within 10 days after the
announcement of the judgment or sentence (emphasis
added).
The emphasized language in Rule 33 and § 46.2402(a) seems at odds.
On one hand, a jury verdict or court finding of guilt necessarily precedes
judgment or sentencing, and usually does by more than 10 days to allow
sufficient time for preparation of a presentence report. On the other
hand, § 46.2402(a) authorizes filing of a new trial motion within 10 days
after announcement of a judgment or sentence. It is axiomatic that a
statute, enacted by the Legislature’s authority to define a court’s
jurisdiction, trumps a judge-made rule. See, e.g., American Samoa Gov’t
v. Falefatu, 17 A.S.R.2d 114, 120 (Trial Div. 1990) (holding that when
in direct conflict, a statute reasonably restricting the court’s power must
prevail over a judicially adopted court rule). However, the apparent
conflict in the emphasized language in Rule 33 and § 46.2402(a) can be
reconciled. Clearly, a new trial motion is timely if filed within 10 days
after judgment or sentencing. The statutory directive does not, however,
preclude filing a new trial motion before judgment or sentencing, as was
done in this case. We address this point as confusion on the issue
seemed apparent after the trial.
117
arbitrarily excused for cause; 2) the Court improperly excused a
prospective juror after she was accepted by both parties; 3) the
prosecution introduced Defendant’s previously undisclosed statements;
4) the prosecution impermissibly led witnesses; 5) the Court treated a
defense witness prejudicially; 6) the verdict form was suggestive; and 7)
the evidence was insufficient to support convictions.
Discussion
[1-3] Rule 29(c) empowers the court to set aside guilty verdicts and enter
judgment of acquittal in very limited circumstances. T.C.R.Cr.P. 29(c).
Generally, Rule 29 motions are granted only if the court concludes there
is “no evidence upon which a reasonable mind might fairly conclude
guilt beyond a reasonable doubt.” United States v. Irving, 432 F.3d 401,
407 (2d Cir. 2005). To succeed in his request for post-verdict acquittal,
Defendant bears a heavy burden, and must show that when viewing the
evidence in its totality, in a light most favorable to the government, and
drawing all inferences in favor of the prosecution, no rational trier of fact
could have found him guilty. See American Samoa Government v.
Taula, 25 A.S.R.2d 179 (Trial Div. 1994); see also Jackson v. Virginia,
443 U.S. 307, 319 (1979); United States v. Gaines, 295 F.3d 293, 299300 (2d Cir. 2002).
[4-6] A motion for new trial under Rule 33 also carries with it a heavy
burden. Trial Court Rule of Criminal Procedure 33 provides, in part,
“[t]he court on motion of a defendant may grant a new trial to him if
required in the interest of justice.” However, granting a new trial is not
favored and is done only when the defendant can demonstrate that a
miscarriage of justice would otherwise result. United States v. Johnson,
327 U.S. 106 (1946); United States v. Rothrock, 806 F.2d 318, 322 (1st
Cir. 1986) (holding that “a trial judge is not a thirteenth juror who may
set aside a verdict merely because he would have reached different
result.”). It is axiomatic that a motion for new trial is addressed to the
sound discretion of the trial court. American Samoa Gov’t v. To`oto`o, 2
A.S.R.2d 62, 64 (Appellate Div. 1985).
With these standards in mind, we address each of Defendant’s
arguments.
A. Alleged Juror Bias
[7-8] At the outset, before launching into specific reasons supporting
acquittal or new trial, Defendant broadly alleges the jury was biased
against him, and consequently, he did not receive a fair trial. Generally,
post-verdict orders for new trials on account of suspected, but unproven
juror bias are granted only where probability for juror bias is so great
that in fairness it cannot be ignored. United States v. Dean, 667 F.2d 729
118
(8th Cir. 1982), cert. denied 456 U.S. 1006 (1982). However, something
more than unverified conjecture regarding juror bias is required to justify
granting a new trial. United States v. Barber, 668 F.2d 778 (4th Cir.
1982), cert. denied 459 U.S. 829 (1982). At a minimum, Defendant
must proffer specific examples of juror bias. In other words, bias in the
air will not do.
Here, other than making vague, unsupported allegations of bias,
Defendant is unable to state a single fact, which even if construed in his
favor, would constitute a specific instance of bias.
Accordingly, as to this alleged point of error, Defendant’s motion is
denied.
B. Jury Make-up
Defendant alleges the Court arbitrarily excused ASCC students from the
venire. This practice, Defendant argues, exposes a serious Constitutional
infirmity in this Territory’s jury selection plan because it arbitrarily
excludes a well-defined class of citizens and assures juries will be made
up solely of older persons. We disagree.
[9-10] To be sure, The Sixth Amendment’s impartial jury requirement
entitles a criminal defendant to a venire that fairly represents a crosssection of the community. Taylor v. Louisiana, 419 U.S. 522, 530
(1975). This requirement, however, does not attempt to secure a
“representative jury (which the Constitution does not demand), but an
impartial one (which it does)." United States v. v. Fletcher, 965 F.2d
781, 782 (9th Cir. 1992), quoting Holland v. Illinois, 493 U.S. 474, 480
(1990) (emphasis in original).
[11] In Duren v. Missouri, 439 U.S. 357, 364 (1979), the Supreme Court
set forth a three-pronged test to establish a prima facie violation of the
fair cross-section requirement. To succeed, the defendant must show
“(1) that the group alleged to be excluded is a ‘distinctive’ group in the
community; (2) that the representation of this group in venires from
which juries are selected is not fair and reasonable in relation to the
number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the juryselection process.” Id.
[12] Here, whether Defendant’s claim has merit turns on whether college
students can be fairly characterized as a “distinctive” group in the
community. A group is distinct under Duren if: “(1) that the group is
defined and limited by some factor (i.e., that the group has a definite
composition such as by race or sex); (2) that a common thread or basic
similarity in attitude, ideas, or experience runs through the group; and (3)
119
that there is a community of interests among members of the group such
that the group’s interest cannot be adequately represented if the group is
excluded from the jury selection process.” Fletcher, 965 F.2d at 782
(adopting Eleventh Circuit test for distinctiveness under Duren.)
[13] Given the above, Defendant here cannot establish that college
students qualify as a cognizable group under Duren, as the group is not
defined and or limited by a single factor. Anyone can become a college
student. A college student can range in age from teenager to elder
citizen, and the chasm between their life experiences can be just as large
as their gaps in ages. A college student can be male or female, Samoan
or non-Samoan, and may come from a myriad of ethnic and cultural
backgrounds. To argue this varied group is “defined and limited” by a
common characteristic, or that a common thread or “similarity in
attitude, ideas, or experience runs through the group”, distorts reality.
Fletcher, 965 F.2d 781 at 782 (holding that excluding college students
from the venire does not offend the Sixth Amendment); see also Ford v.
Seabold, 841 F.2d 677, 682-83 (6th Cir. 1988), cert. denied, 488 U.S.
928 (1988) (holding that college students were not a “distinctive” group
under Duren because “[t]here is no common thread or basic similarity in
attitude, ideas or experiences sufficient enough to consider college
students a distinctive group.”) (internal quotations omitted).
We also point out that as revealed during the students’ voir dire, the
ASCC does not have any deliberate policy excluding students from jury
service. The college is legitimately concerned that students meet class
attendance requirements consistent with awarding a degree; hence,
excessive absenteeism reasonably results in disenrollment for the
remainder of the semester and delay in graduation. The students
revealed this policy during voir dire after being advised that the Court
and counsel then were estimating the trial would take two to three weeks
to complete. We would not have excused any student from serving on
this or any other jury if the anticipated length of the trial was the three or
four days normally needed to conclude a jury trial in this Court.
Requiring classroom attendance is rationally and reasonably related to
ASCC’s educational objectives and has nothing to do with precluding
students from jury service. Accordingly, we find no error in excusing
the college students impacted by this policy from the venire.
C. Accepted Prospective Juror Excused by Court
Before the jury was sworn, the Court on its own motion excused one
prospective juror, Lydia Faleafine-Nomura, who both parties had
accepted to serve. Faleafine-Nomura is employed by the United States
Department of the Interior, assigned to head Interior’s field office in
American Samoa and performs on-site liaison duties with the American
120
Samoa Government, particularly the Office of the Governor. The
Secretary of the Interior is the federal official delegated by the President
of the United States to conduct federal oversight of American Samoa’s
governance as a United States Territory.
Defendant claims the Court excused Faleafine-Nomura because early in
her voir dire she stated the Deputy Assistant Secretary of the Interior for
Insular Affairs, who was incidentally in the Territory on official
business, told her she should not sit on this jury. The Court’s reason for
excusing her, however, is unrelated to the Assistant Secretary’s reported
guidance. Interior’s local liaison office is a two-person operation,
Faleafine-Nomura at the head and her secretary. The Court fully
expected this prospective juror to serve on the jury after both parties
accepted her. We intervened only when she later advised the Court and
counsel her secretary had been unexpectedly scheduled to depart
American Samoa on the Thursday, February 9, 2006, Hawaiian Air flight
to accompany her fiancé who was in need of serious off-island medical
care. The Court then excused this prospective juror for cause, because
her jury service would leave Interior’s liaison office unmanned and
effectively inoperable for potentially as long as two to three weeks. This
situation would unacceptably cripple an important link in
communications and other governmental functions between the federal
and territorial governments for an overly prolonged period.
Excusing this prospective juror under these circumstances was not error.
D. Introducing Defendant’s Previously Undisclosed Statements
Defendant argues both Talfofa Seumanu and Victor Sepulona attributed
statements to Defendant during the government’s case-in-chief that were
never disclosed to the defense. Specifically, Defendant argues that an
entire conversation at gas station prior to the murder—where Defendant
allegedly told Seumanu that he was angry with the victim because the
victim lied to him and owed him money—was recounted for the first
time when Seumanu testified at trial. Similarly, Defendant argues that
both Seumanu and Sepulona testified for the first time at trial that during
the beating Defendant told them to “finish the job” and to obey his
orders. Finally, both witnesses testified that after the beating Defendant
made comments to the effect that they had “earned their stripes.”
Defendant argues that none of these alleged comments appear in the
witnesses’ written statements, and further, it is inconceivable that the
prosecution did not have advance notice witnesses would testify
regarding Defendant’s alleged statements.
[14] Assuming, arguendo, the government actively withheld these
inculpatory statements, the question of whether this action merits a new
trial turns on the statement’s materiality. As the Supreme Court stated,
121
“the Constitution is not violated every time the government fails or
chooses not to disclose evidence that might prove helpful to the
defense.” Kyles v. Whitley, 514 U.S. 419, 436-37 (1995). Rather, the
prosecution’s failure to disclose evidence rises to the level of a due
process violation “only if the government's evidentiary suppression
undermines confidence in the outcome of the trial.” Id. at 434. Thus,
“[t]he question is not whether the defendant would more likely than not
have received a different verdict [had he been made aware of the
undisclosed statements], but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of confidence.”
Id.; see also United States v. Bagley, 473 U.S. 667, 678 (1985) (standard
of materiality is whether the government’s failure to disclose the
evidence "undermines confidence in the outcome of the trial").
Here, the allegedly undisclosed statements are unquestionably damaging
and help further several of the prosecution’s theories: that Defendant
orchestrated the murder (obey my orders and “finish the job”), that
Defendant was a gang leader (“you’ve earned your stripes”), and that
Defendant had a motive to kill the victim (he was angry at Wyatt Bowles
because Bowles lied to him and owed him money). However, we are not
persuaded, given other evidence and testimony in the case, that the jury’s
verdict would have been different had the statements not been
introduced. In other words, we do not believe the statements were
material, or that the “government’s evidentiary suppression
undermine[d] . . . the outcome of the trial.” Kyles, 514 U.S. 419 at 434.
E. Leading Witnesses
Defendant argues acquittal or new trial is proper because the Assistant
Attorney General improperly led witnesses during the Peoples’ case-inchief. Yet, Defendant does not point to any specific instances in the
record he deems to be improper leading. Therefore, we are unable to
evaluate this contention’s merit.
F. Uli’s Trial Testimony
During trial the defense notified the court of its intent to call Marvin Uli
as a defense witness, and further, that Uli intended to invoke his Fifth
Amendment protection against self-incrimination in response to
questioning. Defendant argued the witness should be able to invoke his
privilege outside the jury’s presence. The idea being once the witness
invoked his privilege he could be declared unavailable within T.C.R.Ev.
804(a)(1), and his former testimony, elicited during a previous
evidentiary hearing, then admitted pursuant to T.C.R.Ev. 804(b)(1).
The Court, having heard Uli’s testimony at the earlier hearing, and
having read the transcript from that hearing, determined there was
122
nothing incriminating in the testimony and therefore ordered Uli to take
the stand over defense objections. Uli refused to answer questions,
invoking what he perceived as his Fifth Amendment right to not testify,
and the court held him in contempt. Thereafter, his unavailability now
established under T.C.R.Ev. 804(a)(2), the Defense read Uli’s prior
testimony to the jury.2
Defendant now argues it was prejudicial error to require Uli to take the
stand. We disagree.
[15-16] A valid assertion of the Fifth Amendment privilege exists where
a witness has reasonable cause to apprehend a real danger of
incrimination, and the witness must be able to demonstrate that danger,
not a just the possibility of prosecution. 3 United States v. Apfelbaum,
445 U.S. 115, 128 (1980). And while the right to call witnesses on the
defense’s behalf is well established, the right is not without limitation.
Indeed, the Supreme Court has “never indicated that a trial court has no
discretion in determining whether the areas on which a defense witness
has properly invoked the Fifth Amendment will so affect the probative
value or prejudicial impact of his testimony as a whole that he should not
be allowed to take the stand at all.” Arredondo v. Ortiz, 365 F.3d 778,
783 (9th Cir. 2004).
[17] Rather, the court is required to decide whether a witness’s silence is
justified and require him to answer if it clearly appears to the court that
the witness asserting the privilege is mistaken as to its validity. See
Hoffman v. United States, 341 U.S. 479, 486-87 (1951) (holding that
“the witness is not exonerated from answering merely because he
declares that in so doing he would incriminate himself--his say-so does
not of itself establish the hazard of incrimination. It is for the court to
2
T.C.R.Ev. 804(a)(2) provides that a witness is unavailable, and his
former testimony is conditionally admissible, when the witness “persists
in refusing to testify concerning the subject matter of his statement
despite an order of the court to do so.”
3
A witness risks a real danger of prosecution if an answer to a question,
on its face, calls for the admission of a crime, requires that the witness
supply evidence of a necessary element of a crime, or furnishes a link in
the chain of evidence needed to prosecute. See Hoffman, 341 U.S. at
486-87. “A real danger of prosecution also exists where questions,
which appear on their face to call only for innocent answers, are
dangerous in light of other facts already developed.” In re Morganroth,
718 F.2d 161, 167 (6th Cir. 1983). In this situation “a witness bears no
further burden of establishing a reasonable cause to fear prosecution
beyond asserting the privilege and identifying the nature of the criminal
charge or supplying sufficient facts so that a particular criminal charge
can reasonably be identified by the court.” Id.
123
say whether his silence is justified, and to require him to answer if it
clearly appears to the court that he is mistaken.”) Id. (internal citations
and quotations omitted). Finally, in appraising the witness’s claim of
incrimination, the court “must be governed as much by [its] perception
of the peculiarities of the case as by the facts actually in evidence.” Id.
at 487.
[18] Because the witness is required to show a “real danger” of
incrimination, “a blanket assertion of the privilege . . . is not sufficient to
meet the reasonable cause requirement.” Morganroth, 718 F.2d at 167.
In other words, when it is evident from the circumstances of the case and
the facts in evidence that a response would be incriminating, the witness
need not take the stand and invoke the privilege question by question.
Hoffman¸ 341 U.S. at 387. However, if the witness cannot clearly
demonstrate the incriminatory nature of the sought after testimony, or
unless the court can divine it on its own, the privilege cannot be claimed
in advance of the questions. Morganroth, 718 F.2d at 167. Thus, when
it is clear there is no real danger of incrimination, the privilege must be
asserted by a witness with respect to particular questions, and in each
instance, the court must determine the propriety of the refusal to testify.
Id.
Here, the sum of the testimony Defendant sought to elicit from Uli was
that he overheard a conversation between two individuals who
apparently indicated they planned on framing Defendant for the murder.
There can be no reasonable argument that answering questions along this
line carries any possibility of incriminating Uli. Therefore, it was proper
for the Court to require Uli to take the stand, and it was proper, since the
testimony was not privileged, for the court to hold Uli in contempt for
failing to answer specific questions.
Finally, since Defendant believes new trial is warranted on this point
alone, we pause to point out the distinctions between the present facts
and the authority Defendant cites in support. Defendant cites United
States v. Duran, 884 F. Supp. 573 (D.D.C. 1995) and Bowles v. United
States, 439 F.2d 536 (D.C. Cir. 1970), for the proposition that requiring a
defense witness to invoke his Fifth Amendment rights in the jury’s
presence is reversible error. Neither is availing.
In Duran, at the start of trial, the government informed the court one of
its witnesses intended to invoke his Fifth Amendment protections in
response to specific questions about the witness’s own drug use. Duran,
884 F. Supp. at 574-75. The defendant then requested the witness be
forced to take the stand and invoke the privilege in response to specific
drug-related questions. Id. The trial court ruled that the witness could
not make a blanket assertion, and indeed had to take the stand and
answer questions. Id. However, the defendant was not allowed to
124
inquire about the witness’s drug use, as questioning along those lines
was unquestionably incriminating. Id.
Similarly, in Bowles the defendant wished to call Smith to testify that
Smith--not the defendant--killed the victim. Bowles, 439 F.2d at 541.
Mr. Smith, rather understandably, informed the court he would be
invoking his Fifth Amendment privilege against self-incrimination. Id.
Thereafter, the court refused to allow the defendant to call Smith and
force him to invoke the privilege in front of the jury. Id. In affirming
the trial court’s decision, the Court of Appeal simply held that under
these circumstances, it was not error for the lower court to refuse to
allow the defendant to call a witness who had previously indicated his
intention to invoke the privilege.
One clear fact distinguishes the witnesses in the above cases from Uli
here: those witness had a clear right to assert the privilege because the
testimony sought in each case was incriminating. In Bowles, the witness
was being asked, in essence, to testify that he was a murderer-—clearly
an incriminating line of questioning. Similarly, in Duran, the defense
sought to question the witness about his own drug use, again, questions
whose responses may incriminate the witness. In both cases, the court,
exercising its duty under Hoffman, determined that each witness was
entitled to invoke the privilege outside the jury’s presence.
In contrast, here nothing in Uli’s proffered testimony was even remotely
incriminating. Therefore, because Uli had no discernable right to the
Fifth Amendment’s protections, there is no error in requiring him to take
the stand.4
G. Prejudicial Verdict Form
Without a single citation to controlling authority, Defendant posits the
verdict form was suggestive and prejudicial because it listed all the
possible guilty options before the not guilty options.
Absent controlling authority to the contrary, we find no error in the
verdict form’s composition.
H. Insufficient Evidence
4
Defendant also cites Namet v. United States, 373 U.S. 179 (1963) even
though Namet expressly contradicts his position. There, the U.S.
Supreme Court held it was not reversible error for the court to require a
witness to take the stand and invoke his Fifth Amendment privilege in
response to specific questions.
125
Defendant generally alleges the evidence was insufficient to support the
verdicts, and specifically alleges insufficient evident to support verdicts
on Counts I and IV.
Though Defendant asserts the verdict on all counts is against the weight,
the only contention with merit involves the sufficiency of the evidence
on Count IV. First-degree property damage requires the government
prove Defendant knowingly damaged another’s property to an extent
exceeding $1,000.5 Defendant argues the prosecution failed to introduce
evidence establishing the value of the victim’s vehicle, and thus failed to
prove a necessary element of the offense.
Although the issue could be fairly characterized as close, we find the
jury had substantial evidence from which to infer the value of the
victim’s vehicle exceeded $1,000.
A similar holding on similar facts supports our conclusion. In People v.
Tassone, 241 N.E.2d 419 (Ill. 1968), the state charged the defendant with
felony theft of a tractor-trailer, a charge requiring the State to prove the
stolen property had a value in excess of $150. There, like here, after the
State did not introduce any evidence of the big rig’s value during a bench
trial, the defendant appealed, arguing the state had failed to prove an
essential element of the charge.
The Illinois Supreme Court disagreed, holding it was well settled that
while courts are reluctant to affix a specific value to property, they can
take judicial notice that property has at least some value. Id. (holding
that “[c]ourts do not operate in a vacuum; they are presumed to be no
more ignorant than the public generally, and will take judicial notice of
that which everyone knows to be true.”). Applying this principle, the
court saw no valid reason why it could not take judicial notice of the
tractor-trailer’s value, holding that “to say that it is not common
knowledge that a large tractor and trailer are worth more than $150 is to
close our eyes to reality.” Id.
Here, although the record contains virtually no direct facts as to the
vehicle’s value, there were substantial circumstantial facts from which to
infer its value exceeded the $1,000 necessary to substantiate the charge.
First, two pictures of the victim’s car were admitted into evidence and
A.S.C.A. § 46.4022 provides that a “person commits the crime of
property damage in the first degree if: (1) he knowingly damages
property of another to an extent exceeding $1,000; or (2) he damages
property to an extent exceeding $1,000 for the purpose of defrauding an
insurer.”
5
126
were available to the jury during deliberations. 6 Second, and perhaps
most importantly, testimony at trial indicated the victim’s vehicle was
driven from Defendant’s home to the Vaitogi cliffs. From this
testimony, the jury could infer that the vehicle was in good working
condition. This evidence, together with the jurors knowledge that
working vehicles are a valuable commodity on island that are rarely, if
ever, available for less than $1,000, provided a reasonable foundation for
the jury to conclude the victim’s vehicle was worth more than $1,000.
Accordingly, the evidence sufficiently supports the jury’s verdict of
guilty and Defendant’s conviction on all four counts.
Order
Defendant’s renewed motion for judgment of acquittal and motion for
new trial are DENIED.
It is so ordered.
**********
6
We concede however, that it is unlikely the photos, standing alone,
would form a sufficient basis from which the jury could infer the
vehicle’s value. Both photos were shot from the cliffs above, and not
much can be gleaned from either, other than the car is in two pieces and
the body of the car is missing. The photo of the “front” of the car shows
half the chassis, two seats and the engine. The photo of the “back” of the
car just shows the rear axle.
127
AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
MAELI PITOITUA aka ISUMU, Defendant.
High Court of American Samoa
Trial Division
CR No. 33-04
June 6, 2006
[1] A finding mitigating murder to manslaughter requires proof, inter
alia, that the defendant committed murder under extreme mental or
emotional disturbance such that the actor was overborne and lost his or
her capacity for self-control. A.S.C.A. § 46.3504.
[2] To establish extreme emotional disturbance necessary to mitigate
murder to manslaughter, the defendant must show his will was overborne
causing a temporary loss of self-control.
[3] First-degree murder requires finding the defendant acted deliberately
or with premeditation, the opposite of a temporary loss of self-control.
A.S.C.A. § 46.3502.
[4] The idea of premeditation, and the idea of a temporary loss of selfcontrol, are mutually exclusive concepts.
[5] An evidentiary hearing on aggravating and mitigating circumstances
is required only when the government seeks the death penalty. A.S.C.A.
§ 46.3511.
[6] Accepting or rejecting a plea agreement is within the sound
discretion of the trial court.
Before: KRUSE, Chief Justice, and LEFITI, Associate Judge.
Counsel: For Plaintiff, Don Pitzer, Assistant Attorney General
For Defendant, Aviata F. Fa`alevao, Public Defender
ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL
Introduction
Following a 3-day bench trial, the defendant Pitoitua Maeli ("Maeli")
was found guilty of first-degree murder and first-degree assault for his
128
role in a savage attack at the Territorial Correction Facility that left one
inmate dead and another seriously wounded. We sentenced him to
consecutive life sentences for these offenses.
Maeli now moves for new trial, pursuant A.S.C.A. §46.2402, advancing
three separate grounds. First, he attributes error in the Court's failure to
account for mitigating circumstances reducing first-degree murder to
manslaughter. Second, he claims the Court's failure to hold a separate
A.S.C.A. § 46.3511 pre-sentencing hearing violated his rights to "due
process." Finally, Maeli argues that the Court's rejection of a plea
agreement which the parties had proposed midway through trial was also
a violation of his "due process" rights guaranteed by the Fourteenth
Amendment. For the reasons outlined below, we deny Maeli's motion.1
Discussion
A. Manslaughter Mitigation
Satisfied on the evidence beyond a reasonable doubt that the Maeli acted
deliberately and with the intent to kill his victim, we found him guilty of
first-degree murder. In doing so, we necessarily rejected Maeli's
contention that he acted under extreme mental or emotional disturbance
for which there is a reasonable explanation or excuse, and consequently
declined to reduce his criminal conduct to manslaughter. Maeli now
contends that decision was error. We disagree.
[1-2] Under A.S.C.A. § 46.3504, a finding mitigating murder to
manslaughter requires proof, inter alia, that the defendant committed
murder under "extreme mental or emotional disturbance" such that the
actor was overborne and lost his or her capacity for self-control.
A.S.C.A. § 46.3504;2 see also People of Territory of Guam v.
1
Defendant, in a Supplemental Memorandum, also advanced in the
alternative a submission to the effect that the Court should have found
Murder in the Second Degree, contesting premeditation. Since this
position was not canvassed at trial, it cannot be raised for the first time
on a motion for a new trial. In any event, the record amply substantiates
a premeditation finding.
2
A.S.C.A. § 46.3504 governs mitigating Murder to Manslaughter and
provides:
(a) Criminal homicide constitutes manslaughter when:
(1) it is committed recklessly; or
(2) a homicide which would otherwise be murder is
committed under the influence of extreme mental or
emotional disturbance for which there is reasonable
explanation or excuse; the reasonableness of the
explanation or excuse is determined from the
129
Quichocho, 973 F.2d 723 (9th Cir. 1992) (interpreting virtually identical
manslaughter statute and holding that "extreme mental or emotional
disturbance" presupposes a degree of emotional agitation that is
inconsistent with concepts of premeditation, calculation, or the exercise
of self-control.); State v. Matias, 840 P.2d 374, 378 (Haw. 1992)
(holding that in deciding whether to reduce murder to manslaughter,
"question of the killer's self-control, or lack of it, at the time of the
killing is a significant, even determining factor"). Thus, to establish
extreme emotional disturbance necessary to mitigate murder to
manslaughter, the defendant must show his will was overborne causing a
temporary loss of self-control.
[3-4] In contrast, first-degree murder requires finding the defendant
acted deliberately or with premeditation (i.e., the opposite of a temporary
loss of self control). A.S.C.A. § 46.3502. In other words, a defendant
either acts deliberately or with premeditation, or a defendant temporarily
loses self-control. But a defendant cannot do both at the same time: the
ideas of premeditation, and the idea of a temporary loss of self-control,
are mutually exclusive concepts.
Here, because ample facts supported our finding that Maeli acted
deliberately and with premeditation, it was not error to refuse the
manslaughter mitigation.
B. Separate Evidentiary Hearing
Maeli argues the Court substantially failed to comply with A.S.C.A. §§
46.3511-3514 at sentencing. In a nutshell, Maeli contends that since the
Court did not hold a separate evidentiary hearing on aggravating and
mitigating circumstances, there was a "mistrial" that now requires a new
trial. We cannot agree.
A.S.C.A. § 46.3511(a) outlines the framework for determining
punishment after finding a defendant guilty of first-degree murder. It
provides that the court must hold a presentence hearing allowing
argument by both the defendant and the prosecuting attorney regarding
the type of punishment to be imposed. A.S.C.A. § 46.3511. In addition,
subsection (a) provides that the judge or jury should hear additional
viewpoint of a person in the actor's situation tinder the
circumstances as he believes them to be:
(3) at the time of the killing, he believes the
circumstances to be that, if they existed, would justify
the killing under 46.3301 et seq., but his belief is
unreasonable.
(b) Manslaughter is a class C felony.
130
evidence in aggravation or mitigation of the punishment. Id.3 Section
46.3514 then goes on to list five possible aggravating circumstances, as
well as nine possible mitigating factors.
[5] By its terms alone, Section 46.3511 seems to require a separate
evidentiary hearing on aggravating and mitigating circumstances after
every first-degree murder verdict or finding. However, we hold that the
separate evidentiary hearing discussed in Section 46.3511 is required
only when the government seeks the death penalty. 4
Logic and a common sense analysis of the statutes at issue bear out our
holding. After a first-degree murder verdict, if the government does not
pursue the death penalty, the only available sentence is life
imprisonment. See A.S.C.A. § 46.3513.5 In other words, in a non-death
penalty proceeding, the only sentencing option is life imprisonment,
unequivocally defined by the Legislature as imprisonment without
possibility of parole or probation until the defendant served a minimum
of 40 years. A.S.C.A. § 46.3513. Accordingly, it would be an exercise
in futility for both sides to call witnesses and present testimony of
aggravating or mitigating circumstances when the only option is to
sentence the defendant to life. This is true because no amount of
testimony can change the sentence. Because the legislature has stated
what constitutes a life sentence, the sentence cannot be enhanced or
3
Section 46.3511(a) provides:
Where the jury or judge returns a verdict or finding of
guilty of murder in the 1st degree, the court resumes
the trial and conducts a presentence hearing before the
jury or judge at which time the only issue is the
determination of the punishment to be imposed. In the
hearing, subject to the laws or rules of evidence, the
jury or judge hears additional evidence in mitigation
and aggravation of punishment. Only the evidence in
aggravation as the prosecution has made known to the
defendant prior to his trial and as provided in 46.3514
is admissible.
4
Notwithstanding, Maeli prior to sentencing on January 20, 2006, was
nevertheless accorded an extended hearing opportunity in which he
called no less than seven witnesses, in addition to his personally
addressing the court in mitigation.
5
A.S.C.A. § 46.3513 provides:
If the judge or jury does not recommend the imposition
of the death penalty on a finding of guilty of murder in
the 1st degree, the convicted person is punished by
imprisonment by the corrections division for life and is
not to be eligible for probation or parole until he has
served a minimum of 40 years of his sentence.
131
mitigated by testimony or evidence from either side.
Because sections A.S.C.A. sections 46.3511-3514 do not require the
Court to consider aggravating or mitigating circumstances in non-death
penalty cases, there was no error. Accordingly, Maeli's motion
reconsideration/new trial on this point is denied.
C. Plea Agreement Rejection Not Error
On the morning of the second day of trial, Maeli and the Attorney
General negotiated a plea agreement that the Court subsequently
rejected.6 Maeli now contends our rejection was error.
[6] It is beyond question that accepting or rejecting a plea agreement is
within the sound discretion of the trial court. See United States v.
Pacheco-Navarette, 432 F.3d 967, 970 (9th Cir. 2005); United States v.
Barker, 681 F.2d 589, 592 (9th Cir. 1982). Here, other than the bald
assertion of error, Maeli cites no facts or authority indicating the Court
abused its discretion. Without citation to facts or controlling authority
indicating our decision was error, we decline to revisit our ruling.
Order
Defendant's motion for new trial is DENIED.
It is so ordered.
**********
6
Among other things, the time set for the filing and entertainment of
plea agreements had long since lapsed. See Pretrial Conference Order,
entered Jul. 17, 2004.
132
AMERICAN SAMOA GOVERNMENT, Plaintiff,
v.
SALOME FUAILATOLO ENOKA, Defendant.
High Court of American Samoa
Trial Division
CR No. 13-05
June 15, 2006
[1] New trial motions are timely if filed within 10 days of announcing
judgment or sentencing. .A.S.C.A. § 46.2402(a).
[2] The court on motion of a defendant may grant a new trial to him if
required in the interest of justice. T.C.R.Cr.P. 33.
[3] Granting a new trial is not favored and is done only when the
defendant can demonstrate that a miscarriage of justice would otherwise
result.
[4] It is axiomatic that a motion for new trial is addressed to the sound
discretion of the trial court.
[5] On sufficiency of the evidence claims, the Court views the evidence
in a light most favorable to the government and asks whether any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
[6] Expert testimony is not required to identify illegal drugs and lay
testimony and circumstantial evidence may be sufficient, without the
introduction of an expert chemical analysis, to establish the identity of
the substance involved in an alleged narcotics transaction.
[7] Testimony from law enforcement officers possessing specialized
experience and training is commonly allowed to assist the jury, as they
have no experiential basis for evaluating the evidence related to narcotics
prosecutions.
Before: RICHMOND, Associate Justice, LOGOAI, Chief Associate
Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Frederick J. O’Brien, Assistant Attorney General
For Defendant, Andrew T. Stave, Assistant Public Defender
133
ORDER DENYING DEFENDANT’S MOTION FOR NEW TRIAL
Introduction
On March 23, 2006, following a jury trial, Defendant Salome Fuailatolo
Enoka was found guilty of Count 2, possession of the controlled
substance of marijuana in violation of A.S.C.A. §13.1022.1 On April 21,
2006, we adjudicated Defendant’s guilt and sentenced her to five years
in prison without parole.
Pursuant to T.C.R.Cr.P. 3, Defendant now moves for a new trial on
several specific grounds, alleging: 1) there was insufficient evidence to
support conviction; 2) the Court erred in allowing several officers,
including Captain Sunia, to testify as experts in the identification of
marijuana and narcotics; 3) the Court erred in denying Defendant’s
motion to suppress evidence; 4) the Court erred in denying Defendant’s
motion to reveal confidential informant’s identity; 5) the prosecution
introduced a DEA report regarding the testing of the substances offisland; 6) the Court admitted inadmissible hearsay. 2
For the reasons outlined below, we deny Defendant’s motion.
Discussion
A. Timeliness
Defendant filed her motion for new trial on May 1, 2006, 10 days after
adjudication and sentencing, but 39 days after the jury conviction.
1
At the same trial, Defendant was found not guilty of Count 1,
possession of the controlled substance of methamphetamine.
2
T.C.R.Cr.P 33 governs motions for new trial and provides, in pertinent
part:
The court on motion of a defendant may grant a new
trial to him if required in the interest of justice. If trial
was by the court without jury the court on motion of a
defendant for a new trial may vacate the judgment if
entered, take additional testimony and direct the entry
of a new judgment. A motion for a new trial based on
the ground of newly discovered evidence may be made
only before or within two years after final judgment,
but if any appeal is pending the court may grant the
motion only on remand of the case. A motion for a
new trial based on any other grounds shall be made
within 10 days after verdict or finding of guilty.
134
Plaintiff American Samoa Government (“ASG”) argues this violated
Rule 33. We disagree.
[1] While T.C.R.Cr.P. 33 seems to limit the time to file a motion for new
trial (other than on newly acquired evidence grounds) to “10 days after
verdict or finding of guilty”, this time limitation directly conflicts with
A.S.C.A. § 46.2402(a).
Section 46.2402(a) provides that “[b]efore
filing a notice of appeal, a motion for a new trial shall be filed within 10
days after the announcement of the judgment or sentence.” The
language in Rule 33 and § 46.2402(a) are obviously at odds. However, a
statute, enacted pursuant to the Legislature’s power to reasonably define
and restrict this Court’s jurisdiction, trumps a judge-made rule.
Therefore, new trial motions are timely if filed within 10 days of
announcing judgment or sentencing. See, e.g., American Samoa Gov’t v.
Falefatu, 17 A.S.R.2d 114, 120 (Trial Div. 1990) (holding that when in
direct conflict, statute reasonably restricting court’s power must prevail
over judicially enacted court rule).
Consequently, Defendant’s motion for new trial was timely filed on May
1, the tenth day after judgment and sentencing on April 21.
B. Motion for New Trial
[2-4] A motion for new trial under T.C.R.Cr.P. 33 carries with it a heavy
burden. Rule 33 provides, in part, “[t]he court on motion of a defendant
may grant a new trial to him if required in the interest of justice.”
However, granting a new trial is not favored and is done only when the
defendant can demonstrate that a miscarriage of justice would otherwise
result. United States v. Johnson, 327 U.S. 106 (1946); United States v.
Rothrock, 806 F.2d 318, 322 (1st Cir. 1986) (holding that “a trial judge is
not a thirteenth juror who may set aside a verdict merely because he
would have reached different result.”). It is axiomatic that a motion for
new trial is addressed to the sound discretion of the trial court. American
Samoa Gov’t v. To`oto`o, 2 A.S.R.2d 62, 64 (Appellate Div. 1985).
With these standards in mind, we address each of Defendant’s
arguments.
1. Insufficient evidence
[5] Defendant challenges the sufficiency of the evidence to convict. On
sufficiency claims, we view the evidence in a light most favorable to the
government and ask whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319 (1979).
135
Defendant specifically alleges the prosecution failed to prove that the
green leafy substance seized found in her possession was in fact
marijuana, as there was no forensic expert testimony, and no forensic test
admitted into evidence. Defendant asserts Captain Sunia’s testimony
regarding the existence of marijuana was without merit, as he had
insufficient experience and training to make such a determination,
increasing the likelihood of a false positive.
[6] As an initial matter, we note that expert testimony is not required to
identify illegal drugs, see e.g., State v. Gerald B., 129 P.3d 149, 155
(N.M. 2006), and that “lay testimony and circumstantial evidence may
be sufficient, without the introduction of an expert chemical analysis, to
establish the identity of the substance involved in an alleged narcotics
transaction.” United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir.
1976).
Here, chemical analysis was undertaken in the form of the DuquenoisLevine field test, which tests substances for THC, the active ingredient in
marijuana. Additionally, a microscopic examination was conducted.
The jury then apparently credited Officer Sunia’s testimony that based
on his training and experience in narcotics and drug detection, the
positive results of the Duquenois-Levine field test and microscopic
examination were indeed correct. See, e.g., State v. Burge, 811 S.W.2d
318, 319 (Ark. 1991) (testimony from officer stating he was expert who
could identify marijuana and based upon his experience determined the
substance to be marijuana was not insufficient evidence for conviction
even though the marijuana was not introduced at trial).
If Defendant deemed this testimony unreliable, or felt it lacked scientific
merit, she was free to introduce an expert witness of her own, or to
cross-examine the accuracy of Captain Sunia’s determination.
Ultimately, it is the prerogative of the jury to either credit Captain
Sunia’s testimony or to reject it. See, e.g., United States v. Easley, 70
F.3d 65, 68 (8th Cir. 1995) (jury free to credit officer’s testimony that he
can identify marijuana without scientific evaluation).
Accordingly, because the evidence here would allow a reasonableminded jury to find Defendant guilty beyond a reasonable doubt, we
deny Defendant’s motion on this ground.
2. Improper expert testimony
Defendant alleges the Court erred when it allowed police officers to
“testify as though they were experts in the identification of marijuana
and narcotics.”
136
Again, we point out that expert testimony is not required to identify
marijuana, and that “lay opinion concerning the identification of
marijuana is admissible, and the qualifications of the witness go to
weight and not admissibility.” State v. Rubio, 798 P.2d 206, 208 (N.M.
1990). Thus, the jury was free to consider all the officers’ testimony and
give it whatever weight it deemed appropriate. See id. Consequently, it
is largely irrelevant whether the jury perceived the officers as testifying
as “experts.”
[7] Be that as it may, we think Captain Sunia was qualified to give an
expert opinion on the identification of marijuana based on his training
and experience. See, e.g., State v. Keener, 520 P.2d 510, 513-14 (Ariz.
1974) (whether a witness has been sufficiently qualified so as to become
an "expert" is a decision left to the sound discretion of the trial court). In
criminal cases, testimony from law enforcement officers possessing
specialized experience and training is commonly allowed to assist the
jury, as they have no experiential basis for evaluating the evidence
related to narcotics prosecutions. See, e.g., United States v. Stewart, 770
F.2d 825 (9th Cir. 1985); United States v. Jaramillo-Suarez, 950 F.2d
1378 (9th Cir. 1991).
Thus, it was proper for the officers to testify as either “experts” or “lay”
persons trained in the field of marijuana identification, and it was the
province of the jury to determine the credibility of their testimony.
Accordingly, there is no merit to the contention that Captain Sunia (or
other officers with proper experience and training), a witness for the
prosecution, was not sufficiently qualified as an expert to give his
opinion that the green leafy substance taken from Defendant was
marijuana.
3. Suppression motion
Defendant generally asserts the Court erred in denying her pre-trial
motion to suppress. We fully addressed this issue when we denied the
motion before trial, and Defendant does not now provide any additional
argument or evidence to support this bald assertion. Accordingly, we
find no error in refusing to grant her motion to suppress.
4. Confidential informant
Defendant argues the court erred in failing to reveal the confidential
informant’s identity and permitting her to cross-examine said informant.
Defendant contends her defense was based on the notion that marijuana
was planted on her, and to extent the informant could confirm this
theory, Defendant claims it was error to not reveal the informant’s
identity.
137
Again, we dealt with this issue when we denied her pre-trial motion to
reveal the confidential informant’s identity before trial. Moreover,
Defendant cites no authority to support her contention. She fails to state
with any particularity how the speculative need for this informant’s
testimony overcomes ASG’s interest in maintaining the confidentiality
of an informant’s identity. Because general and unsupported allegations
of error are not grounds for a new trial, we deny Defendant’s motion as
to this alleged point of error.
5. DEA report
Defendant claims ASG produced in the courtroom during trial a DEA lab
report regarding testing of the seized substances, and that this action
tainted the jury. It was actually Defendant who during earlier crossexamination first informed the jury that DEA testing was done.
Moreover, Defendant fails to state any prejudicial circumstances with
any particularity when the report was given to ASG’s attorney, and to
cite any authority in support of her position. This contention is without
merit as presented, and we therefore deny Defendant’s motion on this
ground.
6. Hearsay
Defendant argues new trial is proper because the Court admitted
inadmissible hearsay over Defendant’s objections. Yet, Defendant does
not point to any specific hearsay statements that were admitted, and
therefore, we are unable to evaluate this claim’s merit. Accordingly, as
to this alleged point of error, Defendant’s new motion is again denied.
7. Other Issues
Defendant attempts to preserve unstated issues for review on appeal. We
cannot, of course, comment on undisclosed matters other than to point
out that Rule 33 requires that all grounds be set forth in a new trial
motion.
Order
Defendant’s motion for new trial is DENIED.
It is so ordered.
**********
138
Estate of EDWIN WILLIAM GURR, Deceased.
PR No. 04-05
________________________________
Estate of BERNARD WILLIAM GURR, Deceased.
FANUA GURR, Petitioner.
v.
STANLEY WILLIAM GURR, Counter-Petitioner.
PR No. 05-05
High Court of American Samoa
Trial Division
January 24, 2006
[1] A lost or destroyed will may be probated.
[2] To establish a lost will the proponent must prove: (1) due execution
and former existence of the alleged will; (2) that a diligent search was
made for the original will and it cannot be found; (3) that the testator did
not intend to revoke his will; and (4) the contents of the original will.
[3] To be legally binding, wills made in American Samoa must be (1) in
writing, (2) signed by the testator or some person in his presence and by
his express direction; and (3) the signature of the testator must be
witnessed by two competent persons who sign their names as attesting
witnesses. A.S.C.A. § 40.0102.
[4] Showing that it is impossible to produce the original will satisfies the
diligent search requirement.
[5] The person contesting a will’s validity bears the burden of proving
that the testator revoked his will prior to his death, unless the will is
considered lost.
[6] If the testator’s will was last in the testator’s possession or the
testator had ready access to it, and the will cannot be found after death, a
presumption exists that the testator destroyed it with the intent to revoke
it.
[7] The presumption that the testator destroyed the will with the intent to
revoke it may be rebutted by direct or circumstantial evidence which
139
includes showing a lack of motive or reason for revocation; that the will
was last seen in another’s possession; it was accidentally lost or
destroyed; or that the will was wrongfully suppressed or destroyed by
someone displeased with its terms.
[8] Where a will is last seen in the hands of a third party, it is presumed
lost rather than revoked.
[9] The question whether the presumption of revocation has been
rebutted is one of fact that must be proved by a preponderance of the
evidence.
[10] In cases of lost wills, where the trier-of-fact has found the will has
not been revoked, the will is often proved by evidence of a copy, or from
the drafter's notes and recollection.
[11] If a lost will’s full contents cannot be proved, the will is entitled to
probate to the extent that its contents can be proved.
Before: RICHMOND, Associate Justice, and LOGOAI, Chief Associate
Judge.
Counsel: For Petitioner, Mark F. Ude
For Counter-Petitioner, Charles V. Ala’ilima
ORDER ADMITTING WILL TO PROBATE AND FOR LETTERS OF
ADMINISTRATION WITH FANUA GURR, THE WILL ANNEXED
IN PR NO. 4-05, AND APPOINTING ADMINISTRATOR IN
PR NO. 5-05
Introduction
On January 31, 2005, Petitioner Fanua Gurr (“Petitioner”) filed a petition
in probate seeking to establish and have admitted to probate the alleged
lost wills of her grandfather, Edwin William Gurr (“Edwin”), and her
father, Bernard William Gurr (“Bernard”). It appears undisputed that
Edwin executed a will on October 11, 1933, and Bernard executed a will
on May 6, 1964. Both wills were executed prior to Edwin’s and
Bernard’s deaths, respectively. However, Petitioner has failed to locate
either of the original executed wills. At this time, land in American
Samoa is largely, if not exclusively, remaining in each decedent’s estate.
With regard to Edwin, Petitioner presents two copies of his alleged will
found in different governmental records. First, Petitioner submits a
handwritten copy of the original initially deposited with the American
Samoa Registrar of Titles, then under this court’s supervision, and now
on file with the Territorial Registrar. Second, she submits a microfilm
140
copy of the original will, made when records of the Registrar of Titles
were sent to the federal government archives in California and later
transferred back to American Samoa Government archives. With respect
to Bernard, Petitioner presents her own copy of said will.
Counter-Petitioner Stanley William Gurr (“Counter-Petitioner”) opposes
admitting Bernard’s will to probate, but does not oppose probating
Edwin’s will.
Having reviewed the evidence submitted by the parties, we admit
Edwin’s will to probate but deny admission of Bernard’s will to probate
without prejudice. We also issue letters of administration with the will
annexed for Edwin’s estate and letters of administration for Bernard’s
intestate estate.
Discussion
A. Legal Standard
[1-2] A lost or destroyed will may be probated. See e.g., RESTATEMENT
(THIRD) OF PROPERTY § 4.1 cmt. k (1999); CAL. PROB. CODE § 8000(b)
(2005). However, to establish a lost will the proponent must prove: (1)
due execution and former existence of the alleged will; (2) that a diligent
search was made for the original will and it cannot be found; (3) that the
testator did not intend to revoke his will; and (4) the contents of the
original will. In re Estate of Crozier, 232 N.W.2d 554, 556 (Iowa 1975);
see also Ferris v. Faford, 2004 Conn. Super. LEXIS 329, *6-7 (Conn.
2004). These five factors for establishing a lost will are discussed briefly
below.
1. Execution
[3] Wills made in American Samoa must be executed in the form
required by A.S.C.A. § 40.0102. Section 40.0102 provides that (i) the
will must be in writing, (ii) signed by the testator or some person in his
presence and by his express direction, and (iii) the signature of the
testator must be witnessed by two competent persons who sign their
names as attesting witnesses.
2. Diligent Search
[4] The diligent search requirement is met by a showing that it is
impossible to produce the original will. See Faford, 2004 Conn. Super.
LEXIS 329 at *6-7.
141
3. Revocation
[5-6] The person contesting a will’s validity usually bears the burden of
proving that the testator revoked his will prior to his death. See In re
Estate of Pallister, 611 S.E.2d 250, 256 (S.C. 2005). However, this
burden is reversed in the case of lost or missing wills. Id. If the
testator’s will was last in the testator’s possession, and cannot be found
after death, a presumption exists that the testator destroyed it with the
intent to revoke it. See RESTATEMENT (THIRD) OF PROPERTY § 4.1 cmt. j
(1999); Pallister, 611 S.E.2d at 256 (citations omitted) (when a testator
takes possession of his original will and it cannot be found after his
death, the law presumes he destroyed it with an intent to revoke it). The
same presumption arises where it is shown that the testator, while not
actually possessing the will, had ready access to it. Pallister, 611 S.E.2d
at 256 (citation omitted); Crozier, 232 N.W.2d at 557.
[7-8] This presumption may be rebutted by direct or circumstantial
evidence. Faford, 2004 Conn. Super. LEXIS 329 at *7. One way to
overcome the presumption is by showing a lack of motive or reason for
revocation. Id. at *8; see Crozier, 232 N.W.2d at 558 (citation omitted)
(evidence used to overcome the presumption of revocation includes
proof of declarations made by decedent, proof of his relations to other
persons involved, or proof of the circumstances of the testator). A
second method of rebuttal is to show that the will was last seen in
another’s possession. Id. at 8. Indeed, in the case where a lost will is
last seen in the hands of a third party, it is presumed lost rather than
revoked; if a third party possesses the testator’s will, and thus it is not in
the testator’s presence, then the testator could not have formed the
requisite intent to revoke his will. Id.
Similarly, the proponent of the will may present evidence indicating that
the will was accidentally lost or destroyed, or that the will was
wrongfully suppressed or destroyed by someone displeased with its
terms. See RESTATEMENT (THIRD) OF PROPERTY § 4.1 cmt. j (1999); see
also Pallister, 611 S.E.2d at 256 (citations omitted) (presumption may be
rebutted by evidence that the will existed at the time of his death and was
either lost subsequent thereto, or had been destroyed by another without
authority to do so). Thus, in sum, because there are many plausible
explanations for why a will is lost, a reasonable opportunity must be
given to establish such a will.
While the common-law presumption of revocation is a well-settled area
of law, there is considerable debate surrounding the evidentiary standard
for rebutting the presumption that the testator destroyed the will with
intent to revoke it. One view, as embodied in the Restatement, provides
that the presumption is rebuttable by a preponderance of the evidence.
See RESTATEMENT (THIRD) OF PROPERTY § 4.1 cmt. j (1999); see also In
142
re Estate of Glover, 744 S.W.2d 939, 940 (Tex. 1988) (the presumption
that the will had been revoked can be overcome by a preponderance of
the evidence).
Other jurisdictions, however, require clear and convincing evidence. See
Pallister, 611 S.E.2d at 257 (citations omitted) (person contesting
validity of will bears burden of presenting clear and convincing evidence
to rebut presumption of revocation); Crozier, 232 N.W.2d at 558
(holding that burden of proof, although not impossible to carry, must be
proved by clear and convincing evidence); In re Estate of Mitchell, 623
So.2d 274, 277 (Miss. 1993) (requiring clear and convincing proof to
overcome presumption of revocation). However, the Mississippi
Supreme Court, in In re Estate of Leggett, 584 So.2d 400, 403 (Miss.
1991), cautioned that the “clear and convincing” evidence needed to
rebut the presumption depends on the situation presented to the court:
It is difficult to lay down any general rule as to the
nature of the evidence which is required to rebut the
presumption of destruction: It depends to a
considerable extent on the testator's property and his
relations towards his family. Where the will makes a
careful and detailed disposition of the testator's
property, and nothing happens to make it probable that
he wishes to revoke it, the presumption raised by the
disappearance of the will may be rebutted by slight
evidence, especially if it is shown that the access to the
box, or other place of deposit where the will was kept,
could be obtained by persons whose interest it is to
defeat the will. In fact, it may almost be said that in
such a case the presumption is the other way, namely
that the testator did not intend to die intestate.
[9] To date, this court has not ruled as to which evidentiary standard is
required in the territory. However, in construing the common law, we
ordinarily follow the Restatement of Law. Etimani v. Samoa Packing
Co., 19 A.S.R.2d 1 (Trial Div. 1991). We see no reason why that should
change with regard to lost or destroyed wills. Accordingly, we find that
the question whether the presumption of revocation has been rebutted is
one of fact that must be proved by a preponderance of the evidence.
4. Contents
[10-11] In cases of lost wills, where the trier-of-fact has found the will
has not been revoked, the will is often proved by evidence of a copy, or
from the drafter's notes and recollection. RESTATEMENT (THIRD) OF
PROPERTY § 4.1 cmt. k (1999). If its full contents cannot be proved, the
143
will is entitled to probate to the extent that its contents can be proved.
Id.
B. Edwin’s Will
1. Evidence
Petitioner presents evidence that Edwin executed the original will within
two months of his death in 1933. The original will and a handwritten
copy were filed and registered with the government registrar after
execution, and were later transferred from American Samoa to the
federal government archives in California for safe keeping and were
microfilmed. The microfilms were then returned to the territorial
archives. Petitioner believes that the original lies somewhere in the
territorial records, but it has not been found as yet.
The microfilm copy, as Counter-Petitioner acknowledges, appears to be
a copy of the original will with signatures resembling that of Edwin and
attesting witnesses. Additionally, the original will of Edwin’s wife,
Fanua, which is substantially similar to Edwin’s will, was found in the
archival records.
2. Analysis
(1) Execution
Because Edwin’s will was handwritten, bears Edwin’s signature, and
was signed by two attesting witnesses, we are satisfied that Edwin’s will
was properly executed in accordance with A.S.C.A. § 40.0102.
(2) Diligent Search
Given Petitioner’s research and production of evidence with respect to
Edwin’s will, we find that she has satisfied the diligent search
requirement.
(3) Revocation
Edwin’s 1933 will existed at the time of his death, but Petitioner has
been unable locate it. Consequently, and because Edwin arguably had
access to his will in both American Samoa and California, a presumption
of revocation exists.
However, Petitioner argues that Edwin’s original will was either lost or
misplaced after having been transferred back to the territory from
California. We agree. Significantly, Edwin’s will was last seen in the
hands of a government official. As the will was not in Edwin’s
144
immediate presence at the time of his death, it is highly unlikely that he
formed the requisite intent needed for revocation. Accordingly, we find
that Petitioner has established by a preponderance of the evidence that
Edwin did not revoke his will.
(4) Contents
We are satisfied that the contents of the executed will were substantially
as appears on the microfilm copy presented for probate.
3. Conclusion
Based on the above analysis, we admit Edwin’s will to probate.
C. Bernard’s Will
1. Evidence
Bernard executed a will in 1964, several years before his death.
Petitioner asserts that three individuals witnessed the signing and that
she herself recognizes the signature on the will as that of her father. She
contends that Bernard placed the will in a safety deposit box in the old
American Samoa Bank. She also asserts that at the time of Bernard’s
death, she was not notified as to any of his documents remaining in the
bank’s control.
2. Analysis
Clearly, the litigated issue is whether Bernard revoked the will because
the original document could not be found after his death. Thus, we will
concentrate most of our analysis on whether the will was lost by mistake
or destroyed with an intent to revoke.
(1) Execution
We are satisfied that Bernard’s will was properly executed in 1964 in
accordance with A.S.C.A. § 40.0102.
(2) Diligent Search
Given the research conducted and evidence produced by Petitioner
regarding Bernard’s will, we find that Petitioner conducted a diligent
search for his original will.
145
(3) Revocation
Because the will was executed several years before Bernard’s death, and
he placed his will into a safe deposit box, Counter-Petitioner argues that
the will was under Bernard’s custody and control at the time of his death.
Accordingly, Counter-Petitioner contends that a presumption exists that
Bernard destroyed his will with an intention to revoke it. We agree.
Even if the will was not in Bernard’s actual possession, he clearly had
ready access to the safe deposit box and the will. Therefore, the
presumption of revocation is triggered.
Thus, in order for Bernard’s will to be admitted, Petitioner must rebut
this presumption by a preponderance of the evidence. Although not
argued in the context of rebutting the presumption of revocation,
Petitioner asserts that many family members were aware of the safe
deposit box and had access to it. She contends that other family
members could have accessed the safe deposit box without Bernard’s
knowledge. Petitioner further argues that when the American Samoa
Bank closed, another family member was probably notified and retrieved
the safety box contents without Bernard’s knowledge, or perhaps the
Bank simply disposed of the contents without notifying anyone.
Petitioner also suggests that any argument Bernard removed the contents
before the Bank closed would be speculative.
Petitioner, however, misses the point. She has the burden to overcome
the presumption of revocation with proof by a preponderance of the
evidence that Bernard did not revoke his 1964 will. Unfortunately,
Petitioner did not produce evidence that sufficiently meets this burden.
Therefore, we can only conclude that Bernard revoked the will and died
instestate.
(4) Contents
Having concluded that the evidence is insufficient to overcome the
presumption of revocation, we do not need to examine whether its
contents can be proved.
3. Conclusion
Based on the above analysis, we deny admission of Bernard’s will to
probate. We do this, however, without prejudice, however, so that we
may revisit the issue should Petitioner come across additional evidence
sufficient to rebut the presumption of revocation.
146
D. Selected Administrator
The qualifications to serve as an estate administrator are set forth in
A.S.C.A. Sec. 40.0306. The named executor in Edwin’s will apparently
resided in Apia, Samoa and is not qualified as a nonresident of American
Samoa to serve as executor. In any event, without evidence to the
contrary, we also find that he is no longer available to serve as executor.
At this point, we have necessarily concluded that Bernard died intestate.
We are also aware that the two co-executors named in his presumably
revoked 1964 will are deceased.
Petitioner proposed to have Hugo Gebauer, Jr. (“Gebauer”) appointed as
the administrator for both probate proceedings. Counter-Petitioner
proposed to have himself appointed. Each side has misgivings about the
other side’s nominee. Petitioner and Gebauer have existing relationships
in prospective joint economic enterprises. Petitioner and CounterPetitioner are siblings in the throes of serious inter-family disputes,
which at least in significant part involve family land, the only presently
known assets in both decedents’ estates. Given this situation, Petitioner
and Counter-Petitioner agreed to have David Wagner (“Wagner”), an
attorney not associated with either side, appointed as administrator.
Wagner is an adult, resides in American Samoa, and is mentally
competent to execute the trust duties of an estate administrator. He is
therefore qualified to be appointed administrator of both estates. With
land the only known estate asset, he may serve without bond.
Order
Edwin’s will is admitted to probate. Bernard’s alleged will is presently
denied admission to probate without prejudice. David Wagner is
appointed as the administrator for both probate proceedings. Upon
taking the oath required by law, he will be issued letters of
administration with the will annexed for Edwin’s estate and letters of
administration for Bernard’s intestate estate. Bond is waived.
It is so ordered.
**********
147
CHRISTINE KRUSE, MALAEOI TO`ASEFULU LAULU,
SIPILIANO F. TOULI, TAGULU LESO`EA MALALU`ULU,
TAGIILEVAO LOTOA LUTALI, and MAUFULUFULUA
JOSEPH FAAMULI, for themselves and on behalf of the FANENE
FAMILY, Plaintiffs,
v.
ALIIMAU H. SCANLAN, JR., Defendant.
High Court of American Samoa
Land & Titles Division
LT No. 35-03
January 31, 2006
[1] Non-blood occupants of communal land only have a possessory
license without any estate or interest in the land.
[2] The legal effects of a non-blood occupancy of communal land should
be considered purely in terms of applicable Samoan custom instead of
the western common law concept of a license.
[3] A sa`o cannot make arbitrary and capricious decisions in dealing
with family communal land matters.
[4] Family decisions made, due to the vacancy of a sa’o title, regarding
communal land cannot be arbitrary and capricious.
Before: RICHMOND, Associate Justice, and MAMEA, Associate Judge.
Counsel: For Plaintiffs, Sharron I. Rancourt
For Defendant, Arthur Ripley, Jr.
OPINION AND ORDER
Introduction
On November 20, 2003, certain Fanene family members1 initiated this
action to permanently enjoin Defendant Aliimau H. Scanlan, Jr.
1
The Fanene family sa`o [head chief] is vacant. Thus, this action was
commenced by other family members, in significant part as members of
the family Land Council that was established by the “Fanene Family
Agreement,” dated June 29, 1998 and recorded with the Territorial
Registrar on October 8, 1998. It initially appeared that this agreement’s
148
(“Aliimau”) from completing construction of his new house and
undertaking any new construction on the Fanene family’s communal
land named “Malaeimi.”2
We will not detail here the complex pretrial procedural history except to
say it involved numerous hearings and orders related to preliminary
injunctive purposes, filing of corrective and revised pleadings, and
several counsel changes for both sides. 3 Trial was finally conducted on
April 11-13, and May 18, 23 and 24, 2005. Plaintiffs’ contempt
application, dated October 28, 2004, alleging Aliimau’s continuing
construction of his new house in violation of the Court’s order of
January 16, 2004 stopping further construction, except to complete the
roof, while this action was pending, was concurrently heard with the
trial. The above named counsels were present throughout the combined
trial and contempt proceeding. We required counsel to submit written
arguments, and this process was concluded on July 12, 2005.
Holding
The Court, having heard testimony and considered the evidence and
counsel’s arguments, holds that the Fanene family acted arbitrarily and
capaciously in refusing to support Aliimau’s new house project. We
therefore deny the requested permanent injunctive relief as to this house
and allow Aliimau to complete its construction.
Background
A. The Historical Scanlan and Fanene Family Relationship
We first describe the relationship between Aliimau’s family, the Scanlan
family of Fagatogo, and the Fanene family of Nu`uuli, as it relates to the
land at issue. These historical references provide the necessary
perspective to understanding the issue, as this action is but one chapter in
validity could become an important sub-issue. However, during the
course of pretrial proceedings, the persons presently named in the
caption became Plaintiffs, and they satisfy A.S.C.A. § 43.1309(b)’s
requirements as the proper plaintiffs to seek injunctive relief when the
sa`o title is vacant. Thus, the agreement validity issue was sidestepped
and does not need to be addressed in this action.
2
The references in this decision to “Malaeimi” pertain to the Fanene
family’s communal land having this name. The family’s land is,
however, within a larger area generally bearing the same name
“Malaeimi.”
3
The required Secretary of Samoan Affairs’ jurisdictional certificate of
irreconcilable dispute pertaining to this controversy, dated February 27,
2004, is on file.
149
the chronicle of both accord and conflict over the Scanlan family’s
presence on “Malaeimi.”4
It is undisputed that “Malaeimi” is Fanene family communal land. In
1966, Fanene Talimanava, then the Fanene family sa`o, permitted
Tiumalu Scanlan (“Tiumalu”), the sa`o of the Tiumalu family of
Fagatogo, her husband, Mulipola Herbert Scanlan, Sr., (“Mulipola”), and
their children, including Aliimau, to occupy a portion of “Malaeimi”
(“the occupied portion”). 5 The occupied portion is located to the south
of and immediately adjacent to the main public road, directly across
from the present American Samoa Community College campus. Scanlan
family members have continuously used the occupied portion for
farming, residential and business purposes since 1966.
Though Tiumalu, Mulipola, and their children, including Aliimau, are
not connected by blood to the Fanene family, their presence on Fanene
family land is not tenuous. Tiumalu’s aunt was married to Fanene
Tu`utau, a former Fanene family sa`o, who held the title from 1932 to
1950. During their marriage, Fanene Tu`utau resided on Tiumalu
communal land in Fagatogo to facilitate his duties in the Fitafita Guard. 6
In addition to the marital connection with the Fanene family, Tiumalu’s
mother and other family members had also participated in Fanene family
fa`alavelave [customary affairs] in Nu`uuli. Tiumalu, with Mulipola and
4
Two other related lawsuits are still pending. One, Kruse v. Scanlan, LT
No. 7-05, involves a similar issue over house construction in the same
area by Aliimau’s brother, Dominic Scanlan. The other, Fanene v.
Touli, MT No. 3 -05, concerns the removal of the matai title “Touli”
from Touli La`au Fanene (“Touli”), an original Plaintiff in this action.
The removal is essentially based on the allegation that, pursuant to
A.S.C.A. § 1.0403(b), Touli is ineligible to hold a title in American
Samoa because of his birth on foreign soil in Independent Samoa. On
January 13, 2005, the Territorial Registrar informed Touli by letter that
for this reason she removed his name from the Touli title in the
Registar’s matai tile register. However, since the removal action still
awaits judicial decision, and since Touli played a prominent role in the
events connected with this action when the Fanene family generally
recognized him as the Touli titleholder, we will refer to him as Touli in
this decision, without intending any implication for purposes of the
undecided removal action.
5
As residents of relatively urbanized Fagatogo, Tiumalu and Mulipola
were looking for an area elsewhere to farm, such as the occupied portion.
6
The Fita Fita Guard was a quasi-military unit comprised of local
residents. It was organized by the U.S. Navy and operated during the
1900 to 1951 Navy administration of American Samoa.
150
their children, had continued this traditional tautua [service] to the
Fanene title.7
After the Scanlan family obtained the occupied portion, there were
significant changes in the Fanene family leadership that eventually
affected the Scanlan’s, and now particularly Aliimau’s, use of the
occupied portion. In 1973, Fanene Talimanava, who held the sa`o title
beginning in 1961, was judicially removed from the title, pursuant to §
6.0108 of the Revided Code of American Samoa (1961 as amended
through 1970).8 In the matter of Removal of Fanene T.T. Fanene from
the Matai Title “Fanene” in the Village of Nuuuli, Tutuila, American
Samoa, LT No. 1249, slip op. (Land & Titles Div. Jan. 30, 1973). His
removal was in large measure founded on mismanaged dealings with the
family’s communal lands. Id.9 In fact, the case file contains a list of the
alleged unacceptable outsiders, including the Scanlan family, coming
onto Fanene family communal land.
However, after Fanene
Talimanava’s removal, no Fanene family member took any immediate
action to remove the Scanlan family.
The next sa`o was Fanene Aipopo, who held the title from 1977 until his
death in 1997. During his tenure, Fanene Aipopo instituted a policy of
restoring the sa`o’s control over family communal lands that he and
some other family members believed were improvidently misdirected to
non-Fanene family members by his predecessors. As a result of this
policy, Fanene Aipopo instituted an action against Tiumalu and Mulipola
in 1977, Fanene v. Scanlan, LT No. 35-77, related to the occcupied
portion.
That action arises from the following circumstances. On June 8, 1977,
the Territorial Registrar recorded a deed, dated April 1, 1970, of
7
Considerable evidence was introduced to embellish or diminish the
Scanlan family members’ tautua to the Fanene title. Regardless of its
character, when the Scanlan family members are aware of a Fanene
fa`lavelave, they contribute to the event, either directly or through
Tiumalu as the Tiumalu family’s sa`o. The evidentiary details of the
Scanlan family members’ tautua to the Fanene title is not determinative
of the issue in this case. It is sufficient to recognize that they provide
tautua.
8
Matai removal actions are presently governed by A.S.C.A. § 1.0411.
9
Fanene Talimanava’s predecessor, Fanene Penirosa, aka Fanene
Peniloa, who was the sa`o from 1952 to 1960, was also removed from
the title due to his failed leadership and ouster from the Nu`uuli village
council. Fanene Family v. Fanene, 3 A.S.R. 425 (Trial Div. 1960). The
trial transcript reveals, among other reasons, family land issues. The
decision was appealed, Fanene v. Fanene Family, AP No. 39-60, but for
no reason of record, the appeal was apparently not pursued to decision.
151
approximately 27.63 surveyed acres by Fanene Talimanava to Tiumalu
and Mulipola. Apparently Fanene Talimanava’s brother outlined the
acreage to be surveyed. As it turned out, however, the deeded surveyed
area was completely outside of “Malaeimi.” During the pending lawsuit,
in 1980, Tiumalu and Mulipola attempted to modify the survey to correct
this error. Tiumalu downplayed the situation, maintaining that she and
Mulipola are members of the Fanene family occupying Fanene
communal land under a customary assignment, and that they did not
intend to register the assigned portion as their individually owned land.
Be that as it may, the court in LT No. 35-77, citing both technical and
substantive reasons, cancelled the 1970 deed and set aside the 1977
registration. Fanene v. Scanlan, LT No. 35-77, slip op. at 7 (Land &
Titles Div. Feb. 17, 1981).10
Clearly, Tiumalu and Mulipola used poor judgment when they had the
Territorial Registrar record the 27.63 acre deed in 1977, as these actions
strained their relationship with the Fanene family. However, even after
the legal victory in LT No. 35-77, Fanene Aipopo took no judicial or
other action to remove Tiumalu, Mulipola and their children from the
occupied portion. Instead, he apparently decided only to limit their
rights to it.
In 1996, Fanene Aipopo resolved to define the occupied portion by
surveying a two-acre area and having Tiumalu and Mulipola sign a lease
for this defined area. Fanene Aipopo also advised Tiumalu and Mulipola
that there would be no more construction of buildings on the limited area
without his consent and the family’s prior approval.
Though Tiumalu and Mulipola take issue with certain events in 1996,
they clearly understood Fanene Aipopo’s plan for their future on the
occupied portion. The Secretary of Samoan Affairs mediated the issue,
and several sessions took place. Although Tiumalu and Mulipola now
only have vague recollections of those sessions, and perhaps did not
fully participate, they clearly resisted Fanene Aipopo’s lease proposal
then and, to date, have not signed a lease. However, following the 1996
events, Fanene Aipopo did not take any action to remove the Scanlan
family from the occupied portion before he died in 1997.
The court’s decision included conclusions of law. Conclusions Nos. 4
and 5 expressly stated that the occupied portion was not a customary
communal land assignment given to the Scanlan family, but was a
license given to Tiumalu, citing Lutu Family v. Petelo, 3 A.S.R. 253
(1956). Plaintiffs argue that this significant legal characterization and
certain related consequences still apply to the Scanlan occupancy. We
will address this point below.
10
152
Because Fanene Aipopo’s death caused the current vacancy in the sa`o
title, five blood members, purportedly acting as matai representing the
clans of the Fanene family, entered into the “Fanene Family
Agreement,” dated June 29, 1998 and recorded with the Territorial
Registrar on October 8, 1998. The agreement established the family
Land Council comprised of the five signatories and tasked it with the
“administration and disposition of communal family lands approved by
the Fanene family.” Am. Compl. Ex. “A” ¶ B. Still, after entering this
agreement, neither the Land Council members nor other Fanene family
members instituted any specific action, including this present lawsuit, to
remove the Scanlan family from the occupied portion.
B. Aliimau’s New House
This leads us to the particular circumstances at issue in this action. In
1968, Aliimau built a house on the occupied portion and lived there,
except when he was outside the territory for higher education or
employment.11 During those outside periods, Aliimau’s sister, Mary
Anderson and her family lived in his house, and in 1995, Aliimau
permanently gifted the house to her. Today Mary Anderson still lives in
this house and also operated business activities on the occupied portion.
Aliimau has continuously resided in American Samoa since his return
here in 1999 and, in due course, decided to build a new house for himself
and his immediate family on the occupied portion. Aliimau located his
new house outside Fanene Aipopo’s surveyed two acres, but in an area
near Tiumalu and Mulipola’s existing house and within the area
exclusively farmed by the Scanlan family since coming onto the
occupied portion in 1966.12
In May 2003, Aliimau applied for the required land use and building
permits to construct his new house. Fanuasa Ifo T. Ainuu (“Fanuasa”)
and Lalatoga Siaosi Galea`i (“Lalotaga”), two Fanene family members
having unregistered lesser Fanene matai titles, 13 approved the proposed
11
Though Aliimau was away from the territory for substantial periods
after 1968, like his parents, Tiumalu and Mulipola, he considers himself
to be a member of the Fanene family, as well as the Tiumalu family. As
such, he certainly knew about the ongoing Fanene affairs generally and,
as outlined above, the occupied portion in particular.
12
It appears that the Scanlan family and their neighbors have jointly
undertaken plantation development in some adjacent areas. These areas,
however, are outside the occupied portion defined by the Scanlan
family’s exclusive occupancy and use since 1966.
13
Under A.S.C.A. § 1.0401(b), the Territorial Registrar’s matai title
register has been closed to listing additional titles as of January 1, 1969.
At least partially because of this limitation, though the Fanene family
153
construction on behalf of the Fanene family. 14 Fanuasa and Lalatoga,
along with Touli, are also neighbors with the Scanlan family members
neighbors on “Malaeimi.” On May 23, 2003, the land use permit was
approved and issued. However, the building permit was not issued until
several months later.
Apparently, Aliimau’s delayed submission of complete construction
plans was a principal reason why the building permit was not
immediately issued. Satisfactory plans were not submitted until August
14, 2003, or approved until August 21, 2003, but for some unexplained
reason, the building permit was not then immediately issued. Then,
early in November 2003, Aliimau proceeded with construction without
the permit. On November 19, 2003, the Building Branch of the
American Samoa Government’s Department of Public Works stopped
the construction, but on November 20, 2003, the building permit was
formally issued and construction resumed.15
Aliimau also ignored proper cultural protocol before and after
construction began, at least until well after this action was commenced.
He apparently reasoned that Fanuasa’s and Lalotaga’s permission to
build was sufficient clearance from the Fanene family to proceed. At
some point before construction began, Tiumalu advised Aliimau to
obtain Touli’s consent, as the superior and only registered Fanene matai
ostensibly overseeing Fanene family communal land matters while the
sa`o title was vacant, but Aliimau did not then follow her advice.
The issue between the parties then framed, leading to this action’s
commencement on November 20, 2003. The Fanene family members on
island quickly became aware of Aliimau’s construction after Touli, who
observed the construction early on, spread the word to other family
members. Touli also advised Aliimau to stop construction until the
Fanene family agreed to it, but Aliimau continued to disregard the
admonitions.
Motivated by the family Land Council members,
recognizes several titles within its ranks for internal family purposes,
only the holders of its sa`o title “Fanene” and the lesser title “Touli” can
register their title status with the Territorial Registrar.
14
We note the then Deputy Secretary of Samoan Affairs verified that the
two matai of the Fanene family held titles that could authorize Aliimau
“to use the [family’s communal] land” by signing the application for
both the Secretary of Samoan Affairs and pulenu`u [mayor] of village.
We do not, however, give much weight, if any, to this act for purposes of
our ultimate decision in this case.
15
On December 1, 2003, even though the construction plans were
approved the previous August and the building permit was issued 10
days earlier, a Building Branch inspector directed Aliimau to submit his
construction plans to the Building Branch office by December 2, 2003.
154
particularly Plaintiff Christine Kruse (“Christine”), some Fanene family
members met and vowed to stop Aliimau’s project. They also met with
Tiumalu, Mulipola and Aliimau and told them that Aliimau should stop
construction unless and until the family approved the construction. The
Office of Samoan Affairs was asked to intervene, and a Samoan Affairs
official instructed Aliimau to stop construction pending family approval.
A petition to the same effect was circulated within the family and, by
December 2003, signed by 61 family members. On December 6, 2003,
another family meeting was held with Tiumalu, Mulipola and Aliimau
present. Touli led the meeting and again informed Aliimau that as of
that time the family was against the project, and that until the family
approved the it, he should abide by their wishes and forego any further
construction.
However, Aliimau was not persuaded by any of these efforts to stop
construction. The work continued until December 10, 2003 when,
pursuant to the parties’ stipulation, we issued an interim order halting the
project until the preliminary injunction application was heard on January
16, 2004.
By this time, however, Touli apparently was rethinking his role as a
party plaintiff and began leaning in favor of Aliimau’s new house
project. Early in 2004, Aliimau also reconsidered his ill-mannered
approach to the Fanene family’s opposition to his new house and
apologized to Touli. As a result, on February 11, 2004, during the
second dispute resolution hearing at the Samoan Affairs office, Touli
announced that as the most senior family matai in office, he consented to
Aliimau continuing construction of his new house, and that he was
withdrawing as a party to this action. However, these events did not turn
the tide in Aliimau’s favor and the case proceeded to trial in due course.
During the trial, Christine and other family members aligned with her
remained steadfastly opposed to Aliimau’s new house. Touli, on the
other hand, adamantly sided with Aliimau, and Lalotoga and Fanene
Aipopo’s daughter, Fiasoso, followed Touili’s suit. In addition, Touli,
Lalotoga and Fiasoso indicated that Fanuasa and other family members
also supported Aliimau’s project.
Discussion
A. Nature of the Scanlan Family’s Occupancy
Because it is important to understanding the relationship between the
Fanene and Scanlan families, both presently and long-term, we will first
characterize the legal status of the Scanlan family’s occupancy of Fanene
family communal land. In Fanene v. Scanlan, LT 35-77, slip op. at 7,
the court specifically concluded that the Scanlan family’s occupancy was
155
a license. This holding was based on the court’s finding that Tiumalu is
not blood related to the Fanene family, and is thus distinguished from a
customary assignment of a portion of family communal land to a blood
family member. Id. at 4-7. The evidence before us in this case affirms
the non-blood relationship of Tiumalu and other members of the Scanlan
family, including Mulipola and Aliimau, to the Fanene family.
[1] Other earlier High Court decisions also hold that permitted non-blood
occupants of communal land only have a possessory license without any
estate or interest in the land. See. e.g., Lutu Family v. Petelo, 3 A.S.R.
252, 262 (Trial Div. 1956) (and cases cited therein). We will not wander
from this characterization and therefore consider the Scanlan family’s
occupancy a license in the sense that the Scanlan family has no estate or
interest in the occupied portion.
[2] Unfortunately, this approach lends itself to analyzing the legal
consequences, such as revocability, in terms of the western common law
concept of a license. Id. at 257-59. Under this concept, a license is
generally considered revocable at the landowner’s will, unless it is
coupled with an interest. See Sarfaty v. Evangelist, 142 A.D.2d 995, 530
N.Y.S.2d 417, 418 (N.Y. App. 1988) (holding that absent proof of
consideration “licenses with respect to real property are revocable at
will”); see also Cioppa v. Turri, 323 N.Y.S. 520 523 (N.Y. Sup. Ct.
1971) (holding that “[the] well-settled doctrine of the common law is
that a license in respect of real property is revocable at the will of the
licensor, unless it is one coupled with an interest or made irrevocable by
grant or contract. In other words, a naked license is revocable at the will
of the licensor.”). We think it is more useful, however, to consider the
legal effects of a non-blood occupancy of communal land purely in terms
of applicable Samoan custom. See, e.g., Fanene v. Taasau, LT No. 2590, slip op. (Land & Titles Div. Oct. 5, 1992).
In any event, revocation or termination was not sought in Fanene v.
Scanlan, LT No. 35-77), and is not an issue in this case. Rather, the
issue is whether Aliimau should be permanently enjoined from further
construction on “Malaeimi” or permitted to proceed.
B. Injunctive Relief
[3-4] Clearly, based on the evidence at trial, the Fanene family’s policy
for new construction on family communal land when the sa`o title is
vacant is that the project proceeds only when the next most senior matai,
normally the Touli titleholder, consents to the project after the family
meets to discuss and by consensus supports the project. Here, the family
is divided over Aliimau’s new house project, and without a supporting
family consensus, the project would ordinarily be prevented. However,
the inquiry does not necessarily stop at this point. A sa`o cannot make
156
arbitrary and capricious decisions in dealing with family communal land
matters, see, e.g., Fairholt v. Aulava, 1 A.S.R.2d 73 (Trial Div. 1983);
see also Toleafoa v. Taipula, 7 A.S.R.2d 117 (Land & Titles Div. 1988)
(holding that when the court is asked to intervene in a family dispute, it
will not substitute its judgment for the sa`o’s absent a clear abuse of
discretion). There is no sound reason not to extend this principle to
family decisions on communal land made when the sa`o title is vacant.
Plaintiffs’ general concern for retaining control over their family
communal land first occupied by outsiders during previous sa`os’
tenures is understandable.
Scanlan family members may have
heightened this concern by acting at times as if they have a proprietary
interest in the occupied portion. Some Fanene family members have
undoubtedly been offended by Aliimau’s insolence in dealing with the
Fanene family over the new house issue. Unfortunately, the issue has
become a personal vendetta for a few Fanene family members to the
point of obscuring their objective evaluation of Aliimau’s project.
Furthermore, Plaintiffs’ argument that Aliimau permanently abandoned
the occupied portion by living overseas for a time does not wash. Those
periods were sojourns for education or employment, including his last
stint on the Washington, D.C. staff of American Samoa’s Member of
Congress. Aliimau always intended to return here as his permanent
home.
Of even greater significance, Scanlan family members have continuously
lived on and farmed the occupied portion for approximately 39 years.
The relationship between the two families possibly goes back more than
70 years if one accounts for the marriage of Tiumalu’s aunt to Fanene
Tu`utau, the Fanene sa`o from 1932 to 1950. Based on this lengthy
relationship, Tiumalu and Mulipola view Fanene Aipopo’s proposal to
reduce and define the area of the occupied portion by a precise two-acre
survey, subject to a lease and rental payments, as being inconsistent with
their belief, however incorrect it may be, that they use the occupied
portion under a sa`o’s customary communal land assignment to a family
member rather than as licesees. Understandably, they resisted, and still
resist, this proposal, and their stance on this issue has strained their
relationship with some Fanene family members. Adding to the strain is
the parties’ vigorous disagreement over the nature and extent of the
Scanlan family’s tautua to and participation in Fanene family
fa`alavelave.
The relationship between the two families has gone, and will likely
continue to go, through ups and downs from time to time. Still, the
Scanlan family’s members, with justification despite their lack of any
blood connection, look at themselves as bona fide Fanene family
157
members and long-term residents on “Malaeimi.”
relationship has been positive over the long haul.
Moreover, the
In sum, given the long history between the families, we hold that the
Fanene family members opposing Aliimau’s new house project acted
arbitrarily and capaciously when they withheld their approval of the
project. The application for a permanent injunction should therefore be
denied, and Aliimau should be allowed to finish constructing his new
house.
C. Contempt
On January 16, 2004, following the December 10, 2003 interim order,
Aliimau was preliminarily enjoined from any further construction of the
new house, other than installing protective roofing. The order was first
issued from the bench and then put in writing. Aliimau had knowledge
of the oral and written orders prohibiting further construction beyond the
roof. He was present when we issued the oral order and was later served
with the written order. He was at all times capable of complying with
the preliminary injunction order.
The evidence is clear that Aliimau failed to comply with the order by
proceeding with further construction after January 16, 2004, particularly
exterior work for which he was held in contempt of court on June 15,
2004, and later interior work as alleged in Plaintiffs’ contempt
application of October 28, 2004. He is therefore again in contempt of
this Court and should be punished accordingly. This holding, however,
does not detract from or otherwise impact our finding that the Fanene
family members’ failure to reach a consensus decision in support of
Aliimau’s new house project was arbitrary and capricious.
D. Closing Note
The trial of the case for selecting the successor to the Fanene title, MT
No. 8-04, is over. The court will designate the successor sa`o in the near
future. We strongly advise and earnestly urge the new sa`o to bring the
family together once again and to diligently and constructively work on
achieving genuine acceptance among the family members of Aliimau’s
new house. Such an effort will only strengthen the relationship between
the Fanene and Scanlan families.
Order
Plaintiffs’ application for a permanent injunction preventing Aliimau
from completing his new house under construction on the Fanene
family’s “Malaeimi” communal land is DENIED. The preliminary
injunction stopping the construction during the pendency of this action is
158
dissolved, and Aliimau may proceed with completion of the new house.
However, in accordance with the Fanene family’s custom, Aliimau shall
not construct any additional buildings there unless and until he first
obtains the approval of the Fanene family sa`o, or the approval of the
family matai in charge of family’s communal land when the sa`o title is
vacant, after the family members by consensus support the new project.
Aliimau is in contempt of this Court for his additional violations of the
January 16, 2004 court order by engaging, as alleged in the October 28,
2004 contempt application, in unauthorized construction of the interior
of his new partially constructed house on “Malaeimi.” For his contempt,
Aliimau is fined $1,000, payable to the Clerk of the Court within 60 days
of entry of this order, and is required to pay $500 to Plaintiffs’ attorney
as and for attorney’s fees for legal services in connection with this
contempt proceeding within the same 60-day period.
It is so ordered.
*********
TUILEPA TUILEATA (TELESIA) FIAME, FE’AFE`AGA
TAUAMO III, SIMATIVA MAKIASI, and WILLIAM C. FE`A for
the TUILEATA FAMILY, Plaintiffs,
v.
TUIOLEMOTU FAMILY, PENEI SEWELL, ADRIENNE
SEWELL, and DOES I through X, Defendants.
__________________________________
MUAAU FOFO TUIOLEMOTU and TUFIAI VAITAGALOA
TUIOLEMOTU for themselves and the TUIOLEMOTU FAMILY,
Counterclaimants,
v.
FE`AFE`AGA TAUAMO III, Counter-Defendant.
__________________________________
PENEI SEWELL and ADRIENNE SEWELL, Cross-Claimants,
v.
159
TUIOLEMOTU FAMILY, MUAAU FOFO TUIOLEMOTU, and
TUFIAI VAITAGALOA TUIOLEMOTU, Cross-Defendants.
High Court of American Samoa
Land & Titles Division
LT No. 11-02
February 22, 2006
[1] All materially interested parties are permitted to join a lawsuit to
protect interested parties and avoid judicial waste. T.C.R.C.P 19.
[2] Joinder of an absent party is warranted, or necessary, if: (1) in his
absence complete relief cannot be accorded among those already parties;
or (2) he claims an interest relating to the subject matter of the action and
is so situated that the disposition of the action in his absence may (i) as a
practical matter impair or impede his ability to protect that interest or (ii)
leave any of the persons already parties subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations by
reason of the claimed interest. T.C.R.C.P 19(a).
[3] If the conditions of joinder are present, the court must determine
whether joining the absent party is feasible.
[4] The party bringing the motion bears the burden of showing that
proceeding with the action would prejudice the absent party.
[5] In land cases, the absent party must demonstrate a legal interest in the
disputed land in order to be joined under T.C.R.C.P. 19.
Before: RICHMOND, Associate Justice, and LOGOAI, Chief Associate
Judge.
Counsel: For Plaintiffs and Counter-Defendant, Fe`afe`aga Tauamo III,
Robert K. Maez
For Defendants/Counterclaimants/Cross-Defendants,
Tuiolemotu Family, Marie A. Alailima
For Defendants/Cross-Claimants, Peni Sewell and Adrienne
Sewell, S. Salanoa Aumoeuaologo
ORDER DENYING MOTION TO JOIN NECESSARY PARTY
Introduction
Almost four years ago, Plaintiffs Tuilepa Tuileata (Telesia) Fiame,
Fe`afe`aga Tauamo III (“Fe`a”) and Pale Fe`a for the Tuileata family
160
brought this action seeking preliminary and permanent injunctions
enjoining defendants Tuiolemotu family from using land in Olovalu that
allegedly belongs to the Tuileata Family. Plaintiffs now seek to join
Tuiagamoa Tomasi Tavai (“Tuiagamoa”) as a necessary party.
According to Plaintiffs’ moving papers and Tuiagamoa’s November 18,
2004 affidavit, Tuiagamoa is allegedly the sa`o of both the Tuiagamoa
and Tuiolemotu families. Tuiagamoa claims that the Tuiolemotu family
does not own or otherwise have any legal interest in the land that forms
the subject of the current dispute. Because he is the Tuiolemotu family’s
alleged sa`o, Plaintiffs believe Tuiagamoa is a necessary party who must
be joined pursuant to T.C.R.C.P. 19.
For the reasons outlined below, we deny Plaintiffs’ motion.
Discussion
[1-4] To protect interested parties and avoid judicial waste, Rule 19
permits joinder of all materially interested parties to a single lawsuit.
See T.C.R.C.P 19. Under Rule 19(a), joinder of an absent party is
warranted, or “necessary,” if:
(1) in his absence complete relief cannot be accorded
among those already parties, or (2) he claims an
interest relating to the subject matter of the action and
is so situated that the disposition of the action in his
absence may (i) as a practical matter impair or impede
his ability to protect that interest or (ii) leave any of the
persons already parties subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent
obligations by reason of the claimed interest.
If either condition is met, the court must then determine whether joining
the absent party is feasible (e.g., joinder would not defeat personal
jurisdiction). Generally, the party bringing the motion bears the burden
of showing that the absent party would be prejudiced by proceeding with
the action. Shon v. Mollerup Moving & Storage Co., 24 A.S.R.2d 50, 52
n.3 (Trial Div. 1993).
Given the above standard, the threshold questions we must ask are: 1)
can we render complete relief in Tuiagamoa’s absence, and 2) would
disposition of the action without Tuiagamoa affect his and/or the
remaining parties’ rights?
As to the first question, we are confident we can render a decision
regarding Olovalu’s boundaries without Tuiagamoa’s presence. In fact,
we have done it before. As the parties in this case are well aware, this is
161
not the first time these families have fought over Olovalu. See Tuileata
v. Amituana`i, 4 A.S.R.2d 168 (Land & Titles Div. 1987), aff’d 8
A.S.R.2d 173 (App. Div. 1988) (the “consolidated cases”). Yet
Tuiagamoa admittedly was not a part of that earlier litigation.
According to his November 18, 2004 affidavit, Tuiagamoa was aware of
the earlier legal dispute over Olovalu’s boundaries, but specifically
refused to represent the Tuiolemotu family in the consolidated cases
because he believed the Tuiolemotu family did not own any land in
Olovalu. Thus, in the consolidated cases neither Tuiagamoa himself nor
the other interested parties believed that Tuiagamoa’s presence was
necessary for the court to render complete relief. The same is true today.
[5] The second question--whether disposition of the action without
Tuiagamoa affect his and/or the remaining parties’ rights--requires more
scrutiny. As a general rule, most jurisdictions allow joinder in property
disputes of any party who may have an interest in the land. See, e.g.
JML Investments, Inc. v. Acer Petroleum Corp., 2001 WL 376331, 2-4
(N.D. Tex. 2001). The rational is that any decision regarding the land
without those parties may impede their ability to protect present or future
interests in the disputed land. See Fed. R. Civ. P. 19(a)(2)(i). As the
Fifth Circuit has noted, a party with an interest in land “has the right to
present his evidence that . . . he properly retains . . . [an] interest in the
land.” Scoggins v. Fredrick, 629 F.2d 426, 427 (5th Cir. 1980).
Following this tack, other courts have required joinder under Rule 19 of
parties with who are able to demonstrate a legal interest in the land at
issue. See, e.g., Scoggins, 629 F.2d at 427-28 (concluding that a person
who retains a life tenancy was an indispensable party under Rule 19);
Doty v. St. Mary Parish Land Co., 598 F.2d 885, 886-88 (5th Cir. 1979)
(holding that a mineral lessee is an indispensable party under Rule 19);
JML Investments, Inc., 2001 WL 376331, at 2-4 (finding that a royalty
holder is a necessary party under Rule 19(a)).
As the above cases demonstrate, the key to Rule 19 joinder in a property
dispute is showing that Tuiagamoa, the absent party, actually has a
demonstrated legal interest in the disputed land. Here, in his affidavit
supporting the joinder motion, Tuiagamoa expressly disclaims that the
Tuiolemotu family-—and by association himself as the family’s alleged
sa`o with pule over family communal lands--has any interest in the
disputed land. Specifically, he alleges that the Tuiolemotu family owns
no land on the Ituau side of Olovalu where the disputed land is located.
Therefore, the Tuiolemotu family cannot own the disputed land.
If, as Tuiagamoa alleges, the Tuiolemotu family does not own the
disputed land, then with much stronger reasoning, Tuiagamoa, the
family’s alleged sa`o, has no legal interest in the disputed property.
Without a demonstrated legal interest in the property, Tuiagamoa’s
presence in the action is not necessary, and therefore not required under
162
Rule 19. See, e.g., Scoggins, 629 F.2d at 427-28; Doty, 598 F.2d at 88688.
Order
For the foregoing reasons, Plaintiffs’ motion to join Tuiagamoa as a
necessary party is DENIED.
It is so ordered.
**********
TUILEPA TUILEATA (TELESIA) FIAME, FE`AFE`AFA
TAUAMO III, SIMATIVA MAKIASI, and WILLIAM C. FE`A for
the TUILEATA FAMILY, Plaintiffs,
v.
TUIOLEMOTU FAMILY, PENEI SEWELL, ADRIENNE
SEWELL, and DOES I through X, Defendants.
__________________________________
MUAAU FOFO TUIOLEMOTU and TUFIAI VAITAGALOA
TUIOLEMOTU for themselves and the TUIOLEMOTU FAMILY,
Counterclaimants.
v.
FE`AFE`AGA TAUAMO III, Counter-Defendant.
__________________________________
PENEI SEWELL and ADRIENNE SEWELL, Cross-Claimants,
v.
TUIOLEMOTU FAMILY, MUAAU FOFO TUIOLEMOTU, and
TUFIAI VAITALOA TUIOLEMOTU, Cross-Defendants.
__________________________________
High Court of American Samoa
Land & Titles Division
163
LT No. 11-02
February 22, 2006
[1] Summary judgment is granted when the pleadings and supporting
materials 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).
[2] In motion for summary judgment, once the moving party makes an
initial showing that there are not triable issues, the non-moving party
may not merely rest on allegations or defenses contained in its pleadings.
Instead, the non-moving party must set forth specific facts, in the form of
affidavits or other admissible evidence, showing there is a genuine issue
for trial. T.C.R.C.P 56(e).
[3] In deciding a motion for summary judgment, the court must assume
the truth of the evidence presented by the non-moving party and draw
inferences most favorable to the non-moving party.
[4] Summary judgment is a drastic measure, and therefore it is granted
only when the entire record shows that a party is entitled to judgment
with such clarity as to leave no room controversy and that the adverse
party cannot prevail under any circumstances.
[5] When ambiguity surrounds a material fact, the trial court will deny
summary judgment in order to give the parties an opportunity to fully
develop the case.
Before: RICHMOND, Associate Justice, and LOGOAI, Chief Associate
Judge.
Counsel: For Plaintiffs and Counter-Defendant Fe`afe`aga Tauamo III,
Robert K. Maez
For Defendants/Counterclaimants/Cross-Defendant, Tuiolemotu
Family, Marie A. Alailima
For Defendants/Cross-Claimants, Penei Sewell and Adrienne
Sewell, S. Salanoa Aumoeuaologo
Introduction
In early 2002, Plaintiffs Tuilepa Tuileata (Telesia) Faime and Fe`afe`aga
Tauamo III (“Fe`a”), with Pale Fe’a, on behalf of the Tuileata family,
brought this action seeking preliminary and permanent injunctions
enjoining Defendants Tuiolemotu family (“Tuiolemotu family”) from
164
further using land allegedly owned by Tuileata family. 1 Olovalu, the
disputed tract of land, is located in the Malaeloa Village and sadly, this is
not the first time it has been the subject of litigation. Indeed, for
seemingly the last century, Olovalu and the families who lay claim to
various portions of it have been gracing the Court’s halls with competing
claims of ownership and encroachment.
Olovalu’s on-again off-again relationship with the legal system first
began in 1906 when Uo Sopoaga, an infamous land claimant from
Leone, sought to register in his name the title to Olovalu’s acreage
(along with most of neighboring Pava’ai’i, Futiga and Ili’ili). Various
families then claiming the land sued Sopoaga, and eventually the court
found in their favor. See Amituana`i v. Sopoaga, 1 A.S.R. 241 (Trial
Div. 1911); see also, Tuileata v. Amituana`i, 4 A.S.R.2d 168, 169 (Land
& Titles Div. 1987), aff’d 8 A.S.R.2d 173 (App. Div. 1988) (“the
consolidated cases”). However, in a ruling that perhaps engendered
future litigation, the Sopoaga court did not decide which families were
entitled to what portions of Olovalu. Instead, the court simply instructed
the families to “re-survey the property and present a proper plan showing
the lands of each plaintiff to this Court for confirmation.” See
Amituana`i v. Sopoaga, 1 A.S.R. at 243.
As noted in Tuileata v. Amituana`i, 4 A.S.R.2d at 169, if the Sopoaga
plaintiffs followed, or even attempted to follow, the court’s directive to
distribute the land amongst themselves, there is no High Court or
Territorial Registrar record of it. At any rate, litigation over Olovalu’s
boundaries did not stop. Indeed, on various occasions over the ensuing
70 years, families laying claim to portions of Olovalu again found
themselves in court.2 However, like the 1907 case, these cases too
failed to produce any definitive, official boundaries dividing the Olovalu
land.
In the early 1980’s, Tuileata Mu Mamumaleuga returned from an
extended period overseas, claimed the Tuileata title (which had been
vacant for some 30 years), and began surveying Olovalu. Tuileata v.
Amituana`i, 4 A.S.R.2d at 169. When he finished surveying, he claimed
the majority of Olovalu (as well as parts of neighboring tracts) as
1
Fe`a withdrew from the action as of April 3, 2002, but on November
18, 2004, he was rejoined as necessary party counter-defendant on
Defendant Tuiolemotu Family’s motion, and reinstated as a plaintiff.
Pale Fe`a withdrew from the action as of October 19, 2004, and was
replaced by Simativa Makiasi and William C. Fe`a as of November 18,
204. Penei Sewell and Adrienne Sewell (together “the Sewells”) were
added as Defendants as of July 19, 2004.
2
Tuileata v. Taliva`a, No. 2-1956; Filo & Taliva`a v. Fe`a Tuileata
Tauamo, LT No. 1518-75; Amituana`i v. Fe`a & Tuileata, No. 12-1946.
165
Tuileata land. Id. Tuileata then promptly registered his survey with the
Territorial Registrar’s Office. Id.
Needless to say, families with competing claims to Olovalu for the past
80 years, including the Tuiolemotu family in the present action, were a
little miffed at the Tuileata family’s claimed ownership. United in their
opposition to the Tuileata family survey, and armed with surveys of their
own, the competing families again saddled the court with the task of
divvying up Olovalu. Id.
This time, the court did a better job, but still did not definitively
determine Olovalu’s overall boundaries. After a trial on the merits, the
court held that a significant portion of Olovalu’s boundaries were
defined by the outer perimeters of the Amituana`i and Tuiolemotu family
surveys. Id. at 169-71. The court determined that, subject to minor
exceptions, the Tuiolemotu family owned all of the land included in its
survey.3 Id. The court further concluded that the Tuileata family was
only entitled to a roughly three-acre plot located entirely inside the
boundaries of the Tuiolemotu and Fe`a family surveys. 4 Id. at 170-71.
Significantly, at least for the purposes of the present motion, the court
left open the question of which family owns the lands to the west of the
Tuiolemotu survey. Id. The Appellate Division later upheld the trial
court’s findings in Tuileata v. Amituana`i, 8 A.S.R.2d 173 (App. Div.
1988).
All of which brings us to the present dispute. Plaintiffs allege the
Tuiolemotu family are excavating and building on the land awarded to
the Tuileata family in the consolidated cases. On March 19, 2002, they
filed the present action seeking preliminary and permanent injunctions
barring further development of the land. On March 27, 2002, we issued
a preliminary injunction holding that based on the evidence before us
that time, there was sufficient ambiguity as to who owned the disputed
land. Accordingly, we ordered all activity on the land to cease during
the pendency of this action. See Tuileata v. Tuioloemotu, LT 11-02,
3
The court declined to express opinions on three areas included in the
Tuiolemotu survey. First, it declined to address which family owned
areas in Olovalu’s southeast corner, near the cinder pit. Second, it
declined to address which family owned the area included in the
Tuia`ana survey. Finally, and most important to the issues in the present
motion, it declined to decide which family owned portion of Olovalu to
the west of the Tuiolemotu survey. See Tuileata v. Amituana`i, 4
A.S.R.2d 168 (Land & Titles Div. 1987).
4
While the court found the Tuileata family was entitled to the three-acre
plot, it held that the land had long been assigned to Fe`a for his family’s
use, and that despite the Court’s ruling, the Tuileata’s could not deprive
Fe`a of that use. Id. at 170.
166
Order Granting Preliminary Injunction at 5. (Land & Titles Div. Mar. 27,
2002).
Because the Sewells undertook expansion of their existing house on a
portion of the land they leased from the Tuiolemotu family, they were
added as defendants on July 19, 2004 as a result of Plaintiffs’ contempt
application heard on July 19, 2004.5
Defendants now move for summary judgment, alleging alternatively that
Plaintiffs raised no triable issues regarding their alleged ownership of the
disputed land, and further that Plaintiffs’ claims are barred by the
doctrine of res judicata.
For reasons discussed below, we deny the motion.
Discussion
A. Legal Standard
[1-2] A court awards summary judgment when the pleadings and
supporting materials 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).6 Once the moving party makes an initial
showing that there are not triable issues, the non-moving party may not
merely rest on allegations or defenses contained in its pleadings.
Instead, the non-moving party must set forth specific facts, in the form of
affidavits or other admissible evidence, showing there is a genuine issue
for trial. T.C.R.C.P 56(e).7
5
On November 8, 2004, Plaintiffs moved to dismiss the Sewells from
the action since they did not claim ownership of their leased portion of
the land. On November 18, 2004, the Sewells requested that they remain
in the case to protect their leasehold interests. We agreed and denied the
motion. These procedural steps effectively rendered moot Plaintiffs’
contempt application.
6
T.C.R.C.P 56(c) governs summary judgments standards and provides,
in pertinent part that:
The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
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.
7
T.C.R.C.P 56(e) governs the defense required when a party moves for
summary judgment and provides that:
When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may
167
[3-5] In deciding a motion for summary judgment, the court must
assume the truth of the evidence presented by the non-moving party and
draw inferences most favorable to the non-moving party. See Lokan v.
Lokan, 6 A.S.R.2d 44 (Trial Div. 1987). We have long recognized that
summary judgment is a drastic measure, and we therefore grant it only
when the entire record before us shows that a party is entitled to
judgment “with such clarity as to leave no room controversy and . . . that
the adverse party cannot prevail under any circumstances.” Plaza
Department Stores v. Duchnak, 26 A.S.R.2d 82, 83-84 (Trial Div. 1994).
When ambiguity surrounds a material fact, the trial court will deny
summary judgment in order to give the parties an opportunity to fully
develop the case. Id. at 84.
B. Application
The Tuiolemotu family here denies conducting any construction or
excavation on Tuileata land. Rather, it maintains that these activities
were being conducted on land judicially awarded to the Tuiolemotu
family in the consolidated cases. Believing the land boundaries have
already been decided, the Tuiolemotu family moves for summary
judgment.
In support of their motion, the Tuiolelmtou family offers the affidavit of
Lawrence French (“French”), a licensed surveyor. French is familiar
with Olovalu and in fact, performed surveys for the consolidated cases in
the 1980s and performed yet another survey of the Tuiolemotu family’s
claimed land in October 2004, more than two years after Plaintiffs
initiated that present action. In his affidavit, French states that in his
professional opinion as a surveyor the Sewell house and the excavation
near it were clearly within the boundaries we awarded the Tuiolemotu’s
in the consolidated cases.
However, French also alleged that certain Tuiolemotu family homes and
excavations were outside the westernmost boundaries of the registered
survey. In the affidavit attached to the Tuiolemotu family’s moving
papers, French states that:
“beyond the . . . western most boundary of the
[Tuiolemotu] survey lay two western style homes
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. If he does
not so respond, summary judgment, if appropriate, shall
be entered against him.
168
identified to me as belonging to the Tuiolemotu family.
Next to these homes was another excavated area.
Although, these two homes and this excavated area were
not within the Tuiolemotu survey, it is my professional
opinion and based on my composite map, this area is not
contained within the Fe’a survey or Telesia’s survey.
(emphasis added).
In other words, the two homes and the excavated area lay outside the
land awarded to the Tuiolemotu family in the consolidated cases. More
importantly, the homes and excavated area seem to be--based on the
moving party’s own evidence no less--located squarely within areas the
court did not express an opinion on during in the consolidated cases.
Tuileata v. Amituana`i, 4 A.S.R.2d 168, 171 (Land & Titles Div. 1987)
(holding that “we express no opinion on who owns the western portion
of the land . . . beyond the boundary of the Tuiolemotu survey”); see also
Tuileata v. Amituana`i, 8 A.S.R.2d at 177 (holding that “[t]he decision
below leaves open the question of what land the Tuileata [family] are
entitled to” and recognizing that there was still “quite a bit of
unregistered land remaining”). Thus, from the moving party’s own
evidence, it appears that the Tuiolemotu family is excavating on land
that it may not own--land that may in fact belong to the Tuileata family.
As stated above, under established summary judgment rules, once the
moving party supports its allegation that there is no triable issue, the
non-moving party is obligated to put forth evidence (by affidavit or
otherwise) indicating that a genuine dispute over a material fact exists.
T.C.R.C.P 56(e). To meet this burden, Plaintiffs’ put forth two
affidavits: one from Telesia, and another from Fe`a. In general, both
affidavits allege that Fe`a’s earlier survey (following the court’s ruling in
the consolidated cases) was underinclusive and did not account for lands
that allegedly belonged to the Tuileata family. To correct this alleged
mistake, Plaintiffs undertook a new survey in June 2004. This new
survey, which Plaintiffs now ask the court to recognize, doubles the land
Plaintiffs claim to own from 9.99 acres to 19.97 acres. Ostensibly, it is
this “new” land that Plaintiffs claim the Tuiolemotu family is using
unlawfully.
Based on the affidavits submitted by both parties, we conclude that a
genuine issue of material fact exists, and thus hold the matter over for
trial. First, it is not entirely clear, based on either parties’ affidavits or
surveys, exactly where--relative to the boundaries established in the
consolidated cases--the disputed construction and excavation occurred.
On the one hand, if it were clear that Plaintiffs were challenging the
construction of the Sewell house and excavation near it, then summary
judgment could have been granted. This is true because based on
evidence before us, it is clear that Plaintiffs did not adequately rebut
169
French’s allegation that the Sewell construction and excavations took
place entirely within the Tuiolemotu family’s registered survey.
However, neither party adequately clarified whether this was or is the
only disputed area.
On the other hand, there appears to be a triable issue regarding the
Tuiolemotu family’s excavations near the two western-style houses
mentioned in French’s affidavit. The Tuiolemotu family admits that
these activities are taking place outside the established Tuiolemotu
family boundary. Furthermore, this activity appears to be taking place
directly upon lands the trial court declined to award any family in the
consolidated cases. See Tuileata, 4 A.S.R.2d at 171. Thus, it is entirely
unclear, based on the record before us, whether the disputed activities are
taking place on Tuiolemotu family land, as the Tuiolemotu family
alleges, or whether the activities are taking place on land that could
possibly belong to the Tuileata family, since the Court expressly
declined to decide who owned such lands. See Id. (holding that “we
express no opinion on who owns the western portion of the land . . .
beyond the boundary of the Tuiolemotu [family] survey”). Finally, since
the issue of who owns the land west of the Tuiolemotu family’s survey
was expressly left open in the consolidated cases, that land by definition
cannot be subject to any res judicata argument. See, e.g., People Who
Care v. Rockford Bd. of Educ., 68 F.3d 172, 177 (7th Cir. 1995) (holding
that there must be a “final judgment on the merits” before a suit can be
barred by the doctrine of res judicata.)
Because ownership of the land at issue is unclear, we exercise our
discretion under the Plaza Department Stores, 26 A.S.R.2d 82 doctrine
and DENY summary judgment. See Id. at 84 (holding that when
ambiguity surrounds a material fact, the trial court will deny summary
judgment in order to give the parties an opportunity to fully develop the
case).
It is so ordered.
**********
170
TEPATASI PUAILOA, Cross-Plaintiff,
v.
PUAILOA TAEI MA’AE, Cross-Defendant.
High Court of American Samoa
Land & Titles Division
LT No. 27-05
March 1, 2006
[1] A lease is a form of contract that should be construed in accordance
with the standard rules of contract interpretation.
[2] Under the plain meaning rule, where the words of a contract are clear
and unambiguous, their meaning should be interpreted according to their
ordinary usage without reference to extrinsic facts or aids.
[3] Extrinsic evidence is admissible to interpret a contract only when the
words of the writing are themselves ambiguous, but cannot be used for
the purpose of adding to, modifying, or contradicting the terms of a
written contract.
[4] The High Court of American Samoa is obligated to preserve Samoan
custom.
[5] A Samoan family member does not have greater ownership rights in
family owned communal land compared to any other member, but a
specific family member may be assigned the use of such land by the
sa`o, in accordance with Samoan custom.
[6] A sa`o has pule [power] or the right to control and administer family
communal land, giving him the authority to assign a parcel of family
land to a family member without a family discussion and consent prior to
the assignment.
[7] A sa`o’s authority over family lands cannot be exercised
unreasonably or unjustly and must benefit the entire family.
[8] Communal land assignments to a sa’o’s children may warrant greater
scrutiny by the court.
[9] A sa’o acts in an arbitrary and capricious manner by directing rental
profits from family interests to individual self-interests through longterm leases of family land.
171
Before: RICHMOND, Associate Justice, SAGAPOLUTELE, Associate
Judge, and SAOLE, Associate Judge.
Counsel: For Cross-Plaintiff, Sharron I. Rancourt
For Cross-Defendant, Salanoa Aumoeualogo
OPINION AND ORDER
Introduction
Although this action was commenced as a civil action in the Trial
Division, it is in fact a controversy related to land that is within the
exclusive jurisdiction of the Land and Titles Division. A.S.C.A. §
3.0208(b). We have therefore transferred this case to the Land and Titles
Division on our own motion.
On October 2, 1997, American Industries, Inc. (“American Industries”)
entered into a lease agreement with Puailoa Tavete (“Puailoa T.”),
former sa`o [head chief] of the Puailoa family, to build a warehouse and
add a storage area for its business on approximately 1.08 acres of the
Puailoa family’s communal land in Malaeimi Valley. The rental income
was purportedly assigned to Cross-Plaintiff Tepatasi Puailoa
(“Tepatasi”), Puailoa T.’s son, and American Industries made the
monthly rental payments to Tepatasi from October 1997 until two
months after Puailoa T.’s passing on March 2, 1999. Thereafter,
American Industries put the rental payments into a separate bank account
amidst its uncertainty as to whether such rent should be paid to Tepatasi,
or to the successor sa`o for the Puailoa family, once he was duly
registered. Pursuant to this Court’s February 22, 2005 order, the
segregated funds and subsequently accruing rent were deposited in the
High Court’s Registry pending our decision on who is now entitled to
receive the rental funds.
The Puailoa sa`o title remained vacant until Cross-Defendant Puailoa
Taei Ma’ae (“Puailoa M.”) was judicially awarded the title in 2003.1 As
the new family sa`o, Puailoa M. requested that American Industries pay
him all unpaid and future rent due under the lease. Tepatasi likewise
contacted American Industries, objecting to the tendering of any rent
payments to Puailoa M. on the basis that he, as the designated assignee,
is the party entitled to the rental payments. On August 2, 2004,
American Industries, prompted by the two competing claims, filed an
1
Puailoa v. Fanene, MT No.5-01, slip op. (Land & Titles Div. May 1,
2003.) The appellate court affirmed the trial court’s decision on May 6,
2004. Fanene v. Taei, AP No. 11-03, slip op. (Appellate Div. May 6,
2004).
172
interpleader action against both Puailoa M. and Tepatasi to: facilitate
deposit into the Court Registry of all unpaid rental funds, past and future;
obtain discharge of its obligation to pay further rent to Puailoa T. as the
named lessor under the lease; and have the High Court determine who is
now entitled to receive the rent.
Tepatasi maintains that all parties to the lease understood and intended
that he would receive and continue to receive the rent. Puailoa M.
maintains that Tepatasi’s objection is unwarranted because rental income
for leased family communal land should always be released to the sa`o
in charge of those lands. Having reviewed the evidence presented by the
parties, we conclude that the lease rents were assigned to Tepatasi, but
that under the Samoan custom pertaining to assignments of family
communal land to family members, Puailoa T. acted arbitrarily and
capriciously by assigning the entire rental income to Tepatasi to the total
exclusion of the Puailoa family. Puailoa M., as the new Puailoa sa`o,
should be afforded the first opportunity to allocate the rental proceeds
between the Puailoa family and Tepatasi in reasonable and fair
proportion.
Discussion
A. The Rental Assignment in Fact
We first address Puailoa M.’s challenge to the very existence of the rent
assignment. Puailoa M. argues that we must disregard the word
“assignee” in the lease agreement, contending that the word was
subsequently added to the original agreement using a different
typewriter. In short, Puailoa M. claims that Tepatasi’s assignment was
grounded in fraud. He further maintains that, in any event, the word
must be construed against any rent assignment to Tepatasi as a matter of
contract interpretation. We disagree.
1. The Fraud Allegations
The only documentation of the rental income assignment is in the lease
itself, where the word “assignee” is written below Tepatasi’s witness
signature. The added word “assignee” is clearly in a different font than
the remainder of the document. However, without any direct
contradiction, the evidence confirms that the addition was done without
any fraudulent intent.
First, the word “assignee” was present on the lease agreement when it
was recorded at the Office of the Territorial Registrar. Second, attorney
Afoa L. Su`esu`e Lutu (“Afoa”), who assisted the parties during the
contract signing session, consulted with Puailoa T. before the lease
agreement was executed and was assured that Puailoa T. intended to
173
assign the lease rent to Tepatasi. Before actual lease agreement
execution, Afoa recommended that the parties create a formal
assignment of the lease rent. However, others present, including Puailoa
T., desiring to consummate the lease agreement while the proper
signatories were together, wanted to simply add the word “assignee” to
the lease document to effectuate the rent assignment. This was done
before the lease agreement was signed. Third, Richard Ames (“Ames”),
who negotiated the contract on American Industries’ behalf and was also
present when the lease was signed, agreed that Puailoa T. designated
Tepatasi as the assignee of the lease rent. Fourth, Pua’aelo Puailoa
(“Pua`aelo”), similarly affirmed that upon Puailoa T.’s signing the lease
agreement, he understood that Puailoa T. intended to assign the lease
rent payments to Tepatasi.
Finally, the parties’ conduct corroborates the witness testimony. Tepatasi
did in fact receive the lease rental income during Puailoa T.’s life, and
shortly after his death, without objection. Therefore, while at first blush
the brevity of the language creating the assignment and the manner in
which it was typed may call its authenticity into question, we are
confident that the lease agreement was not altered with any fraudulent
intent of the parties.
2. Contract Interpretation
Tepatasi argues that under traditional principles of contract
interpretation, he is the assignee of the rent under the lease agreement
and is therefore entitled to the rental payments due after Puailoa T.’s
death.
[1-3] A lease is a form of contract that, in the first instance, should be
construed in accordance with the standard rules of contract
interpretation. J.M.G.C.J. Corp. v. Sears, Roebuck & Company, 391
F.3d 364, 367 (1st Cir. 2004); Solo Serve Corp v. Westowne Associaties,
929 F.2d 160, 164 (5th Cir. 1991). The starting point of such
interpretation begins with the “plain meaning rule,” holding that where
the words of a contract are clear and unambiguous, their meaning should
be interpreted according to their ordinary usage without reference to
extrinsic facts or aids. See Foothill Capital Corp. v. East Coast Bldg.
Supply Corp., 259 B.R. 840, 845 (E.D. Va. 2001) (observing further that
courts are not at liberty to rewrite the contractual language). Extrinsic
evidence is admissible to interpret the agreement only when the words of
the writing are themselves ambiguous, but cannot be used for the
purpose of adding to, modifying, or contradicting the terms of a written
contract. See Connors v. Tanoma Min. Co., Inc., 953 F.2d 682, 685
(D.C. Cir. 1992); see also RESTATEMENT (SECOND) OF CONTRACTS §§
212, 214(c) (1981) (agreements and negotiations prior to or
contemporaneous with the adoption of a writing are admissible in
174
evidence to establish the meaning of the writing, whether or not
integrated).
In the present case, as noted above, the only term to be interpreted here
is the single word “assignee” added below Tepatasi’s witness signature.
We regard the ordinary meaning of the term “assignee” as “[o]ne to
whom property rights or powers are transferred by another.” BLACK’S
LAW DICTIONARY 127 (8th ed. 2004). While this would suggest that at
least some right or interest has been transferred to Tepatasi, BLACK’S
observes that “[u]se of the term [assignee] is so widespread that it is
difficult to ascribe positive meaning to it with any specificity.” Id.
Thus, as is often natural with contractual terms, we must examine
outside evidence and testimony regarding negotiations prior to or
contemporaneous with the adoption of the lease in order to establish
what the parties intended at the time of the agreement.
We note that although Puailoa M. disputes that a rent assignment has
occurred, he was not a party to the agreement. Once again considering
Afoa’s, Ames’ and Pua`aelo’s testimony, as well as the course of
conduct followed by the parties upon implementing the agreement, the
extrinsic evidence supports Tepatasi’s assertion that he was assigned
right to the lease rental income. It also appears that the parties
themselves attached the same meaning to the word “assignee.” We
therefore find that the word “assignee” was intended to transfer to
Tepatasi the right to receive the rental income generated from it.
[4] Consequently, if this action was strictly and solely determined under
standard contract principles, we would award judgment to Tepatasi.
However, the case also involves Samoan customary law related to
communal land and, as such, raises issues of overriding and controlling
concern. See Tavai v. Silao, 2 A.S.R.2d 1, 2 (Land & Titles Div. 1983).
This court is obligated to preserve Samoan custom. Id.; A.S.C.A.
§ 1.0202.
B. Sa`o’s Power to Assign Communal Land
Puailoa M.’s broadly contends that in the transactions at issue, Puailoa T.
contravened and indeed threatened the very essence of the Samoan way
of life. Specifically, Puailoa M. asserts that Puailoa T. exceeded his
authority as the Puailoa family’s sa`o when he assigned the Puailoa
family’s communal land to Tepatasi and, additionally, when he
purportedly made a lifetime assignment of the American Industries lease
rent to Tepatasi. We address both arguments in turn.
[5-6] Although no one Samoan family member has more ownership
rights in family owned communal land than any other, a specific family
member may be assigned the use of such land by the sa`o, in accordance
175
with Samoan custom. Taesali v. Samuela, 3 A.S.R. 359, 360 (Trial Div.
1958). Samoan custom recognizes that a sa`o has pule [power] or the
right to control and administer family communal land, giving him the
authority to assign a parcel of family land to a family member without a
family discussion and consent prior to the assignment. Tali v. Tupeona,
4 A.S.R. 194, 199 (Trial Div. 1961); Seventh Day Adventist Church of
American Samoa v. Maneafaiga, 23 A.S.R.2d 150, 154 (Land & Titles
Div. 1993) (“[b]y virtue of the pule, the sa`o parcels out and assigns
family land for the use of individual family members.”); Lutu v.
Taesaliali`i, 11 A.S.R.2d 80, 87-88 (Land & Titles Div. 1989) (pule
includes the power to divide and allocate land to individual members for
their use).
Puailoa M. questions whether Puailoa T. actually assigned Tepatasi the
family land at issue.2 In the first place, by virtue of the very nature of his
position as the sa`o, Puailoa T. clearly had pule over the land. He told
his children in advance that he intended to assign parcels of the family
land to them for their use. Several years later, in 1985, Puailoa T. orally
and separately made the intended assignments, totaling approximately 10
acres, to Tepatasi and his brothers and sister.
In questioning whether the assignment was in fact made, Puailoa M. also
claims that Tepatasi and his siblings did little if anything, to develop the
assigned land parcels. In fact, Tepatasi and his siblings, particularly his
sister, did utilize their respective parcels for some agricultural
development.3 In any event, we are not persuaded that Tepatasi’s failure
to make significant use of the land for a substantial period somehow
invalidates his 1985 assignment.
2
We point out that Puailoa M. was residing outside of American Samoa
at the time of these events. Moreover, he and Puailoa T. were distant
relatives within the Puailoa family, and even if Puailoa M. was here, he
would not necessarily be privy to Puailoa T.’s communal land
assignments.
3
Tepatasi did not use his assigned communal land for any truly
significant economic benefit until the opportunity to lease a portion of
the land to American Industries came along. Puailoa T. and American
Industries entered into their lease agreement in 1997. Puailoa T., as the
guardian of the title to the leased family communal land, was the proper
person to execute the lease, even though Tepatasi was assigned the land
to use for his benefit. Haleck v. Tiumalu, 3 A.S.R. 380 (Trial Div.
1959). That Puailoa T. was a signatory to the lease did not, as a matter
of Samoan custom, invalidate the original land assignment or preclude
assigning the rent payments to Tepatasi. This is not to say, however, that
the amount and duration of the rental income assignment survives
scrutiny.
176
[7-8] A sa`o’s authority over family lands cannot be exercised
unreasonably or unjustly and must benefit the entire family. See e.g.,
Fairholt v. Aulava, 1 A.S.R.2d 73 (Trial Div. 1983). However, there is
no indication that the communal land assignment in this case was not a
just and fair exercise of those powers. Indeed, as Tepatasi maintains, it
appears the land assignment was done in recognition of his assistance to
his father and family in the past, and specifically, in helping regain
approximately 300 acres of original Puailoa family lands in the Malaeimi
Valley. Reid v. Puailoa, LT No. 7-79 & 41-79 (Land & Titles Div.
1982), aff’d in part and rev’d in part, 1 A.S.R.2d 85 (Appellate Div.
1983), aff’d sub nom, Corporation of the Presidiing Bishop v. Hodel,
637 F. Supp. 1398 (D.D.C. 1986), aff’d, 830 F.2d 374 (D.C. Cir. 1987),
cert. denied, 486 U.S. 1015 (1988). And while communal land
assignments to a sa`o’s children may warrant greater scrutiny, see Gi v.
Temu, 11 A.S.R.2d 137, 142 (Land & Titles Div. 1989); Talili v. Satele,
15 A.S.R.2d 5, 8 (Land & Titles Div. 1990), Puailoa T. only assigned
approximately 10 acres of the 300 recovered acres to his children.
Moreover, Tepatasi’s assignment was only one of the many Puailoa T.
made of the family’s communal land. We hold, therefore, that the
assignments of family land to Tepatasi and his siblings were not
demonstrably arbitrary or capricious. 4
C. The Rental Income Assignment
Although we regard the land assignment to Tepatasi as made within
Puailoa T.’s authority, we must still address the question of whether the
rent assignment for the entire term of the lease was excessive and
reached the point of being arbitrary and capricious in derogation of
applicable Samoan custom. We hold that it was.
Puailoa T.’s favoritism towards Tepatasi effectively and completely
deprived the Puailoa family of a significant source of income derived
from a valuable family asset for a substantial time period, i.e., the term
of the lease or 30 years initially and potentially a total of 55 years if
American Industries exercises its option to renew the lease for an
additional 25 years. Under the rent assignment, Tepatasi would
presently receive $933.33 per month and, given the automatic rent
increases every five years during the original 30-year term, $1,600.00
per month during the last five years. During the 25-year option period,
the rent goes to $1,900.00 per month for the first five years, with
negotiated increases for each of the following four five-year periods.
Thus, viewed solely in contractual terms, Tepatasi and his heirs stand to
potentially receive $425,996.60 from the lease rents during the original
In fact, were we to agree with Puailoa M. and reject Puailoa T.’s land
assignment power, Puailoa M. would have us inappropriately undermine
his own pule, as predecessor sa`o, over the family’s communal lands.
4
177
30-year lease term and, disregarding negotiated increases, at least
another $570,000.00 during the 25-year option lease term.
[9] In light of the above facts, we hold that Puailoa T.’s rent assignment
to Tepatasi exceeded reasonable bounds and was therefore arbitrary and
capricious. Control of valuable family land under the communal land
system is at the very heart of the Samoan way of life. Diverting rental
profits from family interests to individual self-interests by long-term
leases of family land dilutes the purposes and strength of the communal
land system.
This is not to say that Tepatasi should be deprived of a reasonable and
fair share of the lease income. However, Puailoa M., as the present sa`o,
is best positioned to determine a proper allocation of the rent income
between Tepatasi and the Puailoa family. This determination must be
made according to Samoan custom and arrived at only after consultation
with Puailoa family members, including Tepatasi. See Talili v. Satele, 4
A.S.R.2d 23, 27-28 (Land & Titles Div. 1987); Talili, 15 A.S.R.2d at 8.
We will therefore afford Puailoa M. a reasonable opportunity, in the first
instance, to use his pule to solve to the rent assignment issue with a fair
and equitable allocation of the rent proceeds between Tepatasi and
himself for the whole Puailoa family’s benefit. We will intervene further
only if Puailoa M. is unable to achieve that result.
Order
Because we regard as lease rent assignment to Tepatasi as an arbitrary
and capricious decision by Puailoa T., we presently set aside the rent
assignment. Puailoa M., as the current sa`o, shall determine, after
consultation with the Puailoa family members, including Tepatasi, a fair
and reasonable allocation of the rental income. We hope that Puailoa M.
can amicably resolve the controversy. We will further intervene in that
determination only if Puailoa M. is unable to reach a fair and equitable
result.
It is so ordered.
*********
178
POIALI`I PUSA PUNI and SEEPA POIALI`I, on behalf of
themselves and the POIALI`I FAMILY, Plaintiffs,
v.
MANUMA TUI and AGNES TUI, Defendants.
High Court of American Samoa
Land & Titles Division
LT No. 18-04
March 16, 2006
[1] A new trial should only be granted if the moving party can point to
controlling decisions or data that the court overlooked.
[2] Reconsideration is only based upon manifest error or law or mistake
of fact, and a judgment should not be set aside except for substantial
reasons.
[3] The moving party bears the burden of showing substantial reasons
why the court should reconsider its decision or grant a new trial.
[4] In a motion for reconsideration or new trial, the moving party must
state the grounds for relief with particularity and detail; thus affording
the trial judge an opportunity to differentiate manifest errors of law or
fact from otherwise harmless errors. At a minimum, this requires the
moving party to cite specific allegations of error and to point to
controlling law to support their contentions.
[5] A motion to stay judgment pending appeal cannot be properly
brought until the court denies the new trial motion.
Before: RICHMOND, Associate Justice, and MAMEA, Associate Judge.
Counsel: For Plaintiffs, Marie A. Ala`ilima
For Defendants, Arthur Ripley, Jr.
ORDER DENYING MOTIONS FOR RECONSIDERATION OR
NEW TRIAL AND TO STAY OF ENFORCEMENT OF JUDGMENT
Introduction
On June 18, 2004, Plaintiffs Poiali`i Pusa Puni (“Poiali`i”) and Seepa
Poiali`i (“Seepa”) (collectively “Plaintiffs”) brought this action seeking
injunctive relief to prevent Defendants Manuma Tui (“Manuma”) and
179
Agnes Tui (“Agnes”) (together “the Tuis”) from completing construction
of their new home. The gist of Plaintiffs’ claim was that the Tuis
breached an earlier accord, signed January 21, 2003 (“the agreement”),
whereby the parties mutually agreed that the Tuis could build a new
home atop the foundation or “footprint” of their old home. 1 In the
instant action, Plaintiffs argued the Tuis erected their new home--at the
time about 80% completed--outside the old home’s foundation.
On December 7, 2004, the Tuis counterclaimed seeking a court order
holding that Poiali`i, the Poiali`i’s family sao, acted arbitrarily in
refusing to sign a long-term lease for the Poiali`i family’s communal
land underneath the Tuis’ home. Because they argued the decision to not
issue the lease was arbitrary, the Tuis sought a court order directing
Poiali`i to sign the lease.
On December 6, 2005, after a trial on the merits, we found that the Tuis
had built their new home atop the old home’s foundation, and therefore
had not violated the agreement. Accordingly, we denied Plaintiffs’
application for a permanent injunction. On the Tuis’ counterclaim, we
declined at that time to hold that Poiali`i’s refusal to issue the lease while
the action was pending was arbitrary. However, we further held that in
light of our ruling, continuing to withhold the lease would be capricious
and an abuse of his discretion as family sao. Accordingly, we called on
Poiali`i to issue the lease forthwith.
Plaintiffs now move for “new trial and/or reconsideration.” 2 They also
move for a “stay of proceedings to enforce a judgment.” For the reasons
set forth below, we deny both motions.
1
The agreement effectively settled LT No. 1-02 and led to a dismissal of
that action with prejudice.
2
Although commonly styled as such, neither our Trial Court Rules of
Civil Procedure nor the Federal Rules of Civil Procedure, upon which
our rules are based, expressly recognize a “motion to reconsider.” Van
Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Rather,
the rules permit recipients of adverse judgments to file one of three
motions: a motion for new trial under Rule 59(a), a motion to alter or
amend the judgment pursuant to Rule 59(e), or a motion for relief from
judgment pursuant to Rule 60(a) or (b). Computerized Thermal Imaging,
Inc. v. Bloomberg, L.P., 312 F.3d 1292, 1296 n.3 (10th Cir. 2002). Rule
52(b) provides for a fourth type of post-judgment motion to amend the
court’s findings or make additional findings and amend the judgment
accordingly. When a litigant fails to specify under which rule or
subsection the motion is brought, the court looks to the time the motion
filed. Van Skiver, 952 F.2d at 1243. If the motion is filed within 10 days
of the entry of judgment, counts generally construe the motion as being
filed pursuant to Rule 59(e). See id. (citing Dalton v. First Interstate
180
Discussion
A. Motion for New Trial
[1-3] The standard for granting a motion for new trial is strict and should
be denied, “unless the moving party can point to controlling decisions or
data that the court overlooked.” Shrader v. CSX Transp. Inc., 70 F.3d
255, 257 (2d Cir. 1995); Morser v. AT & T Information Systems, 715 F.
Supp. 516, 517 (S.D.N.Y.1989) (requiring the moving party to present
“matters or controlling decisions the court overlooked that might
materially have influenced its earlier decision”). Reconsideration is only
based upon “manifest error or law or mistake of fact, and a judgment
should not be set aside except for substantial reasons.” ASG v. South
Pacific Island Airsystem, Inc., 28 A.S.R.2d 170, 171 (Trial Div. 1995).
The moving party bears the burden of showing substantial reasons why
the requested relief should be granted. Id.
[4] To meet this burden, it is incumbent on the moving party to state the
grounds for relief with particularity and detail; thus affording the trial
judge an opportunity to differentiate manifest errors of law or fact from
otherwise harmless errors. Id. at 171-172; see also T.C.R.C.P 7(b)(1).3
Bank of Denver, 863 F.2d 702, 703-04 (10th Cir. 1988) (“post-judgment
motions filed within ten days of the final judgment should, where
possible, be construed as Rule 59(e) motions”)). “If the motion is [filed]
after that time it fall under Rule 60(b).” Id., citing Wilson v. Al McCord,
Inc., 858 F.2d 1469 1478 (10th Cir. 1988) (“Because more than ten days
had elapsed before the filing of the motion to reconsider, we construe it
as a motion pursuant to Fed. Rule Civ. P. 60(b) . . . .”) (citations
omitted).
Technically, motions for new trial pursuant to Rule 59(a) and motions to
alter or amend a judgment pursuant to Rule 59(e) should be identified as
such. Local practice has allowed for styling new trial motions as
motions “for reconsideration or new trial” when it is evident from the
content that new trial motions are intended. Perhaps, however, the time
has come to discourage this erroneous practice by simply rejecting until
corrected any motion including any denomination as one “for
reconsideration.”
3
T.C.R.C.P 7(b)(1) provides that “[a]n application to the court for an
order shall be by motion which, unless made during a hearing or trial,
shall be made in writing, shall state with particularity the grounds
therefore, and shall set forth the relief or order sought. Each motion shall
be accompanied by affidavits or declarations under penalty of perjury
sufficient to support any material factual contentions, by an appropriate
memorandum or brief which concisely states the arguments supporting
181
At a minimum, this requires the moving party to cite specific allegations
of error and to point to controlling law to support their contentions. In re
Minor Child, 30 A.S.R.2d 22, 23 (1996).
In other words, the moving party cannot merely attempt to relitigate
issues that were already decided, but rather must point to evidence or
new controlling authority the court overlooked in reaching its
conclusions. Shrader, 70 F.3d at 257. Finally, the moving party must
refrain from merely presenting the “court with unresearched and
unsupported conclusory opinions.” In re Minor Child, 30 A.S.R.2d at
23. Failure to do so will result in denial.
Shrader and Morser best illustrate the circumstances where
reconsideration is appropriate. In Shrader, the Second Circuit held that
reconsideration of a summary judgment motion was not an abuse of
discretion because the moving party presented the district court with
“data the court had not previously considered,” namely, extensive
legislative history on the disputed statute as well as new case law.
Shrader, 70 F.3d at 257. Similarly, in Morser, the court granted
reconsideration because subsequently decided Second Circuit cases
might reasonably have altered the result had they been considered in the
initial summary judgment motion. Morser, 715 F. Supp. at 518.
Here, by contrast, Plaintiffs present no new controlling authority that
might have reasonably altered our decision. Instead, Plaintiffs simply
quibble with our holding that the Tuis’ new home was constructed
entirely within the old home’s foundation, alleging we erred in
determining what the parties intended by the terms “foundation” and
“footprint” as contained in the 2001 agreement. They maintain the terms
are unambiguous, and under firmly entrenched contract principles, the
Court cannot supply meaning or intent to unambiguous contact terms.
Suffice to say, these arguments are not new. Plaintiffs raised these very
arguments at trial, and indeed, more than half of their closing argument
is devoted to these issues. We decline to relitigate them here. If
Plaintiffs believe the Court abused its discretion, then the proper forum
for such arguments is on appeal, and not on a motion for new trial.
Plaintiffs further argue that we erred in finding that continuing to deny
the Tuis a lease would be an abuse of Poiali`i’s discretion as family sao,
alleging there was insufficient evidence to support our conclusion.
Again, the standard for reconsideration is strict, and the motion is denied
the motions and cites authorities on each point, and by a copy of a
proposed form of order.”
182
unless the movant can point to manifest errors of law or fact. South
Pacific Island Airsystem, Inc., 28 A.S.R.2d at 171. Simply alleging that
insufficient evidence supports a finding does not rise to this standard.
Finally, although the merits of Plaintiffs’ motion are couched in terms of
errors of law (i.e., that the Court made a legal error in supplying meaning
to an unambiguous contractual term), this contention is erroneous.
Nowhere in our opinion did we invoke contract law, or rely on the
Court’s interpretive powers, and nowhere did we hold that “foundation”
was an ambiguous term that needed defining. Rather, we simply made
factual finding, based on testimony elicited at trial and during the
preliminary injunction hearing, that the Tuis new home did not exceed
the old home’s footprint. Consequently, although Plaintiffs claim errors
of law, they are really just quibbling with our factual findings, and as
such, are merely attempting to relitigate issues already decided.
Accordingly, Plaintiffs’ motion for new trial is denied.
B. Motion to Stay Enforcement of Judgment
[5] Plaintiffs move for a stay pursuant to T.C.R.C.P. 62(b). Rule 62(b)
covers “the execution of or any proceedings to enforce a judgment
pending the disposition of a motion for a new trial or to alter or amend
a judgment made pursuant to [Rule 59], or a motion for relief from a
judgment made pursuant to [Rule 60], or a motion for amendment of the
findings or for additional findings made pursuant to [Rule 52(b)].” It is
clear, since we are dealing with a new trial motion, that subsection (b)
governs this motion. However, Plaintiffs also argue in the motion’s text
for a stay of judgment pending appeal. This request is premature First,
the stay motion pending appeal cannot be properly brought until the
court denies the new trial motion. Second, stays pending appeal are
governed by entirely different rules with entirely different standards. See
T.C.R.C.P. 62(c) (governing injunctive stays), and T.C.R.C.P. 62(d)
(governing monetary stays).
While Plaintiffs seem confused as to the type of stay relief they may
properly seek at this point, it is also clear that even the Rule 62(b)
motion is premature. As Plaintiffs conceded during argument, the Court
has yet to order Poiali`i to do anything. Indeed, in our December 6, 2005
Opinion and Order we simply stated that in light of our factual findings,
continuing to withhold the lease and attendant loan documents would be
an abuse of discretion. Accordingly, we called on Poiali`i to exercise his
good judgment and issue the documents forthwith. However, we
specifically reserved ordering Poiali`i to issue the documents for another
day, holding that we would intervene further only if he continued to
refuse to issue the documents.
183
That day, while seemingly just around the corner, is not yet upon us. To
be sure, we are confident of the end result in this matter--the Tuis will
receive their lease in accordance with our findings. The only unknown is
the path the parties will travel getting to that end result.
One path, and the one we hope Poiali`i elects, is to sign the lease and
related documents in a timely manner and without further participation
by the Court. Only after the lease and other necessary documents are
signed and in place can the parties finally put this matter behind them
and begin to mend the wounds that currently divide them.
The other path, and the one we hope left untraveled, is for Poiali`i to
stubbornly decline to issue the lease and related documents. This
inaction will require the Tuis to come back to Court, and it will require
us to issue an order directing Poiali`i to comply with our findings. The
parties will expend more money in legal fees, Poiali`i’s and Manuma
Tui’s health will continue to deteriorate, while the rift between the
parties continues to expand. All in what amounts to an exercise in
futility, since in the end the Tuis will have a lease and the other required
documents. In other words, there is an easy way; and there is a difficult,
expensive, embarrassing and emotionally taxing way that is ultimately
futile. The choice is Poiali`i’s.
As we stated above, the lease and other required documents will be in
place; the only question is when. For what will be the last time, we call
on Poiali`i to exercise good judgment, and for the benefit of all those
close to this action, to sign the lease and any necessary loan documents
forthwith. If Poiali`i continues to withhold the lease and necessary
documents, we will not hesitate to bring the full weight of the Court’s
powers upon him.
Order
Plaintiffs’ motions for a new trial and for a stay of enforcement of the
judgment are DENIED.
It is so ordered.
**********
184
TOGILAU SALE, Plaintiff,
v.
USO UMU, UMU LEMALU, and THEIR CHILDREN and
FAMILY, Defendants.
High Court of American Samoa
Land & Titles Division
LT No. 28-03
May 4, 2006
[1] There is a presumption that land in American Samoa is communally
owned by an extended family.
[2] Individually owned land can be created by (1) exclusive occupancy
and use of virgin bush land, which is undeveloped land not already
communally owned by a Samoan family or (2) lawfully alienated from
communal land.
[3] Registration of communal land as someone’s individually owned
land is an alienation of communal land.
[4] Validity of land registration depends on whether it was accomplished
in accordance with A.S.C.A. §§ 37.0201-.0230.
[5] Only a family’s matai can alienate a family’s communal lands, and
the Governor must approve it. A.S.C.A. § 37.0204(a).
[6] Any instrument affecting the title of communal land must be
submitted to the Land Commission for its recommendation to the
Governor. A.S.C.A. §37.0203(b).
Before: RICHMOND, Associate Justice, MAMEA, Associate Judge, and
SAOLE, Associate Judge.
Counsel: For Plaintiff, Asaua Fuimaono
For Defendants, Fiti A. Sunia
OPINION AND ORDER
Introduction
Plaintiff Togilau Sale (“Togilau”) filed this action to evict Defendants
Uso Umu (“Uso”), Umu Lemalu (“Umu”), and their family members
185
(collectively “Defendants”) from approximately one acre of land called
“Papa” in Nuuuli (“the land”) registered in Togilau’s name as
individually owned land. Defendants claim the land is the Lagafuaina
family’s communal land. The Secretary of Samoan Affairs’ certificate
of irreconcilable dispute, issued on August 4, 2003, necessary to
jurisdiction in all litigation involving communal land claims, is on file
with the Court. See A.S.C.A. § 43.0302.
Holding
[1] Presumptively, land in American Samoa is communally owned by an
extended family. See Leota v. Faumuina, 4 A.S.R.2d 11 (Appellate Div.
1987); Avegalio v. Leatumauga, 18 A.S.R.2d 9 (Land & Titles Div.
1991). In this case, Togilau improperly registered the land as his
individually owned land. At the time of registration, as it is now, the
land was part of the Lagafuaina family’s communal land. As blood
family members, Togilau and Uso, with her immediate family, are
entitled to live on their family’s communal land and, at this time, on the
land in particular. Eviction is therefore denied.
Discussion
Togilau and Uso are first cousins. Defendants lived abroad for many
years and then, upon returning to the territory, first lived in the Manu`a
Islands. After Hurricane “Tusi” devastated the Manu`a Islands in 1987,
Togilau granted Uso’s request for Defendants to move onto the Nuuuli
land. Initially, Defendants lived in one of Togilau’s houses at no cost.
Then, started in 1988 and completed in 1989, and despite Togilau’s
objections,1 Uso and Umu constructed the house now at issue on the land
where Defendants continue to live. 2
Unquestionably, Togilau’s immediate family, particularly his parents,
developed the land and surrounding area (together “the tract”) in useful
and desirable ways for residential and plantation purposes. They have
occupied the tract for many years, and may have resided there
exclusively for certain periods.
Understandably, they unfolded
proprietary feelings for the tract.
1
Togilau explains the lengthy period before he decided to file this action
in 2003 as a result of his continuing desire and failed efforts to
peacefully resolve this intrafamily controversy. This factor is not
material, for or against either side, to our decision.
2
Togilau refers to Defendants’ having two structures on the land.
However, when we visually inspected the land, it was clear Defendants
had only one structure within the boundaries of the land as registered by
Togilau.
186
[2] Nonetheless, unless lawfully alienated from communal land,
individually owned land can only be created by exclusive occupancy and
use of virgin bush land--undeveloped land not already communally
owned by a Samoan family. See Lealaimatafao v. Lautele, 9 A.S.R.2d
39, 40 (Land & Titles Div. 1988). The tract is located well within the
central portion of Nu`uuli village, and lies adjacent to Pala Lagoon
opening to the ocean and the natural resources provided by both bodies
of water. Thus, the tract was not inherently virgin bush land when, and
probably never was before, Togilau’s family came onto it. The tract’s
communal character is further confirmed by the recognized surrounding
communal lands owned by various Nu`uuli families. We therefore find
the tract was communal land before and at the time Togilau’s family first
occupied it.
Furthermore, we find on the evidence that the Lagafuaina family of
Nu`uuli village communally owned the tract before and when Togilau’s
family entered upon it. Togilau and his family are members of the
Lagafuaina family. We cannot unequivocally say from the evidence on
what authority Togilau’s family first came on the land to stay. However,
even if they acted on their own volition, they were certainly aware of
their Lagafuaina family connection. More than likely, a Lagafuaina sa`o
expressly or implicitly authorized their occupation, at the time of their
entry or later, as a customary land assignment to family members. See
Seventh Day Adventist Church of Am. Samoa v. Maneafaiga, 23
A.S.R.2d 150 (Land & Titles Div. 1993); Sagapolutele v. Tala`i, 20
A.S.R.2d 16, 17 (Land & Titles Div. 1991). In any event, after Togilau’s
family took over the tract, it continued to be, and still is, entirely the
Lagafuaina family’s communal land with the possible exception, in the
context of this action, of the land Togilau registered as his individually
owned land.
[3-6] Registration of communal land as someone’s individually owned
land is an alienation of communal land. Hence, the validity of Togilau’s
registration of the land depends on whether it was accomplished in
accordance with A.S.C.A. §§ 37.0201-.0230, the territory’s land
alienation laws. Togilau may individually own land under the
qualifications set forth in A.S.C.A. § 37.0204(b).
A.S.C.A. §
37.0204(a), however, effectively allows only a family’s matai in control
of the family’s communal lands to alienate any portion of that communal
land, and then only with the Governor’s written approval. Alaimalo v.
Sivia, 17 A.S.R.2d 25 (Appellate Div. 1990). Moreover, before any
communal land alienation becomes effective by Governor approval, the
instrument affecting the title must be submitted to the Land
187
Commission3 for its recommendation to the Governor. 4
§37.0203(b).
A.S.C.A.
Other than the initial filing of Togilau’s individually owned land title
registration offer with the Territorial Registrar, none of the requirements
for alienation of communal land were met. The Lagafauina family’s
sa`o in charge of the family’s communal land did not authorize the
alienation.
Only Togilau proposed to alienate the land as his
individually owned land. After Togilau filed his title registration offer
for the land, the Territorial Registrar as the Land Commission’s secretary
did not refer the offer as a communal land alienation to the Land
Commission for its consideration and recommendation. Hence, the
Commission did not study Togilau’s proposed registration of the family
communal land as his individually owned land, and, consequentially, the
Governor did not approve the transaction in writing or otherwise. As a
result, the registration of the land as Togilau’s individually owned land is
void. See A.S.C.A. § 37.0230.5
Although we are voiding Togilau’s registration of the land as his
individually owned land, Togilau as a Lagafuaina family member is
certainly entitled to reside on Lagafuaina communal land and, under
present circumstances, to specifically remain on this land. See Penn v.
Lavata`i, 25 A.S.R.2d 164 (Land & Titles Div. 1994); Maneafaiga, 23
A.S.R.2d at 151. Likewise, Uso, her husband Umu and their children as
Lagafuaina family members are entitled to live on Lagafuaina communal
land and to specifically remain on the land. It therefore follows that
Togilau is not entitled to have Defendants evicted from the land.
An instrument affecting title to land which requires the Governor’s
approval must be filed with the secretary of the Land Commission.
A.S.C.A. § 37.0203(a).
A.S.C.A. § 37.0202 creates the Land
Commission and makes the Territorial Registrar a member and the
secretary of the commission. Substantial compliance with this initial
filing requirement was met when Togilau filed his individually owned
land registration offer with the Registrar.
4
The Land Commission has the duty “to endeavor to prevent
monopolistic ownership of land and improvident alienation of communal
lands by those charged with the management and control thereof.”
A.S.C.A. § 37.0203(c).
5
A.S.C.A. § 37.0230 further provides that Togilau is liable for a fine not
to exceed $200.00 for his breach of the provisions of the communal land
alienation laws.
3
188
Order
1. Togilau’s registration of the land as his individually owned land is
void. However, under present circumstances, he as a Lagafuaina family
member is entitled to remain on the land.
2. Under present circumstances, Uso, Umu, and their children as
Lagafuaina family members are entitled to remain on the same land.
Togilau is not entitled to have Defendants evicted from the land.
3. Togilau’s complaint is DISMISSED with prejudice.
It is so ordered.
**********
VI’I PITA, Plaintiff/Counterdefendant,
v.
MIRIAMA GARRETT and RICHARD GARRETT,
Defendants/Counterdefendants, Cross-Defendants,
v.
TERRITORIAL REGISTRAR and SURVEY MANAGER OF THE
DEPARTMENT OF PUBLIC WORKS, MEKO AIUMU, CrossDefendants.
LT No. 14-93
___________________________________
TIMU LEVALE, by and on behalf of the TIMU FAMILY, Plaintiffs,
v.
RAY McMOORE, SESE McMOORE, and IOANE FE’AFE’AGA
ENE, Defendants.
LT No. 20-93
___________________________________
AMERICAN SAMOA GOVERNMENT, Plaintiff,
189
v.
HEIRS OF IOANE FE’AFE’AGA ENE, aka MAUGA
FE’AFE’AGA ENE, TOLANI TELESO FUGA, ELETISE
MATAGI WOLMAN, SENEVEFA PRITT, TIMU LEVALE, on
behalf of the TIMU FAMILY, RAY McMOORE, SESE
McMOORE, aka SESE SAGAPOLU, VI’I PITA, PERALITA
CANDY FUAVAI, TAUINAOLALAUAMA, FIALE NIKO, aka
SOVITA SUAFO’A, SOVITA LIVING TRUST, MIRIAMA
GARRETT, AMERIKA SAMOA BANK, and DOES 1-10,
Defendants.
LT. No. 10-95
___________________________________
TERRITORIAL REGISTRAR, on behalf of the HEIRS OF IOANE
FE’AFE’AGA ENE, Claimants,
v.
TELESIA FE’A FIAME, on behalf of the FE’A FAMILY, ELETISE
MATAGI WOLMAN, SENOUEFA PRITT, TAUINOLA
LAUAMA, FUGA TOLANI TELOSO, VI’I PITA, FIALE
LARSON, aka FIALE NIKO, aka SOVITA SUAFOA, and SOVITA
LIVING TRUST, Objectors.
LT. No. 20-96
___________________________________
SINAVAIANA M. ULUFALE, Administrator of the ESTATE OF
IOANE FE’AFE’AGA ENE, Claimant,
v.
TELESIA FFE’A FIAME, FA’AMOE I. HOLEWYNE, AFOA I.
SU’ESU’E LUTU, on behalf of PEARLITA FUAVAI, MARSHALL
ASHLEY, on behalf of ELETISE M. WOLMAN, SENOUEFUA
PRITT, TAUINAOLA LAUAMA, FUGA TELESO, VI’I PITA,
FIALE LARSON, aka FIALE NIKO, aka SOVITA SUAFO’A and
SOVITA LIVING TRUST, and FE’AFE’AGA TAUAMO II,
Objectors.
and
FA’AMAMAFA POLOA and LUSI POLOA, Interveners.
190
LT. No. 1-98
High Court of American Samoa
Land & Titles Division
May 10, 2006
[1] Deeds obtained by fraud are subject to cancellation.
[2] Fraud can be proven by showing: (1) the grantee or his agent misled
the grantor as to the contents of the document the grantor signed; or (2)
the grantor was induced into conveying property because of fraudulent
misrepresentations.
[3] To set aside a conveyance for fraud, the challenger must proffer
compelling evidence that fraud tainted the transaction.
[4] A presumption exists that the Territorial Registrar complies with his
legal obligations when recording a land title. This presumption is
convulsive unless rebutted either (1) by compelling proof that the
certificate of registration was obtained by fraud, or (2) fatal irregularities
affirmatively appearing on the face of the registration documents.
[5] Applicants seeking to register land must submit a survey of the land
in question. A.S.C.A. § 37.0102
[6] A.S.A.C. § 31.0201-.0209 sets forth the technical requirements for
performing surveys and the formal requirements for submitting them in
American Samoa.
[7] To register land, applicants must submit, the deed instrument, a
survey of the land, and affidavits attesting the applicant posted notice of
the pending registration in the following places for 60 days: (1) in two
areas in the village or nearest village to where the land is located, (2) at
the courthouse in Fagatogo, and (3) in a local newspaper at least once
each 30 days during the 60-day notice period. A.S.C.A. §§ 37.0101.0104.
[8] Land registrations can be invalidated when the applicant fails to
substantially comply with the statutory requirements of A.S.C.A. §§
37.0101-.0104.
[9] Failing to properly give notice of an impending registration, and
wholly failing to submit a survey are substantive omissions amounting to
substantial noncompliance with A.S.C.A. §§ 37.0101-.0104.
191
[10] Failing to submit a survey that lacks the surveyor’s signature, is a
technical defect that will not, standing alone, defeat an otherwise facially
valid registration.
[11] The Territorial Registrar’s statutory duties include: the keeping of
full and true records of all instruments authorized to be registered,
recorded, or filed in his office, provided that the person offering any
instrument for registration, recording or filing shall pay in advance the
fee required by law; and (2) endorsing thereon the date and hour of any
such instruments delivered to him for registration, filing, or recording,
and shall, as soon as possible, register, file, or record the same in full,
including the endorsement, in the proper manner in a book kept for that
purpose, with an alphabetical index. A.S.C.A. § 4.1101
[12] The Territorial Registrar does not have a duty to investigate possible
fraud prior to registering a deed.
[13] The Territorial Registrar may reject any instrument appearing to be
illegal or not entitled under the law to be registered, filed, or recorded.
A.S.C.A. § 401104.
[14] The Territorial Registrar is not required to refuse to record a deed
because the surveyor’s signature is missing on the attached survey.
[15] The Territorial Registrar may record a deed with alleged technical
deficiencies, and then later invalidate that recording, should the alleged
defect prove fatal.
[16] The Territorial Registrar is not required to invalidate a previously
registered deed after a deficiency is exposed.
[17] Neither a private surveyor nor the Survey Branch Manager for the
Department of Public Works are under a duty to compare a new survey
to existing surveys and unearth any possible conflicts.
Before: RICHMOND, Associate Justice, MAMEA, Associate Judge
Counsel: For Plaintiff/Counterdefendant/Defendant/Objector Vi’i Pita,
and Defendants/Objectors Tolani Teleso Fuga, Eletise Matagi Wolman,
Senouefa Pritt, Tauinaola Lauama, Fiale Larson aka Fiale Niko, Sovita
Suafo`a, Sovita Living Trust, and Objector Marshall Ashley, Marshall
Ashley
For Defendants/Counterclaimants/Cross-Claimants, Miriama Garrett and
Richard Garrett, Defendant, Ioane Fe’afe’aga Ene, Claimants Sinaviana
M. Ulufale, Administrator, and Estate of Ioane Fe’afe’aga Ene, and
Claimants/Defendant heirs of Ioane Fe’afe’aga Ene, Charles V.
Ala`ilima, and David Wagner
192
For Cross-Defendants, Territorial Registrar and Survey Branch Manager
of the Department of Public Works, David Cassety, Assistant Attorney
General
For Plaintiff/Defendant, Timu Levale, on behalf of the Timu family, and
Objector Faamoe I. Holewyne, Asaua Fuimaono
For Defendants, Ray McMoore and Sese McMoore aka Sese Sagapolu,
Sharron I. Rancourt
For Defendant, Perlita Candy Fuavai and Objector Afoa L. Su’esu’e
Lutu, Afoa L. Su’esu’e Lutu
For Objectors, Telesia Fe’a Fiame and Fe’afe’aga Tauamo II, Robert K.
Maez
For Defendant, Amerika Samoa Bank, William H. Reardon
For Intervenors, Fa’amamafa Poloai and Lusi Poloai, Katopau T. Ainuu
OPINION AND ORDER
Introduction
This particular decision determines the issues framed in LT No. 14-93.
As the parties are well aware, the numerous related disputes in these
consolidated actions involve what began as an approximately 10-acre
parcel of land in Ili’ili known as “Tualepipi.” On October 14, 1989,
Ioane Fe’afe’aga Ene (“Ioane”) surveyed the property and recorded it as
his individually owned land. On May 9, 1990, Ioane conveyed, by
warranty deed, approximately one-acre to Plaintiff Vi`i Pita (“Pita”).
Pita recorded the deed with the Territorial Registrar on June 6, 1990.
Approximately two years later, Ioane apparently transferred the same
one-acre plot to Defendants Miriama and Richard Garrett (“the
Garretts”). On May 11, 1992, the Garretts recorded the deed with the
Territorial Registrar. On October 29, 1992, the Registrar compared
Pita’s and the Garretts’ deeds and found the description of the land
within both deeds to be identical. Accordingly, on November 2, 1992
the Registrar mailed the Garretts a letter informing them of the above
facts and advising them she was invalidating their deed in 5 days, unless
the Garretts could show the land described in their deed was somehow
different than the land described in Pita’s recorded deed.
After receiving the notice that their deed was invalid, the Garretts
engaged in conduct that allegedly interfered with Pita’s use of the land,
including clearing coconut, breadfruit and other crops, as well as posting
“keep out” signs and making statements directly to Pita alleging
ownership of the land.
In response, Pita contacted the Territorial Registrar and requested the
office again inform the Garretts of Pita’s superior ownership claim. In
response, the Registrar again mailed the Garretts a copy of the
193
November 2, 1992 letter. After the Garretts received the letter, they
continued to engage in conduct that interfered with Pita’s use and
enjoyment of the land.
When Pita’s non-judicial effort to solve the problem failed, he initiated
the present suit, seeking injunctive relief to prevent further trespass, a
declaratory judgment that the Garretts have no legal interest in the
property, and damages resulting from the destroyed crops.1 The Garretts
answered and counterclaimed on April 27, 1993, alleging Pita acquired
his deed by fraud and it was therefore void ab initio. The Garretts
further alleged Pita failed to follow statutory prerequisites for recording
his deed, and the registration was therefore invalid as well. In addition,
the Garretts also asserted cross-claims against the Territorial Registrar,
as well as Meko Aiumu (“Meko”), both as a private surveyor and in his
capacity as the Survey Manager of the American Samoa Government’s
Department of Public Works alleging gross negligence.
After the parties exchanged a round of discovery, and after crossdefendants answered, the Garretts moved to set a trial date on September
12, 1994. We continued the matter until January 12, 1995 after
determining that, in light of a decision in LT 20-93 (which involved a
another Ioane conveyance), a pretrial conference discussing possible
consolidation might be more appropriate. On March 14, 1995, after the
parties argued consolidation issues during that pretrial conference, we
issued a written order consolidating the present action with LT 20-93.
This was only the beginning.
Members of the Timu family claimed part of Ioane’s individually
registered land was in fact their communal land, and initiated suit. The
Fea family (of which Ioane is a member) claimed the disputed 10 acres
was communal land, and not Ioane’s individual land. Accordingly, Fe`a
family members initiated suit. Soon after, recipients of other Ioane
conveyances began questioning the validity of their deeds. 2 In the end,
1
In that complaint, Pita erroneously sued George Garrett and not
Richard Garrett. An amended complaint filed on March 19, 1993
corrected this error.
2
In addition to conveying the same one-acre tract to Pita and the
Garretts, Ioane also conveyed other parcels of his individually registered
land. On March 6, 1990, Ioane transferred three acres to Fuga Teleso
(“Fuga”), who properly registered the transaction. On March 28, 1990,
Fuga turned around and conveyed one of those three acres to Fiale Niko
(“Niko”), who also properly registered the transaction (on February 28,
1991, Niko would transfer that one-acre plot to the Sovita Living Trust,
who also properly registered the deed). Two days later, on March 30,
1990, Fuga transferred one of his remaining two acres to Eletise Wolman
(“Wolman”), who properly registered the deed with the Territorial
194
those transferees, along with Pita, the Garretts, the Fea family, the Timu
family and the Terrestrial Registrar, to name a few, were all before the
court.
Because determining whether Ioane himself had valid title to the land
necessarily decided several issues in these now consolidated cases, we
set trial for this issue first. We decided that issue affirmatively on
November 2, 1999, and the Appellate Division upheld that decision on
October 3, 2002. The specific issues germane to Pita and the Garretts,
however, continued to linger.
Having held Ioane had clean individual title to the disputed tract, certain
Ioane transferees brought a motion for summary judgment. Before
deciding that motion, however, we also heard two motions for relief
from judgment: one brought by the Timu family, and one by disgruntled
Fe`a family members who did not participate in the trial. We denied
both and finally heard the summary judgment motion in early 2005.
In that Order, issued on March 1, 2005, we held that because the 10 acres
belonged to Ioane individually, and because the transferees had properly
recorded their conveyances with the Territorial Registrar in accord with
A.S.C.A. § 37.0210, there were no material issues of fact. Consequently,
we held that as to Fuga, Wolman, Pritt, Lauama, Niko, and the Sovita
Trust (collectively “the transferees”), the evidence firmly established the
validity of their title, and summary judgment in their favor was proper.
However, although they were in a similar position factually to the above
transferees, we declined to rule on whether summary judgment was
proper as to Sese and Fuavai, because neither party joined the motion.
Registrar (nearly two years later, on May 9, 1994, Wolman transferred
that one-acre plot to Senouefa Pritt (“Pritt”), who also properly recorded
the deed).
On April 3, 1990, Ioane conveyed approximately one acre to Pearlita
Candy Fuavai (“Fauvai”). She recorded her warranty deed with the
Registrar on April 25, 1990.
Ioane also conveyed approximately 2.206 acres to Sese Sagapolu aka
Sese Sagapolu McMoores (“Sese”) by warranty deed on May 30, 1991.
Sese recorded her deed on June 4, 1991.
Finally, on June 10, 1992, Fuga transferred .174 acres of his remaining
acreage to Tauinaola Lauama (“Lauama”), who properly registered the
transaction.
195
Thus, after our March 1, 2005 order on the initial summary judgment
motion, two issues in this now decade old consolidated case remained.
The first issue, whether summary judgment was proper as to Sese and
Fauvai, the transferees who failed to join the initial summary judgment
motion, was decided in their favor by written order issued on March 27,
2006. Evidence and testimony on the second issue, whether Pita or the
Garretts had valid title to the one-acre tract Ioane deeded to both, was
heard at trial.
Trial began on June 30, 2005, and at the close of Pita’s case in chief, the
Garretts orally moved for dismissal, arguing Pita failed to present
evidence that his registration was valid. We continued trial to September
28, 2005 to allow the parties to file written arguments on the oral
dismissal motion,3 and to give adequate time for newly assigned counsel
for the Territorial Registrar and Survey Manager to prepare for
defending the Garretts’ cross-claims against them.
As set forth in detail below, having heard the evidence and testimony we
find that Pita validly recorded his deed to the one-acre plot first.
Accordingly, because his deed was first in time, Pita’s deed is first in
rights, and superior to the Garretts’ deed.
Discussion
Pita requests a declaratory judgment that he has valid legal title to the
subject property. The Garretts contend that Pita’s claim to the property
is invalid for two reasons. First, the Garretts argue Pita procured his
deed by fraud, specifically that Pita tricked Ioane into signing the deed.
Second, the Garretts argue Pita did not follow statutory requirements in
recording his deed; therefore the registration is invalid. Both arguments
are addressed in turn.
A. Procurement by Fraud
[1-2] It is well established that fraudulently obtained deeds are subject to
cancellation, and proving such fraud may be accomplished in many
ways. For example, the challenger can show the grantee or his agent
misled the grantor as to the contents of the document the grantor signed.
See Liddell v. Lee, 159 S.W.2d 769, 772 (Mo. 1942) (holding that
instruments may be cancelled in “situations where one who executes an
3
The Garretts submitted written arguments on July 21, 2005 and Pita
filed a written opposition 8 days later. Without ruling on the motion,
trial continued and concluded on September 28, 2005. Having
considered the written motion, and in light of our conclusion, infra, that
Pita has valid, legal title to the disputed acreage, the Garretts’ motion to
dismiss is denied.
196
instrument in ignorance of its true character . . . without reading or
having it read to him is not bound thereby and may repudiate it, such as
where he imposed trust and confidence in the other or was ignorant and
illiterate or easily deceived.”). Similarly, the challenger can show the
grantor was induced into conveying property because of fraudulent
misrepresentations. See Pulchny v. Pulchny, 555 S.E.2d 543 (Tex. 1977)
(grantee made fraudulent promises to grantor to induce conveyance).
[3] However, in order to set aside a conveyance for fraud, challenger
must proffer compelling evidence that fraud tainted the transaction. See,
e.g., Signature Pool & Court, a Div. of Classic Pools, Inc. v. City of
Manchester, 743 S.W.2d 538, 541 (Mo. App. 1987) (holding that “to
justify the extraordinary relief of . . . cancellation, the party seeking such
relief should present clear, cogent, and convincing evidence that it is
warranted.”). Accordingly, mere allegations of fraud, without a
compelling offer of proof, will not support a deed’s cancellation.
Here, to buttress their fraud claim, the Garretts argue Ioane hired Tolani
Teleso (“Tolani”) to build a guesthouse on Ioane’s property. The
Garretts posit that Tolani, who happens to be Pita’s brother-in-law,
would often give Ioane documents to sign in connection with the
construction. The Garretts argue Tolani must have presented the deed as
a construction document and dupped Ioane, who apparently understood
little English, into signing it. Tolani then must have given Pita the deed.
The Garretts argue fraud must be afoot because Ioane would not have
knowingly given sold land to Pita.
Other than conjecture, however, the Garretts offer no evidence, much
less the compelling evidence required to cancel a deed, that Pita obtained
his deed by fraud. Signature Pool, 743 S.W.2d at 541. Because the
Garretts failed to carry their burden, we decline to set aside Ioane’s
conveyance to Pita on fraud grounds.
B. Noncompliance with Statutory Registration Requirements
The Garretts argue Pita failed to comply with statutory registration
requirements and his registration certificate is therefore void. Taking
their argument to its logical end, if Pita’s registration is void, then he was
not the first to register the land. If he was not the first to register the
land, then he does not have a superior claim to legal ownership.
[4] Generally, absent compelling proof to the contrary, the court will
assume the Territorial Registrar recorded a land title only after
complying with his legal obligations, which include verifying the
applicant complied with statutory requirements. Asifoa v. Faoa, 21
A.S.R.2d 88 (Land & Titles Div. 1992). In other words, compliance
with the land registration requirements (A.S.C.A. § 37.0101-.0104)
197
creates a strong presumption that the land belongs to the persons named
in the registration certificate. Ava v. Logoai, 19 A.S.R.2d 75, 77 (Land
& Titles Div. 1991), see also Vaimaona v. Tuitasi, 13 A.S.R.2d 76 (Land
& Titles Div. 1989) (holding that the Registrar’s certificate of title is
presumed to be valid and a party asserting its procedural irregularity has
the burden of presenting compelling proof to the contrary.) Indeed, we
have previously held this presumption to be conclusive “unless rebutted
either (a) by compelling proof that the certificate of registration was
obtained by fraud, or (b) fatal irregularities affirmatively appearing on
the face of the registration documents.” Id. (emphasis added); see also
Ifopo v. Siatu’u, 10 A.S.R.2d 66 (Land & Titles Div. 1989) (holding that
absent any evidence of fraud, registration of title to land pursuant to
legislative procedures cannot be questioned.)
[5] Having established the Garretts produced no credible evidence of
fraud, their only remaining option is to put forth compelling proof of
fatal irregularities appearing on the face of Pita’s registration documents.
And while the Garretts do allege fatal irregularities, they do so in a
somewhat roundabout way. First, they argue, correctly, that A.S.C.A. §
37.0102 requires applicants seeking to register land submit a survey in
conjunction with other documents. Second, they allege American Samoa
Administrative Code (“A.S.A.C.”) Section 31.0201 et seq., which
specifically governs professional surveying, requires all surveys be
accompanied by a certificate, signed by the surveyor, attesting that he or
she created the survey in accord with applicable laws. The Garretts
argue a surveyor did not sign the survey Pita submitted in conjunction
with his registration, and therefore the entire registration is invalid. Put
another way, the missing signature is a “fatal irregularity.” We disagree.
[6] To be sure, A.S.A.C. § 31.0206 requires the surveyor’s signature
accompany the survey, attesting that the survey is accurate and was
created in accord with applicable law. It also mandates a surveyor fulfill
a myriad of other technical requirements, including: clearly identifying
monuments, connecting the survey to existing American Samoan datum,
mandating the type of equipment used to perform the survey, and listing
the types of media on which to graft the survey. In other words,
A.S.A.C. § 31.0201-.0209, which specifically applies to the profession of
surveying, sets forth the technical requirements for performing surveys
and the formal requirements for submitting them (e.g., type of paper
used, margins, and verification signature).
[7] In contrast, A.S.C.A. §§ 37.0101-.0104 sets forth the Territory’s title
registration requirements. Those sections requires applicants submit, in
addition to the deed instrument, a survey of the land, and affidavits
attesting the applicant posted notice of the pending registration in the
following places for 60 days: (1) in two areas in the village or nearest
village to where the land is located, (2) at the courthouse in Fagatogo,
198
and (3) in a local newspaper at least once each 30 days during the 60-day
notice period. A.S.C.A. §§ 37.0101-.0104.
[8] While the Registrar’s Certificate of Registration is generally
presumed valid, Vaimaona v. Tuitasi, 13 A.S.R.2d 76 (Land & Titles
Div. 1989), we have nevertheless invalidated a previous registration
when the applicant failed to substantially comply with the above
requirements. For example, at this litigation’s outset, we invalided
Ioane’s registration of the disputed tract for substantial noncompliance.
See Timu v. McMoore, LT No. 20-93, slip op. at 4-5 (Land & Titles Div.
July 6, 1993). There, we held that Section 37.0103 requires notice in
three separate places as well as affidavits attesting that the notice
requirements were met. Id. Because Ioane failed to properly submit
affidavits, and failed to properly comply with the village posting
requirements, we voided the registration for substantial noncompliance.
Id. Thus, we held that properly posting notice of the proposed
registration, as well as submitting affidavits that the notice provisions
were met, were substantive requirements to a valid registration that
neither applicants nor the Registrar could skirt.
Similarly, while we do not reach the specific question here, we would
likely invalidate a registration for substantial noncompliance if the
applicant wholly failed to submit a survey with his application. Section
37.0102 requires applicants to submit accurate, detailed and professional
surveys so the Registrar may, in the face of a competing claim, use those
surveys to help differentiate exactly who owns what. In other words,
without a survey, it would be impossible for the Registrar to determine
the validity of a competing claim to the same tract of land, because
without a survey the Registrar has no basis for comparison.
[9-10] In sum, failing to properly give notice of the impending
registration, and wholly failing to submit a survey are substantive
omissions amounting to substantial noncompliance with A.S.C.A. §§
37.0101-.0104. In contrast, while we certainly do not encourage the
practice, failing to submit a survey that--while compliant in every other
aspect--merely lacks the surveyor’s signature, is simply a technical
defect that will not, standing alone, defeat an otherwise facially valid
registration. See, e.g., Ifopo, 10 A.S.R.2d at 72 (declining to invalidate a
land registration where Registrar’s file lacked certificate that notice of
survey had been given). Because this technical defect is not fatal, Pita’s
registration is valid.
C. The Garrett’s Cross-claims
As stated above, the Garretts initiated a cross-claim against the
Territorial Registrar, as well as cross-claims against Meko Aiumu, both
as a private surveyor and in his official capacity as Survey Branch
199
Manager of the government’s Department of Public Works. We discuss
all claims in detail below.
1. The Territorial Registrar
The Garretts allege the Territorial Registrar’s decision to register Pita’s
deed was error for two reasons. First, they allege the Registrar failed to
notice that the survey accompanying Pita’s deed was “insufficient”
because it lacked the surveyor’s signature. Second, the Garretts claim
that when faced with two competing deeds, the Registrar failed to
inquire whether Pita procured his deed by fraud. The Garretts argue
inadequate remedies at law exist for these alleged transgressions, and
they therefore seek a writ of mandamus directing the Registrar to void
Pita’s deed and enter the Garretts’ deed. We disagree.
[11] Our decision turns on our analysis of A.S.C.A. § 4.1101, the statute
outlining the Territorial Registrar’s duties. Subsection (a)(1) requires the
Registrar to “keep full and true records of all instruments authorized to
be registered, recorded, or filed in his office, provided that the person
offering any instrument for registration, recording or filing shall pay in
advance the fee required by law.” A.S.C.A. § 4.1101(a)(1). Subsection
(a)(2) states that “when any instrument is delivered to him for
registration, filing, or recording, he shall endorse thereon the date and
hour of such delivery and shall, as soon as possible, register, file, or
record the same in full, including the endorsement, in the proper manner
in a book kept for that purpose, with an alphabetical index.” A.S.C.A. §
4.1101(a)(2).
[12] Although the Garretts do not specify a cause of action, it seems
clear they are suing in negligence, i.e., the Registrar negligently
performed his or her duties, causing the Garretts damages. However, the
two quoted passages above outline the bulk of the Registrar’s duties, and
nowhere do we read a duty to “investigate” possible fraud prior to
registering a deed. Because the Registrar has no duty to investigate,
there can be no breach.
[13-16] Neither are we convinced that failing to notice the missing
signature is negligence that proximately caused the Garrett’s damages.
We note that under Section 4.1104 “[t]he Territorial Registrar may reject
any instrument appearing to be illegal or not entitled under the law to be
registered, filed, or recorded.” A.S.C.A. § 401104 (emphasis added).
Even assuming the missing signature on the survey in question somehow
rendered Pita’s deed defective (and we expressly held, supra, it did not),
there can be no debate that the emphasized language is permissive, not
mandatory. In other words, the Registrar is not required to refuse to
record a deed because the signature is missing on the attached survey.
Instead, the Registrar may record a deed with alleged technical
200
deficiencies, and then later invalidate that recording, should the alleged
defect prove fatal. See American Samoa Gov’t v. Samoa Aviation, Inc.,
13 A.S.R.2d 65 (1989) (holding that the registrar was empowered to
cancel a prior recordation of a lease if there been something genuinely
wrong with it). Because the Registrar is not required to invalidate a
previously registered deed after a deficiency is exposed, failing to do so
initially cannot be called a breach of duty.
Accordingly, the Garretts’ cross-claim against Territorial Registrar is
dismissed.
2. Claims Against Meko
At the time this action arose, Meko was both a private surveyor and the
Survey Branch Manager for the Department of Public Works. In his
private capacity, the Garretts hired Meko to perform a survey of the
subject land. After doing so, Meko signed a “Surveyor’s Certificate”
pursuant to A.S.A.C. § 31.0206, attesting that the survey was correct and
conformed with the code and rules of the Territory. Later, in his public
capacity as Survey Branch Manager for the Department of Public Works,
Meko signed a “Manager’s Certificate” pursuant to A.S.A.C. § 31.0207,
certifying that the survey conformed to the technical and mathematical
requirements set forth in A.S.A.C. § 31.0206.
[17] The Garretts now claim Meko was grossly negligent in both his
private and public capacity for failing to notice the “conflict” between
Pita’s previously submitted survey and that of the Garretts. We disagree.
The Garretts’ argument presupposes either the private surveyor or the
Branch Manager are under a duty to compare a new survey to existing
surveys and unearth any possible conflicts. The Garretts, however, point
to no code section, and we find none on our own, imposing such a duty
on either a licensed surveyor or the Survey Branch Manager.
A.S.A.C. § 31.0206 outlines a surveyor’s duties and, as previously
stated, sets forth both the technical requirements (monuments,
coordinates, etc.) for performing surveys, and the formal requirements
(type of paper, margins, etc.) for submitting them. 4 Similarly, A.S.A.C.
4
A.S.C.A. § 31.0206 governs duties of professional surveyors and the
contents of their surveys. It provides:
(a) Monuments set shall be sufficient in number and
durability and efficiently placed so as not to be readily
disturbed and to assure, together with monuments
already existing, the perpetuation of facile
reestablishment of any points or lines of the survey.
Any monument set by a registered professional
surveyor to mark or reference a point on a property
201
line or land line shall be permanently and visibly
marked or tagged with the certificate number of the
surveyor setting it, the numbers to be preceded by the
letters ,"R.P.S." if the monument is set by a public
agency, it shall be marked with the recognized initials
of the agency.
(b) All surveys for record shall be made using, as
minimum equipment, steel tape graduated to onehundredth of a foot (0.01 ft.) or I millimeter and anglemeasuring instruments with verniers having a least
count of I minute of arc. All measurements shall be
made in accordance with standard survey practice.
Minimum precision, as computed by latitudes and
departures, acceptable for recording of the survey shall
be as follows:
(1) Land which is generally clear or which has an
elevation difference of less than 50 feet between the
highest and lowest points on the boundary shall be
surveyed to an error of closure of not less than I part in
5,000.
(2) Land which is more than 50% bush or has an
elevation difference of more than 50 feet between the
highest and lowest points on the boundary shall be
surveyed to an error of closure not less than I part in
3,500.
(3) Land which has an elevation difference of more
than 200 feet between the highest and the lowest points
on the boundary shall be surveyed to an error of
closure of not less than I part in 2,000.
(4) Vertical closures shall not exceed .05 feet times the
square root of the traverse distance in miles.
(c) All surveys shall be connected to the American
Samoa Datum. A record of survey may not be
registered unless it also shows, or is accompanied by, a
map showing the control scheme through which the
coordinates were determined from points of known
coordinates, and contains within the map or along the
margin thereof, grid ticks showing the orientation of
the map to the American Samoa Datum.
(d) A record of survey shall be a map, or copy thereof,
filed as provided in 31.0207, legibly drawn on plastic
drafting film or other dimensionally stable media, with
outside dimensions of 18 and 24 inches ( 450 and 600
mm) or 12 and 18 inches (300 and 450). The left edge
shall have a margin of I-I/2 inches (40mm), with a
margin of one-half inch ( 15 mm) on the other 3 sides.
202
§ 31.0207 sets forth the duties the Branch Manager must fulfill prior to
signing off on a survey. We find nothing in either section indicating the
surveyor or the Branch Manager are under a duty to compare the offered
survey to existing surveys to determine whether conflicts exist. 5 Rather,
A record of survey is not required of any survey which
is preliminary in nature.
(e) The record of survey shall show the following:
(1) All monuments found, set, reset, replaced, or
removed, describing their kind, size, and location, and
giving other data relating thereto;
(2) Length and direction of lines and witness
monuments, and both a graphic and written scale of the
map (when azimuths are used, the origin shall be grid
south);
(3) Name of land in which the parcel is located or of
which it is a part, together with ties to adjoining tracts
or parcels;
(4) Certificates required by subsection (f) and (g) of
this section;
(5) Coordinate ticks American Samoa Datum;
(6) An arrow showing the north direction; and
(7) Any other data necessary for the intelligent
interpretation of the various items and locations of
points, lines, and areas shown.
(f) The surveyor shall affix to the map a statement or
stamp in the general form of the following:
"SURVEYOR'S CERTIFICATE
This map correctly represents a survey, having a
precision of 1 in .................. as computed by latitudes
and departures, and was made by me or under my
direction in conformance with the Code and Rules of
the Territory of American Samoa at the request
of.................................. in ........................... 19
...........................
Signed and Sealed............................................
Registered Professional Surveyor No......................... "
5
In its entirety, Section 31.0207 provides:
(a) Within 90 days of the establishment of points or
lines, the registered professional surveyor must file
with the survey branch manager copies of the record of
survey relating to land boundaries or property lines
which disclose any of the following:
(1) Material evidence which, in whole or in part does
not appear on any map or record previously filed with
the survey branch or the registrar of lands;
(2) A material discrepancy with such records;
203
we read Section 31.0207 as imposing a duty on the Manager to ensure
the survey meets the requirements set forth in Section 31.0206.
In sum, we find nothing in either section imposing a duty on Meko as a
private surveyor, or Meko as a Survey Branch Manager, to unearth
possible conflicts between a new survey and an existing survey.
Because the statutes impose no duty, there can be no breach.
Accordingly, the Garretts’ claims against Meko in both his private and
public capacities are dismissed.
(3) Evidence that, by reasonable analysis, might result
in alternate positions of lines or points; or
(4) The establishment of l or more lines either shown
or not shown on such map, the positions of which are
not ascertainable from an inspection of such map
without trigonometric calculations. A copy of any
record of survey flied with the survey branch manager,
shall, after being examined by him, be filed with the
territorial registrar.
(b) Within 15 days of the date of submission of a
record of survey, or within such additional time as may
be reasonably necessary, the survey branch manager
shall examine it with respect to:
(1) its accuracy of mathematical data and completeness
of information as required in 31.0206 (e);
(2) its conformity to other records of satisfactory
evidence of errors of such other records;
(3) its compliance with other provisions of this
chapter.
(c) If the survey branch manager finds the record of
survey to be satisfactory he shall endorse on each copy
the following certificate and present 2 copies to the
territorial registrar for registration:
"MANAGER'S CERTIFICATE”
This map has been examined by me or under
my direction for conformance with the laws of
American Samoa and the rules of the board of
Registration for Professional Surveyors, and is hereby
approved for registration this .................. day of
.............19...................
Signed: ..................................
Survey Branch Manager, DPW"
204
Order
The registration of Pita’s deed is valid, and shall remain in full force and
effect. The Garretts’ cross-claims against the Territorial Registrar and
Meko Aiumu are DISMISSED.
It is so ordered.
*********
PULE LEOTA and TUIAI LEOTA on behalf of the LEOTA
FAMILY Pago Pago, and FILIGATA TARRANT on behalf of
herself and the estate of her parents SOTOA LEOTA TAGALOASA
and TAO LEOTA SOTOA, Plaintiffs,
v.
NERISA TOM LEOTA, PILI TOM LEOTA, AFI TOM LEOTA,
and MR. CHEN REUY YUN, Defendants.
________________________________
CHEN REUY YUN, Cross-claimant,
v.
NERISA TOM LEOTA, PILI TOM LEOTA and AFI TOM
LEOTA, Cross-defendant.
High Court of American Samoa
Land & Titles Division
LT No. 09-01
May 15, 2006
[1] Laws on testate and intestate succession do not apply to communal
property held under the Samoan custom. A.S.C.A. § 40.0106.
[2] An unseparated part of communal realty is outside the scope of the
laws dealing with testate and intestate succession.
205
[3] A separation agreement does not immunize a lease of communal land
from the requirements of the Alienation of Land Act.
[4] The labeling of a lease involving native land a house lease does not
thereby exempt the transaction from the mandatory requirements of the
Alienation of Land Act.
Before: KRUSE, Chief Justice, and SAGAPOLUTELE, Associate
Judge.
Counsel: For Plaintiffs, Marshal Ashley
For Defendants Pili and Afi Tom Leota, David Wagner
For Defendant/Cross Claimant Chen Reuy Yun, Marie Lafaele
OPINION AND ORDER
This dispute concerns a couple of buildings located on the Leota family
of Pago Pago's communal land, between the widow and surviving
children of the last titleholder, Leota T. Tom ("Tom"), and the latter's
surviving siblings. The argument is over the ownership of, or more
accurately the rents to, the two disputed buildings. Tom had in his
lifetime collected rental income from each building, having rented them
out to defendant/cross-claimant Chen Ruy Yun ("Chen") dba the Seagul
Store, and another Asian businessman Mr. Sun Kim. After Tom's
demise, his widow and children, defendants Nerisa Tom, Pili Tom
("Pili") and Afimuao Tom ("Afi") respectively, continued to receive the
rental income.
Plaintiff Filigata Tarrant ("Tarrant") is Tom's sister. She is also the
administratrix of the estate of their late parents, Leota T. Sotoa ("Sotoa")
and his wife Taofeagaua`i T. Sotoa ("Tao"). As administratrix and heir,
Tarrant sued Tom's widow and children claiming the disputed buildings
belonged to the estate and that all rental income derived therefrom
should be paid to the estate.1
Sometime after the complaint was filed, two of Tarrant's male siblings,
plaintiffs Pule Leota and Tuiai Leota, intervened. They apparently did
so on behalf of the communal family as the matai position was vacant.
These intervenors simply appeared on plaintiff's subsequent filings
without explanation and without leave of court. By the time of trial, the
1
We earlier entered an interim order directing the payment of all rents
into the registry of the court, pending final disposition hereof.
206
family had a new matai, Leota Nio Leapai, and neither Pule nor Tuiai
appeared to present any sort of case. 2
The sa`o did not take part in this case nor was his joinder sought by any
of the parties. But his position is clear in that he consents to the
continued use and occupation of the disputed buildings by his
predecessor's children, Pili and Afi.3 Indeed, Pili and her immediate
family are occupying one of the disputed buildings, which has long since
lost its tenant Sun Kim. Pili has also been actively rendering tautua
(traditional service) to the sa`o who is disabled and cannot readily leave
the house. Pili has been attending to the sa`o's personal needs as well as
to family related errands, including dealings with the Office of Samoan
Affairs, at the sa`o's behest. When we visited the site of the dispute, it
appeared quite obvious that the building occupied by Pili is in serious
need of repair as it looks very much unsuited for any extended
habitation. On the other hand, the other building, referred to by the
parties as the "Seagul building," is relatively new and of real commercial
value. It is a large two story structure on the main road and is occupied
by Chen and his business.
The estate's claim to the disputed buildings is premised on a "Deed of
Conveyance" dated June 12, 1978, executed by Sotoa and Tao,
referencing six separate buildings variously situated on Leota communal
land. They include "(1) one-two story building located on Land Lago
[and] (2) one-two story building on Land Tuloto." This instrument,
which does not appear to have been registered with the Territorial
Registrar's office, purports to convey all of Sotoa and Tao's interests to
their nine named children. According to Tarrant, the deed of conveyance
refers to the Seagul building as well as the one occupied by Pili.
Subsequent to the deed, however, Sotoa in his twilight years decided to
resign his matai office (fa`aui le ula) in favor of his son Tom, who at the
time was well ensconced off-island with his own immediate family. In
relocating Tom and his family, Sotoa assigned the two disputed
buildings to Tom as his successor-in-title. Tarrant, who at the time was
operating a store in one of the buildings, had to vacate in favor of Tom.
In time, Tom rented out space in the buildings to provide him a source of
income to assist in his chiefly duties and provide him a livelihood.
Tom later tore down one of the buildings after it had sustained hurricane
damage, and completely rebuilt it anew. This is the Seagul building.
Notwithstanding, the estate still asserts an ownership claim on this new
2
Their absence may also have had something to do with the fact their
private interests were not necessarily consistent with the communal
interests of the Leota family.
3
By the time of trial, Tom's widow Nerisa had also passed away.
207
building, on the argument that Tom had simply renewed the old family
home on behalf of all Sotoa and Tao's children.
This claim of the estate is not borne out on the evidence. Tom had put in
place the finance for the construction of the Seagul building with a leasepurchase arrangement he had worked out with his tenant Chen. What is
odd and unsatisfactorily explained on the evidence, however, is that this
building's site, the land "Lago," is the subject of two different separation
agreements pre-dating construction. The first, dated April 10, 1984,
recites both the "land owner" and "building owner" as Leota Tagaloasa,
aka Tom; and, the second, dated March 8, 1985, while reciting that the
land owner is Leota Tagaloasa, lists the building owner as Nerisa
Tagaloasa, Tom's wife. Both of these instruments were accepted for
recordation by the Territorial Registrar.
The Separation Agreements are to be contrasted, however, with the
financing document concluded between Tom and Chen. This document
evidences completion of the Seagul building by October 6, 1992, several
years after the execution of the Separation Agreements. Whether one of
these Separation Agreements referencing "Lago" actually pertains to the
Seagul building is not clear on the evidence, given the significant time
span between the Separation Agreement(s) and construction. But it is
clear that the financing document recites, inter alia, that when the
construction financing, viz, $120,000, is repaid to Chen the lender, the
latter's equity in "the entire structure then becomes the legal property of
Mr. Leota Tom T. Sotoa."
[1] We find no basis to the estate's claim that Tom had built the Seagul
building on the estate's behalf. Tom had, on the documentary exhibits,
quite clearly built the building for Tom, or even Nerisa. And it goes
without saying that whatever interest the estate may have had in the old
family home previously located on Lago prior in time to the Seagul
building, that interest ceased to exist when the family home itself ceased
to exist. Moreover, the laws on testate and intestate succession do "not
apply to communal property held under the Samoan custom." A.S.C.A.
§ 40.0106. Here, we are clear on the evidence that Tom had a valid
assignment of the building sites Lago and Tuloto in accordance with
custom. We are also clear on the evidence that Tom's surviving children
continue to enjoy that assignment interest, as blood members of the
Leota family rendering active service to the matai, with the consent and
blessings of current sa`o.
[2] With regard to the buildings in dispute, we find the dilapidated one
occupied by Pili has no personalty character, since no separation
agreement for the same can be found. It accordingly remains a fixture
and an unseparated part of the communal realty subject to the matai's
pule. As an unseparated part of communal realty, the building is also
208
outside the scope of the laws dealing with testate and intestate
succession, see § 40.0106, notwithstanding the conveyancing attempt by
Sotoa and Tao.
As to the Seagul building, and assuming for the sake of argument this
building is the subject of one of the above-mentioned Separation
Agreements, the building under these circumstances would be personalty
in Tom's estate, subject to the matai's overriding pule over the site. If
our assumption concerning the Separation Agreements is, however,
erroneous,4 then the Seagul building, as a permanent fixture, would be
part of the communal realty subject to the matai's pule. In any event, as
between Tom's children on the one hand, and the estate on the other, the
former quite clearly have better title to the use and occupation of the
assets on Lago. They either take through Tom and/or the sa`o.
Lastly, with regard to Chen's cross-claim against Tom's widow and
children, we hold that Chen has no cognizable claim at law. The basis of
Chen's interest in the dispute is what we have referred to as the financing
document concluded between he and Tom. This document also contains
leasing language referencing the lease of the Seagul building for 15 years
with an option to renew. As a lease, the instrument is not in compliance
with Alienation of Land Act and is, therefore, hopelessly invalid. See
A.S.C.A. § 37.0221.5 Among other things, the lease has not been
approved by the Governor, as required by § 37.0221(a).
[3-4] The argument that the financing document references only the
leasing of a separated building, as opposed to the land, is unavailing, as a
separation agreement does not otherwise immunize a lease of communal
land from the requirements of the Alienation of Land Act. See Anoa`i v.
Lai, LT No. 02-01 (Land & Titles Div. Jan. 15, 2002). As pointed out in
Anoa`i, the mere labeling of a lease involving native land a "house lease"
does not thereby exempt the transaction from the mandatory
requirements of the Alienation of Land Act.
4
An issue we need not decide.
This enactment reads in pertinent part:
(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 minerals 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.
5
209
First, the Alienation of Land Act requires the Land Commission to meet
periodically for purposes of "making recommendations respecting the
approval or disapproval of instruments affecting . . . possession of
[communal] land . . . ." A.S.C.A. § 37.0203(b). 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.
Id., slip op at 7 (Opinion & Order Continuing Proceedings and
Remanding Matter to Land Commission). Moreover, if the house-lease
ruse is sanctioned to by-pass statutory policy embodied in the Alienation
of Land Act, then there would no restrictions as to term limits and
"improvident" communal land dealings. Id., slip op at 10.
At the same time, any violation of the Alienation of Land Act
requirements is very harshly regarded. Specifically, A.S.C.A. § 37.0230
in pertinent part provides:
[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).
As a nonnative failing to comply with the mandatory provisions
Alienation of Land Act, Chen is without a remedy.
For reasons given, judgment will enter in favor of Pili and Afi against
Tarrant, the estate and Chen respectively. 6 All moneys on deposit with
the registry of the court in this matter shall be paid to the estate of Leota
T. Tom.
It is so ordered.
6
Judgment herein only concerns the relative rights of those parties
before us. Since the family was not a party to this case, we intimate no
decision as to any rights the family may have in the disputed buildings
and rents.
210
*********
FAGAIMA MILOVALE SOLAITA, on behalf of the FAGAIMA
FAMILY, Plaintiff,
v.
TERRITORIAL REGISTRAR and AMERICAN SAMOA
GOVERNMENT, Defendants.
High Court of American Samoa
Land & Titles Division
LT No. 30-03
May 16, 2006
[1] Summary judgment is appropriate where the pleadings and
supporting materials 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).
[2] In ruling on such a motion, the Court assumes the truth of the
evidence presented by the nonmoving party and draws from the evidence
the inferences most favorable to him.
[3] The facts must be beyond dispute to grant a summary judgment
motion.
[4] When considering a summary judgment motion, the nonmoving
party's factual assertions, supported by evidence such as affidavits, are
presumed to be true.
[5] Trial court has discretion to deny summary judgment when it desires
a further examination of the facts
Before: KRUSE, Chief Justice, LOGOAI, Chief Associate Judge, and
LEFITI, Associate Judge.
Counsel: For Plaintiff, Charles V. Ala`ilima
For Defendant, Michael J. Keyser, Assistant Attorney General
ORDER GRANTING IN PART AND DENYING IN PART
MOTION FOR SUMMARY JUDGMENT
211
Introduction
In 1959, Defendant American Samoan Government ("ASG") condemned
hundreds of acres of land in Tafuna for airport purposes. Included was
74.35 acres of Fagaima communal family land. In the condemnation
proceeding, LT 15-1959 (Dec. 28, 1959), ASG obtained fee simple title
to approximately 550.83 acres, which included Fagaima family land. In
addition, a further 77.888 acres of Fagaima family land was conveyed in
fee simple to ASG on June 3, 1965, by two warranty deeds. 7 On or about
June 11, 1965, the Office of the Territorial Registrar recorded these
deeds in the Register of Transfer.
On October 24, 2003, Plaintiff Fagaima Milovale Solaita ("Plaintiff"), on
behalf of the Fagaima communal family, filed a complaint seeking to
reclaim the previously condemned and deeded land. ASG now moves
for summary judgment. For the reasons stated below, we grant in part
and deny in part ASG's motion.
Discussion
[1-4] Summary judgment is appropriate where the pleadings and
supporting materials 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). In ruling on such a motion, the Court
assumes the truth of the evidence presented by the nonmoving party and
draws from the evidence the inferences most favorable to him. See
Lokan v. Lokan, 6 A.S.R.2d 44 (Trial Div. 1987). That is, the facts must
be "beyond dispute," and the nonmoving party's factual assertions,
supported by evidence such as affidavits, are presumed to be true. Ah
Mai v. American Samoa Government (Mem.), 11 A.S.R.2d 133, 136
(Trial Div. 1989).
A. Condemned Land
Regarding the condemned land, Plaintiff argues it should revert to the
Fagaima family because most of the land has not been used for the stated
public purpose of constructing an airport or for any other valid
"government use." Rather, he maintains the majority of the land is now
leased by the ASG to private commercial enterprises, a non-government
use that violates the purpose and intent of the Treaty of Cession, the
American Samoa Revised Constitution, and the American Samoa Code
Annotated. On these grounds, Plaintiff claims that reversion is
warranted.
7
The two warranty deeds were signed in Hawaii by Punefu Siania, who
is described in the deeds as "Their Attorney in Fact."
212
The issues here presented by Plaintiff were thoroughly and definitively
addressed in Meredith v. American Samoa Government, 2 A.S.R.2d 66
(Land and Titles Div. 1985), aff'd, AP 23-85 (1986), and American
Samoa Government v. Meredith, 28 A.S.R.2d 10 (Land and Titles Div.
1995). We disagree with Plaintiff's reasoning that the instant case is
distinguishable from the Meredith cases. Thus, with respect to the
condemned land, ASG's motion for summary judgment is granted.
B. Deeded Land
Regarding the deeded land, Plaintiff essentially argues that: (1) the deeds
are void because Punefu Siania did not have proper authority to convey
Fagaima communal family land; (2) the deeds are void because their
registration did not conform with the statutory procedure for alienation
of communal land; and (3) ASG's current use of the land for private
businesses and government housing violates the purpose and intent of
the Treaty of Cession, the American Samoa Revised Constitution, and
the American Samoa Code Annotated. On these grounds, Plaintiff
claims that reversion is warranted. ASG, on the other hand, contends
Plaintiff's claim is barred by the statute of limitations and the doctrine of
laches.
[5] We exercise our discretion, at this time, to deny summary judgment
on the deeded land issue. See Plaza Department Store, Inc. v. Duchnak,
26 A.S.R.2d 82, 84 (Trial Div. 1994) (trial court has discretion to deny
summary judgment when it desires a further examination of the facts);
YKL Japan Ltd., v. F/V Korbee #1, 25 A.S.R.2d 121, 124 (Trial Div.
1994) (a trial court can deny summary judgment "when [it] may be able
to avoid deciding difficult or uncertain questions of law by making
factual determinations."). We are not convinced that ASG is entitled to
judgment as a matter of law on its time barred claim, and accordingly
conclude that summary judgment is not appropriate. See Stancris Sales
Company v. Yong, AP No. 12-99 (Appellate Div. Aug. 2, 2002).
Order
The motion is, therefore, GRANTED in part and DENIED in part.
It is so ordered.
**********
213
214
MALAEPULE MILO, Claimant,
v.
LISA TAUSAGA FAASOA and MAUIGOA REUPENA TAUSAGA
TAGALOA, Objectors.
High Court of American Samoa
Land & Titles Division
LT No. 07-04
May 31, 2006
[1] A strong presumption exists that land in American Samoa is
communal rather than individually owned land.
[2] The claimant has the burden of proof to show land is not communal
land.
[3] Individually owned land is legally created only when (1) an
individual occupies and uses previously virgin or undeveloped land; or
(2) when communal land is alienated with prior review by the Land
Commission and the Governor’s approval.
[4] Land offered for registration must be accompanied by a survey of the
land. A.S.C.A. § 37.0102(a).
[5] A survey associated with the registration of land must conform to the
Governor’s regulations as embodied in the American Samoa
Administrative Code. A.S.A.C. §§ 31.0101-.0209.
[6] A registered professional surveyor or a subordinate who is supervised
by and assisting a registered professional surveyor must perform the
survey for land offered for registration.
[7] A survey is carried out in substantial compliance with territorial
survey laws and regulations if the field work is done by subordinates,
and the resulting survey is reviewed and approved by a supervising
registered professional surveyor, who also certifies the survey’s legal
conformity.
[8] The pulenu`u or mayor of the village in which or nearest to which the
land offered for registration is located must sign a Surveyor and
215
Pulenu`u Certificate accompanying the survey and a notarized statement
indicating the required notice of registration has been given by posting
the notice at two public places in the village in which or nearest to which
the land is located in order for the registration to be valid.
[9] The signature of the pulenu`u on the Surveyor and Pulenu`u
Certificate attests that the pulenu’u gave public oral notice in the village
at a meeting of the village chiefs of the time and place of the intended
survey. A.S.C.A. § 37.0102(c).
[10] Where land ownership is in dispute and no written record or
document showing positive title is produced, the best evidence of
ownership is found in the person who has been using the land under a
claim of right and without objection from other parties.
[11] Possession of land carries with it a presumption of ownership.
[12] Continuous use and possession of real property is better evidence of
ownership than family history and tradition.
[13] The person in possession of land is considered the true owner
against anyone except the legal owner.
Before: RICHMOND, Associate Justice, SAGAPOLUTELE, Associate
Judge, and MAMEA, Associate Judge.
Counsel: For Plaintiff, Afoa L. Su`esu`e Lutu
For Defendant, Lise Tausaga Faasoa, Marie A. Ala’ilima
For Defendant, Mauigoa Reupena Tausaga Tagaloa, Arthur
Ripley, Jr.
OPINION AND ORDER
Background
This dispute involves a small 0.047 acre parcel of land (“the parcel”)
within a larger area (“the land”), in Olosega, Manu’a Island, American
Samoa. Claimant Malaepule names the land “Lemati.” In September
2002, Claimant offered to register the land with the Territorial Registrar
as the individually owned land of Malaepule Milo Leia. 1 He intended to
lease the parcel to the American Samoa Power Authority (“ASPA”) for
construction of a water filtration system in Olosega. 2 Based on
1
As established at trial, Malaepule Milo and Malaepule Milo Leia are
the same person.
2
When government facilities are located on private land, whether owned
communally or individually, the procedure followed usually involves a
216
Claimant’s verbal authorization, ASPA’s system was already up and
running at the time of the registration offer. Objectors Joseph Pearson,
now deceased, Lisa Tausaga Faasoa, and Mauigoa Reupena Tausaga
Tagaloa filed a timely objection to the proposed registration. 3 Because
the registration of the parcel was contested, the lease between Claimant
and ASPA has not been finalized. ASPA is withholding rent payments
pending the outcome of this action.
The matter was referred to the Land and Titles Division of the High
Court after the parties failed to resolve their dispute at the office of
Samoan Affairs.4 Claimant now seeks Court approval of the parcel’s
registration as Claimant’s individually owned land. Objectors, on the
other hand, ask the Court to find Claimant’s registration offer invalid and
to declare the parcel a portion of the Tuiolesega Pa’u family’s communal
land. They name the communal land “Avaleuga of Lagituaiva.”
Discussion
There are two issues before the Court: (1) the validity of Claimant’s
registration offer; and (2) ownership of the land. Although these issues
cover similar ground, they are distinct enough to warrant separate
consideration.
A. Validity of Plaintiff’s Registration
A.S.C.A. §§ 37.0101-.0104 sets forth the necessary requirements for
registering land in the territory. Objectors argue Claimant’s registration
offer failed to satisfy all of these requirements: (i) the land is not
Claimant’s individually owned land, but rather a portion of the
Tuiolesega Pa’u family’s communal land; (ii) the land was not surveyed
by a licensed surveyor; and (iii) the registration offer and surveyor’s
certificate contain different signatures. Objectors correctly argue that
each of these grounds is sufficient to vitiate the registration.
lease of the land from the person having authority to sign for or as the
lessor. Hence, Claimant would be motivated to register the parcel as his
individually owned land to collect the rent. Otherwise, ASPA would
have to deal with the sa`o of the family owning the parcel communally.
3
During the trial, we granted Claimant’s unopposed motion to dismiss
Joseph Pearson as a party, made in view of his death and Mauigoa
Reupena Tausaga Tagaloa’s later filed amended claim statement of the
case. This step left him and Lise Tausaga Faasoa, who also subscribed
to the revised theory, as the Objectors.
4
The Secretary of Samoan Affairs’ jurisdictional certificate is filed in
this action.
217
1. Nature of the Land
Objectors contend the land is part of the Tuiolesega Pa’u family’s
communal land, and not Claimant’s individually owned land. They
claim a sa`o of the Tuiolesega Pa’u family assigned the land to his
daughters Leaia and Tautinei, who in turn gave permission to the
Malaepule family to use this portion of the communal land, which
included the construction and maintenance of buildings. Thus, they
insist that while Claimant, as part of the Malaepule family, was free to
use the land, he did not acquire any individual ownership rights in the
land. Objectors initially sought to evict Plaintiff and his family from the
land because of the registration transgression, but during the trial they
conceded prevention of the parcel’s registration was a sufficient remedy.
Claimant, however, argues that he and his family received ownership of
the land through ancestors on the Milo side of his family. Therefore, he
asserts that his right to the land exists independent of the Tuiolesega
Pa’u family’s communal property rights, and is unconnected to any
permission given by the Tuiolesega Pa’u family to the Malaepule family.
Claimant, who is now 82 years old, claims occupancy and use of the land
by him throughout his lifetime and by his parents for many years before
his birth. He states he has built or allowed building of numerous
structures and homes on the land--including ASPA’s water filtration
system on the land until his registration offer--without objection from the
Tuiolesega Pa’u family.
[1-2] Based on the evidence presented at trial, we find neither side
clearly proved their family owns the land. However, given the strong
presumption that land in American Samoa is communal rather than
individual property, the burden of proof here falls on Claimant to show
his individual ownership of the parcel. See Leota v. Faumuina, 4
A.S.R.2d 11 (Appellate Div. 1987). Support for the communal land
presumption is found in the land and parcel’s location within the Olosega
village center adjacent to or nearby communal lands. Claimant’s
evidence of his and his parents long-term occupancy and use of the land,
standing alone, falls short of overcoming this presumption. See, e.g., id.
(occupancy by one family is not necessarily inconsistent with ownership
by another family).
[3] Claimant asserts the lengthy occupancy and use was coupled with
“gifting” of the land to his parents. Several witnesses spoke of “gifted”
communal land in Olosega, as if this was a distinct tradition in use there.
However, no witness clearly explained whether “gifted” communal land
created separate ownership by or a form of customary assignment to a
family member of certain communal land areas. In any event,
individually owned land is legally created only when an individual
occupies and uses previously “virgin” or undeveloped land or when
218
communal land is alienated with prior review by the Land Commission
and the Governor’s approval. A.S.C.A. §§ 37.0203, 37.0204; see Sivia
v. Alaimalo, 13 A.S.R.2d 95 (Land & Titles Div. 1989) (virgin bush
requirement); Sese v. Leaota, 9 A.S.R.2d 136 (Land & Titles Div. 1988)
(virgin bush requirement); Magalei v. Atualevao, 19 A.S.R.2d 86 (Land
& Titles Div 1991) (requirement of Land Commission’s
recommendation and Governor’s approval of conveyance of communal
land). No such occupancy and use, or alienation, occurred here. We
therefore find that the land, the parcel included, is communal land, and
because Claimant fails to discharge his burden of proof, registration of
the parcel as Claimant’s individually owned land would be invalid.
Although Claimant’s failure to prove individual ownership is by itself
sufficient to vitiate the registration, we will briefly address Objectors’
last two objections.
2. Survey of the Land
Objectors argue the survey was invalid because it was performed by a
team headed by a civil engineer who is not a registered professional
surveyor. We disagree.
[4-6] A.S.C.A. § 37.0102(a) provides that land offered for registration
must be accompanied by a survey of the land. Additionally, the survey
must conform to the Governor’s regulations. Id; Poumele v. Ma’ae, 2
A.S.R.2d 4 (Appellate Div. 1983). The Governor’s regulations are
embodied in the American Samoa Administrative Code. A.S.A.C. §§
31.0101-.0209. “Surveying” is defined by § 31.0202(7) and includes
locating the parcel on the ground. See § 31.0202(7)(A), (C). The
surveying for this registration had to be performed either by a person
who is a registered professional surveyor or by a “subordinate” who is
supervised by and assisting a registered professional surveyor. See §§
31.0202(1), (5), 31.0203(a), (f)(3).
In 2002, ASPA engaged PPG Consultants (“PPG”), a private
professional engineering firm, to oversee the engineering aspects of
installing the water filtration system. This work required surveying the
parcel for registration and lease. PPG employs engineers and surveyors.
A PPG team of three engineers and three surveyors, headed by Phillip
Wendt, a professional civil engineer and a principal in PPG, did the
survey field work. The team members were educationally qualified to
perform surveys, but not being registered professional surveyors, none
could provide legal descriptions. Thus, by arrangement with ASPA and
PPG, Meko Ainu`u (“Ainu`u”), a registered professional surveyor,
reviewed and approved the PPG team’s field work and resulting survey,
and then, as the Survey Branch Manager of American Samoa
219
Government’s Department of Public Works, certified the survey to be in
compliance with territorial survey laws and regulations.
Ainu`u’s government position and the water filtration project’s public
nature were undoubtedly cost saving reasons for entering this
arrangement. However, the lack of registered professional surveyors
active in American Samoa was also a major factor. In 2002, their
number was only three: Ainu`u; one in full-time private survey practice;
and another principally employed as a civil engineer. Only Ainu`u and
the private practitioner were regularly engaged in survey field work and
neither was available to timely perform the field work for the survey of
the parcel. Furthermore, for many years before 2002 and up to the
present time, the Board of Registration for Professional Surveyors has
not been constituted with members. Without any operational certifying
authority, qualified persons cannot become registered, and over time the
number of active locally registered professional surveyors dwindled. 5
[7] In sum, for the survey of the parcel, the field work was done by
subordinates, and the resulting survey was reviewed and approved by a
supervising registered professional surveyor, who also certified the
survey’s legal conformity. The procedure was cost-effective and
professional, and was carried out in substantial compliance with
territorial survey laws and regulations.
3. Signatures
Objectors argue that the signature of the pulenu`u [village mayor] on two
essential registration documents are different, indicating at least one of
the signatures was forged and for this reason invalidates the proposed
registration. We agree.
[8-9] Essential documents for a proposed registration require two
signatures of the pulenu`u [mayor] of the village in which or nearest to
which the land is located. The pulenu`u must sign a “Surveyor and
Pulenu`u Certificate” accompanying the survey. By signing this
certificate, the pulenu`u attests to giving public oral notice in the village
at a meeting of the village chiefs of the time and place of the intended
survey. A.S.C.A. § 37.0102(c). The pulenu`u must also sign a notarized
statement indicating the required notice of registration has been given by
posting the notice at two public places in the village in which or nearest
to which the land is located. A.S.C.A. § 37.0103(a), (c).
The pulenu`u’s signature on the certificate and his signature on the
notarized statement are different. The two signatures are too dissimilar
5
The three active registered professional surveyors in 2002 are still the
only ones active today.
220
to have been written by the same hand. Thus, Claimant’s proposed
registration could be denied on this ground as well.
B. Ownership of the Land
Although Claimant failed to prove individual ownership of the land, the
parcel included, it does not follow that no owner can be determined. It
also does not mean that Objectors should be declared owners of the land
and parcel, or that they acquire any right to register the land and parcel.
See Tuia Suasuai v. Salave'a (Mem.), 3 A.S.R.2d 1, 2-3 (Land & Titles
Div. 1986) (parties opposing registration do not acquire the right to
register the land in their own names simply because the plaintiff has
failed to prove his case). Rather, as stated above, we abide by the
presumption in favor of communal land, and therefore recognize the land
as communally owned. Determining which family owns the land and
parcel is slightly more difficult. Four families are potential owners in the
evidence: the Malaepule, Milo, Malemo and Tuiolesega Pa`u families.
[10-13] Where land ownership is in dispute and no written record or
document showing positive title is produced, the best evidence of
ownership is found in the person who has been using the land under a
claim of right and without objection from other parties. Uiagalelei v.
Ulufale, 17 A.S.R.2d 158, 161 (Appellate Div. 1990). Thus, possession
of the land carries with it a presumption of ownership. See Tuato`o v.
Taua`a, 17 A.S.R.2d 163, 166 (Appellate Div. 1990) (citing Puluti v.
Muliufi, 4 A.S.R. 672, 674 (Trial Div. 1965)). Additionally, continuous
use and possession of real property is better evidence of ownership than
family history and tradition. Ulufale, 17 A.S.R.2d at 161. Indeed, the
person in possession of the land is considered the true owner against
anyone except the legal owner. Id.
In this case, Claimant has essentially occupied and used the land and
parcel for his entire 82-year life, and his parents were in possession
before him--an extended period indeed. Furthermore, up until the parcel
registration offer, they built numerous structures on the land without
anyone’s objection.
Claimant maintains this possession of the land began through his Milo
family connection. Claimant now holds the Malaepule title on his
father’s side of the family, but he disclaims possession originated from
the Malaepule family. He formerly held the Milo title on his mother’s
side of the family. The Milo family, however, is also connected to the
Malemo family. While Claimant insists permission to possess the land
and parcel came from the Milo family, substantial evidence indicates
Malemo Tausaga Aperamo, as Objectors initially claimed, or Aperamo’s
brother Vienna when he held the Malemo title actually gave Claimant’s
parents the first permission to occupy the land. The evidence in support
221
of the Malemo family’s communal ownership of the land, including
testimony from family’s present sa`o [family head] with access to
written family records, and the family’s initial occupancy authorization
to Claimant’s parents is substantial and persuasive.
This historical Malemo family connection of Claimant and his parents,
coupled with their continuous permitted use and possession of the land,
is better evidence of ownership than Objectors’ reliance on purely
hearsay family history. Therefore, based on the evidence before us, we
find the Malemo family communally owns the land.
Accordingly, unless and until the Malemo sa`o chooses to formally
convey individual title to the land to Claimant or to Claimant and his
family, with the Land Commission’s recommendation and the
Governor’s approval, or to lawfully authorize Claimant to lease the
parcel to ASPA, with the Governor’s approval, or to receive the rents
paid by ASPA, the sa`o, under A.S.C.A. § 37.0221, is the proper person
to lease the parcel to ASPA, with the Governor’s approval, for the
community benefit of Olosega village, and to collect the rents.
Order
Claimant does not own and cannot register the parcel as his individually
owned land. His registration offer is voided and withdrawn. The
Malemo family owns the parcel as part of that family’s communal land,
and the family’s sa`o is presently the proper person to lease the parcel to
ASPA, with the Governor’s approval. The sa`o will be entitled to collect
the rents paid by ASPA and must fairly and reasonably distribute the
rental proceeds.
Given present circumstances, taking particularly into account Claimant
and his family’s lengthy presence on the land, the parcel included, as
well as existing assignments of other family lands to other family
members, the sa`o, in exercising his discretion, could fairly and
reasonably distribute or even assign the entire rents paid by ASPA to
Claimant.
It is so ordered.
**********
222
FALEMALAMA L. VAESA`U, Claimant,
v.
EMMA F. RANDALL, and MALAE FUATAU M. HUNKIN,
Counter-claimant.
Registration of the Matai Title LEVU from the Village of Nu`uuli.
High Court of American Samoa
Land & Titles Division
MT No. 06-04
January 30, 2006
[1] The statutorily defined role of the Court to hear and determine any
disputed claim over matai titles is vested only when a family cannot
reach agreement over who should hold the title.
[2] There is no disputed claim, within the meaning of A.S.C.A. §1.0409,
where the family has not met to consider the issue of matai succession.
Before: KRUSE, Chief Justice, SAGAPOLUTELE, Associate Judge,
MAMEA, Associate Judge, SU`APAIA, Associate Judge, and SAOLE,
Associate Judge.
Counsel: For Claimant, S. Salanoa Aumoeualogo
For Counter-claimant, Arthur Ripley, Jr.
ORDER OF DISMISSAL
Introduction
This matter came on for trial on January 5, 2006. The claimant,
Falemalama L. Vaesau ("Falemalama"), appeared with counsel S.
Salanoa Aumoeualogo, while counter-claimant Malae Fuatau M. Hunkin
("Malae") appeared with counsel Arthur Ripley, Jr. 1
Findings
The evidence shows that after Levu Fagaima Tulafono's demise, the
Levu family not only met but also successfully managed to choose a
successor matai on two consecutive occasions. Unfortunately, however,
1
Counter-claimant Emma F. Randall did not appear, having earlier
withdrawn from the proceedings through her counsel Afoa L.S. Lutu.
223
each successive appointee died before completing the legal requirements
for title registration2 and the requisite customary protocols involved with
the presentation of a new titleholder before the village and county.
The Levu family's latest attempts to select a new titleholder have not
gone as smoothly as before. At its very last meeting, which concluded
without arriving at a consensus as to the next titleholder, the family had
decided to defer matai selection until after the first-year anniversary of
Levu Sa Iosia's passing.3
To the surprise of many, however,
Falemalama, one of the candidates for the title, singlehandedly decided
to short-circuit the matai selection process pending before the family by
going directly, as he testified, "to the government for assistance."
Invoking the statutory matai registration process under A.S.C.A. §§
1.0401, Falemalama offered to register the title in his name with the
Territorial Registrar (apparently quite unmindful of the false certification
in his registration offer stating that he had been selected by the Levu
family as the next titleholder).
At trial, Falemalama unapologetically explained his decision to register
the title. He had concluded from the tenor of the speeches made at the
family's passing meetings that a favorable decision was not readily
coming his way, and he felt very strongly about it being his clan's turn at
holding the office of matai. In his mind, those family members who
were opposing his candidacy were not according him the respect due by
reason of his seniority.
This hasty act on Falemalama's part precipitated, as expected, the
immediate objections/counter-claims from other family members,
including Malae, a leading contender before the assembled family.4
After failed mediation attempts before the Secretary of Samoan Affairs
under A.S.C.A. §43.0302, the Territorial Registrar referred the matter as
a "disputed claim" to the Land and Titles Division for "hearing and
determination." A.S.C.A. §1.0409(a). These proceedings accordingly
ensued.
2
See A.S.C.A. §§ 1.0401 et seq.
Sa Iosia was the last individual the family had agreed upon to succeed
Levu Tulafono. While he took the kava cup before the assembled
family, he died shortly thereafter before registering the title and before
being formally installed in accordance with custom.
4
Falemalama's move necessarily compelled others to act in order to
preserve their succession bids from being time-barred by operation of
A.S.C.A. §1.0407. This enactment requires anyone vying for a matai
title to file his/her objection/counterclaim within 60 days following an
initiating offer to register the title.
3
224
Conclusions
[1-2] We hold that there is no "dispute" before us "for determination,"
and that this matter should be returned back to the Levu family for their
continuing deliberation "according to the traditions of the family."
A.S.C.A. §1.0405(b). To do otherwise, would allow the sort of strategic
maneuvering and tactical gimmickry employed by a lone family
member, such as Falemalama here, thus forcing Samoan families to
court in premature matai title "disputes." In doing so, the Court would
effectively displace the Samoan family as a traditional institution and
arrogate to ourselves an entitlement--the selection of a family's titular
head--that is not ours. Rather, "the statutorily defined role of the Court
`to hear and determine any disputed claim,' A.S.C.A. §1.0409, is
exercised only when a family cannot reach agreement over who should
hold the title." In Re Matai Title Taliaauafe, supra (Slip op. at 4)
quoting In re Matai Title Ma`ae, 6 A.S.R.2d 75, 76 (Land & Titles Div.
1987). Hence, in Lualemaga v. Toia, MT No. 03-03 (Land & Titles Div.
2004) (Order on Motion to Dismiss) slip op. at 2, we held that there is no
"disputed claim," within the meaning of A.S.C.A. §1.0409, where the
family has not met to consider the issue of matai succession. Until that
point in time, when it is clear that the family is unable to select a matai
and is resolved to refer a dispute for judicial resolution, the court really
has no business "interjecting its judgment on matters of matai
succession, to the exclusion of the Samoan family." In Re Matai Title
Taliaauafe, supra (Slip op. at 6).
Here, the evidence is abundantly clear that the Levu family was still in
the process of selecting a matai before Falemalama bolted to the
Territorial Registrar's office. The family clearly has not given up on the
matai selection matter, and while they might be seen by some to be
taking their time, that is entirely the Levu family's prerogative. 5 The
family should not be held hostage to the impetuous agenda of a single
family member, who happens to know where the office of the Territorial
Registrar is located as well as "the well beaten path to the courthouse."
In re Matai Title Mauga, MT No. 12-98 (Land & Titles Div. 2001)
(Opinion & Order) Slip op. at 8, fn. 9.
Accordingly, we conclude that all succession petitions currently before
the Court shall be DISMISSED, without prejudice, and the matter
returned to the Levu family for further deliberation. The Territorial
Registrar is directed to cancel all pending registration offers on the matai
title Levu.
5
As this court noted in Aulava v. Fairholt, 1 A.S.R.2d 73, 78 (Land &
Titles Div. 1983), "[G]ood faith effort to iron out disputes" is, in the
Samoan way of life, "discussions, discussions, and discussions."
Emphasis in original.
225
It is so ordered.
*********
DAVID P. FANENE, Claimant,
v.
TAELEIFI VITALE SO`OTO and GEORGE GALEA`I,
Counterclaimants.
Registration of the Matai Title FANENE of the Village of Nu`uuli.
High Court of American Samoa
Land & Titles Division
MT No. 08-04
April 26, 2006
[1] The Court is required by statute to evaluate the claimants’
qualifications to a matai title in four specifically prescribed areas.
A.S.C.A. § 1.0409(c).
[2] The four exclusive factors are: (1) the best hereditary right among the
claimants; (2) the wish of the majority or plurality of the family’s
customary clans for the claimants; (3) the claimants’ relative
forcefulness, character, personality, and knowledge of Samoan customs;
and (4) the claimants’ relative value to the family, village, and country.
[3] The High Court must issue written findings of fact and conclusions
of law on each of the four criteria. A.S.C.A. § 1.0409(d).
[4] The hereditary right evaluation normally depends on the candidates’
blood connection to previous titleholders.
[5] Two doctrines have been judicially developed to assess the
candidates’ hereditary rights by blood to the title.
[6] The traditional rule determines that right by a percentage measured
from the claimant’s closest relationship to a previous titleholder.
226
[7] The Sotoa rule calculates the percentage from the original or a
successor titleholder, or possibly even a non-titleholder ancestor, so long
as all claimants identify the same historical person.
[8] The Sotoa rule usually results in closer to equal, if not equal, blood
connections by percentage among the candidates.
[9] A person is considered a previous titleholder even though he was
judicially removed from the title.
[10] In reviewing the second factor, the Court must first determine the
number and identity of the clans.
[11] A traditional concept of clans formation is based on the names of
the first titleholder’s children.
[12] The third factor measuring the claimants’ relative forcefulness,
character, personality, and knowledge of Samoan customs assessment is
subjective by nature.
[13] A candidate’s lifetime activities and achievements are objective
factors properly considered when evaluating their qualifications under
the third criterion.
[14] The fourth factor measuring claimants’ relative value to the family,
village, and country is subjective by nature.
[15] The four statutory factors used in determining a titleholder is
assigned a priority ranking based on the order listed they are listed in the
statute.
[16] More weight is given to each criterion than to those following it,
taking into account the relative margins by which candidates may prevail
on each of the four categories.
Before: RICHMOND, Associate Justice, SAGAPOLUTELE, Associate
Judge, MAMEA, Associate Judge, and TAPOPO, Associate Judge.
Counsel: For Claimant, Arthur Ripley, Jr.
For Counterclaimant, George Galea`i, S. Salanoa
Aumoeualogo
For Counterclaimant, Taeleifi Vitale So`oto, Afoa L. Su`esu`e
Lutu
227
OPINION AND ORDER
Introduction
This action for judicial selection of the successor to the vacant matai title
“Fanene” of the Village of Nu`uuli came to trial on October 18 and 19,
2005. Present throughout the trial were Claimant David Penirosa Fanene
(“David”), Counterclaimants Taeleifi Vitale So`oto (“Taeleifi”) and
George [Siaosi] Galea`i (“Siaosi”), and their respective counsel. Three
other original counterclaimants dropped from contention during the
course of this proceeding; Ifo Tafao Ainu`u is now deceased, and Lotoa
Lauvao Lutali and Malaeoi Toasefulu Laulu withdrew their candidacies.
The Court, having heard testimony and considered all the evidence,
awards the matai title Fanene to Taeleifi Vitale Soto`o.
Discussion
A. Preaction Proceedings
David claimed the Fanene title with the Territorial Registrar on February
12, 2004. David’s claim drew timely counterclaims by Taeleifi and
Siaosi within the mandated 60-day notice period, February 12 through
April 12, 2004. On September 8, 2004, after unsuccessful mediation, the
Secretary of Samoan Affairs referred the claims back to the Territorial
Registrar with the Secretary’s certificate of irreconcilable dispute, as
required for the Court’s jurisdiction under A.S.C.A. § 43.0302. On
October 19, 2004, the Registrar referred the controversy to the Court for
judicial resolution.
B. Statutory Directives
[1-3] When resolving disputed claims to a matai title, the Court is
required by statute to evaluate the claimants’ qualifications in four
specifically prescribed areas. A.S.C.A. § 1.0409(c). The four exclusive
factors are: (1) the best hereditary right among the claimants; (2) the
wish of the majority or plurality of the family’s customary clans for the
claimants; (3) the claimants’ relative forcefulness, character, personality,
and knowledge of Samoan customs; and (4) the claimants’ relative value
to the family, village, and country. Id. The Court must issue written
findings of fact and conclusions of law on each of the four criteria.
A.S.C.A. § 1.099409(d).
1. Hereditary Right
A.S.C.A. § 1.0409(c)(1) directs the court to determine:
228
(1) the hereditary right [of each candidate], as to which
the male and female descendents are equal in families
where this has been customary; otherwise, the male
descendant prevails over the female;
[4-6] The hereditary right evaluation normally depends on the
candidates’ blood connection to previous titleholders. Two doctrines
have been judicially developed to assess the candidates’ hereditary rights
by blood to the title. The so-called traditional rule determines that right
by a percentage measured from the claimant’s closest relationship to a
previous titleholder. In re Matai Title Tuaolo, 27 A.S.R.2d 97, 99 (Land
& Titles Div. 1995).
[7-8] The more recently adopted Sotoa rule calculates the percentage
from the original or a successor titleholder, or possibly even a nontitleholder ancestor, so long as all claimants identify the same historical
person. Id. at n.1. This approach usually results in closer to equal, if not
equal, blood connections by percentage among the candidates. Thus, it
tends to be fairer when there are claimants in a blood line that has not
had a titleholder for several generations. In re Matai Title Lolo, 25
A.S.R.2d 175, 176 (Land & Titles Div. 1994). The three present
candidates do not, however, recognize an identical original titleholder or
a common titleholder in the same succeeding generation. We will
therefore apply only the traditional rule in this case.
[9] David is the son of Fanene Penirosa and, under the traditional rule,
has a 50% hereditary blood right. It was argued during the trial that
David only has a 12.5% right under this rule, because his father was
judicially removed from the title and his next closet relative title holder
was his great-grandfather Fanene Teetai. See In re Matai Title Fanene,
LT No. 1569-75, slip op. at 2 (Land & Titles Div. Apr. 26, 1976). An
earlier case, however, ruled that a person was a previous titleholder even
though he was judicially removed from the title. In re Matai Title Maga,
Case No. 55-1965, slip op. at 2 (Trial Div. Jul. 19, 1965). The Maga
decision is better reasoned, in our view, as removal is not the equivalent
to never holding the title. We therefore hold that David has a 50%
hereditary right to the title.
Taeleifi and Siaosi have equal hereditary blood rights. Taeleifi is Fanene
Tuiloli’s great-grandson and thus has a 12.5% hereditary blood right
under the traditional rule. Siaosi is Fanene Tuiafetoa’s great-grandson
and thus has also has a 12.5% hereditary blood right under the traditional
rule. Both are one generation more remote from a titleholder than
David.
Therefore, David prevails on the hereditary right criterion.
229
2. Wish of the Family Clans
A.S.C.A. § 1.0409(c)(2) expects the court to decide:
(2) the wish of the majority or plurality of the clans of the
family as customary in that family;
[10-11] We must first determine the number and identity of the clans. In
re Matai Title “Faumuina,” 26 A.S.R.2d 1, 3-4 (Land & Titles Div.
1994). The candidates in this case are not in substantial disagreement of
the Fenene family’s traditional clans. David recognizes three clans:
“Tuimalaeimi,” “Manufulufulua” and “Pipi.” According to his family
history, the first titleholder Fanene Tuimalaeimi had only one child, his
daughter Lamosi, and the family clan identifications are based on the
names of Lamosi’s children. Siaosi and Taeleifi identify four clans:
“Talimanava,” “Manufulfulua,” “Pipi” and Lauao.” They use the
traditional concept of clans based on the names of the first titleholder
Fanene Tuimalaeimi’s children, claiming he had four children.
Evaluating the evidence as a whole, we find the Fanene family
customarily has four clans based on the names of the first titleholder
Fanene Tuimalaeimi’s children: “Talimanava,” “Manufulufulua,” “Pipi”
and “Lauao.”
Beginning in 1999, family members met on many occasions, not always
with all four clans participating, in their effort to select the successor to
the Fanene title. Early on, the family was unable to reach any consensus
on the successor among the family members interested in taking the title.
Given this early stalemate, David’s brother, Touli Laau P. Fenene
(“Touli”), perhaps the frontrunner at that time, sought to register the title
with the Territorial Registrar, only to learn he was ineligible because of
his birth in Independent Samoa.
Then, in 2001, following a dormant period without meaningful family
discussion, Tapasu Fanene (“Tapasu”), also David’s brother, offered to
register the title, again drawing objections. However, when Tapusa died
in 2003, the selection process was again put back in the family’s hands.
At a meeting of all four clans early in 2004, Taeleifi was nominated for
the title for the first time. However, the family seemingly still favored
Touli to succeed to the title. Then, apparently recognizing his brother
Touli’s legal incapacity and without further meaningful family
discussion, David formally claimed the title, resulting in the title
counterclaims now before the Court.
David’s claim to the title also prompted additional family meetings. The
four clans met at least two more times, and ultimately resolved to
support Taeleifi for the title. During this process, two counterclaimants
230
withdrew their candidacies in Taeleifi’s favor. A petition supporting his
candidacy was also circulated and signed by 106 family members.
Based on the findings discussed above, the family clearly held
meaningful meetings to discuss and select the successor to its sa`o title.
Among the three present candidates, Siaosi was seriously considered for
the title at some family meetings, but the state of his health made his
selection somewhat problematic. David was likewise in the running, but
his support was largely from his and his sibling’s immediate families.
He, too, though perhaps reasonably well recovered at this time, has
suffered serious, near fatal illness. Taeleifi was a latecomer as a serious
candidate. However, when Touli dropped out of contention, in due
course the pendulum strongly swung in favor of Taeleifi’s selection
among all four family clans.
We find that Taeleifi now has the consensus support of all four family
clans. He therefore has the “wish of the majority or plurality” of the
customary family clans and prevails within the meaning of the clan wish
criterion.
3. Forcefulness, Character and Personality, and Knowledge of Samoan
Custom
The § 1.0409(c)(3) criterion requires the court to assess:
(3) the forcefulness, character and personality of the
persons under consideration for the title, and their
knowledge of Samoan customs;
[12-13] This assessment is subjective by nature. However, candidates’
lifetime activities and achievements are objective factors properly
considered when evaluating their qualifications under this criterion. 1
Therefore, we will first highlight the three candidates’ personal histories.
Educationally, the three candidates have roughly equal formal
educational achievements. Each is a high school graduate. Beyond
secondary school, David has taken American Samoa Community
College courses. Siaosi has obtained trade training in carpentry. Taeleifi
has completed considerable and distinct training sessions related to his
lengthy employment with the American Samoa Government’s
Department of Port Administration.
1
These factors are also properly considered when evaluating the
candidates’ value to family, village and country. See discussion of the
fourth statutory criterion, infra, p. 11.
231
Before medical retirement, David’s career involved U.S. Army service,
considerable public safety service including corrections here and in
Hawaii, and employment with the American Samoa Power Authority
and StarKist Samoa. Siaosi put his carpenter’s training to good use both
as a private building contractor and with the Government’s Department
of Public Works, including managerial positions. Following high
school, Taeleifi entered a still ongoing career with the Government’s
Department of Port Administration. For the last 17 years or so, he has
held managerial responsibilities within the department.
Each candidate has also been faithful to his church. Each has
participated in a variety of church activities, perhaps David and Siaosi to
a greater extent, but all three have been active in his church’s affairs.
While not a matai, David has served and still serves the Fanene family
and sa`o title. He served with the Nu’uuli village aumaga (untitled
men’s organization), played on the village boxing and rugby teams, and
participated as a village fautasi crew member.
Siaosi likewise has served and continues to serve the Fanene family and
title. He too served with the village aumaga and, in addition, has been
bestowed three matai titles. Siaosi has served on the Government’s
Territorial Planning Commission, Commerce Commission, and Zoning
Board, as well as on the Polytech high school PTA board. Over the
years, Siaosi also gained business experience in fast food, laundry,
grocery, and video sales enterprises.
Taeleifi serves two families and titles, Fanene on his mother’s side and
Fa`ivae in Leone on his father’s side. He has held two matai titles,
including the Taeleifi title at this time, in the Fa`ivae family. He is also a
customary spokesperson for the Fanene family at certain traditional
faalavelave. He too served with the Nu’uuli village aumaga. Taeleifi
was associated with a substantial retail store operation for some 24 years.
He engages in substantial farming and piggery activities.
It appears all three candidates have in-depth knowledge of Fanene family
customs and well understand Samoan customs generally.
Thus, with respect to their personal histories, we do not find any of three
candidates distinctly surpassing the other two regarding the elements of
this consideration. However, comparing the candidates’ actions during
the course of the family title selection process and their demeanor during
the trial, we find and conclude Taeleifi ranks higher and prevails on this
criterion.
In that comparison, Taeleifi comes across as a stronger leader, forceful in
a calm, modest and positive manner. During the family’s dealings with
232
selecting the title successor, he subscribed to the family’s interests rather
than his personal ambitions. He did not impel the issue and respectfully
conducted himself with restraint and patience during the prolonged
process. He thus portrayed sound moral and ethical character, affable
personality, and leadership potential.
4. Value to Family, Village and Country
Lastly, A.S.C.A. § 1.0409(c)(4) requires the court to evaluate:
(4) the value of the holder of the title to the family,
village, and country.
[14] As noted above, though finding support in the candidates’ personal
histories, this criterion is likewise ultimately subjective by nature.
Again, comparing the three candidates, Taeleifi is the most prominent.
To be sure, all three candidates have materially contributed to the
welfare of the Fanene family, Nu`uuli village, and the Territory of
American Samoa. But Taeleifi, by his demonstrated mature judgment,
adherence to customary values, and leadership qualities, is best
positioned to next head the Fanene family’s internal matters, as well as
its interactions involving Nu`uuli village and other villages, as well as
county, district and territorial affairs. We find and conclude Taeleifi has
the best value potential and prevails on this criterion.
C. Priority Analysis
[15-16] A.S.C.A. §1.0409 assigns priority to the four criteria in the order
listed. More weight is given to each criterion than to those following it,
taking into account the relative margins by which candidates may prevail
on each of the four categories. In re Matai Title Tauala, 15 A.S.R.2d 65
(Land & Titles Div. 1990).
Applying the traditional blood connection rule, David as the son of a
former Fanene titleholder prevails over Siaosi and Taeleifi on the first
priority hereditary right criterion. Siaosi and Taeleifi as grandsons of
former titleholders fall equally in line. Taeleifi, however, significantly
prevails over David and Siaosi on the other three criteria; in the order of
their priority, customary clan wish, personal characteristics and
knowledge of Samoan customs, and prospective value to family, village
and country. Taeleifi’s prevalence on all three of these considerations
substantially outweighs David’s better hereditary right to the tile.
We therefore award the matai title Fanene to Taeleifi.
233
Order
The Fanene title is awarded to Taeleifi V. So`oto. The Territorial
Registrar shall register the title in Taeleifi’s name, provided that he has
resigned from and is not holding any other registered title.
It is so ordered.
**********
FAIIVAE A. GALEA`I, Claimant, 1
v.
TOFOIPUPU T. FALELEI, SAGISAGI M. TUIAGAMOA, FOFO
T. TUITELE, MALAETELE L. TUITELE, LIUA P. TAIFANE,
VAIAUSIA MATU`U, MALUIA P.T.M. FILOITUMUA, ISAAKO
S. MAIAVA, IOANE F. SAELUA, ARTHUR RIPLEY, JR.,
FIAVIVINI K. ATOFAU, and TULIFUA T.P. LAM YUEN,
Counterclaimants.2
Registration of the Matai Title TUITELE of the Village of Leone.
High Court of American Samoa
Land & Titles Division
MT No. 01-99
May 22, 2006
[1] The Court is required to evaluate matai title candidates’
qualifications to succeed to a vacant title in four areas of assigned
1
On July 26, 2004, Claimant Faiivae A. Galea`i withdrew his candidacy
in open court.
2
The following Counterclaimants dropped out of contention: on June 5,
2005, Vaiausia Matu`u withdrew; on June 6, 2005, Sagisagi M.
Tuiagamoa, Maluia P.T.M. Filoitumua, Isaako S. Maiava and Ioane F.
Saelua were dismissed as candidates for failure to file their mandated
questionnaires; on January 10, 2006, the first day of trial, Tofoipuapua T.
Palelei, by her daughter and agent Christine Palelel Samana, withdrew in
open court; and on January 17, 2006, the fourth day of trial, Tulifua T.P.
Lam Yuen withdrew in open court.
234
priority which include: (1) the best hereditary right, as to which the male
and female descendants are equal in families where this has been
customary; otherwise, the male descendant prevails over the female; (2)
the wish of the majority or plurality of those clans 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. A.S.C.A. § 1.0409(c).
[2] The Court must issue a written decision, containing findings of fact
and conclusions of law on each of these four criteria. A.S.C.A. §
1.0409(d).
[3] The traditional judicial rule to determine hereditary right to a matai
title is based on the percentage of each candidate’s blood connection to a
previous titleholder.
[4] The common Samoan customary approach to family clan
identification is to name the clans after the first titleholder’s children.
[5] Career accomplishments objectively
forcefulness, character and person.
reflect
a
candidate’s
[6] The assessment of candidates under the fourth criterion is similar to
the evaluation under the third criterion.
[7] The four criteria are assigned priority through the order they are
listed in the statute. A.S.C.A. § 1.0409(c).
[8] More weight is given to each criterion than to those that follow it,
taking into account the relative margins by which the candidates may
rank in each of the four categories.
Before: RICHMOND, Associate Justice, LOGOAI, Chief Associate
Judge, LEFITI, Associate Judge, MAMEA, Associate Judge, and
SAOLE, Associate Judge.
Counsel: For Counterclaimant, Fofo T. Tuitele, Asaua Fuimaono
For Counterclaimant, Malaetele Lui Tuitele, Isa-Lei Iuli
For Counterclaimant, Liua P. Taifane, Katopau Ainu`u
For Counterclaimant, Arthur Ripley, Jr., Fiti A. Sunia
For Counterclaimant, Fiavivini K. Atofau, Salanoa
Aumoeualogo Soli
235
OPINION AND ORDER
Introduction
The process leading to this judicial selection of the successor to the
matai title Tuitele of the village of Leone began when the Claimant
Faiivae A. Galea`i filed his claim to the title with the Territorial
Registrar on October 3, 1997. As required by law, notice of the claim
was posted for 60 days at two public places in Leone from October 7
through December 8, 1997, and at the Courthouse from October 8
through December 8, 1997, and was published in the Samoa News on
October 7 and November 7, 1997. A.S.C.A. § 1.0407. Twelve
counterclaiming candidates were timely filed with Registrar within the
60-day period.
Pursuant to A.S.C.A. § 43.0302, the Registrar initiated dispute resolution
proceedings before the Secretary of Samoan Affairs, who issued, after
conduction three mediation proceedings, his certificate of irreconcilable
dispute on September 21, 1998, and returned the controversy to the
Registrar. On January 20, 1999, the Registrar in turn referred the matter
to the High Court for judicial resolution. The jurisdictional certificate is
on file with the Court.
Protracted pretrial proceedings took place. These proceedings included
numerous pretrial hearings and several referrals back to the Tuitele
family for meaningful successor selection discussions at family
meetings. As noted in footnotes 1 and 2 above, the original Claimant
and seven Counterclaimants withdrew their candidacies: five along the
pretrial way, another on the eve of trial, and the last during trial. Trial
commenced on January 10, 2006, with six counterclaiming candidates
vying for the title, and concluded on January 24, 2006, with the five
Counterclaimants and their counsel named above still participating.
Discussion
A. The Mandated Statutory Directions
[1-2] The Court is required to evaluate the matai title candidates’
qualifications to succeed to a vacant title in four areas of assigned
priority. These factors are prescribed by A.S.C.A. § 1.0409(c), which
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 descendants are equal in families where this has
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been customary; otherwise, the male descendant
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.
The Court must issue a written decision, containing findings of fact and
conclusions of law on each of these four criteria. A.S.C.A. § 1.0409(d).
1. Hereditary Right
[3] The traditional judicial rule to determine hereditary right to a matai
title is based on the percentage of each candidate’s blood connection to a
previous titleholder. In re Matai Title Tuaolo, 27 A.S.R.2d 97, 99 (Land
& Titles Div. 1995). We will apply this rule in this case. 3
Counterclaiming candidate Fofo T. Tuitele (“Fofo”) is the son of Tuitele
Tulifua Magsuli and therefore is, under the traditional rule, 50% blood
related to a previous titleholder. Candidate Fiavivini K. Atofau
(“Fiavivini”) is the son of Tuitele Leoso Atofau Kelemete and likewise
3
An alternative rule more recently adopted, the so-called Sotoa rule,
calculates the blood percentage from the original or a successor
titleholder, or even an ordinary ancestor, commonly accepted by all
candidates in their respective lineages. In re Matai Title Tuaolo, 27
A.S.R.2d at 99, n.1. This approach may provide a fairer comparison of
the candidates, particularly when there are candidates, as in this case, in
blood lines that have not had a titleholder for several generations, by
usually resulting in equal or closer to equal blood connections among the
candidates. In re Matai Title Lolo, 25 A.S.R.2d 175, 176 (Land & Titles
Div. 1994). In this case, the five candidates presented considerably
divergent family histories. Arthur argues, rather ingeniously, that during
the trial, all candidates ultimately agreed on the first titleholder’s
identity, and since only he properly detailed his blood line to the original
titleholder, the Sotoa rule should be applied and in his favor. Arthur’s
composite diagram, based on his interpretation of certain testimony and
exhibits and attached to his written argument, removes him by 13
generations from the original titleholder, substantially more than any
other candidate. In any event, on the evidence, we cannot with any
confidence identify an ancestor all five candidates commonly accept in
their bloodlines. We simply cannot apply the Sotoa rule with any
reasonably certain results. Therefore, in this case, we will apply the
traditional rule to determine the candidates’ hereditary rights to the title.
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has a 50% blood relationship to a previous titleholder. Candidate
Malaetele Lui Tuitele (“Malaetele”) is the grandson of Tuitele T.
Salatielu and thus his blood connection to a previous titleholder is 25%.
Candidate Liua P. Taifane (“Liua”) is the great grandson of Tuitele Save
Taeano and accordingly is 12.5% blood related to a previous titleholder.
Candidate Arthur Ripley, Jr. (“Arthur”) is a 12th generation descendant
of Tuitele Vaimā and thus has 0.0244% direct blood relationship with a
previous titleholder.4
Clearly, because their fathers held the Tuitele title, Fofo and Fiavivini
have equal hereditary rights to the title under the traditional rule and
outrank the other three candidates. They therefore prevail on this
criterion. The other three in the order of their seniority are Malaetele,
Liua and Arthur.
2. Wish of the Family Clans
While the five candidates have the same general understanding of the
Tuitele family history, they have significantly different family clans,
both by name and number, arising out divergent interpretations of that
history.
This situation complicates the Court’s task of clan
identification, but we must identify the family clans. In re Matai Title
Faumuina, 26 A.S.R.2d 1 (Appellate Div. 1994).
Though the Tuitele title may have origins in Ta`u, Manu`a, the five
candidates apparently agreed that one or more of the Leone village
founding fathers Salave`a, Olo and Leoso resolved to establish the
Tuitele title as the highest leadership title in Fofo and Lealataua counties.
Malaetle, Liua and Arthur identify Tuitele Leo`o as the first titleholder.
Though for family historical reasons discussed further below, Fofo
names Tuitele To`omata Talae as the first titleholder, he acknowledged
during his testimony that Tuitele Leo`o was the very first in the title line.
Fiavivini names Tuitele Uluvalu in this capacity. This difference may be
insubstantial.
[4] The common Samoan customary approach to family clan
identification is to name the clans after the first titleholder’s children.
Liua, Arthur and Fiavivini name the same two children of the first
titleholder, Vaema and Faasala. Fiavivini also names a third first child,
4
Arthur points out that he is a fifth generation descendent of Avalogo
Tautua, a brother of Tuitele Isaia, and by this measure he has a 3.125%
indirect blood relationship to a previous titleholder. However, we do not
need to reach the legal validity of this indirect hereditary right theory in
this case, as by either calculation Arthur has the most remote blood
relationship to a previous titleholder and is last in line among the
candidates for this criterion.
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Failauie. The similarity of these three candidates’ designated first
titleholder’s children suggests that Tuitele Uluvalu may be the same
person named Tuitele Leo`o by the others. No one else lists Tuitele
Uluvalu as a titleholder by that name. In any event, according to
Fiavivini, Tuitele Uluvalu was the Tuitele Leo`o’s son. Malaetele also
lists two first titleholder Tuitele Leo`o’s children but by totally different
names, Talae and Folo`olela.5 Fofo, however, presents an entirely
different interpretation of family history.
The five candidates agree that at some point in the early Tuitele family’s
history, the title was taken to the island of Upolu, 6 now part of
Independent Samoa, until Tuitele To`omata Talae, accompanied by
Maiava, Fiu and Save titleholders, restored the title to the Tuitele family
in Leone. Fofo views the title restoration as the true historical beginning
of the present Tuitele family, and thus lists Tuitele To`omata Talae as the
original titleholder. This leads to the five candidates’ substantial
variance in identifying the family clans.
After the Tuitele title was returned to Leone, control over intra-family
affairs became more and more centered in four family divisions, the
Nofo Ituaiga headed by the To`omata, Maiava, Fiu and Save titleholders,
to the relative exclusion of other families within the extended Tuitele
family. Foreseeable political intrigue occasionally developed among the
four divisions. See In re Matai Title, 1 A.S.R. 25; In re Matai Title
Tuitele, 1 A.S.R. 509. Apparently, however, each of the four divisions
assumed a particular role in family affairs, still presently in effect insofar
as these divisions are concerned. The Tuitele title became normally and
frequently has been vested in a To`omata division member; Maiava,
Leoso, Fiu and Save ordinarily stick to their customary roles; the heads
of the Fiu and Maiava division (including the Atofau branch and perhaps
the Leoso branch as well) selected the successors to the Tuitele title; if
the Fiu and Maiava titleholders disagree, the Leoso titleholder makes the
decision but only among the candidates considered by Fiu and Maiava;
collateral family members become eligible to hold the Tuitele title only
if no suitable To`omata division member is available. In re Matai Title
5
It appears Malaetle equates this Talae with Tuilele To`omata Talae.
When testifying, he agreed that there probably were other titleholders
between Tuitele Leo`o and Tuitele To`omata Talae. As for Folo`olele,
no other candidate identified anyone by this name.
6
Apparently the Tuitele titleholder, perhaps Tuitele Faisautele, and an
Upolu chief, perhaps Lilomaiava, played a traditional game of lafoga
[quoits] with the Tuitele title as the prize for the winner. Tuitele lost and
the winner took the title to Upolu. See In re Matai Title Tuitele, 1 A.S.R.
25, 29 (Trial Div. 1902); In re Matai Title Tuitele, 1. A.S.R. 509, 512-13
(Trial Div. 1933). Apparently, with persuasive intervention, two sisters
assisted the return of the title to Leone.
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Tuitele, 1 A.S.R. 31, 36-37. Based on this internal family practice, Fofo
lists To`omata, Maiava, Fiu and Save as the family clans.
Fiavivini takes another distinctly different tact of listing family clans, 12
in number, apparently based in principle on certain past titleholders’
names. On other hand, Malaetele, Liua, and Arthur follow the common
Samoan customary approach by naming the family clans after the
original titleholder’s two children each recognizes, Vaema and Faasala.
The five candidates widely divergent views of the family clans’ proper
identity are perhaps irreconcilable, at least under the evidence at this
trial. Nonetheless, three of the five candidates, Malaetele, Liua and
Arthur give deference to the common Samoan custom of family clan
identification according to the names of the original titleholder’s
children, and Fiavivini at least includes those names as family clans.
Given the weight of the evidence in this trial, we will therefore meet our
fact-finding obligation by identifying Vaema and Faasala, the first
titleholder’s two children most commonly recognized by the candidates,
as the Tuitele family clans, in accordance with the typical Samoan
custom, and go on to the next step of determining whether any candidate
is supported by both clans, the necessary majority, as the next Tuitele
titleholder.
The threshold in this inquiry is crossed only if extended family meetings
were held, during which the members meaningfully discussed selection
of the successor. A major problem in bringing this action to trial was the
persistence within the family to exclude collateral families from
participating in the meetings of the To`omata, Maiava, Fiu and Save
divisions until this part of the family reached a consensus on nominating
someone as the next titleholder from the To`omata division, or failing
that preference from the Maiava, Fiu or Save divisions. We referred the
case back to the family at least five times for further meaningful
selection discussions by the whole family. Ultimately, it became clear
that the entire family had finally been given reasonable opportunity to
join in meaningful discussions on the issue, but that the extended family
could not reach a consensus on the title successor. None of the five
candidates was the consensus choice of any clan.
Therefore, no candidate prevails on the clan wish criterion.
3. Forcefulness, Character, Personality, and Knowledge of Samoan
Custom
[5] Career accomplishments objectively reflect each candidate’s
forcefulness, character and person. In this regard, each of the five
present candidates has a distinguished background. Fofo has a college
degree and has long been a public servant with the American Samoa
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Government in increasingly responsible positions, including his present
second tenure as the Director of Port Administration overseeing the
Government’s sea and air concerns. Malaetele is likewise college
educated and has had a lengthy career in education with the Government,
presently as the Director of Education in charge of the Territory’s entire
public education system. Liua retired after 20 years of meritorious
service in the United States Marine Corps, and has since served the
people as a village pulenu`u [mayor], Senator in the Legislature, and as a
special liaison official for the Secretary of Samoan Affairs. Arthur is an
attorney and has successfully engaged in his chosen profession in both
public and private capacities, with the territorial Attorney General’s
Office and presently in private practice. Fiavivini has prominently
engaged in numerous and various construction, rentals, business, farming
and other undertakings, both for profit and religious purposes, as well as
police officer service with the Government. All five candidates have
also actively served the Tuitele family, participated in church and village
affairs, and provided board, commission or other special service for the
Government.
Clearly, the five candidates, each in his own way, have significant
lifetime achievements. In this relatively objective regard, we consider
them substantially equal for purposes of the forcefulness, character and
personality aspects of this criterion. Moreover, despite the remarkable
differences in their understanding of family history and traditions, all
five candidates have equally sound knowledge of Samoan customs.
Considering these relatively objective measures, the candidates are
substantially equal for purposes of this criterion. However, viewing the
candidates in the subjective light of their demeanor during the trial, Fofo
particularly demonstrated impressive characteristics. Among the five
candidates, he came across as the most calm, deliberate and even-handed
in his approach to situations at hand.
In sum, we rank Fofo above the other four candidates in our assessment
of the five candidates’ forcefulness, character and personality.
Therefore, Fofo prevails in this criterionon.
4. Value to Family, Village and Country
[6] Our assessment of the five candidates under this criterion is basically
similar to our evaluation on the last criterion. All have significantly
participated in Tuitele family, Leone village, and territorial affairs. We
note in particular, however, that unlike the other candidates, Fofo and
Malaetele have served hands-on the last two Tuitele titleholders and find
their participation in family affairs over the long term more meaningful
than the other three candidates. On the other hand, Fofo has
concentrated more immediately on Tuitele family affairs as a Leone
resident, while Malaetele has also been active in his wife’s family affairs
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as an Amanave resident.
Malaetele on this criterion.
We therefore rank Fofo slightly above
Under the value to family, village and country criterion, Fofo and
Malaetele prevail over the other three candidates, and Fofo prevails over
Malaetele.
B. Priority Assessment
[7-8] A.S.C.A. § 1.0409(c) assigns priority to the four criteria in the
order listed. More weight is given to each criterion than to those that
follow it, taking into account the relative margins by which the
candidates may fine on each of the four categories. In re Matai Title
Tauala, 15 A.S.R.2d 65-69-70 (Land & Titles Div. 1990).
Under the traditional blood connection rule, which is appropriate in this
case, Fofo and Fiavivini equally and clearly prevail over the other three
candidates on the best hereditary right as they are sons of former Tuitele
titleholders. The second priority clan wish criterion is a wash in the
absence of any evidentiary preponderance of majority or plurality clan
support for any of the five candidates. On the third priority forcefulness,
character and personality, and knowledge of Samoan custom criterion,
Fofo prevails over the other four candidates, who are essentially equal
with each other. On the fourth value to family, village and country
criterion, Fofo and Malaetele prevail over the other three candidates, but
Fofo prevails over Malaetele.
Accordingly, because Fofo and Fiavivini equally prevail over the other
three candidates on the first priority best hereditary right to the title
criterion, and because Fofo prevails over the other four candidates on the
forcefulness, character and personality, and knowledge of Samoan
custom, and the value to family, village and country criteria, we award
the matai title Tuitele to Fofo.
Order
The Tuitele title is awarded to Fofo T. Tuitele. The Territorial Registrar
shall register the Tuitele title in Fofo’s name, provided that he has
resigned from and is not holding any other registered title.
It is so ordered.
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DAVID P. FANENE, Claimant,
v.
TAELEIFI VITALE SO`OTO and GEORGE GALEA`I,
Counterclaimants.
Registration of the Matai Title FANENE of the Village of Nu`uuli.
High Court of American Samoa
Land & Titles Division
MT No. 08-04
June 19, 2006
[1] A motion for a new trial shall be filed within 10 days after the
announcement of the judgment. A.S.C.A. § 43.0802(a).
[2] A motion to alter or amend the judgment shall be served not later than 10
days after entry of the judgment. T.C.R.C.P. 59(e).
[3] In computing the last day of a filing period, the last day is included unless it
is Saturday, a Sunday, or a legal holiday, in which event the period runs until
the end of the next day which is not a Saturday, a Sunday, or a legal holiday.
T.C.R.C.P. 6.
[4] The Court has no jurisdiction to review motion for a new trial or
reconsideration filed after the statutory deadline.
[5] The Court has no discretion to disregard or extend the time limit to file a
motion for new trial or reconsideration.
[6] Failure to file a motion for a new trial or reconsideration within the statutory
deadline waives their right to appeal the decision.
Before: RICHMOND, Associate Justice, SAGAPOLUTELE, Associate
Judge, MAMEA, Associate Judge, TAPOPO, Associate Judge
Counsel: For Claimant, Robert K. Maez.
For Counterclaimant, Taeleifi Vitale So`oto, Afoa L. Su`esu`e Lutu
For Counterclaimant, George Galea`i, S. Salanoa Aumoeualogo
ORDER DENYING MOTION FOR RECONSIDERATION OR NEW TRIAL
243
Introduction
This action for judicial selection of the successor to the vacant matai title
“Fanene” of the village of Nu`uuli came to trial on October 18 and 19, 2005.
Present throughout the trial were Claimant David Penirosa Fanene,
Counterclaimants Taeleifi Vitale So`oto and George [Siaosi] Galea`i, and their
respective counsel.
On April 26, 20006, we issued an opinion and order awarding the matai title
Fanene to Taeleifi Vitale So’oto. Claimant moved for reconsideration or new
trial on May 9, 2006.
Discussion
[1-3] A.S.C.A. § 43.0802(a) provides that “[b]efore filing a notice of appeal, a
motion for a new trial shall be filed within 10 days after the announcement of
the judgment . . . .” Additionally, pursuant to T.C.R.C.P. 59(e), “[a] motion to
alter or amend the judgment shall be served not later than 10 days after entry of
the judgment.” In computing the last day of the period, the last day is included
“unless it is Saturday, a Sunday, or a legal holiday, in which event the period
runs until the end of the next day which is not a Saturday, a Sunday, or a legal
holiday.” T.C.R.C.P. 6.
[4-5] We issued our opinion and order on April 26, 2006. Thus, the 10-day
period to file and serve a motion for reconsideration ended on May 6, 2006.
However, because May 6 fell on a Saturday, the filing deadline extended to
Monday, May 8, 2006. Claimant filed the motion on May 9, 2006, one day
after the statutory deadline. Thus, the court has no jurisdiction to entertain the
motion. See In re Matai Title Muagututi`a, 15 A.S.R.2d 1, 2 (Land & Titles
Div. 1990) (statutory deadline for filing motions for reconsideration or new trial
is jurisdictional; if no such motion is filed within the requisite 10 days, the
Court no longer has the power to grant the motion or amend its judgment).
Although Claimant alleges circumstances that may have prevented from
meeting the deadline, the Court has no discretion to disregard or extend the time
limit. Satele v. Uiagalelei, 8 A.S.R.2d 40, 98-99 (Land & Titles Div. 1988); see
also Judicial Memorandum No. 2-87, 4 A.S.R.2d 172, 174 (events subsequent
to the announcement of judgment do not extend the time for filing motions for
new trial).
[6] Moreover, pursuant to § 43.0802(a)-(b), Claimant no longer has a right to
appeal. See In re Matai Title Muagututi`a, 15 A.S.R.2d at 2; see also Gi v.
Temu (Mem.), 12 A.S.R.2d 33, 35 (Land & Titles Div. 1989) (parties who did
not file motion for new trial or reconsideration within 10 days of judgment gave
up their right to appeal the decision); In re Matai Title Mulitauaopele, 17
A.S.R.2d 75, 76 (Land & Titles Div. 1990) (10-day filing requirement is
mandatory prerequisite to the exercise of jurisdiction by the Appellate
244
Division); Soli Corporation v. Amerika Samoa Bank, 25 A.S.R.2d 40, 41
(Appellate Div. 1993).
Order
The motion for reconsideration or new trial is DENIED for lack of
jurisdiction.
It is so ordered.
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245