KALOLO STOWERS, Appellant v. 

AMERICAN SAMOA GOVERNMENT, Appellee___________________________________

 FAATULU SAMANA, Appellant

 v. 

AMERICAN SAMOA GOVERNMENT, Appellee

High Court of American SamoaAppellate Division

AP No. 03-01AP No. 12-01

 March 24, 2003

 

[1] Whether a criminal defendant has a statutory right to a jury trial is a question of law to be reviewed de novo.

[2] When the legislature speaks in the form of a properly adopted statute, courts must attempt to provide a rational interpretation.

[3] It is an elementary canon of statutory construction that a law is not to be construed so that its provisions mere surplusage.

[4] Each provision of a statute is to be given full effect.

[5] To determine whether a statute presents an unconstitutional amendment by reference, courts apply a two pronged test: (1) is the amendment such a complete act so that the scope of the rights or duties created or affected by the legislation can be determined without referring to any other statute or enactment; (2) is whether “a straightforward determination of the scope of rights or duties under the existing statutes be rendered erroneous by the new enactment.”

[6] An amendment is not incomplete or unintelligible merely because executing its provisions requires resort to other statutes.

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[7] A.S.C.A. § Section 17 does not require the re-enactment and publication of an entire statute when the amendment affects only one subsection.

[8] A.S.C.A. § 3.0232(b) requires all jury trials to be heard before two associate judges sitting with either the Chief or Associate Justice, even if the jury trial is held before the district court.

[9] In all statutory construction cases, the court begins with the language of the statute and the inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent.

[10] The court cannot substitute its policy judgments for that of the legislature’s.

[11] The court is bound by the clear words of the statute and cannot speculate as to what the legislators might have overlooked.

[12] A statute is not absurd because it is an exception to other statutes.

[13] A statute is not irrational simply because it changes the prevailing practice.

[14] Courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, the judicial inquiry is complete.

[15] Every defendant charged with an offense carrying a maximum possible punishment of over 6 months of imprisonment, whether appearing before the High Court or the district court, has the right to a jury trial.

[16] Where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, the court’s duty is to adopt the latter.

[17] Courts are not to lightly assume that the legislature intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.

[18] Constitutional issues should not be needlessly confronted.

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

Counsel: Curtis E. Sherwood, Assistant Public Defender, for Appellants, Kalolo Stowers and Faatulu Samana

  Fainu`ulelei L.F. Ala`ilima-Utu, Assistant Attorney General, for Appellee American Samoa Government.

 OPINION AND ORDER

In these two consolidated appeals, Defendants-Appellants Faatulu Samana and Kalolo Stowers appeal from the district court’s denial of their separate motions for a new trial. The district court in each case determined that neither A.S.C.A. § 3.0232 nor the American Samoa Constitution gave the defendants a right to a jury trial in the district court. The district court had jurisdiction under A.S.C.A. § 3.0302. We have jurisdiction over this timely appeal pursuant to A.S.C.A. § 3.0309. We reverse and remand for new trials.

I.

Samana and Stowers were separately charged with driving under the influence of alcohol, a class A misdemeanor, A.S.C.A. §22.0707, punishable by up to one year imprisonment, A.S.C.A. § 46.2301, and/or up to a one thousand dollar fine. A.S.C.A. § 46.2102. Over their objections, the cases were heard by the district judge rather than a jury. After they were convicted, each filed a motion for a new trial, arguing he had a statutory and constitutional right to a jury trial. Each of these motions was denied.

II.

[1] Whether the defendants have a right to a jury trial in the district court under A.S.C.A. § 3.0232 is a question of law we review de novo. Anderson v. Vaivao, 21 A.S.R.2d 95, 98 (App. Div. 1992) (questions of law are reviewed de novo); Kulas v. Flores, 255 F.3d 780, 783 (9th Cir. 2001) (the right to a jury trial is a question of law reviewed de novo).

Here we are called upon to interpret A.S.C.A. § 3.0232, which states:* The Honorable J. Clifford Wallace, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation of the Secretary of the Interior.** The Honorable Susan Oki Mollway, District Judge, United States District Court of the District of Hawaii, sitting by designation of the Secretary of the Interior.

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(a) Any person charged with an offense carrying a maximum possible punishment of over 6 months of imprisonment shall be tried by a jury unless he personally waives this right in writing or in open court. The Chief Justice of the High Court may promulgate Petit Jury Rules and Standard Jury Instructions to govern jury trials in the High Court and district court. The petit jury shall be comprised of 6 persons. The jury verdict must be unanimous. Voir dire of prospective jurors shall be conducted by the court.(b) Notwithstanding any law to the contrary, whenever petit jury trials are held as provided in subsection (a), 2 associate judges shall sit with either the Chief or Associate Justice, who acts as presiding judge of the court. All questions of law shall be ruled upon by the presiding judge.

Both the language and the history of the statute demonstrate that A.S.C.A. § 3.0232 provides Stowers and Samana with a right to a jury trial in the district court.

A.

Clearly, the first sentence of Section 3.0232(a) gives them this right, and the sentence admits of no exceptions or qualifications. To read the right as lacking in the district court is to read out of existence Section 3.0232(a)’s expressly allowing the Chief Justice of the High Court to promulgate petit jury rules “to govern jury trials in the . . . district court.”

The government presents a number of arguments against this interpretation of the statute. First, the government argues that even if Section 3.0232(a) permitted jury trials in the district court, the language of Section 3.0232(b) governing the composition of the court somehow trumps Section 3.0232(a). The Chief Justice and Associate Justice preside over High Court cases, A.S.C.A. § 3.1002(a), and associate judges sit in the High Court. A.S.C.A. § 3.1005. District court sessions, in comparison, are conducted by “a district court judge sitting alone.” A.S.C.A. § 3.0303(a). The government argues that subsection (b)’s requirement of two associate judges sitting with the Chief or Associate Justice presiding must mean that jury trials may not be conducted in the district court, because district court proceedings are conducted by a district judge alone.

The government errs in its reading of subsection (b) as a descriptive, rather than a prescriptive, statement of the composition of the court in hearing jury trials. Subsection (b) does not simply describe the court that hears jury trials; rather, it prescribes the composition of the court when hearing jury trials. Thus, subsection (b) is prefaced by the phrase

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“[n]otwithstanding any law to the contrary,” to demonstrate that subsection (b) trumps the Code provisions providing district court sessions are to be conducted by a district court judge sitting alone.

[2] The government’s reading of the statute would make nonsense of subsection (a)’s explicit reference to the district court. When the legislature speaks in the form of a properly adopted statute, courts must attempt to provide a rational interpretation. The government’s reading would also make unnecessary A.S.C.A. § 3.0232(b)’s explanation that “either the Chief or Associate Justice . . . .act[ ] as presiding judge of the court.” If jury trials were held only in the High Court, subsection (b)’s explanation would be redundant, because the Chief Justice or Associate Justice preside over the High Court. A.S.C.A. § 3.1002(a).

[3-4] The government’s textual arguments violate the elementary canon of construction that a statute is not to be construed to render its provisions mere surplusage. TRW Inc. v. Andrews, 534 U.S. 19 (2001); Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1175 (9th Cir. 2002); Am. Vantage Cos. v. Table Mountain Rancheria, 292 F.3d 1091, 1098 (9th Cir. 2002); United States v. Fiorillo, 186 F.3d 1136, 1153 (9th Cir. 1999). Instead, each provision of a statute is to be given full effect. Duncan v. Walker, 533 U.S. 167, 174 (2001); Zimmerman v. Or. Dept. of Justice, 170 F. 3d 1169, 1177 (9th Cir. 1999); Northwest Forest Res. Council v. Glickman, 82 F.3d 825, 834 (9th Cir. 1996). Additionally, given the explicit language of the amendment’s preamble, we will not pretend that the insertion of the words “district court” was a slip of the pen. Pub. L. No.16-53 (1980) (“A number of statutes are amended by substituting the words ‘district court’ for ‘trial division of the High court’ . . . to clear up inconsistencies in the Code concerning jurisdiction of the district court and High Court.”).

Finally, the government argues that because of the placement of the jury trial statute in the chapter entitled “High Court,” and not in the chapter entitled “District Court,” the statute should not be interpreted to permit jury trials in the district court. Yet section headings “are for the purpose of convenience only, and are not to be considered a part of any section, or as altering or affecting in any way the provisions of any section.” A.S.C.A. § 1.0102. Moreover, a more coherent interpretation of the statute would dictate that the placement of the statute in the High Court chapter is to reflect the fact that the High Court Justices are to preside over the jury trial, even when the trial is conducted in the district court.

B.

Not only does the text of the statute support the conclusion that jury trials are to be held in district court, but the history of the statute supports it as well. The jury trial provision came on the heels of King v. Andrus,

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452 F. Supp. 11, 17 (D.D.C. 1977), which held that the United States constitutional right to a jury trial extended to the territory of American Samoa. In response, the American Samoa Legislature enacted legislation authorizing jury trials in felony cases. 5 A.S.C. 413(a) (Supp. 1979). Approximately six months later, the Legislature created the District Court system (District Court Act) and, within a year of that, amended the District Court Act to correct inconsistencies between it and the petit jury trial statute. Pub. L. No. 16-53 (1979). The amendment extended the jury trial right from felony cases to all “offense[s] carrying a maximum possible punishment of over 6 months of imprisonment,” forming the current A.S.C.A. § 3.0232(a).

The Legislature believed that the former petit jury trial statute’s provision for jury trials only in felony cases fell short of the requirements of Andrus. Pub. L. Pub. L. No.16-53 (1979) (“The statute governing jury trials is amended to provide jury trials for all offenses carrying sentences of over six months, in conformity with constitutional requirements.”). At that time, though not necessarily today, this was a reasonable conclusion. Years before Andrus, the Supreme Court held that the right to a jury applied to all crimes carrying a maximum penalty of more than six months. Baldwin v. New York, 399 U.S. 66, 69 (1970) (plurality opinion); accord United States v. Rylander, 714 F.2d 996, 1005 (9th Cir. 1983). Given the Legislature’s likely concern with the constitutionality of denying a jury trial to a defendant charged with an offense carrying a maximum penalty of more than six months, it is a reasonable conclusion that the Legislature did not intend the statutory jury trial right extend only to those defendants charged with such crimes before the High Court, but not before the district court.

III.

The district court held that interpreting the statute to permit jury trials in the district court would amount to an unconstitutional amendment by reference. American Samoa’s Constitution states, “No law shall be amended or revised by reference to its title only; but in such case the act, as revised, or section or sub-section as amended, shall be reenacted and published at full length.” AM. SAM. CONST. art. II, § 17. The district court stated that this constitutional mandate was violated when the legislature amended the statute because it failed to republish other subsections of the Code dealing with district court. Thus, the district court concluded:

the Legislature may have intended, by including by reference the “District Court” as falling under the rules to be promulgated for petit juries in subsection (a) of A.S.C.A. § 3.0232, that the statutory right to a jury trial be afforded to misdemeanants tried before the District Court. Yet amendment

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by reference is precisely what Sec. 17, Article II of the Revised Constitution prohibits.

American Samoa Gov’t v. Petelo Lafaele, No. 0043 at 18 (Dist. Ct. July 13, 2000).

Several states have enacted nearly identical constitutional provisions. ALA. CONST. art. IV, § 45 (“[N]o law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length”); ARIZ. CONST. art. IV, § 14 (“No Act or section thereof shall be revised or amended by mere reference to the title of such Act, but the Act or section as amended shall be set forth and published at full length”); ILL. CONST. art. IV, §8(d) (“A bill expressly amending a law shall set forth completely the sections amended”); TEX. CONST. art III, § 36 (“No law shall be revived or amended by reference to its title; but in such case the act revived, or the section or sections amended, shall be re-enacted and published at length.”); WASH. CONST. art. II, § 37 (“No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length”). These states’ interpretation of provisions similar to Section 17 informs our decision.

[5] Some states employ a test asking two questions to determine whether a statute presents an unconstitutional amendment by reference. The first question is whether the amendment is such a complete act so that “the scope of the rights or duties created or affected by the legislation . . . can be determined without referring to any other statute or enactment.” Amalgamated Transit Union Local 587 v. State, 11 P.3d 762, 800-01 (Wash. 2001); accord State v. L.N.A., 811 So. 2d 637, 642-43 (Ala. Crim. App. 2001); City of Sierra Vista v. Dir., Ariz. Dep’t of Envtl. Quality, 988 P.2d 162, 167-68 (Ariz. Ct. App. 1999); Elford v. City of Rattle Ground, 941 P.2d 678, 683 (Wash. Ct. App. 1997) (amendment which is virtually incomprehensible without referring to another statute is not a complete act). The second question is whether “a straightforward determination of the scope of rights or duties under the existing statutes be rendered erroneous by the new enactment.” Amalgamated Transit, 11 P.3d at 801; accord In re King, 49 P.3d 854, 858-59 (Wash. 2002); L.N.A., 811 So. 2d at 642. If the amended statute is sufficiently complete and does not render existing statutes erroneous, then Section 17 is not violated. If the amended statute is either incomplete or renders existing statutes erroneous, and fails to reenact and publish these preexisting statutes, then Section 17 is violated.

[6] The amendment to the petit jury statute is complete because it can be understood without reference to other acts. The amendment republished the former subsection in full, and clearly signified what was amended

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and how. An accused misdemeanant’s right to a jury trial can be determined without referring to any other statute. While the procedural nuances of the jury trial are determined only by examining pre-existing statutes, the scope of the right created by subsection (a), an accused misdemeanant’s right to a jury trial in the district court, can be determined without reference to any other statute. The amendment is not incomplete or unintelligible merely because executing its provisions requires resort to other statutes. L.N.A., 811 So. 2d at 643.

[7] Moreover, though subsection (b) was not republished, this does not amount to a violation of section 17. Section 17 states that if a law is amended, the “sub-section as amended, shall be reenacted and published at full length.” Section 17 does not require the re-enactment and publication of an entire statute when the amendment affects only one subsection. See, e.g., Freeman v. Purvis, 400 So. 2d 389, 392 (Ala. 1981) (the prohibition of amendment by reference “does not necessarily require the re-enactment of an entire legislative Act when only one section is to be amended. An amendatory Act publishing at length the section to be amended is sufficient.”); accord L.N.A., 811 So. 2d at 640.

The second question is also satisfied: a straightforward determination of the scope of rights or duties under the existing statutes would not be rendered erroneous by the amendment. Prior to the amendment, the Code was silent as to an accused misdemeanant’s right to a jury trial in the district court. Though the amended petit jury statute may impliedly affect other sections, it would be absurd to require the legislature to identify and publish all statutes that might be affected by every amendment.

[T]o say that every statute which thus affects the operation of another is therefore an amendment of it would introduce into the law an element of uncertainty which no one can estimate. It is impossible for the wisest legislator to know in advance how every statute proposed would affect the operation of existing laws.

Am. Lung Ass’n v. Wilson, 59 Cal.Rptr.2d 428, 432 (Cal. Ct. App. 1996), quoting Hellman v. Shoulters, 44 P. 915, 920 (Cal. 1896). Because the amended petit jury statute does not render erroneous the scope of rights or duties under pre-existing statutes, the second question in the test is satisfied. Section 17’s prohibition of amendments by reference was not violated.

IV.

[8-10] We are bound by the explicit language of the statute, which unequivocally requires all jury trials to be heard before two associate

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judges sitting with either the Chief or Associate Justice, even if the jury trial is held before the district court. A.S.C.A. § 3.0232(b). “As in all statutory construction cases, we begin with the language of the statute . . . The inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent.” Barnhart v. Sigmon Coal Co. 534 U.S. 438, 450 (2002) (internal quotation marks and citation omitted); accord Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999). Though applying subsection (b) to jury trials held in the district court might be an “administrative nightmare,” as the dissent suggests, we cannot substitute our policy judgments for the legislature’s. We interpret statutes; we cannot rewrite them.

[11] The dissent argues that the legislature clearly intended the District Court to be a single-judge court. Yet the statute expressly requires three judges in all jury trials. A.S.C.A. § 3.0232(b). Except for the language of the statute, there is no clear indication of what the legislature’s intent was. The legislators and staff might have overlooked subsection (b) in P.L. 16-53, but we are bound by the clear words of the statute, and we cannot speculate as to what the legislators might have overlooked, and hypothesize what they would have done had they remembered subsection (b). “In analyzing a statute, we begin by examining the text, not by psychoanalyzing those who enacted it.” Carter v. United States, 530 U.S. 255, 271 (2000) (internal quotation marks and citation omitted).

[12-13] The dissent argues that our interpretation of the statute leads to an “absurd result” because it would work a change in the way that the composition and powers of the Chief Justice, Associate Justice, and the district court are specified in other sections of the code. Yet a statute is not absurd because it is an exception to other statutes. A statute is not irrational simply because it changes the prevailing practice. Otherwise, legislatures would be condemned to enact only those statutes that change nothing.

[14] While we understand the administrative hardship the statute may bring, we lack the power to ignore the statute’s clear language. “[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” Barnhart, 534 U.S. at 461-62, quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). The dissent has identified a significant and important problem. We do not disagree. But the answer to the stated problem must be found by the legislature. It has full power to amend the statue; separation of powers prevents us from doing so.

V.

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[15] Thus, under A.S.C.A. § 3.0232(a), every defendant “charged with an offense carrying a maximum possible punishment of over 6 months of imprisonment,” whether appearing before the High Court or the district court, has the right to a jury trial. Even when the jury trial is held in the district court, “2 associate judges shall sit with either the Chief or Associate Justice, who acts as presiding judge of the court.” A.S.C.A. § 3.0232(b). This right was violated by the district court.

[16] Our interpretation of the statute is in harmony with the well-established principle that “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” U.S. ex rel Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909); accord United States v. Jin Fuev Moy, 241 U.S. 394, 401 (1916); Murray v. The Charming Betsy, 2 Cranch 64 (1804). This centuries-old principle of judicial restraint continues to this day. Zadvydas v. Davis, 533 U.S. 678, 689 (2001); I.N.S. v. St. Cyr., 533 U.S. 289, 299-300 (2001); Jones v. United States, 529 U.S. 848, 858 (2000); Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1122 (9th Cir. 2002); Ma v. Ashcroft, 257 F.3d 1095, 1106 (9th Cir. 2001); United States v. Bulacan, 156 F.3d 963, 974 (9th Cir. 1998).

[17-18] As jurisprudential considerations of advisory opinions, mootness, ripeness, standing, and other rules of judicial self-restraint demonstrate, judicial review is a reluctant power, exercised only when and to the extent necessary to resolve disputes appearing before the court. Courts are not to “lightly assume that [the legislature] intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.” St. Cyr., 533 U.S. at 300 n.12, quoting Hooper v. California, 155 U.S. 648, 657 (1895); accord Rust v. Sullivan, 500 U.S. 173, 191 (1991); Rescue Army v. Mun. Court of City of Los Angeles, 331 U.S. 549, 571 (1947). Moreover, constitutional issues are not to be needlessly confronted, as judicial review of legislative acts presents a grave and final act, difficult to change and in tension with a pure democratic system. A constitutional holding can be reversed by other government actors only by the arduous process of constitutional amendment. Further, judicial restraint is necessary because of the judiciary’s inherent limitations “arising especially from its largely negative character and limited resources of enforcement.” Rescue Army, 331 U.S. at 571. To maintain their credibility and preserve their normative capital, courts must be diligent in avoiding gratuitous constitutional analysis.

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The statute’s text and history, as well as the canon of construction of avoiding unnecessary but grave constitutional questions, require us to interpret the statute as we have. However, if the statute were later to be amended to remove the criminal jury trial power from the district court, the later amended statute would not necessarily be unconstitutional. It is constitutional doubts, not the certainty of unconstitutionality, that is the precondition to the canon of construction we invoke.

REVERSED AND REMANDED.

It is so Ordered. ______________________________

MOLLWAY, Acting Associate Justice, concurring.

Although I join in the prevailing opinion, I write separately to address an issue raised by the dissent. As the dissent notes, the prevailing opinion is not joined in by any judge who lives in American Samoa. Instead, I and my colleague on that opinion are acting associate justices, invited to sit in light of conflicts that preclude a full complement of justices based in American Samoa. I recognize that it is the dissenters and other members of American Samoa’s bench who will have to deal with the effects of our holding today. I do not, however, for that reason cavalierly join in the prevailing opinion. To the contrary, it is only because I conclude that the statutes in issue demand our result that I join in it. If I could, in good faith, reach a contrary result true to the statutory language, I would gladly do so.

The record contains no evidence indicating that the Legislature intended anything other than what the statutes provide. The dissent argues that, to those who live in American Samoa, it is clear that the Legislature did not intend to enact what it did enact. But when the record does not actually establish such an error, a court, whether in American Samoa or elsewhere, cannot rewrite legislation. To permit judicial redrafting would be particularly dangerous here, where the legislation concerns the court itself. I must trust that, if the Legislature of American Samoa did not intend the result stated in the prevailing opinion, it will act promptly to correct its own pronouncements.

______________________________

RICHMOND Associate Justice, SAGAPOLUTELE, Associate Judge, and MAMEA, Associate Judge, concurring in part and dissenting in part.

We join the prevailing opinion insofar as it declares that the defendants have a right to a jury trial in the District Court. We disagree, however, with its conclusion that jury trials in the District Court must be

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conducted by the Chief or Associate Justice of the High Court, joined by two Associate Judges. We do not believe this was the intention of the Legislature. When appropriate, we would adhere to the principles of judicial statutory interpretation enunciated in the prevailing and concurring opinions. However, we believe that these stated principles are misapplied in this case. In our view, the prevailing opinion unnecessarily creates a result of potentially titanic impracticality—a result directly in conflict with various statutes regulating the composition of the High Court and District Court, and defining the functions of the Justices and Judges of our court system.

I. STANDARD OF REVIEW

In construing a statute, while we must give due weight to its explicit language, we are not bound to interpret the statute so as to create an absurd result. We characterize the result as “absurd” not in any derogative or pejorative sense but as a word of art employed in the judicial standard applicable, in our view, to the issue before the Court.

“It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers[.]” Mova Pharmaceutical Corp v. Shalala, 140 F.3d 1060, 1068 (D.C. Cir. 1998), quoting Holy Trinity Church v. United States, 143 U. S. 457, 459-60 (1892); In re Pacific-Atlantic Trading Co., 64 F.3d 1292, 1303 (9th Cir. 1995) (Court should not “presume Congress intended an absurd result.”); Bechtel Const., Inc. v. United Bhd. Of Carpenters, 812 F.2d 1220, 1225 (9th Cir. 1987) (“Legislative enactments should never be construed as establishing statutory schemes that are illogical, unjust, or capricious.”). When such a situation arises, “in determining how to avoid an absurdity generated by the plain language of a statute, a court is to look to [legislative] intent.” In re Investment Bankers, Inc., 4 F.3d 1556, 1564 (10th Cir. 1993). “[T]he intention of the drafters, rather than the strict language, controls.” Mova Pharmaceutical Corp, 140 F.3d at 1068, quoting United States v. Ron Pair Enterprises, 489 U.S. 235, 242 (1989).

II. DISCUSSION

A. The Prevailing Holding Will Have Absurd Results

We acknowledge, as set forth in the prevailing opinion, that A.S.C.A. §3.0232(a) was clearly intended to extend the right of a jury trial to the District Court. Further, the plain language of A.S.C.A. § 3.0232(b) would seem to dictate that when such jury trials are had at the District Court, they shall be presided over by the Chief or Associate Justice of the High Court and two Associate Judges. The prevailing opinion stops there, though, ignoring the implications of such a construction. The

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Chief Justice and Associate Justice, by statute, are only assigned to the various divisions of the High Court. See A.S.C.A. §§ 3.0209(a) (“The Chief or the Associate Justice shall have power to hear and determine alone any preliminary or supplementary matter in any case before the divisions of the High Court”) (emphasis added); 3.1002 (“The Chief Justice and the Associate Justice shall preside at all [the High Court’s] divisions”); 3.0220 (Appellate Division), 3.0230 (Trial Division), 3.0240 (Land and Titles Division). The same restriction applies to the Associate Judges. That is, by statute, they are only assigned to sit on cases at the High Court. See A.S.C.A. §§ 3.0210 (“The associate judges shall be entitled to be heard on all questions before any division of the High Court”) (emphasis added); 3.1004 (“There shall be no less than 5 associate judges of the High Court”) (emphasis added); 3.0220 (Appellate Division), 3.0230 (Trial Division), 3.0240 (Land and Titles Division).

On the other hand, the District Court is composed of only District Court Judges. A.S.C.A. § 3.0301. No statute envisions the Chief Justice, Associate Justice, or any Associate Judge sitting at the District Court. Indeed, “[a]ll sessions of the district court are conducted by a district court judge sitting alone.” A.S.C.A. § 3.0303 (emphasis added)

Furthermore, it makes sense that the Associate Judges are not designated to sit at the District Court. The District Court does not have jurisdiction over matai titles; the High Court has exclusive jurisdiction. A.S.C.A. § 3.0208(b). And it is in these cases that the Associate Judges perform their most integral function—determining the result in matai title controversies. See, e.g., In re Matai Title “Tuaolo”, 28 A.S.R.2d 137 (Land and Titles Div. 1995) (if majority of the four associate judges agree in result, presiding Justice need not even vote); compare A.S.C.A. § 3.0241(b) (Justice’s decisional role limited to resolving a tie vote among the Associate Judges in matai title cases), with A.S.C.A. §§ 3.0221 (difference of opinion between Justices and Associate Judges in Appellate Division); 3.0231 (difference of opinion between Justice and Associate Judges in Trial Division); 3.0241(a) (difference of opinion between Justice and Associate Judges in land cases).

The prevailing opinion disregards this carefully crafted organizational scheme and implicitly declares that the Legislature, with the slip of a pen, clearly intended to overlook the current structure of our judiciary. Nelson v. City of Irvine, 143 F.3d 1196, 1207 (9th Cir. 1998) (“Sections of statutes should be construed consistently with other statutory sections whenever possible.”). This result is clearly absurd, inconsistent, and impractical. To read the statute in such a way will create, to say the least, an administrative nightmare. The High Court has only seven authorized and budgeted judicial positions, two Justices and five Associate Judges, and is therefore not equipped to man both the High

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Court and District Court on any regular or routine basis. It would be particularly and unnecessarily burdensome when jury trials are scheduled in both courts.1

B. The Intent of the Legislature

The prevailing opinion is not only problematic. We do not believe it effectuates the actual intent of the Legislature clearly evident in the evolutionary development of A.S.C.A. § 3.0232.

The Legislature understood, when it enacted the original version of A.S.C.A. § 3.0232 (5 A.S.C. 413, the present code’s forerunner at that time), P.L. No. 15-100 (1978) that King v. Andrus, 452 F. Supp. 11 (D.D.C. 1977), required jury trials in felony prosecutions. Felony prosecutions were then, and still are, only heard before the High Court. A.S.C.A. §3.0208. At that juncture, we think the Legislature clearly expressed that intent in A.S.C.A. § 3.0232(a) (then 5 A.S.C. § 413 (a)) by applying the statute to the High Court. Moreover, A.S.C.A. § 3.0232(b) (then 5 A.S.C. § 413(b)) clearly complemented subsection (a) as originally enacted. Thus, the phrase “Notwithstanding any law to the contrary,” in our understanding, had meaning only in reference to the usual Trial Division quorum requirement of one sitting Associate Judge. A.S.C.A. § 3.0230 (then 5 A.S.C. § 408(c)).2

The Legislature enacted P.L. No. 16-53 (1980) 18 months later. That act “refined” numerous provisions of the “District Court Act of 1979,” including recognition of the constitutional requirement of jury trials in prosecutions of offenses having potential sentences of more than six months, and as stated in the preamble, with the intention to eliminate statutory inconsistencies concerning the respective jurisdictions of the High Court and District Court.

1 To further emphasize our point, one can wonder why, if the Legislature intended Justices and Judges of the High Court to sit on all jury trials, it did not simply provide that all jury trials take place at the High Court? The prevailing opinion apparently sees nothing absurd about uprooting the High Court's judges and other resources to the District Court each time a jury trial is held there. We will not attribute such illogic to the Legislature.2 The prevailing opinion uses this clause to sanction a 'wholesale revision of our courts' composition, without pausing to question its effect. As stated, we think this language references the number of Associate Judges sitting on a jury trial in the High Court. At the very least, the lack of a consensus as to the purpose of this clause suggests that the plain language of this statute is far from clear.

14

It seems clear that the author of the bill that became P.L. 16-53, and during the legislative process, the legislators and their staff, overlooked A.S.C.A. § 3.0232(b) and thereby failed to provide clear consistency between subsections (a) and (b) for purposes of the distinctly different and normal composition of judges sitting on jury trials in the High Court and District Court. The oversight, in our view, did not alter the original and readily apparent intent of only mandating two Associate Judges sitting on all jury trials in the High Court—a practice routinely followed. See MCI Telecomm. Corp. v. Am. Tel. & Tel. Co, 512 U.S. 218, 228 (1994) (“[T]he most relevant time for determining a statutory term’s meaning” is when the act became law). We see no reason why we are compelled to interpret subsection (b) other than the evident way the Legislature originally intended.

III. OPINIONS COMPARED

The prevailing opinion correctly states that a “statute is not irrational simply because it changes the prevailing practice.” But dramatically altering not just prevailing practice but the entire court structure is certainly a sign that such a statute may be problematic. When such a situation arises, our goal as a court is to make sense of the overall statutory scheme, to reconcile the conflicts and harmonize legislative enactments. We should not abdicate this responsibility simply because the plain language of a statute allows for a plausible, yet probably unintended, result. See Public Citizen v. Dept. of Justice, 491 U.S. 440, 454-55 (1989).

It seems that the philosophy of statutory interpretation expressed in the prevailing opinion differs from the one set forth in this separate opinion. Both methods are reasonable, and we do not mean to discredit the prevailing opinion’s approach. Nonetheless, in our view, the interpretive philosophy of the prevailing opinion is unsuitable in this instance. The prevailing opinion’s claim that there is no indication of what the Legislature intended belies reality.3 Though not overwhelming on the

3 Ironically, according to the prevailing opinion, it seems that even if there had been express, rather than implicit, legislative history contradicting their interpretation of the plain meaning of the statute, they would still not use it as guidance. See, infra, at 17 (“When the words of a statute are unambiguous, then ‘judicial inquiry is complete.’”). Contrast, e.g., Public Citizen, 491 U.S. at 455, quoting Boston Sand & Gravel Co. v. U.S., 278 U.S. 41, 48 (1928) (“Looking beyond the naked text for guidance is perfectly proper when the result it apparently decrees is difficult to fathom or where it seems inconsistent with Congress' intention, since the plain-meaning rule is ‘rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive

15

intent issue, the timing of the amendments, existing statutes, and the structure of the Judiciary, coupled with local practice and understanding are sufficient to provide us with a legislative history. Or simply put, there is evidence of the proper context in which to view this statute.

What is considered legislative history in stateside jurisdictions—as examples, records of the proceedings of committee hearings, floor debates, and joint resolutions—is still largely non-existent in this jurisdiction. In saying what the law of this Territory is—what a statute means—we must be cognizant of all relevant factors, of local customs and traditions, and we must allow common sense to prevail. Perhaps this is the most glaring divide between the prevailing opinion and our separate opinion.

In this respect, the three local judges adhering to this separate opinion agree on one interpretation of the statute. The prevailing opinion consists of the two visiting Acting Justices and their contrary view. Thus, while the vote count stands at 2 to 3, the law commands that their opinion prevails. See A.S.C.A. § 3.0221. But this only emphasizes the divide between our viewpoint and the reasoning of the prevailing opinion. In putting form over substance, the prevailing opinion expresses fidelity to a legal dogma that will create a great burden on the Territory and the Judiciary’s resources. In deference to local knowledge and experience with interpreting the Territory’s legislation, we believe that our view is the view of the Legislature.

IV. CONCLUSION

Accordingly, while we concur in the decision stated in the prevailing opinion that an accused is entitled to a jury trial in the District Court, we dissent from the holding in that opinion that requires a Justice and two Associate Judges of the High Court to sit on jury trials conducted in the District Court.

In view of the prevailing opinion, we urge the Legislature to enact clear legislation in the immediate future stating its intention on the judicial composition sitting on jury trials in  the District Court, whether the District Court Judge presides or otherwise. 

**********AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

PAULAVA MALALA, Defendant.

evidence if it exists.’”)

16

High Court of American SamoaTrial Division

CR No. 49-02

January 7, 2003

[1] The government bears the burden of proving by a preponderance of the evidence that a defendant waived his Miranda rights.

[2] The government bears the burden of proving by a preponderance of the evidence that a statement was voluntarily made.

[3] The court’s determinations that a criminal defendant has waived his Miranda rights and voluntarily made a confession are both based upon the totality of the circumstances.

[4] A suspect’s right against self-incrimination arises in the context of custodial interrogation.

[5] If a suspect requests counsel during custodial interrogation, interrogation must cease until counsel is made available, even if the suspect later attempts to waive that right.

[6] Once a suspect has invoked the right to counsel, any subsequent conversation must be initiated by him.

[7] The rule that interrogation must cease once a suspect invokes his right to counsel applies even if renewed interrogation concerns a separate investigation.

[8] The right to have the assistance of counsel attaches at or after the time that judicial proceedings have been initiated.

[9] After the right to the assistance of counsel attaches, the accused has the right to rely on counsel as a ‘medium’ between himself and the State.

[10] The right to the assistance of counsel is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent.

[11] Where right to assistance of counsel attaches, if an accused does not affirmatively request counsel, further interrogation is not forbidden as long as the accused properly waives his right.

17

[12] If an accused affirmatively requests the assistance of counsel, further interrogation is prohibited without counsel present, despite a waiver of Miranda rights.

[13] Despite the fact that suspect’s right to assistance of counsel had attached, because suspect had not requested counsel, had been warned and had validly waived his rights, there was no constitutional bar to the interrogation.

[14] The right to counsel, unlike the right against self-incrimination, only applies to crimes that constitute the same offense.

[15] When the right to counsel attaches, it encompasses offenses that, even if not formally charged, would be considered the same offense under the Blockburger test.

[16] Even if a suspect waives his Miranda rights, a court must still determine whether his confession was voluntary and obtained according to due process of law.

[17] The determination as to whether a confession is voluntarily made is based upon the totality of circumstances , including the length of the interrogation, its location, its continuity, the defendant’s maturity, education, physical condition, and mental health, the failure of police to advise the defendant of his rights and whether any overt police coercion was employed such as threats, violence or promises.

[18] A confession is not voluntary if circumstances show that the defendant’s will has been overborne or his capacity for self-determination critically impaired.

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

Counsel: For Plaintiff, Frederick J. O’Brien For Defendant, Bentley C. Adams III

ORDER DENYING MOTION TO SUPPRESS

Before the court is a motion to suppress statements given by the defendant in the course of police interrogation. We deny the motion.

I. Findings of Facts

Based on the evidence adduced at the hearing on the motion on November 15, 2002, and judicial notice of the record in American Samoa

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Gov’t v. Paulava Malala, CR No. 30-01, we make the following findings of fact.

Around 2:00 a.m. on Sunday July 14, 2002, there was a brawl in front of the Curve nightclub in Faganeanea. Several persons were injured. Because defendant Paulava Malala (“Malala”) suffered a head wound, the police initially viewed him as a victim. Injured persons, including Malala, were taken to the hospital for medical examination and treatment. When he was released from the hospital, around 5:00 a.m. the same day, he was taken to the central police station in Fagatogo (“CPS”) for general questioning by Det. John Cendrowski about the incident.

The police continued their investigation of the melee at the Curve. After interviewing some witnesses, Malala became a suspect in the fatal stabbing of another person and for discharge of a shotgun during the Curve incident. Malala was taken to the correctional facility (“CF”) at Tafuna, apparently later on July 14, 2002, allegedly for protection from possible retaliatory action by the deceased’s family. The following day, Monday, July 15, 2002, Malala was arrested under a warrant issued for an alleged violation of a probation condition in CR No. 30-01. He was either served with this warrant at the CF or taken there after this arrest.

During the midday of Tuesday July 16, 2002, at the direction of Capt. Va`a Sunia, the head of the Criminal Investigation Division (“CID”) and lead investigator of the Curve incident, Lieut. Ta`ase Sagapolutele escorted Malala from the CF to the CID office at the CPS for questioning. Lieut. Sagapolutele had not yet seen the autopsy report and was not sure of the cause of death. However, because Lieut. Sagapolutele intended to conduct a custodial interrogation about Malala’s participation in the brawl, he first gave Malala Miranda warnings that he had the right to remain silent and to have an attorney, and that anything he said could be used against him. Malala signed a waiver of his rights, written in Samoan, and proceeded to give a statement to Lieut. Sagapolutele, first orally and then in his own handwriting, except for two changes made by Lieut. Sagapolutele. The Lieut. wrote “doorman” above a striken word, which appears to be “door,” and “thrusted” above the striken word “waved” after Malala demonstrated what he did with the knife. He did not, however, initial or otherwise acknowledge the changes.

In essence, Malala wrote, with the two appended changes, that in self-defense he removed a knife from his pants and thrusted it at someone, who may have been hurt a little. After one person hit his head with a beer bottle and another threw a bottle at his face, he was able to retrieve a shotgun from his car and fired it in the air twice to scare off people before his brother took the shotgun away from him. He then passed out. This is the written statement Malala seeks to suppress.

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There are two points of contention regarding these events. First of all, Malala claims that when Lieut. Sagapolutele told him to get into the police unit at the CF to take him to the CPS, Malala refused and said he wanted a lawyer. In response, Lieut. Sagapolutele hit the vehicle door, told him to get into the vehicle, and told him that there would be no attorney at that time. In effect, Malala asserts that Lieut. Sagapolutele ignored Malala’s plea for an attorney. Lieut. Sagapolutele testified, on the other hand, that throughout his contact with Malala on July 16, Malala was cooperative and neither said, nor did, anything to make him believe that Malala did not want to talk with him.

The first issue boils down to credibility. We simply do not believe Malala’s self-serving testimony. We are incredulous that Lieut. Sagapolutele would ignore such a blatant appeal for an attorney.

The second point of contention concerns the overall tone and manner of the interrogation. In Malala’s version, at the CID office, before he wrote the statement, Malala denied having a knife and stabbing the deceased victim and Lieut. Sagapolutle responded by banging his fist on the table and screaming that something bad would happen to Malala if he did not speak the truth. He testified that several times Lieut. Sagapolutele threatened to beat him and said Malala would be locked up forever. He also claims that Lieut. Sagapolutele falsely stated that the deceased died of a gunshot wound, and if Malala admitted to the knife stabbing, he would not be prosecuted for the killing. Malala maintains that he was afraid and wrote what Lieut. Sagapolutele told him what to write—untruths such as admitting that he had a knife in his pants but did not intend to kill anyone with one when he actually did not even have a knife on his person. Malala also stated that Lieut. Sagapolutele offered to buy him lunch if he signed the written statement.

Lieut. Sagapolutele contradicted Malala’s testimony. He indicated that throughout his contact with Malala on July 15, Malala was cooperative, showed no fear, had no reservation about talking with him, and no difficulty writing his statement. Lieut. Sagapolutele maintained that he did not raise his voice, threaten Malala with physical force, or make any promises or inducements. He did grant Malala’s request for a cigarette break while Malala was still writing his statement. He had informed Malala that he would return with him to the CF after the questioning, but he did not offer Malala lunch until he and Capt. Sunia, with Malala, were on the way there, because he knew that the CF lunch period was over.

Again, the issue boils down to credibility. We believe Lieut. Sagapolutele’s version.

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II. Legal Analysis

[1-3] Plaintiff American Samoa Government (“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). 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. Garibay, 143 F.3d at 536 (waiver); Braxton, 112 F.3d at 781 (voluntariness).

A. Request for Counsel

Malala argues that because he requested an attorney, the police were required to cease all interrogation until counsel had been made available. A little background is necessary.

[4-7] A suspect’s right against self-incrimination, and the now familiar Miranda doctrine, arise in the context of custodial interrogation. See REV. AM. SAMOA CONST. art. I, § 6; U.S. CONST. amend. V; Miranda v. Arizona, 384 U.S. 436 (1966). In this setting, if a suspect requests counsel interrogation must cease until counsel is made available, “even if the suspect later attempts to waive that right.” United States v. Avants, 278 F.3d 510, 514-15 (5th Cir. 2002), explaining Edwards v. Arizona, 451 U.S. 477 (1981). “‘Once the suspect has invoked the right to counsel, any subsequent conversation must be initiated by him.’” Michigan v. Jackson, 475 U.S. 625, 626 (1986), quoting Solem v. Stumes, 465 U.S. 638, 641 (1984) (explaining Edwards rule). The Edwards rule that interrogation must cease applies even if renewed interrogation concerns a separate investigation. See Arizona v. Roberson, 486 U.S. 675 (1988). Furthermore, the rule that an attorney be “made available” means that interrogation cannot resume “without counsel present.” Minnick v. Mississippi, 498 U.S. 146, 153 (1990). [8-12] Under the right to have the assistance of counsel, the rules are a little different. REV. AM. SAMOA CONST. art. I, § 6; U.S. CONST. amend VI. The right attaches “at or after the time that judicial proceedings have been initiated . . . .” Main v. Moulton, 474 U.S. 159, 176 (1985) quoting Brewer v. Williams, 430 U.S. 387, 398 (1977); see Massiah v. United States, 377 U.S. 201 (1964). In terms of interrogation, after the right attaches, the accused has “the right to rely on counsel as a ‘medium’ between him and the State.” Moulton, 474 U.S. at 176. The right “is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent.” Id. However,

21

even though the right attaches, if an accused does not affirmatively request counsel, further interrogation is not forbidden as long as the accused properly waives his right. Patterson v. Illinois, 487 U.S. 285, 290-297 (1988) (finding that Miranda warnings are sufficient to apprise a suspect of his Sixth Amendment rights). On the other hand, if an accused affirmatively requests the assistance of counsel, further interrogation is prohibited without counsel present, despite a waiver of Miranda rights.4 See Michigan v. Jackson, 475 U.S. 625 (1986) (extending Edwards cease-interrogation and waiver rules to the Sixth Amendment); see generally Daniel A. Klein, Annotation, Requirement, under Federal constitution, that law enforcement officer’s custodial interrogation cease after suspect requests assistance of counsel--Supreme Court cases, 129 L. Ed.2d 955. But see Texas v. Cobb, 532 U.S. 162, 174-177 (2001) (Kennedy, J., concurring) (questioning continuing validity of Jackson).

B. Right to Counsel

Because we have explicitly found, by a preponderance of the evidence, that Malala did not request an attorney, we can declare that the cease-interrogation rule is not applicable to this case. Therefore, as to this argument, it is irrelevant whether the interrogation took place under the rubric of the right against self-incrimination or the right to assistance of counsel.

[13] Nonetheless, even though Malala did not request an attorney, he argues that because he was in custody for the parole violation, and because he was represented in that matter, the statements concerning the events at the Curve were taken in violation of his right to counsel. As already noted, once this right attaches, and the suspect does not ask for counsel, the police can interrogate a suspect without counsel present provided he validly waives that right. See Patterson, 487 U.S. at 290-297. Assuming the right had attached, because Malala did not request counsel, and because he validly waived his rights—Malala was given Miranda warnings and signed a waiver—there was no constitutional bar to the interrogation. Id.

[14-15] Furthermore, even had Malala not waived his rights, the police officers were not precluded from asking Malala questions concerning a different offense from the one in which he was represented. The right to counsel, unlike the right against self-incrimination, only applies to crimes that constitute the same offense. Compare McNeil, 501 U.S. at

4 When Jackson is invoked, however, it prohibits further interrogation for only the same offenses. See McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). For a further discussion on what constitutes a same offense, see infra II.B.

22

175 (“The [right to counsel] is offense-specific.”), with Roberson, 486 U.S. at 684 (Because of the privilege against self-incrimination, a “suspect’s request for counsel should apply to any questions the police wish to pose . . . .”). “[T]he definition of an ‘offense’ is not necessarily limited to the four corners of a charging instrument.” Cobb, 532 U.S. at 173. Relying on its Double Jeopardy jurisprudence, the United States Supreme Court has held that “when the . . . right to counsel attaches, it does encompass offenses that, even if not formally charged, would be considered the same offense under the [Blockburger v. United States, 284 U.S. 299 (1932)] test.” Id. The Court rejected, as applied by various lower courts, an expansive exception to the offense-specific definition “for crimes that are ‘factually related’ to a charged offense.” Id. at 168.

Therefore, Malala’s right to counsel did not apply to the interrogation concerning the events at the Curve. Malala was on parole after having entered a plea of guilty to stealing, A.S.C.A. § 46.4103, in June 2001. In that matter, Malala was represented by the public defender (“PD”). He now asserts that this representation extended to his detention for the probation violation. We assume without deciding that this is true. Nonetheless, the interrogation in this case dealt with the incident at the Curve, and not with Malala’s probation violation. Applying the Blockburger test to determine whether the two offenses are the same for purposes of the right to counel, it is clear that a probation violation “requires proof of a fact which [the offenses that arose out of the incident at the Curve] do[] not.” Cobb, 532 U.S. at 173, quoting Blockburger, 284 U.S. at 304; see Avants, 278 F.3d at 517 n.5; Compare A.S.C.A. § 46.2209 (requiring violation of condition of probation), with A.S.C.A. 46.4203 (requiring the carrying of a concealed weapon), A.S.C.A. § 46.4221 (requiring possession of arms without a license), and A.S.C.A. § 46.4231 (requiring discharge of arms).5

C. Voluntariness

[16-18] Finally, Malala argues that his confession was not voluntary. Even if a suspect waives his Miranda rights, a court must still determine whether his confession was voluntary and not obtained under the due process of law. REV. AM. SAMOA CONST. art. I, § 2; U.S. CONST. amend XIV; 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). Our determination is based on the totality of the circumstances. See Williams, 507 U.S. at 688-89.

5 It seems that the offenses in this case would not even be considered “closely related” under the test proposed by the dissent in Cobb. Cobb, 532 U.S. at 186-187 (Breyer, J., dissenting).

23

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 silent and to have counsel present during custodial interrogation.”

Id. at 693-694 (1993) (citations omitted). Also, 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.” United States v. Braxton, 112 F.3d 777, 780 (4th cir. 1997) (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 our findings of facts, we hold that Malala’s statement was indeed voluntary. The police officers did not use physical threats or violence, nor did they induce Malala. Furthermore, Malala made no claims, nor does the evidence support any, concerning other factors, such as age, education, or location of interrogation.

III. Conclusion

For the reasons stated above, the motion to suppress is denied.

It is so Ordered.

**********

24

AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

SEFO TUILAGI, Defendant.

High Court of American SamoaTrial Division

CR No. 74-02

February 10, 2003

[1] Any constitutional attack on a particular punishment is normally not ripe for review before the punishment has been given.

[2] The court will rule on the constitutionality of a criminal statute if: (1) the issue is fit for judicial consideration, and (2) withholding of consideration will cause substantial hardship to the parties.

[3] The taking of depositions in criminal cases is generally disfavored.

[4] T.C.R.Cr.P. 15 allows depositions in cases of exceptional circumstances.

[5] The court looks to several factors in determining whether a party in a criminal case has demonstrated exceptional circumstances warranting the taking of a deposition. Such factors include: [1] whether the desired witness is unavailable to testify at trial, [2] whether the witness’ testimony is material to the moving party’s case and [3] whether the taking of the deposition would cause injustice to the nonmoving party.

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

Counsel: For Plaintiff, John W. Cassell, Assistant Attorney General For Defendant, Bentley C. Adams III, Asst. Public Defender

ORDER DENYING MOTIONS TO DISMISS AND TO TAKE DEPOSITIONS

Defendant brings before us a motion to dismiss the prosecution and to take depositions pursuant to T.C.R.Cr.P. 15. We deny both motions as premature.

I. BACKGROUND

25

Defendant is charged with violating A.S.C.A. §13.1022.6 He was arrested at the port facilities in Fagatogo after authorities discovered what is alleged to be approximately 8 pounds of marijuana in a box defendant carried. At the time, he told the authorities that he had no knowledge of what was in the box. Instead, he insisted that he was bringing it as a favor to an acquaintance from the Independent State of Samoa (“Samoa”). He alleges that there are witnesses currently residing in Samoa that can corroborate his statements.

II. MOTION TO DISMISS PROSECUTION

Defendant moves to dismiss the prosecution on the basis that the statute in question violates the territorial and U.S. constitutional prohibitions against cruel and/or unusual punishments.7 We decline to rule on the

6 13.1022 Possession of controlled substance unlawful. (a) Except as authorized by the director, it is unlawful for a person to possess a controlled substance. (b) A person who violates this section is guilty of a felony and shall be punished as follows:

(1) for a first offense, a fine not less than $5,000 and not more than $20,000 or not less than 5 years and not more than 10 years in prison, or both;(2) for a second offense, a fine not less than $20,000 and not more than $30,000 or not less than 10 years and not more than 20 years in prison, or both; and(3) for a third offense, a fine not less than $30,000 and not more than $40,000 or not less than 15 years and not more than 30 years in prison, or both;

There shall be no parole for a conviction under this section. (c) The above penalties are mandatory.7 The Eighth Amendment of the U.S. Constitution provides, “Excessive bail shall not be required. Nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (emphasis added). Article 1, Section VI of the Revised Constitution of American Samoa states in part, “Excessive bail shall not be required. Nor excessive fines imposed, nor cruel or unusual punishments inflicted.” (emphasis added). At this juncture, we need not comment on whether the grammatical difference between the two clauses—that the U.S. Constitution is in the conjunctive and the Revised Constitution of American Samoa is in the disjunctive—provides for different and greater protections or rather is merely a matter of semantics. Compare and Contrast People v. Anderson, 493 P.2d 880 (Cal. 1972), superseded by CAL. CONST., art. I, § 27 (holding that the “cruel or unusual” language of the California Constitution provides greater protection than the Federal Constitution); People v. Bullock, 485 N.W.2d 866 (Mich. 1992) (same with regards to

26

motion since the issue is not ripe for adjudication.

[1-2] Any constitutional attack on a particular punishment is normally not ripe for review before the punishment has been given, indeed, before the trial has even commenced. See United States v. Quinones, 313 F.3d 49, 58 (2nd Cir. 2002). However, courts will rule if “(1) the issues are fit for judicial consideration, and (2) withholding of consideration will cause substantial hardship to the parties.” Id., quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967). While a facial attack on the statute may be fit for judicial consideration, the second requirement has not been met in this case. Unlike Quinones, defendant’s strategy will not change by invalidating the punishment portion of A.S.C.A. 13.1022; nor will the procedures in his trial vary. Contrast, Id. at 58-61. Instead, only the sentencing stage would be affected.8

Furthermore, review of the punishment scheme involved in this case would be more complete if undertaken after trial. At that time, we could not only entertain a facial attack on the statute but also review the constitutionality of the punishment as applied to this specific defendant. Additionally, it is likely that the United States Supreme Court will have issued an opinion further delineating the scope of the cruel and unusual clause. See Andrade v. Attorney General, 270 F.3d 743 (9th Cir. 2001), cert. granted, 535 U.S. 969 (April 1, 2002) (No. 01-1127); People v. Ewing, 2001 WL 1840666 (Cal. App. 2d Dist. April 25, 2001), cert. granted, 535 U.S. 969 (April 1, 2002) (No. 01-6978).

III. MOTION TO TAKE DEPOSITIONS

Defendant also requests us to order depositions of potential witnesses currently residing in Samoa. Defendant’s main contention is that these witnesses will not be able to afford the trip to American Samoa to testify at trial. At this stage of the proceedings, however, defendant has failed to meet his burden under T.C.R.Cr.P. 15.

[3-5] Though “the taking of depositions in criminal cases is generally disfavored,” United States v. Des Marteau, 162 F.R.D. 364, 367 (M.D.

Michigan Constitution), with Thomas v. State, 634 A.2d 1, 10 n.5 (Md. 1993) (finding no distinction between the two phrases).8 Defendant’s attack on the entire statute sweeps too broadly. We do not believe that a successful constitutional attack on the punishment portion of the statute would invalidate the entire statute. If successful, his motion would not result in immunity from prosecution or, if brought after trial, require reversal of the underlying conviction. Instead it would require different considerations at the sentencing stage or, if after trial, resentencing. See Quinones, 313 F.3d at 60-61. Therefore, we treat defendant’s motion as simply attacking the constitutionality of A.S.C.A. § 13.1022(b) and (c).

27

Fla. 1995), T.C.R.Cr.P. 15 allows them in cases of “exceptional circumstances.” It is within our discretion to grant such an order, but only if the moving party has met his burden. Id. We look to several factors: “[1] whether the desired witness is unavailable to testify at trial, [2] whether the witness’ testimony is material to the moving party’s case and [3] whether the taking of the deposition would cause injustice to the nonmoving party.” Id.; see 2 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE §§ 241, 242 (3d ed. 2000).At the very least, defendant has not shown that the witnesses here will be unavailable.

Our ruling does not preclude defendant from making this showing at some point later in the proceedings. We only decide that he has not yet done so.

IV. CONCLUSION

For the foregoing reasons, both motions are denied.

It is so Ordered

**********

28

AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

WEI LI FANG, Defendant__________________________________

AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

SIITU SANERIVI, aka LUAPENE, Defendant__________________________________

AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

WEI KI FANG, Defendant

High Court of American SamoaTrial Division

CR No. 05-03CR No. 06-03CR No. 07-03

June 10, 2003

[1] A fair trial in a fair tribunal is a basic requirement of due process.

[2] Due process requires that a jury trial include: (1) a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power; (2) a panel of impartial, indifferent jurors; and (3) a verdict based on evidence received in open court, not from outside sources.

[3] Due process is violated when inflammatory and pervasive publicity taints a jury pool, resulting in preconceived ideas by often misinformed jurors.

[4] There are two ways in which to show that a jury has been unfairly tainted against a criminal defendant—presumed (or inherent) prejudice and actual prejudice.

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[5] In order to demonstrate actual prejudice to a jury trial defendant, he or she must show that it is reasonably likely that a fair and impartial jury cannot be secured.

[6] Actual prejudice to criminal defendant by pretrial publicity can only be discerned by reviewing both the extent and nature of the pre-trial publicity and the responses of the prospective jurors through voir dire.

[7] Motion for change of venue based on pre-trial publicity and alleged actual prejudice resulting therefrom was premature where jury panel had yet to undergo voir dire.

[8] A showing of presumed prejudice is rare, and is reserved for exceptional cases where the influence of the news media negatively pervades the proceedings, either in the community or courtroom.

[9] Unlike actual prejudice, presumed prejudice can be proven without voir dire of potential jurors, but in order to do so, a criminal defendant bears a heavy burden and must show oversaturation of highly sensationalized news coverage against him or her.

[10] Where criminal defendants produced six newspaper articles covering events leading up to their trials for promoting prostitution and also a number of letters to the editor slanted against them on account of their race, but failed to show any coverage in the radio or television mediums, Court refused to find presumed prejudice at pre-trial stage, but would allow defendants to demonstrate actual prejudice at voir dire phase of trial.

[11] Change of venue is an unsuitable remedy to address jury prejudice in American Samoa.

[12] A.S.C.A. § 46.0601 is not directed to changes of venue based on potential jury prejudice, but applies in circumstances where it would be more convenient for the court to sit elsewhere.

[13] A change of venue is not constitutionally required so long as the court assures a fair trial.

[14] Where issue of tainted jury was raised, pre-trial, before Court, defense attorneys were allowed opportunity to submit questionnaires, in advance of trial, so that issue of juror prejudice could be thoroughly addressed.

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

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Counsel: For Plaintiff, Marcellus T. Uiagalelei, Asst. Attorney General For Wei Li Fang, William H. Reardon For Sanerivi and Wei Ki Fang, Sharron I. Rancourt, Asst. Public Defender

ORDER DENYING MOTIONS FOR CHANGE OF VENUE

We have consolidated the motions of the three defendants because they each seek the same relief: a change of venue. Each defendant was arrested and charged with various counts of Promoting Prostitution in the First Degree: Wei Ki Fang, one count; Siituu Sanerivi, six counts; and Wei Li Fang, nine counts plus one count of assault in the second degree. The defendants argue that the pre-trial publicity has been massive, pervasive, and prejudicial. Also, because both Wei Ki and Wei Li Fang are Chinese nationals—though Sanerivi was born in Western Samoa—counsel for Wei Ki Fang submits that the publicity is the product of bigotry from a "culture which admits but never really accepts people who are not born here." On these grounds they all seek a change of venue.

Discussion

I. Pre-trial Publicity

[1-2] “A fair trial in a fair tribunal is a basic requirement of due process.” Irvin v. Dowd, 366 U.S. 717, 722 (1961), quoting In re Murchison, 349 U.S. 133, 136 (1955); see generally REV. CONST. AM. SAMOA, Art. I, § 2; U.S. CONST., Amend. V. When the trial is conducted in front of a jury, due process assures an accused of, inter alia, certain minimal protections: 1) "'a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power,'" Sheppard v. Maxwell, 384 U.S. 333, 350 (1966), quoting Chambers v. Florida, 309 U.S. 227, 236-37 (1940); 2) "a panel of impartial, 'indifferent' jurors," Irvin, 366 U.S. at 722; and 3) "the requirement that the jury's verdict be based on evidence received in open court, not from outside sources," Sheppard, 384 U.S. at 351. See Murphy v. Florida, 421 U.S. 794 (1975); Rideau v. Louisiana, 373 U.S. 723 (1963).

[3-8] Due process is violated when inflammatory and pervasive publicity taints a jury pool, resulting in preconceived ideas by often misinformed jurors. The Supreme Court has established two ways in which to show such a taint—presumed (or inherent) and actual prejudice. See Irvin, 366 U.S. at 728 (actual prejudice); Rideau, 373 U.S. 723 (presumed (or inherent) prejudice); Nevers v. Killinger, 169 F.3d 352, 362-63 (6th. Cir. 1999); U.S. v. Washington, 813 F.Supp. 269, 272-273 (D.Vt. 1993). Actual prejudice requires a showing "that it is reasonably likely that a fair and impartial jury cannot be secured." Bell v. Lynbaugh, 663

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F.Supp. 405, 417 (E.D.Tex. 1987). It is "discerned only by reviewing both the extent and nature of the [pre-trial] publicity and the responses of the prospective jurors in voir dire." Nevers, 169 F.3d at 362, citing Irvin, 366 U.S. 725-728 (emphasis in original); see also American Samoa Government v. Snow, 26 A.S.R.2d 78, 80 (Trial Div. 1994). At this point, such an inquiry is premature, as there has not yet been jury voir dire.

[9-10] The defendants are left then with the highly difficult task of showing that the publicity up until now has created an atmosphere of presumed prejudice. A showing of presumed prejudice "is rare, and is reserved for exceptional cases where the influence of the news media negatively pervades the proceedings, either in the community or courtroom." Washington, 813 F.Supp at 272; U.S. v. Moreno, 815 F.2d 725, 731-739 (1st Cir. 1987); Coleman v. Kemp, 778 F.2d 1487, 1490 (11th Cir. 1985). It can be proven without the benefit of juror interviews because the atmosphere created belies any claim of impartiality. See Rideau, 373 U.S. at 727; Moreno, 815 F.2d at 753 (Torruella, J., dissenting); Coleman, 778 F.2d at 1543; Washington, 813 F.Supp. at 272-73. But the defendants carry a heavy burden of showing oversaturation of highly sensationalized news coverage. See Coleman, 778 F.2d at 1490; Commonwealth v. Drumheller, 808 A.2d 893, 902 (Pa. 2002).9

[10] Applying these standards, and based on the paltry evidence before us, defendants have not presented a compelling case of prejudice. To begin with, they cite only newspaper articles and editorials. There is no evidence whatsoever of prejudiced radio or television coverage or public sentiment generally. Contrast Rideau, 373 U.S. 723; Coleman, 778 F.2d 1487. Furthermore, the newspaper articles, while prone to hyperbole, are not inflammatory. Granted, some of the headlines describe the defendants of a "prostitution ring" or "sex ring." But, the articles make an effort to point out that the defendants have not been found guilty; rather, they are alleged to have committed the crimes. In fact, most of the articles contain an attempt to reproduce testimony and arguments

9 The Supreme Court has reversed a conviction only once on this ground:In the Rideau case, the community at large was exposed to a lengthy televised confession which had been taped while the defendant was in custody and without advice of counsel. The confession was aired several times to tens of thousands of people in the community. The Supreme Court held that such broadcasting tainted the community and that any subsequent court proceeding “in a community so pervasively exposed to such a spectacle could be but a hollow formality.

Washington, 813 F.Supp at 272, citing Rideau, 373 U.S. at 762; see Coleman, 778 F.2d 1487.

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from court, heard in a public forum open to all. That is, they contain information that an average citizen would be privy to were he to go to court himself. Finally, the defendants reproduced only six articles, a far cry from the type of overwhelming saturation which can lead to a presumption of prejudice. Compare Coleman, 778 F.2d at 1491-1537.

The letters to the editor, on the other hand, are more opinionated. They do contain conclusory, matter-of-fact pronouncements of guilt. Some are indeed embarrassingly slanted against the defendants on account of their race. We refuse, however, to find that a few rogue letters to the editor represent the beliefs of an entire society. Contrast Coleman, 778 F.2d at 1491-1537. These few letters do not represent a society scornful of outsiders, as counsel Reardon would have us believe. Instead, by attempting to influence the public, these letters affirm that race-based accusations lack merit and credence.

One might question why a newspaper would choose to publish such letters in the first place. Perhaps they believe that such a tabloid styled format is profitable. Or, perhaps they have a policy of publishing all letters, regardless of content.10 In either event, the airing of narrow-minded, prejudiced opinions is protected in our society precisely because it exposes the absurdity and weaknesses of the speaker's views. But by protecting this type of speech, we need not sweepingly attribute it to all. We need only recognize it represents a very limited section of society.

Finally, we note that if we were to make any finding of prejudice, it is more likely to follow the opportunity to listen to potential jurors. See, e.g., Washington, 813 F.Supp. at 273; Drumheller, 808 A.2d at 903. Only then can we meaningfully gauge the public's sentiment.

II. Remedies

The defendants have asked that if we find no prejudice at this juncture, that we revisit the motion once again after voir dire. Thus, while we

10 A newspaper need not establish a reason for publishing the articles and letters contained in its editions. Freedom of the press is paramount to a just, transparent society and we are powerless to restrain, save for a few limited situations. Of course the press has ethical obligations to be objective and truthful--even more so when covering the happenings of a small island community and even more so when the island’s media outlets are virtual monopolies. The ability to influence carries a moral burden that should not be shunned just to sell papers. Yet newspapers should be forewarned: as of now, no "court has yet decided that, while convictions must be reversed and miscarriages of justice result because the minds of jurors or potential jurors were poisoned, the poisoner is constitutionally protected in plying his trade." Irvin, 366 U.S. at 761 (Frankfurter, J., concurring).

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need not now decide the proper remedy were we to find prejudice, the possibility remains. We note then that were a showing of prejudice to be made, the remedy would not be a change of venue.

[11] A change of venue is a common remedy stateside, but is unsuitable here in American Samoa. See Moreno, 815 F.2d 725; cf. In re San Juan Star Co., 662 F.2d 108, 117 (1981)(finding that change of venue unsuitable in Puerto Rico and alternative remedies appropriate). A change of venue stateside is sought in the hopes that moving the trial out of the jurisdiction where the prejudice has tainted the jury pool will result in an neutral jury elsewhere. See Irvin, 366 U.S. at 719-721. This is but a pipe dream here in American Samoa.

It is no secret that our island community is small. We have but one jury roll. All the registered voters on the island are part of that roll. Transferring a case to another part of the islands would only result in a physical change of venue; but, inherently, the proceedings would be the same. The jury would be selected from the same pool. Furthermore, because of the compact social structure of this island community, chances are that if the media has created a prejudicial environment it will have infected the farthest corners of the Territory. If anything, moving a criminal case would likely cause a great inconvenience to all the parties, including the Court.

[12] Defendants cite A.S.C.A. § 46.0601 to support the notion that a transfer is possible. This enactment reads:

In any case where the interest of justice or the convenience of parties, witnesses or the court requires, the Chief Justice or the Associate Justice may order that a session of any division of the High Court adjourn from the courthouse to sit at any appropriate place in American Samoa.

This statute, however, was enacted in 1969 (P.L. 11-54) long before criminal jury trials in American Samoa were found to be neither "impractical nor anomalous," and, therefore, constitutionally mandated. See King v. Andrus, 452 F. Supp. 11, 17 (D.D.C. 1977). Rather, the statute is geared towards physically holding court in a more convenient location in the Territory; for example, this power might be invoked in a case involving a dispute in Manu`a, where the majority of witnesses would be unable to attend a court session in Fagatogo. But the situation would have to be extreme. Indeed, we cannot recall any instance where this section has been used in recent times. The statute simply does not contemplate a change of venue of the type sought by the defendants. Compare and Contrast Fed.R.Crim.P. 21(a) with A.S.C.A. 46.0601 and Fed.R.Crim.P. 21(b).

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[13] Therefore, if prejudice were ever proven at the preliminary stages of a criminal prosecution, we would have to explore other alternatives. See Moreno, 815 F.2d at 731. A change of venue is not constitutionally required; instead, we need only assure a fair trial.11

Order

[14] We accordingly deny the motion for change of venue. We will, however, allow the defendants to submit a voir dire questionnaire ahead of time for the court's review not later than two weeks before trial. The questionnaire should provide the questions in both English and Samoan. It may include any inquiries about media exposure. The questions should be amenable to a yes or no response. More importantly, the questions shall not touch on 1) any anticipated instructions; 2) the verdict to be returned when those questions are based upon hypothetical facts or situations; 3) substantive arguments of the case; and 4) data available from jury information sheets. Then, based upon the answers, during voir dire, we will take appropriate steps in establishing whether any of the jurors has been prejudiced including individual voir dire if necessary.

It is so Ordered.

**********AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

FA`AFIA FA`AFIA JR., Defendant,

High Court of American SamoaTrial Division

CR No. 20-02

June 18, 2003

[1] The Court is explicitly authorized by A.S.C.A. § 46.1303 to order psychiatric evaluations of criminal defendants.

11 This is hardly the first, nor the last, criminal matter to receive considerable pretrial press attention. Nor is this the first case where the emotive, but baseless, plea of jury taint has been heard. The decision in King v. Andrus, supra, has proven rather insightful. Jury trials, in serious criminal cases, have proven to be both practical and not anomalous in a relatively small island community. Even so, there is always the available option of a bench trial to allay any lingering defense suspicions.

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[2] In the context of criminal trials, a defendant’s competency to stand trial and his or her presentation of an insanity defense require two different legal standards.

[3] Due process requires a court to provide an indigent defendant access to a competent psychiatrist if he shows that his sanity at the time of the offense will be a significant factor at trial.

[4] To show that his sanity is truly at issue, a criminal defendant must do more than simply offer undeveloped assertions that the services of a court-appointed psychiatrist would be beneficial, but instead must demonstrate a substantial basis for the defense, presenting specific evidence to demonstrate that his sanity at the time of the offense was questionable.

[5] Criminal defendant’s declaration that he intended to use insanity as an affirmative defense, alone, did not suffice to establish a substantial basis for ordering a court-appointed psychiatrist.

[6] Incompetence to stand trial is a factor when determining whether due process requires a court-appointed expert on the issue of insanity.

[7] The test for determining whether an individual is competent to stand trial is whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.

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

Counsel: For Plaintiff, John W. Cassell, Asst. Attorney General For Defendant, Bentley C. Adams III, Asst. Public Defender

ORDER ON MOTION FOR PSYCHIATRIC EXAMINATION

Defendant brings this motion seeking: (1) a court-ordered mental examination to determine whether the defendant is competent to stand trial; and (2) a court-appointed psychiatrist to assist him in his defense.

I. Competency to Stand Trial

[1] The defendant first seeks a court order allowing for a psychiatric evaluation to determine whether he is competent to stand trial. The American Samoa Government (“ASG”) has acquiesced. Our power to order an examination is explicitly authorized by A.S.C.A. § 46.1303. This aspect of the motion will be granted.

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II. Assistance in Presenting Insanity Defense

[2-4] Defendant also seeks at this time a court order appointing him a psychiatrist to assist him in presenting an insanity defense. Defendant’s motion is not duplicative since competency to stand trial and insanity require two different legal standards. See, e.g., U.S. v. Williams, 998 F.2d 268, 264 n.15 (5th Cir. 1993). Furthermore, due process requires a court to provide an indigent defendant access to a competent psychiatrist if he shows “that his sanity at the time of the offense is to be a significant factor at trial.” Ake v. Oklahoma, 470 U.S. 68, 83 (1985); see Duren v. Hopper, 161 F.3d 655, 664-665 (11th Cir. 1998). To meet this burden a defendant must do more than offer “undeveloped assertions that the requested assistance would be beneficial[.]” Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985); see Duren, 161 F.3d at 665 (a defendant must demonstrate a substantial basis for the defense). “Rather, the defendant, at a minimum, must make a factual showing—must present specific evidence—that his sanity at the time of the offense is truly at issue.” Williams, 998 F.2d at 263 n. 14, quoting Williams v. Collins, 989 F.2d 841, 845 (5th Cir. 1993).

[5] At this point, the defendant has not carried his burden. Granted, the defendant has filed a declaration that he intends to use insanity as an affirmative defense. While this weighs in favor of finding that his sanity will be a significant factor at trial, this declaration, standing alone, does not suffice. Indeed, were it enough, any defendant would be able to file a declaration and be appointed a psychiatrist regardless of the merit of his motion.

[6] We thus require a greater factual presentation than the one defendant has provided. Most of his argument speaks to his present state of mind, which is relevant to his competency but not relevant to his sanity at the time of the alleged criminal action. See Williams, 998 F.2d at 263 n. 14. We do not, however, rule out the possibility that the defendant will be able to make this showing later on. But, at the very least, the initial finding of whether the defendant is competent to stand trial is highly relevant to this inquiry and we will postpone any further hearing on the matter until that determination has been made. See Ake, 470 U.S. at 86 (incompetence to stand trial is factor when determining whether due process required court appointed expert).12

III. Order

12 We also leave open the possibility of a bifurcated trial, where, though the defendant wishes to present insanity as a defense, the issue never arises because of a complete acquittal on the underlying charges. See American Samoa Gov’t v. Taylor, 19 A.S.R.2d 99 (Trial Div. 1991).

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[7] We order that defendant undergo a psychiatric evaluation. Subsequently, we will hold a hearing pursuant to A.S.C.A. §46.1305 to determine whether he is competent to stand trial: whether he “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. U.S., 362 U.S. 402 (1960); see American Samoa Gov’t v. Taylor, 16 A.S.R.2d 44 (Trial Div. 1990).

The motion is granted in part and denied in part.

It is so Ordered.

**********AMERICAN SAMOA GOVERNMENT, Plaintiff

v.

TOFOI LAUMATIA, Defendant

High Court of American SamoaTrial Division

CR No. 19-03

August 22, 2003

[1] In determining whether a criminal defendant was, for Miranda purposes, in a custodial situation when he or she gave a statement, the inquiry is whether there was a formal arrest or restraint on the person’s freedom of movement to the degree associated with a formal arrest.

[2] The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. The relevant inquiry is how a reasonable man in the suspect's position would have understood his situation.

[3] Miranda warnings are not required when a suspect, not under arrest, voluntarily agrees to accompany police to the station and is released after a brief interview—even though the questioning took place in a coercive atmosphere.

[4] Custody does not result simply because an individual is questioned in the "coercive environment" of the station house.

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

Counsel: For Plaintiff, Marcellus T. Uiagalelei, Asst. Attorney General For Defendant, Bentley C. Adams III, Asst. Public Defender

ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS

Early in the course of a police investigation into allegations of prostitution activity at the defendant's place of employment, Detective Romeo Tiumalu and others visited the defendant's work place on February 14, 2003. After finding the defendant there, officer Tiumalu requested her to accompany him to the police station for questioning. The defendant complied and rode to the central station in Fagatogo with the officers in a police vehicle. At the station, she was questioned by Detective Lima Togia, however, she was not given any Miranda warnings before being questioned. Officer Togia explained the omission in terms of their thinking at the time that warnings were not necessary since they were simply looking for information to aid them in their investigation; that the defendant was not a suspect at the time; and that the defendant had earlier indicated to the officers that she knew nothing of any prostitution activity at her work place.13 Officer Togia further explained that even though Detective Tiumalu was the lead investigator in the case, it was decided that Togia would undertake the interview since he was familiar to the defendant, having visited the defendant's place of employment, a night club and bar, on a number of previous occasions under other circumstances. On those previous occasions, he had engaged the defendant in conversation. Three months after she was questioned by the police, the defendant found herself charged with one count of promoting prostitution, a crime under A.S.C.A. § 46.3706. She now moves to suppress the oral statements she gave to the police on February 14, 2003, contending, among other things, that the statements were made while she was in a custodial situation and that the police's failure to advise her of her Miranda rights bars the admission of those statements.

13 Notwithstanding, police failure to properly follow the guidelines of Miranda will result in the suppression of any statement taken thereafter, regardless of the degree of incrimination or whether it is inculpatory or exculpatory. Miranda v. Arizona, 384 U.S. 436, 476-477 (1966); U.S. v. Orso, 266 F.3d 1030, 1033 n.1 (9th Cir. 2001); JOHN W. STRONG ET AL., MCCORMICK ON EVIDENCE § 144 (5th ed. 1999). Furthermore, police questioning may amount to custodial interrogation for Miranda purposes even though it was conducted during an investigatory rather than accusatorial stage. Dunaway v. New York, 442 U.S. 200, 215-16 (1979).

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[1-2] The central question before us is whether the defendant was, for Miranda purposes, in a custodial situation when she gave the statements. In this regard, "the ultimate inquiry is simply whether there is a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)). Moreover, "the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." Stansbury v. California, 511 U.S. 318, 323 (1994) (per curiam). Consequently, "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Id at 324 (quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984)). [3] The facts before us are not unlike those reviewed in Beheler where it was held that Miranda warnings are not required when a suspect, not under arrest, voluntarily agrees to accompany police to the station and is released after a brief interview even though the questioning took place in a coercive atmosphere. 463 U.S. at 1121-22. At the same time, custody does not result simply because an individual is questioned in the "coercive environment" of the station house. Oregon v. Mathiason, 425 U.S. 429, 495 (1977).

[4] Here, the target of the investigation was the defendant's employer. If anything then, and from the stance of the reasonable person, the station house would be the more neutral setting and the less coercive environment, rather than the defendant's place of employment. Moreover, the evidence showed that the interview was brief—the defendant told the officers that she knew nothing about any prostitution at her place of employment—and it was conducted by an officer familiar to the defendant. After the interview, officer Togia gave the defendant his card and asked her to contact him again if she came into any information; she left thereafter.

We find nothing in the evidence that warrants a finding of custody. We find nothing in the evidence that suggests police excessiveness. As we have said before on a number of occasions, "the exclusionary rule came about as a prophylactic measure against police excessiveness. Mapp v. Ohio, 367 U.S. 643, 656 (1961). The rule has not, however, evolved into some sort of predisposition against anything involving police action and we refuse to draw inferences where there are none to be drawn." American Samoa Gov't v. Afamasaga, 17 A.S.R.2d 145, 148 (Trial Div. 1990).

We conclude that the defendant was not in a custodial situation at the time she spoke to the police and, therefore, Miranda warnings were not

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necessary at the time. Consequently, her rights were not violated in the officers' failure to administer the Miranda warnings at the time.

The motion to suppress is denied.

It is so Ordered.

**********

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FA`AMAUSILI POLA,

v.

AMERICAN SAMOA GOVERNMENT and THE SENATE, Defendants.

High Court of American SamoaTrial Division

CA No. 88-02

January 31, 2003

[1] The guiding factors in determining whether to grant or deny a stay of execution of a judgment pending appeal are: (1) the likelihood of the movant prevailing on appeal; (2) any irreparable harm to the parties if the stay is granted or denied, and how the equities between them balance; and (3) the stay’s effect on the public interest.

[2] Where Court determined that Senate’s vote to oust sitting senator was legally ineffective, as it failed to satisfy the constitutionally-required two-thirds majority, no Senate action was required to comply with or implement the court’s decision.

[3] The judicial remedy of stay pending appeal could not be used to unseat senator determined by Court in previous proceeding to still occupy senate seat, nor could it be used as a means for substituting a replacement senator during pendency of appeal.

[4] Court’s decision declaring plaintiff’s status to be that of a currently-sitting Senator was self-executing and stood as law of Territory.

[5] Notice of the charges to the accused and the accused’s opportunity for a hearing are minimal standards inherent in the concept of due process of law.

[6] The Senate can expel any Senator for cause if two-thirds of the Senators concur

[7] Judicial decisions are an integral part of the law and must be respected by the Senate.

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

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Counsel: For Plaintiff, Charles V. Ala’i1ima For Defendant Senate, Robert K. Maez, Assistant Legislative Counsel For Defendant American Samoa Government, Marc S. Roy, Assistant Attorney General

ORDER DENYING MOTION FOR STAY OF EXECUTION OF JUDGMENT PENDING APPEAL

The court’s opinion and order, holding that plaintiff Fa`amausili Pola (“Fa`amausili”) is a member of the Senate as a Senator in office, was entered on November 20, 2002. Defendant Senate filed a timely motion for reconsideration or new trial and a premature motion for a stay of execution of the judgment. The court denied both motions on December 27, 2002. Then, on January 6, 2003, the Senate filed a timely notice of appeal and, in the Appellate Division, a renewed motion for a stay of execution. On January 22, 2003, the Appellate Division remanded the stay motion to the Trial Division for an initial hearing in compliance with A.C.R. 8 and T.C.R.C.P. 62. We heard the renewed stay motion on January 24, 2003.

Stay Standards

[1] The trial court has discretion to grant or deny a stay of execution of a judgment pending appeal. T.C.R.C.P. 62(b), (c). Guiding principles are: (1) the likelihood of the movant prevailing on appeal; (2) any irreparable harm to the parties if the stay is granted or denied, and how the equities between them balance; and (3) the stay’s effect on the public interest. Asifoa. v. Lualemana, 17 A.S.R.2d 100, 102 (1990).

Asserted Grounds for a Stay

The Senate’s grounds for the stay, in essence, are: (1) on January 2, 2003, the Senate President received notice, dated December 16, 2002, from the “Ta`u Village Supreme Council” that on November 30, 2002, the Ta`u County Council selected another person for Fa`amausili’s Senate seat; (2) on January 2, 2003, the President also received new or additional evidence by letter dated December 27, 2002, from the “Ta`u Village Supreme Council” in reply to the President’s letter of December 22, 2002, further raising Fa`amausili’s matai qualifications for a Senate seat by stating: (a) that at the Ta’u Village Council meeting on November 29, 2002, Fa`amausili again, along with several other Ta`u matai who participated in Fa`amausili’s selection as the second Senator for Senate District No. 1 in July 2002, were ousted from the Village Council and no longer considered matai of the Village, and (b) that on the following day, November 30, 2002, at another Council meeting, the Council reaffirmed the November 29 ousters and told Fa`amausili to

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leave the meeting; (3) the Senate, not the President alone, must act, by resolution, to comply with the court’s November 30 decision, which it could not do until it reconvened on January 13, 2003; and (4) the Senate must fulfill its responsibility to preserve Samoan customs by ensuring that customary procedures are followed for senatorial selections, as is constitutionally required, which under the evidence was not done for Fa`amausili’s selection.

Later, the Senate President’s affidavit of January 17, 2003, was filed, stating, among other matters, that on January 13, 2003, the opening day of the present legislative session, the Senate approved a change in the record of its proceedings on September 30, 2002, the day the Senate expelled Fa`amausili from the Senate, to “correct history,” using the words of the Senate’s counsel’s, to show that the expulsion vote was really 12 to 4. Twelve votes constitute the two-thirds majority constitutionally required for expulsion.

Discussion

[2] The asserted grounds for a stay miss the mark. We only need to address the one argument having any indication of relevancy to the legal issue at hand. The Legislature has reconvened, and the rationalization of the Senate in recess can no longer be an excuse for inaction. In actuality, and much more important, the Senate does not need to take any action to comply with or implement the court’s decision holding that Fa`amausili is a sitting Senator.

We simply declared in our decision of November 20, 2002, that the Senate’s suspension action on September 16, 2002, and expulsion action on September 30, 2002, against Fa`amausili, a sworn-in, sitting Senator as of and ever since August 9, 2002, failed to pass the constitutional muster of a two-thirds majority vote necessary to validate these disciplinary actions based on cause.14 REV. AM. SAMOA CONST. art. II, § 11.

14 The Senate’s apparent approval on January 13, 2003, of reconstructed history to show that the expulsion vote on September 30, 2002, was a 12 to 4 majority vote instead of a 11 to 4 vote is not properly before us for present purposes. The modified record of the expulsion proceedings is attached to the Senate President’s affidavit of January 25, 2003, and has not been authenticated by a witness subject to cross-examination, or other proper means. Fa`mausili has not had any opportunity to refute the accuracy of the change. The change is contrary to the evidence at trial, including the tape recording of the September 30 proceedings and counsel’s stipulation that unequivocally established the expulsion vote to be 11 to 4, one short of the constitutionally mandated two-thirds majority.

44

[3-4] Our decision declared an existing fact—Fa`amausili’s status as a sitting Senator. A stay would not change that fact, or in any way enable anyone else to replace Fa`amausili until either his term of office expires, or a vacancy in his senatorial seat occurs by legitimate means.15 Our decision on Fa`amausili’s status is self-executing, with or without a stay, and stands as the law of the territory until and unless the decision is reversed on appeal. In our assessment, the likelihood of reversal on appeal is minimal.

The only executory aspects of our decision concern the rights and privileges flowing from Fa`amausili’s status as a sitting Senator as of and since August 9, 2002. He is entitled to his entire salary and allowances accruing after he was sworn in on that date. He should have received his full compensation in the same manner as any other sitting Senator. The necessary administrative payroll and related documents should have been routinely prepared and submitted for processing. No special Senate action should be necessary to implement payment of his compensation. Moreover, so long as Fa`amausili is a sitting Senator, he is entitled to participate in all Senate proceedings and use his best judgment to represent his constituents in those proceedings.

[5-6] The Senate will not suffer any irreparable harm if a stay is denied. Fa`amausili would be receiving his budgeted compensation, but even if the Senate should prevail on appeal, it can be made whole by requiring Fa`amausili to refund all or that portion of his compensation paid as the court may direct. No irreparable harm to the Senate flows from Fa`amausili’s participation in the Senate’s proceedings in the same manner as any other Senator. Moreover, the Senate can expel any Senator for cause if two-thirds of the Senators concur.16 REV. AM.

15 If a vacancy occurs, whether by Fa`amausili’s lawful expulsion or other events, his successor must be selected by the proper constitutional process. The Governor must initiate the process to fill a vacancy. REV. AM. SAMOA CONST. art. II, § 13, and if an election is required, the prescribed election process must be followed. REV. AM. SAMOA CONST. art. II, § 4. The purported selection of a successor to Fa`amausili on November 30, 2002, is of no legal effect.16 Due process of law—compliance with reasonable standards of fairness and justice—must be afforded to validate expulsion. The Senate’s counsel seems to believe that Samoan due process of law differs from American due process. Nothing could be more inaccurate. Due process is a constitutional concept appearing in both the territorial and federal constitutions. REV. AM. SAMOA CONST. art. I § 2; U.S. CONST. amends. V, XIV. Due process is a fluid concept. It may have diverse applications in different situations. Samoan customs may well impact that application in a unique context. But the basic principle of fair play is the same under both constitutions. Notice of the charges to the

45

SAMOA CONST. Art. II, §§ 3, 4, 11; A.S.C.A. § 2.0202.

[7] The public interest in this case is full compliance with the court’s decision. This is a matter of respect for the rule of law—a cornerstone of this and any other functioning democratic society. Judicial decisions are an integral part of the law. We expected, and still expect, no less of a venerable public institution

Order

For the reasons stated above, the motion for a stay of execution of the judgment is denied

It is so Ordered.

**********BORAL GAS OF AMERICAN SAMOA, INC., Petitioner,

v.

FAAFETAI IAULUALO, ACTING TREASURER OF AMERICAN SAMOA, Respondent.

High Court of American SamoaTrial Division

CA No. 87-01

January 31, 2003

[1] A motion for reconsideration or new trial should be based upon manifest error of law or mistake of fact, and a judgment should not be set aside except for substantial reasons.

[2] Where the issue is one of statutory interpretation, such is purely a question of law.

[3] In cases where the language of Samoan Income Tax Act is ambiguous and conflicts with the Internal Revenue Code, the Court must determine whether the Legislature intended to “de-link” the Samoan Income Tax Act section.

accused and the accused’s opportunity for a hearing are minimal standards.

46

[4] The Court is free to interpret the laws of American Samoa differently than similarly worded federal laws.

[5] In tax deficiency proceedings, the High Court sits as a Tax Court.

[6] When the High Court sits as a Tax Court, it follows the tax court rules and procedures set forth in the Internal Revenue Code.

[7] Review of a decision of the High Court, sitting as the Tax Court shall be obtained by filing a notice of appeal with the clerk of the High Court within 90 days after the decision is entered.

[8] Absent an express rule to the contrary, a motion for reconsideration of a Tax Court decision terminates the running of the ninety day limitations period within which to file an appeal, and, in effect, restarts the clock for appealing if and when the motion is denied.

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

Counsel: For Petitioner, Daniel R. King For Respondent, Benton H. Walton IV, Asst. Attorney General

ORDER DENYING RESPONDENT’S MOTION FOR RECONSIDERATION OR NEW TRIAL,

AND GRANTING PETITIONER’S MOTION FOR RECONSIDERATION OR NEW TRIAL

Petitioner, Boral Gas of American Samoa (“Boral”), brings this motion for reconsideration or new trial with respect to the court’s opinion and order of October 3, 2002, granting partial summary judgment to the respondent, Faafetai Iaulualo (“Iaulualo”), as the Acting Treasurer of American Samoa and Commissioner of Internal Revenue under the Samoan Income Tax Act (“SITA”). Our order held that Boral was liable for tax deficiencies for the years 1997, 1998, and 1999. For the reasons discussed below, we deny this motion.

Boral also requests, in the event of denial of its motion for reconsideration or new trial, the court to clarify whether the time of filing a notice of appeal is 90 days from entry of the judgment, excluding the time the motion for reconsideration or new trial is pending, pursuant to SITA § 7483 or 10 days from entry of the order denying the motion for reconsideration or new trial, pursuant to A.S.C.A. § 43.0802.

Iaulualo also brings a motion for reconsideration or new trial with respect to the court’s tentative award of litigation costs related to the

47

summary judgment granted to Boral for the tax years 1994 and 1996. For the reasons discussed below, we will grant this motion.

I. The Boral Motion

[1-2] A motion for reconsideration or new trial “should be based upon manifest error of 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 Airsystems, Inc., 28 A.S.R.2d 170, 171 (Trial Div. 1995). We made clear in our order that there were no genuine issues of any material facts. Boral does not dispute that. Instead, Boral urges us reconsider or to grant a new trial as to the result reached. As we stated, our holding was “one of statutory interpretation, which is purely a question of law[.]” Opinion and Order, page 7, citing United States v. Blue Cross Blue Shield of Mich., 859 F. Supp. 283, 286 (E.D. Mich. 1994). The arguments Boral now advances are the same as the ones they advanced at the summary judgment stage and present no substantial reasons to reverse our opinion.

Boral continues to argue that A.S.C.A. § 11.0403 automatically incorporates any changes to the Internal Revenue Code (“IRC”) even if it would result in repealing an existing SITA section. It insists the only time that § 11.0403 does not operate in that manner is when our Legislature uses language that clearly “de-links” a SITA provision with its “mirror” IRC provision.

[3] Though it would be clearer if the Legislature were so explicit, it does not follow that the absence of any “de-linking” language will subject a SITA section to automatic impermanence. Instead, in cases where the language of SITA is ambiguous and conflicts with the IRC, we must, and did, determine whether the Legislature intended to “de-link” a SITA section. For the reasons stated in our opinion, we continue to believe they did so intend in this case (to de-link A.S.C.A. 11.0533 from IRC § 11(b)).

[4] Holmes v. Dir. of Rev. & Tax., Government of Guam, 827 F.2d 1243 (9th Cir. 1987) does not support Boral’s position. That case, like other cases interpreting territorial mirror tax schemes, simply does what we did—provide the proper statutory interpretation for ambiguous sections of a tax code. Id.; Great Cruz Bay, Inc. v. Wheatley, 495 F.2d 301 (3rd Cir. 1974); Sayre & Company v. Riddell, 395 F.2d 407 (9th Cir. 1968). Moreover, those cases involved the interpretation of federal law by federal courts, as the U.S. Congress created the mirror tax codes for Guam, the Commonwealth of the Northern Mariana Islands, and the Virgin Islands. In this respect, while we may look to those cases for guidance, we are free to interpret our own laws differently than similarly worded federal laws. See Alamoana Recipe Inc. v. American Samoa

48

Gov’t, 24 A.S.R.2d 156, 157 (Trial Div. 1993); see also Wray v. Wray, 5 A.S.R. 2d 34, 45 (Trial Div. 1987).

II. Time to Appeal

[5-6] In tax deficiency proceedings, the “High Court sits as a Tax Court.” Klauk v. American Samoa Gov’t, 13 A.S.R.2d 52, 55 n.2 (Trial Div. 1989); see A.S.C.A. § 11.0401. In doing so, we follow the tax court rules and procedures set forth in the IRC. See Stephens v. Coleman, 15 A.S.R.2d 87 (Trial Div. 1990) (applying jurisdictional standards of IRC); Klauk, 13 A.S.R.2d. 52 (same); A.S.C.A. § 11.0409.

[7-8] Under 26 U.S.C.A. § 7483, “Review of a decision of the [High Court, sitting as the] Tax Court shall be obtained by filing a notice of appeal with the clerk of the [High Court] within 90 days after the decision of the [High Court] is entered.” See A.S.C.A. § 11.0401 (substituting “High Court” for “District Court” and “Tax Court”). Furthermore, “absent an express rule to the contrary, a motion for reconsideration terminates the running of the ninety day limitations period,” and, in effect, restarts the clock for appealing if and when the motion is denied. Nordvik v. Commissioner I.R.S., 67 F.3d 1489, 1493 (9th Cir. 1995). Therefore, notwithstanding the 10-day time limit in A.S.C.A. § 43.0802, we are bound to apply in tax proceedings the time limit of § 7483. See Atuatasi v. Moaali’itele, 8 A.S.R.2d 53, 59 n.2 (Trial Div. 1988) (noting that a later statute [in this case SITA] governs the earlier [in this case A.S.C.A. § 43.0802]).17

III. The Iaulualo Motion

During the hearing on both pending motions, Boral acceded to Iaulualo’s position that Boral is not entitled to litigation costs. Determination of litigation costs could involve further evidentiary hearings on possibly complex issues, such as the exhaustion of administrative remedies, contested amounts, and substantial justification of Iaulualo’s positions before and during this action. We will, therefore, not belabor the issue and grant Iaulualo’s motion.

IV. Order

17 We note that we apply the “later statute governs the earlier” standard in this situation because: 1) there is no evidence, either explicitly through a statute or implicitly through Legislative history, that the Legislature intended to “de-link” § 7438 in favor of A.S.C.A. § 43.0802, and 2) following § 7438 is not incompatible with § 43.0802 but rather creates uniformity between tax proceedings here and at the federal level.

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1. Boral’s motion for reconsideration or new trial regarding the court’s decision on the tax years 1997, 1998 and 1999 is denied.

2. Iaulualo’s motion for reconsideration or new trial regarding litigation costs related to the tax years 1994 and 1996 is granted. Boral shall not recover litigation costs for those tax years.

It is so Ordered.

**********EUROCOMPANY S.P.A., Plaintiff

v.

YURGRETTANSFLOT, THE OWNERS OF THE VESSEL; and THE VESSEL M/V BUKTA KAMYSHOVAYA,

along with its gear, tackle and appurtenances, Defendant and Defendants In Rem

_________________________________

GULF VLADIMIR, S.A., a Panamanian)Corporation, Counter-claimant/Intervenor

v.

EUROCOMPANY S.P.A., Counterclaim Defendant

High Court of American SamoaTrial Division

CA No. 44-02

February 27, 2003

[1] Voluntary dismissal pursuant to T.C.R.C.P. 41, if timely filed, is available as a matter of unconditional right.

[2] Voluntary dismissal under T.C.R.C.P. 41 is effective at the moment the notice is filed with the clerk, and no judicial approval is required.

[3] In order to be effectuated, a voluntary dismissal must be filed before service by the adverse party of an answer or of a motion for summary judgment.

[4] A plaintiff's right to voluntarily dismiss an action under T.C.R.C.P. 41 is not extinguished by the defendant’s filing of a motion to dismiss

50

under T.C.R.C.P. 12(b).

[5] Where party filed objection to Court’s in rem jurisdiction, such would not be viewed as equivalent to an answer as to do so would violate Rule C(6) of the T.C.R.C.P. Supplemental Admiralty and Maritime Claims, its meaning and purpose.

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

Counsel: For Plaintiff/Counterclaim Defendant, Paul Miller For Counter-claimant/Intervenor, Barry I. Rose and Craig Miller, pro hac vice

ORDER DENYING MOTION FOR SUMMARY JUDGMENT

The unusual circumstances of this case bring before us an eclectic collection of international players: an Italian fruit company, a Soviet vessel, a Ukrainian joint stock company, a Panamanian corporation, and 2,405.0912 metric tons of Argentinean pears. The events that led to this litigation pre-date, and indeed, are linked to, the fall of the Soviet Union. In the latest chapter, we deny the pending motion for summary judgment.

Background

Eurocompany S.P.A. ("Eurocompany") is a fruit trading company based in Italy. In July 1989, it commenced litigation in Italy against Yugrybtranssbyt, a Soviet state enterprise and then owner of the M/V Bukhta Kamyshovaya ("M/V Bukhta"). The suit, sounding in tort, arose out of a contract of carriage for 2,405.0912 metric tons of Argentinean pears. The litigation lingered until May 2001 when an Italian court entered a final judgment in favor of Eurocompany. At that point, the vessel had changed hands several times: following the breakup of the Soviet Union, it became property of the nation of Ukraine and was operated by a Ukrainian state enterprise; that entity, in turn, became privatized and known as Yugretransflot, a Ukrainian joint stock company; in 1997, Yugretransflot sold the vessel to the putative intervener, Gulf Vladimir, a Panamanian corporation.

In any event, Eurocompany believed that under Italian law, the judgment gave rise to a maritime lien, which attached to the M/V Bukhta. Therefore when the M/V Bukhta found its way into the Pago Pago Harbor, Eurocompany attempted to arrest it. On May 13, 2002, it filed a complaint in Admiralty in this court against M/V Bukhta Kamyshovaya ("Bukhta"), and its former owners, Yugretransflot. We then issued an order allowing for the arrest of the vessel only if Eurocompany met

51

certain conditions.18 In response, on May 22, 2002, the current owner, Gulf Vladimir, filed a Vessel Owner's Claim and Statement of Right. The motion contested Eurocompany's right to arrest the vessel. In essence, they argued that this court did not have in rem jurisdiction over the M/V Bukhta.

On June 24, 2002, Eurocompany abandoned ship; it filed a notice to voluntarily dismiss the action pursuant to T.C.R.C.P. 41(a)(1)(i).19 Three days later, Gulf Vladimir filed a counterclaim for declaratory judgment.20

Then on December 10, 2002, Gulf Vladimir filed a motion for summary judgment. It is this motion that is presently before us.

Discussion

[1-3] Under T.C.R.C.P. 41, voluntary dismissal, if timely filed, "is available as a matter of unconditional right [] and is self executing, i.e., it is effective at the moment the notice is filed with the clerk and no judicial approval is required." Marex Titanic, Inc. v. Wrecked and Abandoned Vessel, 2 F.3d 544, 546 (4th Cir. 1993) (citations omitted). In order to be effectuated, the dismissal must be filed "before service by the adverse party of an answer or of a motion for summary judgment." T.C.R.C.P. 41(1)(i). The only question, then, is whether Gulf Vladimir either served an answer or moved for summary judgment before June 24, 2002, the day Eurocompany submitted their notice of dismissal.

[4] It is clear that Gulf Vladimir's pre-June 24th strategy was anchored on the presumption that we did not have the power to arrest the M/V Bukhta. That is, their motions contested our in rem jurisdiction over the vessel. That was the equivalent of a 12(b)(1) motion for lack of jurisdiction. It is well settled that "the plaintiff's right to a voluntary dismissal is not extinguished by the filing of a motion to dismiss under [T.C.R.C.P. 12(b)]." 8 JAMES MOORE, MOORE'S FEDERAL PRACTICE §41.33(5)(c)(viii)(A) (3d ed. 1999), and cases cited.21 And, despite Gulf

18 Eurocompany never met those conditions and we never finalized an order arresting the vessel.19 T.C.R.C.P. 41 allows for a plaintiff to voluntarily dismiss an action, "by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs[.]"20 In that motion, Gulf Vladimir labeled itself an "intervener." However, at no time had they actually moved to intervene and at no time did we grant them permission to intervene. In any event, our decision does not depend on this point.21 The only exception is if the defendant brings a 12(b)(6) motion which is converted into a motion for summary judgment. MOORE, § 41.33(5)(c)(viii)(A). In this case, the motion contesting arrest cannot in any way be viewed

52

Vladimir's contentions to the contrary, because the vessel was never actually arrested, our jurisdiction was never actually "invoked"; it was merely requested.22

[5] Furthermore, we do not interpret Gulf Vladimir's objection to our in rem jurisdiction as the equivalent of an answer. Admiralty procedure provides the owner of a vessel with a specific time frame in which to file a claim of ownership (10 days) and a separate time frame in which to serve an answer (20 days). T.C.R.C.P. Supplemental Admiralty and Maritime Claims, Rule C(6). Thus, Rule C(6) clearly distinguishes between an ownership claim and an answer. Were we to adopt Gulf Vladimir's position, we would be doing a disservice to the clear meaning and purpose of Rule C(6). See, e.g., U.S. v. One 1990 Mercedes Benz 300CE, 926 F.Supp. 1 (D.D.C. 1996)(distinguishing between claim and answer under Rule C(6)); Fed.R.Civ.P. Supplemental Admiralty and Maritime Claims, Rule C(6) advisory committee's note (the rule "requires claimants to come forward and identify themselves at an early stage of the proceedings—before they could fairly be required to answer.").

Finally, Gulf Vladimir's June 27 and December 10 motions cannot salvage their claims. Those motions were filed after Eurocompany's notice of dismissal and were thus too late.

Conclusion

Unfortunately for Gulf Vladimir, their ship has sailed. The motion for summary judgment is, therefore, denied.

It is so Ordered.

***********

as a motion to dismiss.22 Along the same lines, Eurocompany’s complaint was also directed at Yugretransflot, in their personal capacities. But at no time did we purport to exercise personal jurisdiction over Yugretransflot, and very much doubt that we had the power to do so. See generally A.S.C.A. 3.0103.

53

AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

AMERIKA SAMOA BANK, INSURANCE COMPANY OF SAMOA, LA FENIX BOLIVIANA S.A. DE SEGUROS Y

REASEGUROS, Defendants.

High Court of American SamoaTrial Division

CA No. 157-96

May 2, 2003

[1] A corporation is a legal fiction, which exists as a separate entity from its shareholders and exempts the shareholders’ property from corporate debts.

[2] Shareholders are normally exempt from liability for the corporation’s debts, but the exemption will be abrogated if there are circumstances justifying disregard of the corporate entity, in order to prevent abuse of corporate privileges, either by one or more individuals or by another corporation.

[3] Piercing the corporate veil is justified when: (1) the corporation is not only influenced and governed by the shareholder, but there is such a unity of interest and ownership that the individuality, or separateness, of said person and corporation has ceased; and (2) the facts are such that an adherence to the fiction of the separate existence of the corporation would, under the particular circumstances, sanction a fraud or promote injustice.

[4] Where defendant was the dominant, if not the only, stockholder of corporation, where there was no evidence of a corporate structure or of adequate corporate records and minutes, and where defendant admitted to paying off corporation’s debt with his own personal funds, Court found that there was sufficient unity of interest and ownership to satisfy first prong of test for piercing corporate veil.

[5] The inequity necessary to justify piercing the corporate veil must flow from the misuse of the corporate form.

[6] Where corporation was not authorized to transact insurance business as an insurer, having obtained certificate of insurance through misrepresentations, but shareholder nevertheless attempted to hold

54

corporation out as a legitimate insurer in the Territory so that he might personally gain from corporation’s collection of deposit, Court concluded that injustice would result if corporate veil were not pierced.

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

Counsel: For Defendant La Fenix Boliviana, by its Special Deputy Liquidator, Roy J.D. Hall, Jr. For Defendant Insurance Company of Samoa, Deanna Sanitoa For Defendant Amerika Samoa Bank, William H. Reardon

JUDGMENT OF CONTEMPT

On December 2, 2002, the Court first heard the application of Defendant La Fenix Boliviana (“LFB”), by its Special Deputy Liquidator (“the Liquidator”), to hold Don Fuimaono (“Fuimaono”) in contempt for failing to comply with the Court’s order of February 28, 2001, requiring Defendant Insurance Company of Samoa (“ICS”) to pay the Liquidator $2,180.20, the amount of earned interest paid to Fuimaono while the Defendant Amerika Samoa Bank (“ASB”) held the $50,000 statutory insurance deposit on ICS’s behalf. On January 15, 2003, the Court pointed out that the order of February 28, 2001, was directed to ICS, not Fuimaono, and that as of the December 2 hearing, no factual or legal basis was established to hold Fuimaono personally in contempt for nonpayment. We scheduled a second hearing on the application, which took place on February 21, 2003. The three counsel named above were present. Fuimaono was present only by his counsel and not in person.

Non-payment of the $2,180.20 to the Liquidator, by either ICS or Fuimoano, is a stipulated fact. We will not rehash the additional complicated facts that lead us to this motion, but rely on evidence supporting the findings of fact in our prior decisions in discussing the issues raised by the present contempt proceedings.

Discussion

[1-2] The only issue before us is whether we should pierce the corporate veil and hold Fuimaono responsible for the debts of ICS, a corporate entity. A corporation is a legal fiction, which exists as a separate entity from its shareholders and “exempt[s] the shareholders’ property from corporate debts.” Amerika Samoa Bank v. Adams, 22 A.S.R.2d 38, 42 (Trial Div. 1992); see N.L.R.B. v. Greater Kansas City Roofing, 2 F.3d 1047, 1051 (10th Cir. 1993). Exemption from liability “is the norm, not the exception,” N.L.R.B., 2 F.3d at 1051, but will be abrogated if “there are circumstances justifying disregard of the corporate entity to prevent abuse of corporate

55

privileges, either by one or more individuals or by another corporation.” Amerika Samoa Bank, 22 A.S.R.2d at 42.

[3] The following combination of circumstances justify piercing the corporate veil:

“First, that the corporation is not only influenced and governed by that person, but that there is such a unity of interest and ownership that the individuality, or separateness, of said person and corporation has ceased; second, that the facts are such that an adherence to the fiction of the separate existence of the corporation would, under the particular circumstances, sanction a fraud or promote injustice.

Amerika Samoa Bank, 22 A.S.R.2d at 42, quoting Minifie v. Rowley, 202 P.2d 673, 676 (Cal. 1921); N.L.R.B., 2 F.3d at 1052; RRX Industries, Inc. v. Lab-Con, Inc., 772 F.2d 543, 545 (9th Cir. 1985).

[4] As to the first requirement, there is no exhaustive or determinative list of factors. See, e.g., N.L.R.B., 2 F.3d at 1052 n.6. Instead, we look to the totality of the circumstances. See Amerika Samoa Bank, 22 A.S.R.2d at 43. In the present case, we find that a unity of interest between Fuimaono and ICS is apparent. Fuimaono is the dominant, if not the only, stockholder of ICS. There is no evidence of a corporate structure or of adequate corporate records and minutes. Furthermore, he admitted to paying off ICS debt with his own personal funds. It was even unclear, when he attempted to get the security deposit from ASB, and when he actually succeeded in withdrawing the interest on the security deposit, whether he was acting on his own behalf or as an agent for ICS.

In fact, we had previously ordered that LFB was entitled to the original security deposit, subject to any outstanding claims by defrauded policyholders. In doing so, we allowed anyone with a claim to file it with the court. Fuimaono attempted to do so, alleging that he had paid some $30,000 of ICS’s debt out of his own personal funds.23 He claimed

23 On April 30, 2001, and again on December 2, 2001, Fuimaono submitted to the Court copies of his post-judgment claim to the Insurance Commissioner to a portion of the $50,000 insurance bond in the amount of $21,900, and now contends that the Court has not addressed this claim. Fuimaono had his opportunity to present his claim against the $50,000 prior to and during the trial of this action on March 10 and 27, 2000. Rights to the $50,000 were the primary issue during the trial. Those rights were determined in the Liquidator’s favor by the Court in the opinion and order of December 4, 2000, and reaffirmed by the denial of the motion for reconsideration or new trial on February 28,

56

that he was unable to produce any documentation because it had been subpoenaed by a federal grand jury. However, the entire incident buttresses our factual findings, demonstrating how his own personal records and funds seemed to be those of the corporations, and vice versa.

[5] As to the second requirement for piercing the corporate veil, we find that adherence to the corporate fiction would indeed promote an injustice. “The showing of inequity necessary to satisfy the second prong must flow from the misuse of the corporate form.” N.L.R.B., 2 F.3d at 1053. There is no better example of such a misuse than the case at hand.

[6] In our original order on the merits, we found that, in attempting obtain a certificate of authority to transact insurance business in American Samoa, ICS had “never submitted financial or business statements for evaluation.” American Samoa Government v. Amerika Samoa Bank, CA No. 157-66, Opinion and Order, p. 10 (Trial Div. Dec. 4, 2000). Any certificate ICS had received was “obtained by misrepresentation in violation of A.S.C.A. § 29.0213, prohibiting false or misleading filings.” Id. We concluded that ICS was not “authorized to transact insurance business as an insurer.” Id. at 11. Yet, despite ICS’s status, it, or better yet, Fuimaono, still attempted to collect the $50,000 security deposit, holding itself out as a legitimate insurer in the Territory.

This is not a simple case of a corporation incapable of paying its debts. N.L.R.B., 2 F.3d at 1053. Instead, it is the case of Fuimaono, acting through ICS, misusing the corporate form for his own personal gain. Accordingly, we find that it is in the interest of justice to shed the corporate veil to hold Fuimaono and ICS responsible and liable for each one’s actions.

The order of February 28, 2001, requiring payment to the Liquidator of the $2,180.40 collected from ASB by Fuimaono was duly issued. At all times since issuance of the order, Fuimaono had knowledge of and ability to comply with the order. Neither ICS nor Fuimaono, ICS’s alter ego, have complied with the order. Fuimaono’s failure to comply with the order was willful and contemptuous.

Order

1. Fuimaono is in contempt of this Court.

2001. His post-judgment claim was irrelevant, as he was not an unpaid or defrauded policyholder at issue for identification during post-judgment claim proceedings undertaken before transmitting the $50,000 to the Liquidator.

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2. Imposition of punishment is suspended on condition that Fuimaono pay $2,180.40 to the Liquidator not later than 60 days after entry of this judgment. Payment shall be made to the Clerk of the Court, who shall disburse the funds received to the Liquidator’s counsel on behalf of the Liquidator.

3. This matter is continued to July 10, 2003, at 9:00 a.m. for the purpose of reviewing compliance with this Court’s orders and, if appropriate or necessary, imposing punishment on Fuimaono for his contempt of this Court. Fuimaono shall appear at the hearing on July 10, 2003, without further order, notice or subpoena.

It is so Ordered.

**********

KELEMETE MISIPEKA, Plaintiff,

v.

THE LEGISLATURE OF AMERICAN SAMOA, Defendant.

High Court of American SamoaTrial Division

CA No. 05-03

May 5, 2003

[1] Summary judgment is appropriate when there is no genuine issue as to any material fact.

[2] On a motion for summary judgment, the Court views the pleadings and supporting documents in the light most favorable to the non-moving party.

[3] Disputed legal questions present nothing for trial and are appropriately resolved on a motion for summary judgment.

[4] Actions to enforce unwritten agreements are subject to a three (3) year statute of limitations under A.S.C.A. § 43.0120(3).

[5] Actions to enforce written agreements are subject to a ten (10) year statute of limitations under A.S.C.A. § 43.0120(3).

58

[6] A written contract, for purposes of the statute of limitations, is one containing all the terms of a completed contract between the two parties and is executed by one of the parties and accepted or adopted by the other.

[7] A written contract is one which is all in writing, so that all its terms and provisions can be ascertained from the instrument itself.

[8] The essential elements of a contract include the subject matter, parties, terms and conditions, and price or other consideration.

[9] A memorandum that memorializes an oral agreement between the parties satisfies the writing requirement for purposes of the statute of limitations.

[10] Where invoice signed subsequent to performance of the agreement contained all essential terms of the agreement, but price term was altered subsequent to its execution, Court held that such writing satisfied the requirements of a written contract, despite fact that consideration owing was issue left to be resolved.

[11] Although Legislature had enacted rules defining members who could contract on its behalf, where circumstances suggested that these “binding officers” were aware that Committee Chairman was contracting on Legislature’s behalf and did nothing to inform parties that their approvals were required, binding officers’ inaction and acquiescence to the Committee Chairman’s conduct caused Plaintiff to rely on agreement and Legislature would be estopped from disavowing contract and would instead be bound by contract under principles of agency law.

[12] Where seller revoked discount, claiming that discount assumed prompt payment from purchaser, but contract contained no such limiting provision to discount term and instead provided alternative reason for discount, Court considered seller’s unilateral action invalid, contrary to the written agreement and would not enforce it.

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

Counsel: For Plaintiff, Pro Se For Defendant, Robert K. Maez

ORDER GRANTING PLAINTIFF AND DENYING DEFENDANT SUMMARY JUDGMENT

Before us are cross-motions for summary judgment. We grant plaintiff’s motion and deny defendant’s motion.

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I. BACKGROUND

Plaintiff Kelemete Misipeka (“Misipeka”) is a resident of American Samoa. He is in the business of supplying sound systems. In the past, he has worked for the Teuila and Mosooi Festivals, the 1997 South Pacific Mini-Games, and the 1998 Miss Americans Samoa Pageant. In 1998, Misipeka provided sound system services to Defendant Legislature of American Samoa (“Legislature”) for the festivities of the Fono Golden Jubilee held in honor of the Legislature’s 50th anniversary. He purportedly made an oral agreement with Senator Moaali`itele Tu`ufuli (“Senator Moaali`itele”), the Chairman of the Fono Golden Jubilee Committee.

The festivities spanned six days and included performers of all types. Misipeka was responsible for accommodating the various audio applications including instrumental hook-ups, extra speakers and special microphones. Additionally, Misipeka assisted KVZK, the local television provider, in broadcasting both live and recorded television feeds.

After the festivities ended, Misipeka sent a detailed invoice to Senator Moaali`itele. The total amount due was for $33,090. On October 30, 1998, the invoice was initialed and approved for payment by Senator Moaali’itele. Legislative Financial Officer, Velega Savali certified payment on October 21, 2002. Despite the seeming approval of Misipeka’s invoice, he was not paid. He contacted the Legislature and numerous attempts were made to settle the matter. These efforts, however, were to no avail; the Legislature, for one reason or another, refused to pay Misipeka for his services.

Understandably, after years of trying to collect, Misipeka’s frustration pushed him to file this suit. Normally, this would be a simple contract dispute ripe for resolution. However, it is complicated by one glaring defect. The original contract between Misipeka and the Legislature—specifically with Senator Moaali’itele, as chairman of the Jubilee committee—was not put in writing. The only writing evincing any agreement is the invoice Misipeka subsequently sent to the Legislature.

Both parties have moved for summary judgment. The Legislature, in seeking to avoid payment, argues that the only agreement that existed, if any, was the verbal agreement between Senator Moaali’itele and Misipeka. If true, of such an agreement would be dismissal of the suit because the statute of limitations has run. See A.S.C.A. § 43.0120(3) (three year statute of limitation on unwritten contracts). In the alternative, the Legislature posits that even if there was a written agreement, the only officers that can bind the Legislature are the President of the Senate and the Speaker of the House (“the binding

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officers”). Neither of the binding officers, however, signed or initialed Misipeka’s invoice.

Misipeka, on the other hand, argues that the invoice he sent, initialed and approved by Senator Moaali’itele (and Velega Savali), constitutes a written contract that extends the statute of limitations to 10 years. See A.S.C.A. § 42.0120(5). Furthermore, Misipeka contends that it is possible to contract generally with the Legislature through agents other than the binding officers. Indeed, he responded to the solicitation on behalf of the Legislature, generally, and Senator Moaali’itele, as Chairman of the Jubilee Committee, specifically, for his sound system services.

II. STANDARD

[1-3] Summary judgment is appropriate when there is “no genuine issue as to any material fact.” T.C.R.C.P. 56(c); Plaza Department Store v. Dunchnak, 26 A.S.R. 2d 82, 83 (Trial Div. 1994). The pleadings and supporting documents are viewed in the light most favorable to the non-moving party. See Amerika Samoa Bank v. United Parcel Service, 25 A.S.R.2d 159, 161 (Trial Div. 1994); Ah Mai v. American Samoa Gov't (Mem.), 11 A.S.R.2d 133, 136 (Trial Div. 1989). Furthermore, as in this case, “disputed ‘legal questions . . . present nothing for trial and [are] appropriately resolved on a motion for summary judgment.’” Flair Broadcasting Corp. v. Powers, 733 F. Supp. 179, 184 (S.D.N.Y. 1990) quoting Holland Indus. v. Adamar of New Jersey, Inc., 550 F. Supp. 646, 648 (S.D.N.Y. 1982).

III. DISCUSSION

A. Written or Unwritten Contract

[4-5] The crux of this case comes down to one question: was the contract between Misipeka and the Legislature written or unwritten? The importance of this question derives from our statutes of limitations: oral, or unwritten, contracts carry with them a three-year statute of limitations, A.S.C.A. § 43.0120(3), as opposed to written contracts, which can be enforced within 10 years after the action accrues, A.S.C.A. § 43.0120(5). See generally Pene v. Bank of Hawaii, 17 A.S.R.2d 168, 170 (Appellate Div. 1990). Because any contract between the parties was reached approximately five years ago, if it was merely an oral agreement, the suit is subject to dismissal but if it was written, the suit can proceed.

[6-7] While the definition of a written contract would seem straightforward, applying it to various situations can be difficult. A written contract, for purposes of the statute of limitations, is one “containing all the terms of a completed contract between the two parties

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[and] is executed by one of the parties and accepted or adopted by the other.” Id. at 171, (citing 3 A.L.R.2d 809, 819 (1949)). Put another way, “[a] written contract is one which is all in writing, so that all its terms and provisions can be ascertained from the instrument itself.” Id. (quoting Mills v. McGaffee, 254 S.W.2d 716, 717 (Ky. 1953)); see Clark v. Robert W. Baird Co., Inc., 142 F. Supp. 2d 1065, 1075 (N.D. Ill. 2001); Empire Land Title v. Weyerhaeuser Mortg., 797 P.2d. 467, 469 (Utah App. 1990); Urban Development, Inc. v. Evergreen Building Products, L.L.C., 59 P.3d 112, 119 (Wash. 2003).

[8] In the instant case, we need not go beyond the invoice itself to determine “the essential elements of the contract, which include the subject matter, parties, terms and conditions, and price or consideration.” Urban Development, Inc., 59 P.3d at 119; see Empire Land Title, 797 P.2d at 469. But see Clark, 142 F. Supp. 2d at 1075 (no contract because parole evidence necessary to establish terms of contract). The invoice in this case clearly defines the parties to the contract—Misipeka and the Legislature; both parties signed the contract; the contract was for services rendered at the Jubilee; Misipeka was to provide the sound system for the events of the entire six days; and the price of the services is meticulously documented.

[9] The Legislature raises two points in opposition. First, it notes that the document was signed after the event took place and after the services were rendered. However, “a memorandum that memorializes an oral agreement between the parties satisfies the writing requirement [for purposes of the statute of limitations.]” Urban Development, Inc., 59 P.3d at 119; see Evans v. Pickett Bros. Farms, 499 P.2d 273, 275 (Utah 1972); cf. American Samoa Gov’t Employees Federal Credit Union v. Sele, 28 A.S.R.2d 21, 23 (Trial Div. 1995) (subsequent memorandum sufficient to satisfy statute of fraud). But cf., Evans, 499 P.2d at 276 (Ellett, J., dissenting) (arguing that contract was not in writing for purposes of statute of limitations, though it may have qualified as a writing for purposes of statute of frauds). Again, the question is not when the contract was put in writing, but whether the writing is sufficient to constitute a contract. See Urban Development, Inc., 59 P.3d at 119.

[10] The Legislature also points out that after Senator Moaali`itele had signed the invoice, Misipeka altered portions of it which had originally offered a discount. Misipeka reasons that he did so because the discount was only for prompt payment. The Legislature argues that this act prevented any bargained-for consideration. We disagree with the Legislature’s contention. At most, Misipeka’s actions create a dispute as to the sum owed. But the fact remains that the invoice clearly shows that a sum is owed, regardless of the amount. That is sufficient to show an element of the contract, even if we now have to interpret the contract and

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determine how much is due. See Claxton v. Mains, 514 N.E.2d 427, 429 (Ohio App. 1986).

B. Contract with the Legislature

The Legislature’s other argument is that even if we find a written contract existed, that contract was between Misipeka and the Senator Moaali’itele. Furthermore, it argues that such a contract is not enforceable against the Legislature since only the binding officers can obligate the Legislature by written agreement. In support, the Legislature cites Legislative internal rules that are, at best, ambiguous.24 The Legislature’s argument is not only self-serving but also specious.

[11] But even assuming the Legislature’s argument has some merit, it can still be liable under the theory of agency. Nothing prevents the binding officers from delegating their authority to others, or acting in a way to create liability generally. In this case, we find that, at the very least, if the binding officers are truly the only legislators who have the power to contract, they are estopped now from denying the Legislature’s liability and shifting the burden solely to Senator Moaali’itele.

We seriously doubt that the binding officers were unaware of Senator Moaali`itele’s conduct in organizing the Jubilee celebration. We take judicial notice that Senator Moaali`itele was the Chairman of the Committee, that funds for the event were appropriated, and that the Legislature solicited services from the public for the Jubilee celebration. Furthermore, Misipeka reasonably relied on Senator Moaali’itele’s power of the purse. There was ample time and circumstances where the binding officers could have clarified to those dealing with Senator Moaali`itele that only the binding officers could approve their contracts. Instead, the binding officers’ inaction and acquiescence to Senator Moaali’itele’s conduct carelessly caused Misipeka to rely on the fact that he had entered into a valid contract. See generally RESTATEMENT (SECOND) OF AGENCY § 8B (1958).

Otherwise, if we adopt the Legislature’s argument, then every contract authorized by Senator Moaali’itele alone in regards to the celebration would be void. Any written contract not entered into by at least one of the binding officers for any procurement of services or sale of goods

24 For example, the Legislature finds support in that “[t]he Speaker shall approve all expenses for the operation of the House and directly administer the House’s budget,” See House Rule 11(b), and that “[I]t shall be the duty of the President [of the Senate] . . . [t]o do and perform such other duties as are required by law or by these rules, or such as may properly pertain to such office.” See Senate Rule 8(12).

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would be invalid. Such a scheme would lead to preposterous results and bring the government to a screeching halt.

IV. DAMAGES

Having found that there was indeed a valid, written contract between the parties, we are left only to calculate the damages. In this respect, there are no genuine issues of fact either. The original invoice provided that the amount due was $33,090.00. Misipeka, however, had given the Legislature a 35% discount in honor of the “momentous occasion.” Having applied that discount, the total on the invoice came to $21,508.50. It is not disputed that some time after Senator Moaali’itele approved payment, Misipeka, having become disheartened by the situation, unilaterally crossed out the portion of the invoice granting the discount.

[12] Misipeka claims that he did so because the discount was only offered if payment was received in a timely fashion. However, on the invoice, there is no such limiting condition on the granting of the discount. As a matter of law, such unilateral action is not valid and was not agreed upon by the Legislature. We interpret the plain meaning of the contract to reflect that despite late (or no) payment, the Legislature is still privy to the discount and only owes the principle amount of $21,508.50.

V. ORDER

1. Misipeka’s motion for summary judgment is granted. The Legislature’s motion for summary judgment is denied.

2. The Legislature shall pay Misipeka $21,508.50, plus statutory interest of 6% annum ($3.547 per day) from October 31, 1998, to May 8, 2003, the date of entry of judgment, in the amount of $5,856.10, for a total amount of $27,364.60, and costs of suit. The Legislature shall also pay Misipeka statutory interest of 6% per annum on the outstanding balance of total amount of judgment, including prejudgment interest and costs of suit, until the judgment is paid in full.

It is so Ordered.

**********

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SMITH SIAUMAU, Plaintiff,

v.

AMERICAN SAMOA GOVERNMENT, Defendant.

High Court of American SamoaTrial Division

CA No. 36-03

June 26, 2003

[1] The Revised Constitution of American Samoa provides for the writ of habeas corpus under Article I, Section 7.

[2] The writ of habeas corpus provides immediate relief from illegal detention.

[3] In examining pro se pleadings, the Court does so without regard to the technical niceties demanded of attorney-drafted pleadings.

[4] A.S.C.A. § 46.2521 vests supervision of the work release program at the Territorial Correctional Facility with the Warden and therefore the Court lacks authority to grant work release pursuant to a writ of habeas corpus.

[5] The power to commute sentences is reserved to the Governor under Article IV, Section 9 of the Revised Constitution of American Samoa. The Court may not, pursuant to a writ of habeas corpus or otherwise, commute a prisoner’s sentence.

[6] Where prisoner moved for writ of habeas corpus, Court properly considered only the term of imprisonment under which he was currently serving, not additional terms which he was to serve in the future and which were consecutive to his present one.

[7] Habeas corpus is not a vehicle for the courts to inquire into management of the prison system, unless “exceptional circumstances” exist, rising to the level of a “constitutional deprivation.”

[8] Where prisoner alleged that plea agreement entered was not one he had agreed to and that instead of pleading guilty to Counts I and VI, he had been forced to plea to counts I, II, and V, Court would not address the illegality of his punishment under counts II and V as prisoner had not yet begun serving those sentences.

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Before WARD, Acting Associate Justice.

OPINION AND ORDER

Defendant, a current inmate serving the first of three, 5-year consecutive prison terms for assault, at the Territorial Correction Facility, has filed a petition for a writ of habeas corpus with this court. The Court has carefully reviewed the petition and the exhibits attached thereto.

Discussion

[1-3] The privilege of a writ of habeas corpus is provided under Article I, Section 7 of the Revised Constitution of American Samoa. This writ has been described as “the great writ” which provides “immediate relief from illegal detention.” Suisala v. Moaali’itele, 6 A.S.R. 2d 15, 18 (Trial Div. 1987). We examine the pro se pleadings in this case as broadly as possible without regard to the technical niceties demanded of attorney-drafted pleadings.

[4-5] Petitioner prays the Court to commute his sentence to time served or reduce his sentence to three years with the privilege of work release from the Territorial Correction Facility to be granted immediately. This Court lacks the authority to grant these prayers. The work release program at the correctional facility is, by statute, supervised by the Warden. A.S.C.A. § 46.2521 et seq. Nor may this Court, under the writ of habeas corpus or otherwise, commute petitioner’s sentence. That power is exclusively exercised by the Governor under Article IV, Section 9 of the Revised Constitution of American Samoa.

[6] Petitioner’s prayers notwithstanding his petition must be reviewed to determine if it presents on its face a showing that his confinement is unlawful. Relying upon A.S.C. v Adams, 29 A.S.R.2d 160, 161 (Trial Div. 1996) citing Dunlap v. Swope 103 F.2d 19 (9th Cir. 1939), only petitioner’s present sentence, and not the two prospective, consecutive 5-year sentences, is considered for purposes of his allegation of current illegal confinement.

Petitioner alleges: he has not been given permission to attend church services on Saturdays; that the correctional facility does not provide inmates with clothing, sheets, towels, soap, etc.; that the meals served at the facility are not nutritious; that his cell is hot and not well ventilated; and that petitioner doesn’t always get to exercise every day.

[7] Although petitioner presents a grim picture of his life in confinement, “[h]abeas corpus is not a vehicle for the courts to inquire into management of the prison system, unless “exceptional circumstances” rise to the level of “constitutional deprivation.” American Samoa

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Government v. Agasiva, 6 A.S.R.2d, 32, 38 (Trial Div. 1987). On its face, this petition does not assert any factual situation which, if true, would present circumstances of illegal detainment predicated upon cruel or unusual punishment or any other restraint in violation of petitioner’s constitutional rights. Petitioner’s remedy lies with the executive branch, not with the Court under a habeas corpus proceeding.

As to petitioner’s allegations that he didn’t fully understand his plea agreement and that his lawyer failed to file a timely motion before the sentencing court to reduce his sentence, we have carefully reviewed his allegations. We return however, to the issue we addressed above as to petitioners present sentence of 5 years for Count I, Assault in the Second degree.

[8] Petitioner states that his first plea agreement included a dismissal of all counts except Counts I and VI. Petitioner’s claims that he was surprised at his subsequent hearing with the proposal that he would enter pleas of guilty to Counts I, II, and V with the government dismissing the balance of the charges.

Petitioner is presently serving his sentence for Count I. His allegations that his future sentences may result in his illegal detention when those sentences commence do not presently support the issuance of a writ while he is serving a legal sentence.

Conclusion

The petition filed in this matter, broadly construed in favor of this pro se prisoner, does not allege facts which if proven to be true would demonstrate his current detention is illegal. Petitioner’s current remedy is exclusively with the executive branch of government. He is strongly advised to avail himself to the administrative remedies for his grievances concerning his personal circumstances in confinement. He may also avail himself to the parole board with respect to his current sentence. And finally, he may petition the Governor for relief.

To ensure that the executive branch officers with authority over these matters are fully informed on the status of this particular legal action by petitioner, the Clerk of Courts shall cause a copy of this Opinion and Order and a copy of the petition and exhibits to be served upon the Attorney General, the Commissioner of Public Safety, Counsel to the Governor, and the Public Defender.

The petition is denied.

Order

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It is so Ordered.

**********

AMERICAN SAMOA RUGBY FOOTBALL ASSOCIATION (ASRFA), SENATOR TE`O J. FUAVAI, PRESIDENT,

LEROY LUTU, VICE-PRESIDENT, FALEFATA LEMANA, EXECUTIVE SECRETARY/TREASURER, Plaintiffs,

v.

IULI ALEX GODINET, PURPORTED PRESIDENT OF IUNI LAKAPI AMERIKA SAMOA (ILAS), AUMAVAE T. AUMAVAE, PURPORTED EXECUTIVE COMMITTEE MEMBER OF ILAS,

TITI NOFOAGATOTO`A, PURPORTED EXECUTIVE COMMITTEE MEMBER OF ILAS, SILIVA SILIVA,

PURPORTED EXECUTIVE COMMITTEE MEMBER OF ILAS, Defendants.

High Court of American SamoaTrial Division

CA No. 51-03

September 12, 2003

[1] A preliminary injunction is properly issued when there is a substantial likelihood the applicant will prevail at trial on the merits and obtain a permanent injunction against the opposing party, and great or irreparable injury will result to the applicant before a full and final trial can be fairly held on the permanent injunction issue.

[2] A.S.C.A. § 30.0104(a) requires that a corporation’s name be such as to distinguish it upon the records of the territorial registrar from the name of any other corporation.

[3] A.S.C.A. § 30.0104(a) prevents a corporation from using a name similar to another corporation’s name where the public is likely to be deceived by the similarity.

[4] Where corporation had registered and used literal, Samoan translation of other corporation’s name, as its name, injunctive relief was appropriate.

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

Counsel: For Plaintiffs, Robert K. Maez For Defendants, Katopau T. Ainu`u

PRELIMINARY INJUNCTION

Plaintiffs brought this action for preliminary and permanent injunctions enjoining Defendants from using “Iuni Lakapi Amerika Samoa” as the name of their corporation. Plaintiffs’ application for a preliminary injunction was heard on August 22, 2003, with both counsel present. During the hearing, the Court invoked T.C.R.C.P. 65 to advance and consolidate the trial on the merits with the application hearing.

[1] A preliminary injunction is properly issued when “there is a substantial likelihood the applicant will prevail at trial on the merits” and obtain a permanent injunction against the opposing party, and “great or irreparable injury will result to the applicant before a full and final trial can be fairly held” on the permanent injunction issue. A.S.C.A. § 43.1301(j).

[2] Defendants acknowledge that they named their corporation “Iuni Lakapi Amerika Samoa.” They also acknowledge that they use this name in conducting the affairs of the corporation, even after the Territorial Register, correctly or incorrectly, voided the registration of their corporation so named and informed Defendants of her action. They are apparently relying on an opinion issued by the Attorney General that their use of this name does not violate A.S.C.A. § 30.0104(a), which provides that “[t]he name of each corporation must be such as to distinguish it upon the records of the territorial registrar from the name of any other corporation.”

We disagree with the Attorney General. The name of Plaintiffs’ corporation, registered in 1990, is “American Samoa Rugby Football Association.” The two names are clearly different at face value. However, “Iuni Lakapi Amerika Samoa” is a literal translation in the Samoan language of “American Samoa Rugby Football Association” in the English language.

The right of a corporation to the exclusive use of its corporate name is a common-law right, and equity will prohibit another from using a similar name has the potential to deceive the public.

6 Fletcher Cyc. Corp. § 2422 (1926).

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The protection of a corporate name against use by another person or business entity has been frequently based on the theory of fraud and the resulting deception of the public. The injury guarded against is twofold: (1) Public confusion caused by the palming off of goods and services of another corporation; and (2) Diversion of business from another corporation. The ultimate question is whether a person or entity is using a name to deceive the public into purchasing goods or services that they believe belong to another corporation.

Id. § 2423.

[3-4] The common-law principles are, in our view, codified in A.S.C.A. § 30.0104(a). Accordingly, if the public is likely to be deceived by the similarity of the corporate names, injunctive relief is appropriate. In American Samoa, where most people speak both Samoan and English, the likelihood of public confusion from the Defendants’ use in the Samoan language as their corporation’s name the identical official name of Plaintiffs’ corporation in the English language is great. The public is likely to assume the names are interchangeable and belong to the same corporate entity.

Apparently, for several years, Plaintiffs have not actively pursued the affairs of the American Samoa Rugby Football Association, particularly towards achieving the objectives of promoting and developing rugby for both local and regional competition. Additionally, Plaintiffs may be serving as officers without complying with selection procedures of the Association’s bylaws. Defendants proclaim to have organized the Iuni Lakapi Amerika Samoa to overcome this inertia of purpose and the bylaw violations. Nonetheless, for preliminary injunction purposes, the likelihood of issuing a permanent injunction against Defendants upon completion of the trial on its merits is substantial, and until then, Plaintiffs will be greatly harmed by public confusion over which corporation is sponsoring noticed activities through Defendants’ continuing use as a corporate name the Samoan translation of Plaintiffs’ English corporate name.

The issue would be simply resolved if Defendants would select a clearly distinct name and amend their articles of incorporation accordingly.

Order

1. During the pendency of this action, or until further order of the Court, Defendants, their officers, agents, servants, employees, and

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attorneys, and those persons in active concert or participation with them are enjoined from using “Iuni Lakapi Amerika Samoa” as the name of their corporation.

2. Either Plaintiffs or Defendants may move to schedule a date for completion of the trial of this action.

It is so Ordered.

**********

FAISILI HALECK, RAYMOND M. McMOORE and SESE McMOORE, on behalf of themselves and

as shareholders of TRT, INC., Plaintiffs,

v.

TRT, INC., AMERICAN SAMOA 2000, INC., AGAOLEATU C. TAUTOLO, AGAESE ACE TAGO, MURRAY R.

DRAKE, RAYMIE P. SNOW, and DOES I-XX, Defendants.

High Court of American SamoaTrial Division

CA No. 20-02

September 23, 2003

[1] The examining party may set the deposition of a party at any place which he desires, subject to the power of the court to grant a protective order if deemed necessary.

[2] The court may issue a protective order designating the location for an oral deposition in order to protect the party being deposed from “undue burden or expense” upon a showing of good cause.

[3] A presumption exists that a non-resident defendant will be deposed at his place of residence.

[4] In the absence of exceptional or unusual circumstances, when a deponent resides at a substantial distance from the deposing party’s residence, the deposing party should be required to take the deposition at a location in the vicinity in which the deponent resides, even if the deponent is a party.

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[5] Where plaintiffs sought tax returns and financial information of defendant and asserted that information might demonstrate how defendants managed to acquire funds in order to make various payments at issue in action, Court determined discovery requests sought information relevant to breach of fiduciary duty claim.

[6] Where discovery requests did not specify a time limitation, Court found such requests overbroad.

[7] Requests for production under T.C.R.C.P. 34 may only be directed to the parties to the action.

[8] A requesting party may seek the production of documents or things which are in the possession, custody or control of the responding party.

[9] “Control”, as used in T.C.R.C.P. 34, includes both the actual possession of the requested materials or the legal right to obtain the materials.

[10] The term “control”, as used in T.C.R.C.P. 34, is broadly construed.

[11] The party seeking production of documents or things under T.C.R.C.P. 34 bears the burden of establishing that the responding party controls the requested materials.

[12] An individual party to a lawsuit can be compelled to produce relevant information and documents relating to a non-party corporation of which it is an officer, director, or shareholder.

[13] Where requesting party established that responding party served on board of corporation, was one of the incorporators of corporation, was 33% shareholder of corporation, and was president of corporation, such was sufficient to show that responding party had control over corporation and could be expected to produce records of corporation.

[14] When financial information is relevant to the subject matter at issue it is discoverable.

[15] Courts perform a two prong test prior to ordering the disclosure of tax returns: first, the court must find that the returns are relevant to the subject matter of the action; and second, the court must find that there is a compelling need for the returns because the information contained therein is not otherwise readily obtainable.

[16] Once relevance has been established, the party resisting discovery bears the burden of proving that alternative sources would provide the required information.

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[17] Under T.C.R.C.P. 37(a)(4), the Court has authority to award costs and attorney’s fees to the prevailing party on a motion to compel.

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

Counsel: For Plaintiffs, Charles V. Ala`ilima and David Wagner For Defendants Agaoleatu C. Tautolo, Agaese Ace Tago, Murray P. Drake, and Raymie P. Snow, Devin McRae and William H. Reardon For Defendants TRT, Inc. and American Samoa 2000, Inc., Marshall Ashley and Frederick J. O’Brien

ORDER GRANTING MOTION FOR PROTECTIVE ORDER AND GRANTING IN PART AND DENYING IN PART

MOTION TO COMPEL PRODUCTION

Defendant Murray P. Drake (“Drake”) moves, pursuant to T.C.R.C.P. 26(c), for a protective order requiring his deposition be held in Apia, Samoa. By separate motion, Plaintiffs move for an order compelling the production of documents and records and for an award of sanctions. In response, Defendants request an award of expenses for responding to Plaintiffs’ motion to compel. For the reasons stated below, we grant Drake’s motion for a protective order, grant in part and deny in part Plaintiffs’ motion to compel production, and deny both parties’ requests for an award of expenses.

Discussion

A. Drake’s Motion for a Protective Order

Plaintiffs noticed Drake’s deposition to take place in Nu’uuli, American Samoa.25 However, Drake lives and works in Apia, Samoa. Accordingly, Drake seeks a protective order pursuant to T.C.R.C.P. 26(c) requiring his deposition take place in Apia, Samoa.

[1-4] “[T]he examining party may set the deposition of a party at any place which he desires, subject to the power of the court to grant a protective order if deemed necessary.” Beaver v. Cravens, 24 A.S.R.2d

25 Plaintiffs also attempted to serve Drake with a subpoena for the taking of his deposition. A notice of deposition is sufficient to require a party to attend his deposition. See 8A CHARLES ALAN WRIGHT, ARTHUR R. MILLER AND RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2107 (1994) (noting that “a subpoena is not necessary if the person to be examined is a party”). Because Drake is a party to this action, Plaintiffs’ attempt to serve him with a subpoena was superfluous.

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115, 116 (Trial Div. 1993). The court may issue a protective order designating the location for the deposition to protect the party seeking the order from “undue burden or expense” upon a showing of good cause. T.C.R.C.P. 26(c). A presumption exists that the non-resident defendant will be examined at his place of residence. See 6 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 26.105[3][b] (3d ed. 1999); see also Farguhar v. Sheldon, 116 F.R.D. 70, 72 (E.D. Mich. 1987) (noting that “a party seeking discovery must go where the desired witnesses are normally located”).

In the absence of exceptional or unusual circumstances, when a deponent resides at a substantial distance from the deposing party’s residence, the deposing party should be required to take the deposition at a location in the vicinity in which the deponent resides, even if the deponent is a party.

Metrex Research Corp. v. United States, 151 F.R.D. 122, 125 (D. Colo. 1993). Plaintiffs have offered no “exceptional” or “unusual” circumstances which would cause us to depart from the normal rule requiring the defendant be deposed in the place in which he resides. As such, if Plaintiffs want to depose Drake, the deposition shall take place in Apia, Samoa.26

B. Plaintiffs’ Motion to Compel Production of Documents

On July 22, 2003, Plaintiffs served various discovery requests for the production of documents on defendants, and on July 24, 2003, Plaintiffs served a supplemental request on defendants.27 Defendants responded to these requests on August 12, 2003. Plaintiffs, arguing that Defendants’ response to their requests was insufficient, move to compel discovery and for an award of sanctions.28

26 Because Drake’s deposition will take place in Apia, Samoa, there is no need for us to address his alternative request for costs incurred while traveling to American Samoa for his deposition or his alternative request that written interrogatories be used instead of oral testimony.27 Prior to the September 16, 2003 hearing on this motion, Defendants produced documents responsive to Plaintiffs’ supplemental request. We assume Defendants’ response was satisfactory.28 Defendants argue that Plaintiffs failed to meet and confer before bringing their motion to compel discovery. Unlike the Federal Rules of Civil Procedure, the Trial Court Rules of Civil Procedure do not explicitly require the parties meet and confer prior to bringing discovery motions. Compare Fed. R. Civ. Pro. 37 (a) (2) (A) with T.C.R.C.P. 37. However, as both parties note, the High Court seeks to conform to the Federal Rules of Civil Procedure. See A.S.C.A. § 43.0201(a). Obviously, the meet and confer requirement forces the parties to discuss

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1. Relevancy

“Relevancy is a liberal process.” Johnson v. Coulter, 25 A.S.R.2d 84, 87 (Trial Div. 1993). According to Rule 26 (b),

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . It is not ground for objection that the information sought will be in adimissble [sic] at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

T.C.R.C.P. 26 (b) (1). Defendants argue that Plaintiffs’ requests are not reasonably calculated to lead to the discovery of admissible evidence. We disagree.

[5] Plaintiffs request the tax returns and financial information of Defendant Agaoleatu Charlie Tautolo (“Agaoleatu”). Plaintiffs argue this information may demonstrate how Agaoleatu managed to acquire funds in order to make various payments at issue in this action. This sort of information is relevant to Plaintiffs’ breach of fiduciary duty claim.

Plaintiffs also request documents from Agaoleatu relating to three other enterprises allegedly controlled by Agaoleatu. Specifically, Plaintiffs request documents from Agaoleatu relating to Kent Samoa, Inc. (“Kent”), A.C.T., Inc. (“ACT”) and ARC Construction Inc. (“ARC”). Several of the requests seek information about alleged transactions between these entities and Agaoleatu, TRT, Inc. (“TRT”) or American Samoa 2000, Inc. (“AS2000”). Plaintiffs argue this information is also relevant to determine the nature of Agaoleatu’s investments. As such, this information is also relevant to Plaintiffs’ breach of fiduciary duty claim.

[6] Accordingly, we find that Plaintiffs’ requests are reasonably calculated to lead to the discovery of admissible evidence. However, we also note that several of Plaintiffs’ requests are overbroad in that they do not specify a time limitation. To the extent Plaintiffs’ requests are lacking a time limitation, information from 1998-2003 is responsive to Plaintiffs’ requests. We now turn to Defendants’ other objections.

2. Nonparty Corporations

and possibly resolve the disputed issue before running into court to seek relief. While we will not deny Plaintiffs relief for their failure to meet and confer prior to bringing the instant motion, we suggest they make use of this procedure before bringing future discovery motions.

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In Requests 1, 2, 3, 4, and 8, Plaintiffs request documents from Agaoleatu which relate to nonparties Kent, ACT, and ARC.29

Defendants argue that Plaintiffs may not use T.C.R.C.P. 34 to discover information from nonparties.

[7-11] Requests for production under Rule 34 may only be directed to the parties to the action. T.C.R.C.P. 34 (a). However, the requesting party may seek the production of documents or things “which are in the possession, custody or control of the party.” Id.; see also Johnson, 25 A.S.R.2d at 85. Control includes both the actual possession of the requested material or the legal right to obtain the materials. See 7 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 34.14[2][b] (3d ed. 1999). “The term ‘control’ is broadly construed.” Id. The party seeking production bears the burden of establishing control of the requested materials. Id. Accordingly, any documents that are in the actual physical possession of Agaoleatu or under his control are subject to discovery.

[12] “An individual party to a lawsuit can be compelled to produce relevant information and documents relating to a non-party corporation of which it is an officer, director, or shareholder.” Gen. Envtl. Sci. Corp. v. Horsfall, 136 F.R.D. 130, 133 (N.D. Ohio 1991); see also A.F.L. v. Falck,S.P.A. v. E.A. Karay Co., 131 F.R.D. 46, 48-49 (S.D.N.Y. 1990) (compelling individual respondent to produce the corporate documents of two nonparty corporations because he had control over the corporate entities).

[13] In this case, Plaintiffs assert that Agaoleatu has control over the documents requested from ARC, Kent, and ACT. Plaintiffs direct us to the deposition testimony of Reynaldo Millari and Malaetino Leo, claiming this testimony demonstrates that Agaoleatu has control over these entities. A review of the deposition testimony indicates that Agaoleatu serves on the Board of ARC, was one of the incorporators of ARC, is a 33% shareholder of ARC, and President of ARC. As such, Plaintiffs have sufficiently demonstrated that Agaoleatu has control over the ARC documents.30 However, Plaintiffs fail to show that Agaoleatu

29 Requests 1, 4, and 8 also request documents from Agaoleatu relating to TRT and AS2000. It appears that these documents of party defendants have been produced. 30 Defendants cite American Maplan Corporation v. Heilmayr, 203 F.R.D. 499 (D. Kan. 2001), for the proposition that a party may not be compelled to produce documents of a corporate nonparty. In that case~ the defendant did not have a legal right to the documents because there was insufficient evidence to show he was “one and the same” with the nonparty corporate entity. Id. at 502. We find that there is sufficient evidence in this case to demonstrate that Agoleatu has a legal right to the ARC materials.

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controls Kent or ACT. In fact, deposition testimony indicates that Agaoleatu has “some interest” in ACT and “manages” Kent. This is insufficient to establish that Agaoleatu has control over the Kent or ACT documents.31

3. Tax Returns and Financial Information

In Requests 5-7, Plaintiffs request tax and financial information from Agaoleatu. Agaoleatu argues that his financial information is not discoverable absent special circumstances and that his tax returns are not discoverable because they are confidential.

[14] First, when financial information is relevant to the subject matter at issue it is discoverable. See generally 6 JAMES WM. MOORE ET AL., MOORE’ S FEDERAL PRACTICE § 26. 41 [3] [a] (3d ed. 1999). Since we find that the financial information requested by plaintiffs is relevant (see disc. supra), it is discoverable.

[15-16] Second, “[w]hile tax returns are not privileged, courts have been reluctant to order their routine disclosure as part of discovery.” SEC v. Cymaticolor Corp., 106 F.R.D. 545, 547 (S,D,N.Y, 1985). Courts often perform a two prong test prior to ordering the disclosure of tax returns. “[F]irst, the court must find that the returns are relevant to the subject matter of the action; and second, that there is a compelling need for the returns because the information contained therein is not otherwise readily obtainable.” Id. As indicated in our discussion above, we find that Agaoleatu’s tax returns are relevant. “[O]nce relevance has been established, the party resisting discovery bears the burden of proving that alternative sources would provide the required information.” Carnegie Hill Fin. Inc. v. Krieger, Nos. 99-CV-2592 and 99-CV-55l1, 2001 WL 869594, at *1 (E.D. Pa. July 30, 2001). Although Agaoleatu argues that this information is readily available elsewhere, he fails to point to any specific document in which Plaintiffs could discover this information. As such, Agaoleatu’s tax returns are discoverable.32

4. Sanctions

31 Documents from nonparties may be acquired through a Rule 45 subpoena. See T.C.R.C.P. 45.32 Plaintiffs also request cancelled checks and tax filings from Kent, ACT and ARC that show funds transferred to Agaoleatu in 1998-2003. Defendants argue that Kent, ACT, and ARC’s tax returns and financial records are confidential and, therefore, not discoverable by Plaintiffs. We disagree. To the extent Agaoleatu has actual possession of this information, he shall produce it. Moreover, because we find that Agaoleatu has control over ARC’s documents, these documents should also be produced.

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[17] Plaintiffs request sanctions with respect to their motion to compel. Defendants seek attorney’s fees and costs for responding to Plaintiffs’ motion. According to Rule 37(a)(4), if the moving party’s motion is granted, the court may “require the party . . . whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses.” T.C.R.C.P. 37(a) (4); see also Johnson, 25 A.S.R.2d at 88. Likewise, if the moving party’s motion is denied, expenses and attorney’s fees in opposing the motion may be awarded to the non-moving party. Id.

In this case, we find an award of expenses to either side to be inappropriate. See, e.g., Johnson, 25 A.S.R.2d at 88. Plaintiffs are not entitled to expenses because Defendants acted in good faith in responding to Plaintiffs’ requests. Defendants are not entitled to expenses because Plaintiffs’ motion to compel has merit.

Order

1. Defendant Drake’s motion for a protective order is granted.

2. Plaintiffs’ motion to compel discovery is granted in part and denied in part. Defendant Agaoleatu is ordered to produce documents from 1998-2003 that are responsive to Requests 1-8 and are in his actual possession. Agaoleatu is further ordered to produce documents from 1998-2003 that are responsive to Requests 1-4 and are related to ARC Construction, Inc. Plaintiffs’ motion to compel discovery from Agaoleatu relating to Kent Samoa, Inc. and A.C.T. Inc. is denied.

3. Plaintiffs’ request for sanctions is denied. Defendants’ request for expenses is denied.

It is so Ordered.

**********

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AMERICAN SAMOA POWER AUTHORITY, and TRAVELERS INDEMNITY COMPANY as Subrogee of AMERICAN SAMOA POWER AUTHORITY, Plaintiffs,

v.

DEUTZ MWM FAR EAST (PTE) LTD., Defendant.

High Court of American SamoaTrial Division

CA No. 42-01

November 12. 2003

[1] An affidavit filed in support of summary judgment that does not comply with Rule 56(e) may be stricken.

[2] Court refused to strike portions of memorandum of law filed in support of motion for summary judgment where movant’s asserted grounds were that the memorandum contained conclusory and unsupported statements and law cited in support of motion to strike applied only to affidavits, not memoranda of law.

[3] Where opposing party objected to exhibit submitted in support of summary judgment motion and movant did not respond to objection, Court properly excluded such exhibit from considerations pursuant to T.C.R.C.P. 56(e).

[4] The Court may deny a party’s motion to strike when it has failed to specify the specific portions of an affidavit that are objectionable.

[5] The parol evidence rule “prohibits the admission of extrinsic evidence of prior or contemporaneous oral agreements, or prior written agreements, to explain the meaning of a contract.”

[6] T.C.R.C.P. 56(d) establishes a procedural mechanism whereby a district court can, with the acquiescence of the parties, narrow the factual issues for trial.”

[7] The standard for determining a Rule 56(d) motion is identical to the standard used for determining a motion brought under Rule 56(c).

[8] Under T.C.R.C.P. 56(c), summary judgment is appropriate when the pleadings and other supporting documents show that there is no genuine

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issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

[9] The party seeking summary judgment bears the burden of showing there is no genuine issue of material fact.

[10] After the movant has shown that there is no genuine issue of material fact, the non-moving party must then affirmatively show there is a genuine issue for trial.

[11] In considering a motion for summary judgment, all inferences are construed in a light most favorable to the non-moving party.

[12] When both parties file cross motions for summary judgment, the court must consider each motion separately and apply controverted facts in a light most favorable to the nonmovant.”

[13] Every action shall be prosecuted in the name of the real party in interest.

[14] If a subrogee has paid an entire loss suffered by the insured, it is the only real party in interest and must sue in its own name.

[15] If a subrogee has paid only part of a loss, both the insured and insurer have substantive rights against the tortfeasor which qualify them as real parties in interest.

[16] Express warranties are interpreted according to general contract principles.

[17] Summary judgment is properly used for interpreting a contract whose terms are considered by opposing parties to be clear and unambiguous, despite disagreement between the parties as to what the agreement provides.

[18] The meaning of particular parts or words in a contract should be determined in light of and consistent with the general purpose of the agreement.

[19] An interpretation of a contractual provision that gives reasonable meaning to all provisions is preferable to one that leaves part of the language useless or inexplicable or creates surplusage.

[20] In interpreting a contract, preference must be given to reasonable interpretations as opposed to those that are unreasonable.

[21] Contracts should be read in their entirety.

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[22] Courts are to determine what the parties intended by what they said and not what they might have said or what perhaps they should have said.

[23] If a case involves other defenses that raise no material issues of fact they may be the subject of a partial summary adjudication in plaintiff’s favor in accordance with the procedure prescribed in Rule 56(d).

[24] In order to distill the issues to be tried, the Court may bar certain legal arguments and affirmative defenses if it is clear that they run counter to the governing law.

[25] On a motion for summary judgment, the burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.

[26] A party opposing another’s motion for summary judgment will not be allowed to rest upon his pleadings or the assertions of lawyers who have no personal knowledge of the facts.

[27] Comparative fault is an appropriate defense in a tort action not a contract one.

Before RICHMOND, Associate Justice and SAGAPOLUTELE, Associate Judge.

Counsel: For Plaintiffs, Jeffrey Waller For Respondent, Jennifer L. Joneson

ORDER ON CROSS SUMMARY JUDGMENT AND RELATED PENDING MOTIONS

Plaintiffs American Samoa Power Authority (“ASPA”) and Travelers Indemnity Company (“Travelers”), as subrogee of ASPA, move pursuant to T.C.R.C.P. 56 for partial summary adjudication on their breach of warranty claims against Defendant Deutz MWM Far East (PTE), Ltd. (“Deutz”).33 Deutz cross moves for summary judgment on the two claims for breach of warranty and also moves to dismiss ASPA from the lawsuit. In addition, before the Court, are a number of additional motions brought by the parties and discussed in detail below.

33 Since the filing of its motion for partial summary judgment, Travelers has filed an amended complaint essentially abandoning any claim by ASPA. As such, we refer to Travelers as the moving party throughout this order. See disc. infra pp. 9-11.

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I. MOTIONS TO STRIKE

A. Deutz’s Motion to Strike

[1-2] Deutz moves to strike portions of Travelers’ memorandum of law and exhibits 9 and 10 thereto. Deutz argues that large portions of Travelers’ memorandum of law should be stricken because Travelers makes conclusory and unsupported statements in its partial motion for summary judgment. However, none of the authorities cited by Deutz supports its contention that portions of Travelers’ memorandum should be stricken. Rather, the cases cited by Deutz merely demonstrate that an affidavit filed in support of summary judgment that does not comply with Rule 56(e) may be stricken. Automatic Radio Mfg. Co. v. Hazeltine Research, 339 U.S. 827, 831 (1950), overruled in part by Lear, Inc. v. Adkins, 395 U.S. 653 (1969); Wells Dairy, Inc. v. Travelers Indem. Co., 241 F. Supp. 2d 945, 955-58 (N.D. Iowa 2003); Servants of Paraclete, Inc. v. Great Am. Ins. Co., 866 F. Supp. 1560, 1564-68 (D.N.M. 1994); Jewell-Rung Agency, Inc., v. Haddad Org., Ltd., 814 F. Supp. 337, 339 (S.D.N.Y. 1993). Deutz does not seek to strike a supporting affidavit but, rather, seeks to strike portions of Travelers’ legal memorandum. We refuse to distort these cases by extending them to a party’s legal briefing. Deutz’s motion to strike portions of Travelers’ memorandum is denied.

[3] In addition, Deutz claims that exhibits 9 and 10 to Travelers’ motion do not comply with the requirements of T.C.R.C.P. 56(e), and Deutz moves to strike them as inadmissible hearsay evidence.34 Exhibit 9 is a letter from ASPA to Deutz and exhibit 10 is a letter from Deutz to ASPA. Travelers does not address the admissibility of these exhibits in its response and fails to offer any exception to the hearsay rule that would allow these exhibits to be considered as evidence. Nonetheless, we find that exhibit 10 is admissible under T.C.R.Ev. 801(d)(2) as a party admission. However, in the absence of any explanation by Travelers to the contrary, we find exhibit 9 is inadmissible hearsay evidence. As such, Deutz’s motion to strike is granted in part and denied in part.

B. Travelers’ Motion to Strike

[4-5] Travelers moves to strike all exhibits included with Deutz’s cross-motion for summary judgment that are offered to show intent under the parol evidence rule. Travelers fails to indicate specifically which

34 Rule 56(e) “does not require an unequivocal conclusion that the evidence will be admissible at trial as a condition precedent to its consideration on a summary judgment motion.” Reed v. Ford Motor Co., 679 F. Supp. 873, 874 (S.D. Ind. 1988).

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exhibits (or portions thereof) it seeks to exclude under the parol evidence rule.35 See, e.g., Underwood v. Waddell, 743 F. Supp. 1291, 1293 n.1 (S.D. Ind. 1990) (denying plaintiff’s motion to strike “for failure to specify what specific portions of the affidavits are objectionable”); Seidelman Corp. v. Mollison, 10 F.R.D. 426, 428 (S.D. Ohio 1950) (“The Court cannot and should not be expected to go through the .  . . affidavit ‘with a fine-tooth comb’ and pick out the ‘certain portions’ which defendants . . . feel should be stricken.”).36 Accordingly, Travelers’ motion to strike Deutz’s exhibits is denied.

II. DEUTZ’S MOTION FOR RELIEF FROM ORDER

Deutz moves this Court, pursuant to T.C.R.C.P. 60(b)(1) and 60(b)(3), to vacate its October 24, 2002 order obliging Deutz to provide a surety bond. Deutz argues that discovery has revealed misrepresentations by ASPA’s counsel regarding ASPA’s claims and evidence suggesting APSA and Travelers do not have a viable cause of action. In response, Travelers agrees to reduce the bond by $100,000, the amount ASPA was previously seeking for its unpaid deductible. Travelers claims the remaining surety should remain intact in order to cover any adverse judgment found in favor of Travelers against Deutz.

We agree with Travelers and decline to relieve Deutz of its obligation to provide a surety bond. Deutz still faces the possibility of an adverse judgment and therefore, the surety bond should remain intact. However, during the September 29, 2003 hearing, the parties agreed to reduce the bond by $100,000, the amount attributable to the deductible that ASPA is no longer seeking to recover from Deutz. As such, Deutz’s motion for relief from order is denied; however, the surety bond may be reduced by $100,000 in accordance with our September 29, 2003 ruling.

III. DEUTZ’S MOTION FOR CONTEMPT

Deutz moves this Court to find Travelers’ counsel in indirect contempt of court under H.C.R. 114 for failing to dismiss ASPA and for pursuing non-existent legal theories. As an initial matter, H.C.R. 114 requires “an

35 The parol evidence rule “prohibits the admission of extrinsic evidence of prior or contemporaneous oral agreements, or prior written agreements, to explain the meaning of a contract.” 11 SAMUEL WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW OF CONTRACTS § 33:1 (4th ed. 1999). It does not appear that any of Deutz’s exhibits would meet the definition of parol evidence.

36 Although we deny Travelers’ motion to strike and deny in part Deutz’s motion to strike, to the extent either party’s evidence is inadmissible, we have not considered it in determining these motions.

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affidavit stating the facts constituting the contempt and an Order to Show Cause re: Contempt must be filed with the Court.” Deutz has failed to comply with these procedural requirements. Moreover, we do not believe H.C.R. 114 was intended to be used in this manner. Deutz’s motion would have been more appropriately styled as a motion for sanctions under T.C.R.C.P. 11. In any event, Deutz’s motion lacks any merit and is denied.

IV. SUMMARY JUDGMENT

A. Background

ASPA is a quasi-independent governmental agency in American Samoa. A.S.C.A. § 15.0101. Travelers is an Illinois corporation with its principal place of business in Connecticut. Travelers insures some of ASPA’s equipment in the event of a covered loss. Deutz is a corporation organized under the laws of Singapore but is no longer in business.

ASPA purchased generating equipment for its Satala and Tafuna plants from Deutz. The parties originally entered into a contract on November 13, 1991. On July 29, 1993, ASPA and Deutz entered into Change Order Number 2 (“Change Order No. 2”), which revised the parties’ original contract. Change Order No. 2 provided for the sale and installation of a new generating unit and accompanying equipment. In addition, Change Order No. 2 provided ASPA with an extended warranty for certain parts. At issue in this case is the interpretation of the extended warranty provision in Change Order No. 2.

In 1999, the crankshaft failed. The parties dispute whether or not the damages caused by the crankshaft failure are covered by the extended warranty. Deutz claims it is not financially responsible under the terms of the warranty. On the other hand, Travelers claims Deutz breached its obligations under the warranty when it refused to compensate ASPA for the damages.

Eventually, ASPA replaced the generator. Travelers, ASPA’s insurer, compensated ASPA for the replacement of the generator minus a $100,000 deductible.37 In the initial complaint, Travelers brought this breach of warranty action as the subrogor38 of ASPA, and ASPA sought to recover its deductible. Travelers has since filed an amended complaint in which ASPA essentially abandons its claim for its $100,000 deductible.

37 Travelers claims it paid ASPA approximately $1.6 million.38 Although Travelers indicates it is suing as ASPA’s subrogor, this is clearly wrong. See disc. infra at pp. 9-11.

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On July 8, 2003,39 Travelers moved for partial summary judgment with respect to various issues regarding the breach of warranty claims. On September 4, 2003, Deutz responded to Travelers’ motion and filed its cross-motion for summary judgment on the breach of warranty claims and requested that ASPA be dismissed from this action.40

B. Standard of Review

[6-7] Since Travelers is seeking partial summary adjudication, its motion must be considered pursuant to T.C.R.C.P. 56(d). See, e.g., Wing Hop Lee, Ltd. v. Soo, 30 A.S.R.2d 76, 77 (Trial Div. 1996). Rule 56(d) “establishes a procedural mechanism whereby a district court can . . . with the acquiescence of the parties, narrow the factual issues for trial.” Aurelio v. R.I. Dep’t of Admin., 985 F. Supp. 48, 53 (D.R.I. 1997) (quoting Rivera-Flores v. P.R. Tel. Co., 64 F.3d 742, 747 (1st Cir. 1995)). The standard for determining a Rule 56(d) motion is identical to the standard used for determining a motion brought under Rule 56(c). Id.

[8-11] Deutz brings its motion for summary judgment pursuant to T.C.R.C.P. 56(c). According to T.C.R.C.P. 56(c), summary judgment is appropriate when the pleadings and other supporting documents “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The party seeking summary judgment bears the burden of showing there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party must then affirmatively show there is a genuine issue for trial. Id. at 324. “[A]ll inferences are construed in a light most favorable to the non-moving party.” Am. Samoa Power Auth. v. Nat’l Pac. Ins. Co., 30 A.S.R.2d 145, 146-47 (Trial Div. 1996); see also Pal Air Int’l, Inc. v. Porter, 30 A.S.R.2d 104, 105 (Trial Div. 1996).

[12] “When both parties file cross motions for summary judgment, the court must consider each motion separately and apply controverted facts in a light most favorable to the nonmovant.” Stewart v. NationLease of Kansas City, Inc., 920 F. Supp. 1188, 1202 (D. Kan. 1996).

C. Discussion

1. Deutz’s Motion for Summary Judgment to Dismiss ASPA

39 The signature page on Travelers’ motion has a June 8, 2003 date. However, Travelers actually filed its motion on July 8, 2003.40 Travelers’ September 5, 2003 objections to Deutz’s cross-motion for summary judgment, motion for relief from order and motion for indirect contempt are moot as Travelers has been provided adequate time to respond to these motions.

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Deutz seeks to dismiss ASPA from this action because ASPA no longer wishes to pursue its claim to recover its unpaid $100,000 deductible. Deutz does not challenge Travelers’ ability to sue as the subrogee of ASPA but, rather, claims that Travelers must sue in its own name.41 In response, Travelers has filed an amended complaint in which ASPA abandons its claim for the deductible, and Travelers now is the only party seeking relief.42 Travelers asserts that the Subrogation Receipt entitles it to sue in ASPA’s name. While this may be true, Travelers purports to sue both in ASPA’s name and in its own name as the subrogor43 of ASPA.

[13-15] According to T.C.R.C.P. 17(a), “[e]very action shall be prosecuted in the name of the real party in interest.” In United States v. Aetna Casualty & Surety Co., 338 U.S. 366 (1949), the Supreme Court noted:

If the subrogee has paid an entire loss suffered by the insured, it is the only real party in interest and must sue in its own name. If it has paid only part of the loss, both the insured and insurer . . . have substantive rights against the tortfeasor which qualify them as real parties in interest.

Id. at 381 (citation omitted); see also Travelers Ins. Co. v. Riggs, 671 F.2d 810, 812-13 (4th Cir. 1982); Wattles v. Sears, Roebuck & Co., 82 F.R.D. 446, 448-50 (D. Neb. 1979). In the original complaint, ASPA sued in its own name to recover its deductible and Travelers sued as the partial subrogee to ASPA’s remaining claim. See, e.g., Interocean Ships, Inc. v. Samoan Gases, 24 A.S.R.2d 108, 110-11 (Trial Div. 1993). However, because ASPA no longer seeks reimbursement of its deductible, it is no longer a real party in interest in this case. Assuming

41 Travelers, as ASPA’s insurer, “by a right of subrogation, steps into the shoes of the insured and can recover only if the insured could have recovered.” E.H. Ashley & Co. v. Wells Fargo Alarm Servs., 907 F.2d 1274, 1277 (1st Cir. 1990). Moreover, a subrogee “may assert claims against the subrogor’s contractual obligor.” Vitkus v. Beatrice Co., 127 F.3d 936, 942 (10th Cir. 1997) (quoting Dome Petroleum Ltd. v. Employers Mut. Liab. Ins. Co., 767 F.2d 43, 45 (3rd Cir. 1985)); see also Am. Employers Ins. Co. v. City of Chicago, No. 02 C 9304, 2003 WL 21254266, *1 (N.D. Ill. May 29, 2003). 42 In its amended complaint, Travelers admits that “ASPA does not sue for its deductible in the amount of $100,000 representing its uninsured losses” and admits that the terms “plaintiff” or “plaintiffs” only refer to the interests of Travelers.43 In this case, the insured (ASPA) is the “subrogor” and the insurer (Travelers) is the “subrogee.” See LEE R. RUSS & THOMAS F. SEGALLA, 16 COUCH ON INSURANCE § 222:2 (3rd ed. 2000).

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Travelers’ assertion that it can sue in ASPA’s name is correct, why did Travelers bring suit in its own name in both the original and amended complaint? Under Rule 17(a), Travelers, as the subrogee for ASPA, is the real party in interest in this action. Accordingly, ASPA’s name shall be stricken from future pleadings.44

2. The Warranty

[16-17] Travelers and Deutz seek partial summary adjudication and summary judgment respectively, arguing different interpretations of the warranty. Contract interpretation is well suited to decision by summary judgment. See ECHO, Inc. v. Whitson Co., 52 F.3d 702, 705 (7th Cir. 1995); Enron Oil Trading & Transp. Co. v. Walbrook Ins. Co., 132 F.3d 526, 530 (9th Cir. 1997). “Express warranties are interpreted according to general contract principles.” Bay Lines, Inc. v. Stoughton Trailers Inc., 838 So. 2d 1013, 1018 (Ala. 2002). Both parties agree that the warranty is unambiguous, however, the parties have vastly different interpretations of the warranty. “Summary judgment is properly used for interpreting a contract whose terms are considered by opposing parties to be clear and unambiguous, despite disagreement between the parties as to what the agreement provides.” Stradling v. Southland Corp., 924 F. Supp. 38, 40 (M.D. Penn. 1996); see also Klamath Water Users Prot. Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999); ECHO, Inc., 52 F.3d at 705. We have considered the evidence and agree with the parties that the warranty is unambiguous and therefore, ripe for our interpretation.

The parties primarily dispute the interpretation of two parts of the extended warranty: (1) the parties dispute proper interpretation of the warranty coverage for years 6-10 and (2) the parties dispute whether a condition precedent existed which required ASPA to perform preventative maintenance in years 6-10. The language of the extended warranty for years 6-10 is as follows:

YEARS 6-10. During the five (5) year period following the four (4) year extended warranty the contractor shall warrant the following parts against failure or defect on a pro-rata basis based upon a useful life of fifteen (15) years . . . Crankshaft . . . In the event of defect in any of these parts, or failure as a result of such defect, during the coverage period ASPA shall be entitled to credit against the replacement cost of the defective and/or damaged equipment in an amount equal to the percentage of assumed useful life then remaining

44 We decline to grant Deutz summary judgment dismissing ASPA from this case. The more appropriate action is to strike ASPA’s name from the pleadings since it is no longer a party plaintiff.

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on the date of discovery of defect or failure as a result of defect.

Travelers argues that the warranty covers the crankshaft in the event of either a failure or defect. Deutz argues that the warranty only covers a failure that is the result of a defect. We agree with Deutz.

[18] Travelers’ position fails to view the warranty provision in its entirety but, rather, parses out the “failure or defect” language to create what we believe is an unreasonable interpretation. “The meaning of particular parts or words in a contract should be determined in light of and consistent with the general purpose of the agreement.” Eliasen v. Itel Corp., 883 F. Supp. 280, 289 (N.D. Ill. 1995). We believe the warranty when read in its entirety demonstrates that the parties intended the warranty to cover the crankshaft in the event of a defect or a failure as a result of such defect.

[19-20] The language in the warranty which describes the remedy for a failure as a result of defect or for a defect in a covered part is instructive. The remedy sentence indicates that ASPA will be entitled to a specific sort of recovery in the event of a defect or a failure as a result of such defect. Nowhere is there any language indicating another remedy is available for a failure absent a defect. Travelers argues that this means the parties intended for the remedy to be unlimited in the event of a failure without a defect. We think this interpretation is unreasonable. Id. at 289-90 (“[A]n interpretation that gives reasonable meaning to all provisions is preferable to one that leaves part of the language useless or inexplicable or creates surplusage.”); Kennewick Irrigation District v. United States, 880 F.2d 1018, 1032 (9th Cir. 1989) (“Preference must be given to reasonable interpretations as opposed to those that are unreasonable . . . .”) (citation omitted).

Plaintiffs suggested interpretation expanding the warranty to cover any failure does not comport with the warranty when read in its entirety and is unreasonable. As such, we find that in order for Travelers to recover on its breach of warranty claim, it must prove either a defect in the crankshaft or a failure in the crankshaft as a result of such defect. We believe this is a material issue of fact that should be reserved for trial.45

45 Travelers asks this Court to find that its remedies are not limited based on the express warranty. We decline to do so. Travelers is not only limited by the language of the warranty (see discussion supra pp. 13-14) but also is limited by law. “[A]s a general rule, an insurer can recover by way of subrogation against a wrongdoer responsible for a loss only such amounts as it has been compelled to pay under its policy.” See LEE R. RUSS & THOMAS F. SEGALLA, 16 COUCH ON INSURANCE § 223:85 (3rd

ed. 2000). Accordingly, we deny Travelers’ request for partial summary

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The parties also disagree as to whether the warranty contained a condition precedent requiring ASPA to perform preventative maintenance. Deutz maintains that the warranty was only effective, “so long as ASPA shall perform the preventative maintenance program recommended by the manufacturer(s), as established by the contractor in commissioning and pursuant to its service contract.” Travelers argues that the “so long as” language was in the provision covering years 2-5 and was only applicable to those years. We agree with Travelers.

The disputed language is found in section 20.1 of the warranty, in the list of coverage for years 2-5. The part of the warranty covering years 6-10 is void of this language or any language regarding preventative maintenance.

[21-22] Contracts should be read in their entirety; however, there is no language in the warranty to indicate the parties intended the condition precedent to apply to years 6-10. See, e.g., Emer. Med. Care, Inc. v. Marion Mem. Hosp., 94 F.3d 1059, 1061 (7th Cir. 1996); Kennewick Irrigation Dist., 880 F.2d at 1032. In fact, based on the language in the warranty, the parties specifically limited the preventative maintenance provision to years 2-5. Although we may feel it would have been prudent for Deutz to impose a preventative maintenance requirement in years 6-10, we will not rewrite the parties’ agreement in order to fix a poorly worded contract. See, e.g., Pennbarr Corp. v. Ins. Co. of N. Am., 976 F.2d 145, 151 (3rd Cir. 1992) (“[Courts] may not make a different or better contract than the parties themselves saw fit to enter into.”); Towers Hotel Corp. v. Rimmel, 871 F.2d 766, 774 (8th Cir. 1989) (“[Courts] are to determine what the parties intended by what they said and not what they might have said or what perhaps they should have said.”) (citations omitted). As such, we find that the warranty’s preventative maintenance provision does not apply to years 6-10.

In sum, Deutz’s motion for summary judgment on counts one and two of Travelers’ amended complaint is denied. Whether or not the crankshaft was defective or failed as a result of such defect is a fact issue more properly reserved for trial.

3. Deutz’s Affirmative Defenses

[23-24] Travelers seeks partial summary adjudication with respect to Deutz’s affirmative defenses. “[I]f [a] case involves other defenses that raise no material issues of fact they may be the subject of a partial summary adjudication in plaintiff’s favor in accordance with the procedure prescribed in Rule 56(d).” 10B CHARLES ALAN WRIGHT,

adjudication on this ground.

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ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2734 (3rd ed. 1998); see also URI Cogeneration Partners, L.P. v. Bd. of Governors for Higher Educ., 915 F. Supp. 1267, 1279 (D.R.I. 1996) (“[I]n order to distill the issues to be tried, the Court may bar certain legal arguments and affirmative defenses if it is clear that they run counter to the governing law.”); Koch Indus., Inc. v. United Gas Pipe Line Co., 700 F. Supp. 865, 867 (M.D. La. 1988) (granting plaintiff’s motion for partial summary judgment on defendant’s affirmative defenses).

[25-26] Deutz bears the burden of proving its affirmative defenses at trial. Therefore, Travelers does not have the burden to produce any evidence demonstrating the absence of a genuine issue of material fact with respect to Deutz’s defenses. Rather, “the burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp., 477 U.S. at 323. Indeed, Travelers claims that Deutz has no evidence to support its affirmative defenses. As such, Deutz “must set forth specific facts showing that there is a genuine issue for trial.” T.C.R.C.P. 56(e). This showing must go beyond the pleadings. Id. “[A] party opposing another’s motion for summary judgment will not be allowed to rest upon his pleadings or the assertions of lawyers who have no personal knowledge of the facts.” Carpenters Fiji, Ltd. v. Pen, 28 A.S.R.2d 202, 203 (Trial Div. 1995) (citation omitted).

Deutz’s first affirmative defense is that ASPA failed to mitigate damages. While this is a viable defense in contract actions, Deutz has failed to provide any evidence that would support this defense. Deutz argues in its supporting memorandum that oils and metals were found in the crankshaft and claims that ASPA failed to maintain the machine. However, Deutz failed to provide the sort of supporting evidence required under Rule 56(e) to maintain these allegations. Absent any shred of evidence that ASPA failed to mitigate damages, this defense must fail.

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Deutz’s second affirmative defense includes both laches46 and estoppel47. Deutz offers no response to Travelers’ arguments and suggests that Travelers has not met its burden on this issue.48 Deutz bears the burden at trial of proving this affirmative defense. After Travelers argued that Deutz has no evidence to support these defenses, Deutz, as the non-moving party, is required to come forward with some evidence of a dispute of material fact. Deutz has failed to do so and therefore, the affirmative defenses of laches and estoppel also fail. See, e.g., Fresnel Tech., Inc. v. Rokonet Indus. USA, Inc., No. 4:01-CV-1091-A, 2003 WL 21047137, at *4 (N.D. Tex. May 7, 2003) (granting judgment to plaintiff because the defendant failed to “come forward with summary judgment evidence to raise a genuine fact issue”).

Deutz’s third affirmative defense is that ASPA failed to fulfill a condition precedent by replacing the generator instead of pursuing a warranty claim or providing notice of defect or a reasonable demand. Travelers claims Deutz has no evidence to support this defense. Deutz’s response does not address this “condition precedent” but, rather, refers to other alleged conditions, specifically, that the component must be listed in the warranty and that a defect in the warranted component must have caused the failure. As such, Deutz has failed to point to any evidence supporting this defense. This defense fails.

Deutz’s fourth affirmative defense is that the warranty was voided because ASPA neglected to maintain or misused the equipment. Again, Travelers argues that Deutz has no evidence to support this defense. In

46 “[L]aches will be found where there is an unexcused or unreasonable delay by one party in asserting his or her rights, and a concomitant prejudice to the other party.” Jennings v. Thompson, 25 A.S.R.2d 77, 82 (Appellate Div. 1994).47 Estoppel has four elements:

1) The party to be estopped must know the facts; 2) he must intend that his conduct shall be acted on or must so act that the party asserting estoppel has a right to believe it is so intended; 3) the latter must be ignorant of the facts; 4) he must rely on the former’s conduct to his injury.

Jennings v. Jennings, 21 A.S.R.2d 40, 48 (Land & Titles Div. 1992). Although Deutz discusses the legal standards of estoppel in its memorandum, it fails to offer facts to show that it has met or could possibly meet each of the elements listed above.48 Deutz claims Travelers inappropriately refers to its motion as a “no-evidence” motion and complains Travelers cites no authority for this sort of motion. Travelers’s motion is for partial summary adjudication under Rule 56(d), and its “no-evidence” motion properly articulates the standards under Celotex. Deutz is wrong in assuming it does not need to reply to Travelers’ motion.

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response, Deutz fails to offer evidence to establish that ASPA failed to perform maintenance or misused the equipment. Deutz’s bare assertion in its memorandum that oils and metals were found in the generator standing alone does not suffice to defeat Travelers’ motion.49

[27] Deutz’s fifth affirmative defense is that ASPA negligently maintained and operated the equipment and therefore, any damage should be reduced according to ASPA’s comparative fault. Comparative fault is an appropriate defense in a tort action not a contract one. A.S.C.A. § 43.5101; see also United States v. NHC Health Care Corp., No. 00-3128-CV-S-4-ECF, 2000 WL 33146582, at *2 (W.D. Mo. Nov. 15, 2000); Bank Brussels Lambert v. Chase Manhattan Bank, No. 93 Civ. 5298(LMM), 1999 WL 710778, at *3 (S.D.N.Y. Sept. 10, 1999). Moreover, Deutz has failed to present any evidence to support its assertion. Accordingly, Deutz’s fifth affirmative defense fails as a matter of law.

V. ORDER

1. Deutz’s motion for relief from order is denied.

2. Deutz’s motion to strike is granted in part. Travelers’ exhibit no. 9 is stricken from the record.

3. Travelers’ motion to strike is denied.

4. Deutz’s motion for contempt is denied.

5. Deutz’s motion for summary judgment is denied as to counts 1 and 2 of Travelers’ amended complaint. Deutz’s motion for summary judgment to dismiss ASPA is denied. However, because ASPA is no longer a party plaintiff to these proceedings, its name will be stricken from future pleadings.

6. Travelers’ motion for partial summary adjudication is granted in part. Deutz’s affirmative defenses 1-5 are stricken.

It is so Ordered.

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49 Moreover, there is nothing in the warranty to indicate that it is voided in the event of negligence or misuse on the part of ASPA. Perhaps, this would go to ASPA’s failure to mitigate damages. However, Deutz has failed to offer any shred of evidence supporting its claims.

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SAMOA AVIATION, INC., dba SAMOA AIR, Plaintiff,

v.

AMERICAN SAMOA GOVERNMENT, Defendant.

High Court of American SamoaTrial Division

CA No. 98-03

December 1, 2003

[1] In order to show a substantial likelihood of success at trial on the merits, to support a motion for a preliminary injunction, a movant merely needs to raise questions so serious and difficult as to call for more deliberate consideration, or at least demonstrate a fair question for litigation.

[2] As a general proposition, the availability of an adequate legal remedy precludes equitable injunctive relief.

[3] The existence of a legal remedy is not alone sufficient to deprive a movant of equitable relief—it must be speedy, adequate, and efficacious, and preserve the movant’s rights at the present time and not as of a future date.

[4] Where movant demonstrated that defendant had engaged in an ongoing course of conduct that was tantamount to unfair, and possibly bad faith, interfering with the very performance term under which sought termination of the lease, movant had sufficiently shown “substantial likelihood of success at trial on the merits” in order support a preliminary injunction.

[5] The ruin of a party’s business constitutes irreparable harm.

[6] Where eviction would irrevocably disrupt sale of company, and cause territory to lose its only “Part 121” carrier, element of “great or irreparable injury” was shown, justifying preliminary injunction.

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

Counsel: For Plaintiff, Marshall Ashley For Defendant, Fiti A. Sunia, Attorney General

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PRELIMINARY INJUNCTION

On November 13, 2003, Plaintiff Samoa Aviation, Inc. (“Samoa Air”) brought this action for injunctive relief preventing Defendant American Samoa Government (“ASG”) from terminating its lease of office and ticket counter space in the terminal building at the Pago Pago International Airport. ASG answered, denying any wrongful termination of the lease and affirmatively alleging various grounds precluding injunctive relief, and counterclaimed for Samoa Air’s immediate eviction from the leased premises. Samoa Air’s application for a preliminary injunction was heard on November 20, 2003. Both counsel were present.

Preliminary Injunction Grounds

A preliminary injunction is appropriately issued only when “(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).

[1-3] To show a substantial likelihood of success at trial on the merits, “a movant merely needs to raise questions so serious and difficult as to call for more deliberate consideration, or at least demonstrate a fair question for litigation.” Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 101, 103-04 (Trial Div. 1995) (citations omitted). As a general proposition, the availability of an adequate legal remedy precludes equitable injunctive relief. See White v. Sparkill Realty Corp., 280 U.S. 500, 510 (1930). However, the existence of a legal remedy is not alone sufficient to deprive a movant of equitable relief. See Stewart Dry Goods Co. v. Lewis, 287 U.S. 9, 11 (1932). The legal remedy must be speedy, adequate, and efficacious, and preserve the movant’s rights at the present time and not as of a future date. Id.

Findings of Fact

1. The Lease Cancellation Notice

On November 6, 2003, ASG issued a notice entitled “Lease Cancellation” terminating Samoa Air’s lease of office and ticket counter spaces in the terminal at the Pago Pago International Airport (“the airport”). Samoa Air received the notice on or about the same day. The stated grounds for the termination was based on Article XIII(1)(F) of the parties’ lease agreement authorizing ASG to cancel the lease upon Samoa Air’s abandonment of air transportation service at the airport or

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reduction of service to and from the airport to less than four flights per day for a period of more than one month.

Samoa Air denies abandonment of its air transportation operations at the airport, and ASG does not advocate otherwise. Samoa Air concedes that it is not presently providing air service to and from the airport and that its service has been reduced below the four daily flights minimum for more than one month. Samoa Air maintains, however, that each party to a contract has a duty of good faith and fair dealing in the performance and enforcement of the contract, see RESTATEMENT (SECOND) OF CONTRACTS § 205 (1981), and that ASG has grossly violated that duty in a highly discriminatory manner.50

2. Context of the Lease Cancellation

Samoa Air is a federally licensed “Part 121” air service carrier. This status authorizes Samoa Air to provide scheduled commercial air services to and from the airport. It is the only “Part 121” air carrier with authority to provide air service between the airport and the Manu`a Islands and between the airport and [Western] Samoa. Polynesian Airlines (“PAL”) has similar status but as a foreign carrier operating from Samoa under different auspices. Locally, PAL only regularly operates flights between the airport and Samoa. “Part 121” status also imposes considerable legal regulatory requirements upon an air carrier, particularly in reference to marketing services and aircraft safety.

Samoa Air is presently unable to engage in air operations. It has only one Twin Otter aircraft. Under federally imposed safety standards, the aircraft’s components are subject to specified lifetimes. In July 2003, Samoa Air learned that changes in the aircraft’s frame would soon be required.51 Samoa Air’s flight operations completely ceased on this

50 In addition to the matters discussed below, Samoa Air cites 49 U.S.C.A. § 47107 for the proposition that ASG, as the recipient of substantial federal airport development grants and by its discriminatory tactics in dealing with Samoa Air, has violated this statute by not complying with required non-discrimination assurances. We will not, however, evaluate this argument at this time but will leave it for further development, as may be necessary, at the trial of this action. 51 Samoa Air maintains that component lifetimes are only fixed under program projections at three-month intervals. While this may be literally accurate, Samoa Air must have been aware that the present time limitation was looming well before July 2003. We see no reason why Samoa Air did not initiate and develop concrete plans to deal with this readily expected event long before July 2003. Nonetheless, this lack of foresight does not overcome the track record of obstacles ASG put in Samoa Air’s way.

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account on October 30, 2003. The time estimate to accomplish the frame changes is three to four weeks. Samoa Air attempted to lease another aircraft to service its Manu`a Island and Samoa routes during this period. Samoa Air made preliminary arrangements for the frame change and an interim leased aircraft. However, it did not have the ready cash to pay for the changes and the downpayment required to obtain the substitute aircraft.

Two other air carriers, Inter Island Air and Vision Air, have immediate capability to serve the route between the airport and the Manu`a Islands. Vision Air, however, is an authorized “Part 135” carrier, not a “Part 121” carrier. “Part 135” carriers can only operate charter services, contracted on a case by case basis. They cannot provide scheduled commercial air services, and are not subject to the same safety scrutiny as a “Part 121” carrier. Apparently, Inter Island Air does not yet have formal federal approval to provide air services.

3. Samoa Air’s Proposal for ASG’s Financial Assistance

In August 2003, the cessation of Samoa Air’s operations approached. As the only “Part 121” air carrier between the airport and the Manu`a Islands, Samoa Air representatives approached the Governor with a request for funds to alleviate Samoa Air’s immediate cash flow problems and enable it to lease an aircraft while its own aircraft was undergoing frame changes. The Governor denied the request and, in essence, stated that when he would inform Samoa Air of his plan to remove its “inept management” when he was ready.

A short time later, on August 31, 2003, the Governor proposed legislation to the Legislature of American Samoa to appropriate $500,000 to ensure continuing air service to the Manu`a Islands and give the Governor discretion to use the funds to cope with the transportation void. Samoa Air representatives then discussed with legislative committee members possible use of these funds on a reimbursable basis to alleviate its immediate cash flow problem. They believed the legislators were favorably receptive to this idea.

The $500,000 appropriation was enacted without, as originally proposed, any limitation by specific directions on the Governor’s discretion for expenditure of the funds. On September 11, 2003, Samoa Air proposed to the Governor that it be afforded use of the appropriated funds on a reimbursable basis, $100,000 for the frame changes and $150,000 for the substitute leased aircraft. Citing a lack of necessary documentation, the Acting Governor rejected Samoa Air’s proposal on the same day. Though the rejection letter offered to meet for further discussions, the Governor’s legal counsel informed Samoa Air a short time later that its proposal simply would never be accepted.

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The Governor has apparently authorized use of the appropriated $500,000 to subsidize, as may be necessary, PAL’s scheduled flight operations and Inter Island Air’s charter flight operations between the airport and the Manu`a Islands. The U.S. Department of Transportation has given PAL, though a foreign air carrier, temporary permission to service this route, apparently until the current problems with this needed service is solved.

4. Samoa Air’s Proposal to Aloha Airlines

In November 2002, addressing continuing complaints and other problems with Hawaiian Airlines’ air service between Honolulu and the airport, Samoa Air representatives proposed to Aloha Airlines representatives a joint venture under which Aloha would provide commercial air services to American Samoa with Samoa Air handling ground services at the airport and other necessary assistance through its facilities here. However, in the spring of 2003, the Governor directly requested Aloha Airlines to provide air services to American Samoa, and since then, Aloha has not returned Samoa Air’s communications to pursue the joint venture proposal.

It has now been publicly announced that Aloha Airlines will start providing air services to American Samoa in December 2003. Aloha representatives recently measured Samoa Air’s office space at the airport and, on the date of this application hearing, were present in the Territory preparing for this advent.

5. Samoa Air’s Charter Proposal to ASG

In June 2003, again addressing the ongoing air service problems with Hawaiian Airlines, a Samoa Air representative advised the Governor of its plan to charter aircraft from Omni Airlines to provide flights between Honolulu and the airport. The Governor concurred in the charter idea and indicated that ASG had funds available for this purpose. During this meeting, the Governor did not even look at Samoa Air’s written proposal and at least indirectly indicated that funds for this purpose would not be made available to Samoa Air.

However, later in June 2003, the Governor advised Samoa Air by a telephone call that ASG would financially help with deposits for charter flights. Acting on this information, Samoa Air spent considerable time and expense filing necessary paperwork with the U.S. Department of Transportation and hiring personnel in Hawaii and American Samoa to set up charter operations. One day in early July 2003, the Governor’s legal counsel asked Samoa Air to document its charter arrangements, but on the following day he advised Samoa Air that ASG would deal directly

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with Omni Airlines for a charter program and would only consider having Samoa Air handle ground services.

6. Samoa Air’s Indebtedness to ASG

Samoa Air has outstanding debts of approximately two million dollars, of which approximately $350,000 is owed to ASG for rent of Samoa Air’s airport facilities, landing fees, income taxes, and other charges. In turn, ASG owes Samoa Air a presently unspecified but lesser amount. Even after August 31, 2003, when the Governor directed all ASG agencies to route all requests for payments to Samoa Air to the Governor’s Office, Samoa Air responded to two requests by ASG’s medical center for emergency air services. Samoa Air has not received any payments from ASG for the two emergencies and only a single payment on another statement for outstanding services since the Governor’s directive.

ASG has a long-standing and well-known history of forbearance in debt collection efforts, not just debts owed by Samoa Air but also by other users of the airport’s facilities and other obligors generally, as well as delaying payments of its own obligations. ASG’s forbearances generally, and with respect to Samoa Air particularly, have yet not, by any reasonable characterization, reached the level of constituting a waiver of payment of debts to it. However, the forbearance in this case is certainly indicative of ASG’s relationship with Samoa Air in general and the manner of the performance and enforcement of the lease agreement in particular.

7. Samoa Air’s Diminished Sale Value

ASG is well aware that the present owners of Samoa Air are endeavoring to sell the company to another owner. On September 25, 2003, the Governor advised Samoa Air that, in effect, he had encouraged other airlines to work with Samoa Air on an American Samoan solution to the Manu`a air service problem. In October 2003, envisioning ASG’s forgiveness of Samoa Air’s debts, Island Air and Vision Air sought to buy Samoa Air. However, after negotiations, Samoa Air determined that neither Island Air nor Vision Air had sufficient funds to purchase and conduct Samoa Air’s operations.

The present owners of Samoa Air are in the midst of serious negotiations for the sale of the company to a reportedly respected and solvent airline operating out of the Territory of Guam. Samoa Air believes that the sale can be finalized in December 2003. The prospective buyer airline is aware of Samoa Air’s indebtedness and, according to Samoa Air, is willing and able to assume responsibility for the debts. The prospective buyer is also aware of ASG’s lease cancellation notice to Samoa Air and,

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again according to Samoa Air, views the loss of office and ticket counter space at the airport as substantially diminishing Samoa Air’s value. Samoa Air’s chief executive officer believes that this diminished value will seriously impact sale of Samoa Air at otherwise fair market value. It is therefore important that Samoa Air retains office and ticket counter space at the airport to get back on its financial and operational feet.

Conclusions

[4] Taking into consideration the foregoing facts as a whole, we conclude that ASG has demonstrated an ongoing course of conduct that is tantamount to unfair, and perhaps bad faith, dealings with Samoa Air. ASG purposely interfered with Samoa Air’s performance of the four daily flights condition required by Article XIII(1)(F) of the airport office and ticket counter space lease agreement. See RESTATEMENT (SECOND) OF CONTRACTS § 205 Cmt. d. This interference, along with a habitual forbearance in collecting Samoa Air’s debts to ASG, show that ASG also abused its power to enforce the lease agreement. See id. § 205 cmt. e. The evidence warrants, at the very least, further and greater in-depth analysis of the lease cancellation and surrounding circumstances. For preliminary injunction purposes, the element of the substantial likelihood of success at trial on the merits and ultimate issuance of a permanent injunction in Samoa Air’s favor against ASG has been sufficiently shown. See Samoa Aviation, Inc., 28 A.S.R.2d at 103-05.

[5] In regards to irreparable harm, ASG argues that Samoa Air’s injury, if any, is adequately remedied by monetary damages. However, the ruin of a party’s business constitutes irreparable harm. See Samoa Aviation, Inc., 28 A.S.R.2d at 105; Wisconsin Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985). The immediate termination of Samoa Air’s office and ticket counter space lease at the airport destroys Samoa Air’s efforts to continue flight operations, because, in the current situation, termination will irrevocably disrupt sale of the company at a fair market value to a buyer who is ready, willing, and able to take over Samoa Air’s air service operations. Furthermore, loss of American Samoa’s only “Part 121” carrier will cause harm to the people and Territory of American Samoa. See Samoa Aviation, Inc., 26 A.S.R.2d at 105. Therefore, the element of great or irreparable injury to Samoa Air as a result of the lease cancellation before a full and final trial can be held is also sufficiently established.

Samoa Air is entitled to a preliminary injunction preventing ASG from evicting Samoa Air from its leased premises at the airport.

Here, as in most disputes seeking judicial resolution, we encourage settlement. While it is not our role or intent to venture into the realm of the Executive Branch’s operations, perhaps, Samoa Air could be allowed

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to relocate to another space at the airport or share space with another carrier.

Order

1. Samoa Air’s application for a preliminary injunction against ASG is granted.

2. During the pendency of this action, or until further order of this Court, ASG, its officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, are enjoined: (1) from evicting or attempting to evict Samoa Air from its office and ticket counter space in the terminal at the airport, (2) from preventing Samoa Air from using common use areas at the airport as described in the Lease Agreement, and (3) from preventing Samoa Air full and free right of ingress and egress from the premises described in injunctions (1) and (2) above.

It is so Ordered.

**********

PRATT & WHITNEY CANADA (A`asia) PTY., LTD., Plaintiff,

v.

SAMOA AVIATION INC., dba SAMOA AIR, Defendant.

High Court of American SamoaTrial Division

CA No. 20-03

December 2, 2003

[1] Summary judgment is appropriate where the pleadings and supporting documents show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

[2] In ruling on a summary judgment motion, a court must: (1) view all pleadings and supporting documents in the light most favorable to the nonmoving party; and (2) treat the nonmoving party’s evidence as true

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and draw from such evidence the inferences most favorable to the opposing party.

[3] On a motion for summary judgment, the moving party bears the burden of showing there is no genuine issue of material fact.

[4] After the movant shows that there is no genuine issue of material fact on a motion for summary judgment, the nonmoving party must then bear the burden of affirmatively showing that there is a genuine issue for trial.

[5] Under T.C.R.C.P. 5(a), a party opposing summary judgment must serve the movant with its opposition papers.

[6] E-mail is usually not a permitted means of service.

[7] The Court possesses discretion to exclude unserved documents from its consideration.

[8] Where party knew of the service requirements under the rules and of the possible penalty for failing to affirmatively show a genuine issue for trial, yet failed to properly serve its opposition papers, Court concluded that such opposition papers would not be considered.

[9] In filing a memorandum only via facsimile, a party fails to meet the original signature requirement of T.C.R.C.P. 11.

[10] In order to constitute a proper affidavit, the document must contain certain component parts, consisting of: (1) the caption or title; (2) the venue; (3) the affiant’s signature; and (4) a certificate evidencing the fact that the affidavit was properly made before a duly authorized officer.

[11] Affidavits must be signed in the presence of the notary, as an authorized official, to assure the affiant’s identity.

[12] The Court will sanction attorneys who are proven to have falsely acknowledged affidavits or submitted false papers to the Court.

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

Counsel: For Plaintiff, Charles V. Ala`ilima and Mark Ude For Defendant, Paul F. Miller and Robert K. Maez

ORDER GRANTING MOTIONS TO EXCLUDE FROM CONSIDERATION DEFENDANT’S OPPOSITION MEMORANDUM

AND AFFIDAVIT AND FOR SUMMARY JUDGMENT

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Plaintiff Pratt & Whitney Canada (A’asia) Pty., Ltd. (“P&WC”) leased two core aircraft engines to Defendant Samoa Aviation Inc., doing business as Samoa Air (“Samoa Air”). After termination of the lease contract, Samoa Air returned the engines. On March 14, 2003, P&WC filed this suit against Samoa Air claiming unpaid rent and damages for the replacement of parts missing from the returned engines. P&WC moved for summary judgment on October 2, 2003. In response, Samoa Air transmitted to P&WC by e-mail a memorandum opposing summary judgment, a supporting affidavit, and an e-mail message (“opposition papers”). Samoa Air then transmitted to the Court by facsimile the opposition papers. P&WC motioned to exclude these documents from the Court’s consideration. For the reasons stated below, we grant the motion to exclude and grant summary judgment.

Standard of Review

[1-4] Summary judgment is appropriate where the pleadings and supporting documents show “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. 56(c). In ruling on such motions, a court must: (1) view all pleadings and supporting documents in the light most favorable to the nonmoving party, D. Gokal & Co. v. Daily Shoppers, Inc., 13 A.S.R.2d 11, 12 (Trial Div. 1989); and (2) treat the nonmoving party’s evidence as true and draw from such evidence the inferences most favorable to the opposing party. Lokan v. Lokan, 6 A.S.R.2d 44, 46 (Trial Div. 1987). The moving party bears the burden of showing there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must then affirmatively show there is a genuine issue for trial. Id. at 324.

Discussion

A. Motion to Exclude

[5-8] We exclude from consideration Samoa Air’s opposition papers.52

T.C.R.C.P. 5(a) requires Samoa Air to serve P&WC with the opposition papers. Methods of service are specifically enumerated under T.C.R.C.P. 5(b). As permitted under T.C.R.C.P. 5(b), “service by mail is complete upon mailing.” E-mail is usually not a permitted means of service. See RIO Prop., Inc., v. RIO Int’l Interlink, 284 F.3d 1007, 1014-16 (affirming the sufficiency of court ordered service by e-mail); GMA Accessories, Inc. v. Megatoys, Inc., 2003 WL 193507 at *1 n. 2 (S.D.N.Y. 2003). Samoa Air offers no proof of service and no excuse

52 The e-mail message sent to P&WC, mislabeled as a “supplemental memorandum,” has only been brought before us for the purposes of considering its exclusion. Therefore, we ignore it.

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for its failure to mail the opposition papers to P&WC. We have the discretion to exclude unserved documents from consideration. See Robinson v. State Farm Mut. Auto. Ins. Co., 813 So.2d 924, 927 (Ala. Ct. App. 2001) (excluding plaintiff’s opposition motion to summary judgment for failure of timely service); Molina v. Christensen, 44 P.3d 1274, 1277 (Ka. Ct. App. 2001) (affirming trial court’s imposed sanction for failure to serve); 4B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1143 (3d ed. 2002) (consequences of a failure to serve depend on the nature of the paper involved). We exclude Samoa Air’s opposition papers because Samoa Air knew of the service requirements under the published rules and of the possible penalty for failing to affirmatively show a genuine issue for trial. See Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). Thus, in failing to properly serve the opposition papers, Samoa Air does not affirmatively show any genuine issues for trial.

[9] Besides improper service, the opposition papers contain other irregularities that could preclude our consideration. In attempting to file, Samoa Air only transmitted a facsimile copy of the memorandum opposing summary judgment to the Court. Alone, the facsimile of the memorandum fails to meet the original signature requirement of T.C.R.C.P. 11. See, e.g., United States v. Diabetes Treatment Ctr. of Am., 238 F. Supp. 2d 270, 278 (D.D.C. 2002); Ross v. United States, 16 Cl. Ct. 378, 384 (1989).

[10-11] Flaws in the affidavit also incline us to leave it unconsidered. See Mailo v. Amerika Samoa Bank, 30 A.S.R.2d 175, 177 (Land & Titles Div. 1996). Certain component parts comprise a proper affidavit: (1) the caption or title; (2) the venue; (3) the affiant’s signature; and (4) a certificate evidencing the fact that the affidavit was properly made before a duly authorized officer. 2 AM. JUR. 2D Affidavits § 12 (1986). Indicating where the affidavit was taken, the venue component shows that the notary public or other authorized official acted within his jurisdiction. Id. § 14. Affidavits must be signed in the presence of the notary, as an authorized official, to assure the affiant’s identity. 58 AM. JUR. Notaries Public § 16 (1986).

[12] The offered Samoa Air Affidavit lacks three of the four components. First, the affidavit gives no indication of venue. We lack sufficient information to imply where the unoriginal, facsimile affidavit was sworn. Second, the facsimile affidavit lacks the affiant’s original signature. Third, without original signatures, indication of venue, or the notary’s authenticating seal, the affidavit lacks certification, for we have no evidence that the signing occurred in the notary’s presence.53

53 Take care Counselor Miller: “False acknowledgments corrupt and mock the procedure and should not be tolerated.” See Mailo, 30

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B. Motion for Summary Judgment

There are no genuine issues of material fact concerning the missing part replacement costs. Samoa Air rented two aircraft engines from P&WC, shown by copies of the leases for the two aircraft engines and the affidavits of Martin Angel (“Angel”), P&WC’s comptroller, and Peter William Thomson (“Thomson”), P&WC’s chief aircraft inspector. Under paragraph 8 of the rental agreement, Samoa Air promised to “indemnify P&WC against all loss or damage to the Rental Engine.” Samoa Air returned the two aircraft engines to P&WC with parts missing. Thomson’s affidavit and detailed supporting invoices establish a total repair cost of $91,762.24. Thomson Aff. at 2, and attached Ex. PT1, Ex. PT2, Ex. PT3. Nonetheless, PW&C only prays for $85,543.35 in missing part damages. We grant summary judgment that P&WC is entitled to $85,543.35.

P&WC has met the burden of showing that there are no genuine issues of fact concerning the overdue rent payments. Angel’s affidavit establishes rental charges of $285,973.15 due to P&WC, a total rent of $319,943.15 minus a security deposit of $33,970.00. Lease documents supporting Angel’s affidavit demonstrate the rent charges Samoa Air agreed to pay. Thus, we also grant summary judgment on the total rent due.

Order

P&WC’s motion for summary judgment is granted. Samoa Air shall pay P&WC $85,543.35 for the missing engine parts, $285,973.15 for the rental charges, and costs of suit, plus post-judgment at the rate of 6% per annum on the unpaid balance of the principal amount and costs of suit until in they are paid in full.

It is so Ordered.

**********MATAIVA L. McMOORE, FEAO NU`U

ASIATA, MALIAROSA HUNKIN,SIMEAMAMAO, NIU SALE, ANASETASIA

IAKOPO, and MATALENA A. ILAOA, Objectors,

v.

MATU`U TIMO and MOTUILIU VESI MATU`U, Claimants.

A.S.R.2d at 177 n. 1. The affidavit’s flaws lead us to doubt its authenticity. We will sanction attorneys who are proven to have falsely acknowledged affidavits or submitted false papers to the Court.

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High Court of American SamoaLand and Titles Division

LT No. 05-01

January 22, 2003

[1] Only the sa`o of the family owning communal land has the pule to enter an agreement pertaining to ownership of a structure on and separated from such land.

[2] Where matai title of greater family was vacant, branch of family’s titleholder had unquestionable pule over land at issue and had pule to create separation agreement respecting such land.

[3] A sa`o is like a trustee of a family’s communal land, and in that capacity he should ordinarily consult with the family, particularly with those members affected, before making any major decision impacting communal land uses.

[4] Dissident family members are ordinarily required to allege and prove that a good faith effort to settle a family problem with the sa`o and family was made as a condition precedent to bringing an action against the sa`o.

[5] Lack of prior consultation with sa`o, or a dissenter’s good faith efforts at settlement may be excused, and an action against the sa`o may therefore be brought, if constructive dialogue would be a useless gesture.

[6] A sa`o is obligated to respect long-term occupancy based on a customary assignment of communal land to a family member.

[7] Ordinarily, the assignment of communal land is not revocable absent good cause.

[8] The right of occupancy, flowing from an assignment of communal land, is not absolute.[9] A sa`o has authority to make decisions regarding family land, and the court will not interfere with a decision unless it is illegal, arbitrary, capricious, or an abuse of discretion.

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

Counsel: For Objectors, S. Salanoa Aumoeualogo For Claimants, Arthur Ripley, Jr.

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OPINION AND ORDER

This controversy concerns the validity of an agreement executed by claimant Matu`u Timo (“Matu`u”), on behalf of the Matu`u family of Leone, separating as personal property a residential building to be constructed and owned by claimant Motuiliu Vesi Matu`u (“Motuiliu”) on the family’s underlying communal land, pursuant to A.S.C.A. §§ 37.1501-.1506. The court holds that the separation agreement is legally valid.

Discussion

A. The Separation Agreement Proceedings

Matu`u and Motuiliu signed the separation agreement on October 30, 2000. It was presented to the Territorial Registrar, who on November 1, 2000, issued the notice of the proposed registration. In accordance with A.S.C.A. § 37.1504, the notice was posted at two public places in the Village of Leone and at the courthouse in the Village of Fagatogo for 30 days. The notice was also published in the Samoa News, a newspaper of general circulation in American Samoa, on November 2 and 16, 2000.

During the notice period, Mataivai McMoore (“Mataivai”), Peao Nu`u Asiata (“Peao”), Maliarosa Hunkin (“Maliarosa”), Simeamamao Tagi (“Simeamamao”), Niu Sale (“Niu”), Anasetasia Iakapopo (“Anasetasia”), and Matalena A. Ilaoa (“Matalena”) (collectively “the objectors”) objected to the registration. On December 6, 2000, the Registrar referred the controversy to the Secretary of Samoan Affairs for dispute resolution proceedings under A.S.C.A. § 43.0302. The Secretary issued the jurisdictional certificate of irreconcilable dispute on May 3, 2001, and the Registrar referred the matter to this court for judicial resolution on May 30, 2001.

Apparently, the objectors initially focused on their claim to own the land at issue. At trial, however, they conceded that the land was communal land, but they maintained that the land is the communal land of both the Leoso and Matu`u families of Leone, and the holder of the Leoso title, as the sa`o (°senior chief” or “head chief”) of the extended Leoso family, was the proper person having pule (“power” or “authority”) over the land for purposes of entering the contested separation agreement. They also took the position that even if Matu`u had the pule, he abused his authority by not first consulting with them as family members and making an arbitrary and capricious decision.

B. The Land Occupants and Proposed Structure Location

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The land underlying and adjacent to the proposed separated structure (“the land”) is located in Leone. The particular occupants relevant to the issues include Maliarosa, Simeamamao, Niu, and Anasetasia among the objectors. Vaiausia Matu`u (“Vaiausia”), who is Matu`u’s brother and Motuiliu’s father, also lives there. Ben Aigamaua (“Ben”) leases a house on the land.

Matu`u’s and Motuiliu’s plan situates the proposed separated structure within a four-sided plot of the land having three sides of 68.10 feet each and one side of 62.12 feet. Located adjacent to this plot are the houses of Vaiausia on the northerly side, Simeamamao on the easterly side, Anasetasia and Maliarosa, with a vehicle repair shop in between, on the southerly side, and Ben on the westerly side. The distance between the easterly and westerly side houses of Simeamamao and Ben is approximately 79 feet. The distance along a northwesterly/southeasterly line between the northerly side house of Vaiausia and the easterly side house of Simeamamoa’s house is approximately 44 feet. A 10-foot dirt access road to Maliarosa’s house and the repair shop on the southerly side runs in the area between the houses of Vaiausia and Simeamamao. The actual dimensions of the proposed house within the four-sided plot are not in evidence.

C. The Pule over the Land

[1] Only the sa`o of the family owning communal land has the pule to enter an agreement pertaining to ownership of a structure on and separated from such land. A.S.C.A. § 37.1502(a).

In this connection, the parties introduced considerable evidence on the ownership of the land and the cognizant sa’o, as well as their respective genealogies. The evidence raised factual conflicts. For example, Matu`u’s side maintains the land is the Matu`u family’s communal land subject to Matu`u’s pule, and the objectors maintain that the land is the communal land of both the Leoso and Matu`u families subject to the Leoso titleholder’s superior pule. Further, each side asserts that while its members are true blood members of the Matu`u family, the other side’s members lack this attribute. However, though findings on these and similar facts in dispute may be significant for the resolution of other issues, it is unnecessary to resolve them to determine the issues in this action.

[2] The Matu`u family is a branch of the extended Leoso family. The holder of the Leoso title is the sa`o of the extended family. However, the parties agree, or at least do not dispute, that without a holder of the presently vacant Leoso title, the holder of the Matu`u title has unquestionable pule over the land. The objectors concede that the holder of the Atofau title, another lesser title in the Leoso family, properly

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authorized Vaiausia to locate on the land. For purposes of this action, we find that the land is the Matu`u family’s communal land and that as the holder of the Matu`u family’s sa’o title, Matu`u had the pule to create the separation agreement at issue.

We further find that regardless of the blood unity issues raised by both sides, both Matu`u and Motuiliu, on one hand, and the objectors, on the other hand, are members of the Matu`u family. The objectors are descendants of a Catholic catechist couple who immigrated from (Western) Samoa to American Samoa in the early l900s. Whether it was under the pule of the holder of the Matu`u title or the Leoso title at the time, they or their daughter Malia Aloisia, after her marriage to Niu Aumoeualogo, permitted them to reside on and develop the land, at least since the 1930s. This customary assignment of communal land has continued, reaffirmed by subsequent holders of the Matu`u title, including Matu`u, to the present day for the objectors’ benefit. The objectors are recognized and accepted Matu`u family members.

Matu`u was born on the land, apparently in Maliarosa’s house. Even if Matu`u Petelo, one of the previous Matu`u titleholders of record, and his wife Emelina Selesitina, another daughter of the catechist couple, adopted Matu`u’s father, Matu`u Timo, Sr., the title successor to Matu`u Petelo, as the objectors’ contend, Matu`u currently holds the Matu`u title. He, along with his brother Vaiausia, who resides on the land, and Motuiliu, Vaisausia’s son, who plans to live in his own house there, are also recognized and accepted Matu`u family members.

Matu`u clearly had the pule to enter the separation agreement with Motuiliu.

D. Matu`u’s Decision Was Reasonable

[3-4] A sa`o is likened to a trustee of a family’s communal land, and in that capacity, he should ordinarily consult with the family, particularly with those members affected, before making any major decision impacting communal land uses. See Gi v. Temu, 11 A.S.R.2d 137, 141-42 (Land & Titles Div. 1989); Talili v. Satele, 4 A.S.R.2d 23, 27-28 (Land & Titles Div. 1987); Fairholt v. Aulava, 1 A.S.R.2d 73, 78 (Land & Titles Div. 1983). This court has also required a dissident family member to affirmatively allege and prove his good faith effort to settle a family problem with the sa`o and family as a condition precedent to bringing an action against the sa`o. Toleafoa v. Tiapula, 7 A.S.R.2d 117, 123 (Land & Titles Div. 1983); Fairholt, 1 A.S.R.2d at 78. The objectors did not make any such allegation was made or offer any such proof.

[5] However, lack of a sa`o’s prior consultation or a dissenter’s good

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faith efforts at settlement may be excused, if constructive dialogue would be a useless gesture. Tiamalu v. Scanlan, 4 A.S.R. 194, 198 (Trial Div. 1961); Haleck v. Tiamalu, 3 A.S.R. 380, 388-89 (Trial Div. 1959); see also Gi, 11 A.S.R.2d at 142. In this action, the family discord was evident. The objectors adamantly, at least initially, claimed to own the land. On September 11 and October 26, 2001, almost immediately after the judicial resolution referral, the parties professed the need for a court order to keep the peace within their ranks. They also demonstrated antagonistic attitudes towards each other during the trial. No progress towards a constructive settlement of this dispute would have been gained by insistence on settlement discussions within the family as a prerequisite to our decision when in all probability they would have been fruitless.

[6-9] A sa`o is obligated to respect long-term occupancy based on a customary assignment of communal land to a family member, as is the area surrounding Motuiliu’s proposed house site to the objectors. Gi, 11 A.S.R.2d at 141-42; Talili, 4 A.S.R.2d at 27. Ordinarily, the assignment is not revocable absent good cause. Gi, at 142. However, the occupancy right flowing from an assignment is not absolute. Talili, at 27. A sa`o still has authority to make decisions regarding family land, and the court will not interfere with a decision unless it is illegal, arbitrary, capricious, or an abuse of discretion. Gi, at 142; Toleafoa, 7 A.S.R.2d at 118.

The objectors claim that Matu`u decision to enter a separation agreement with Motuiliu was arbitrary, capricious, and an abuse of discretion. They point to the proximity of the plot for Motuiliu’s proposed house to the neighboring houses, particularly Simeamamao’s existing house, as creating a fire and other safety hazards, upsetting the general well-being of the neighborhood through overcrowding, and blocking the access road to the buildings on the southerly side of Motuiliu’s plot. They also express concern over Matu`u’s favoritism for his nephew Motuiliu, and their perception that Matu`u plans to oust them from the land and relocate his close relatives there.

The objectors do not make persuasive arguments. The evidence shows that they accepted Vaisausia’s presence on the land, and that Matu`u is motivated by Motuiliu’s desire to live in a house near his father Vaisausia’s house. Their fear of further inroads onto the land by Matu`u’s close relatives is pure speculation under the evidence. The objectors conveniently ignore the likely size of the proposed house. A house the size of the four-sided plot would be enormous by local standards. The plan for the actual house is not known. A house of ample size can be readily situated within the plot so to leave approximately 20 feet between the Simeamamao’s house on the easterly side and Ben’s house on the westerly side of the plot. The house plan need not interfere with the access road that only serves Maliarosa’s

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house and the repair shop along the southerly side of the plot. A separate road already provides access to Anasetasia’s house at the same side.

We may think that Matu`u’s decision to grant a separation agreement to Motuiliu for his house does not make the best use of the land. However, we cannot say, and therefore do not find, that his decision was arbitrary, capricious, or an abuse of discretion in the lawful exercise of his pule over the Matu`u family’s communal land. The strained relationships within the Matu`u family remain a problem that Matu`u as the sa`o must solve. We can only enjoin the members of the family from taking abusive action against each other while Matu`u copes with this unfortunate situation.

Order

1. The separation agreement between Matu`u and Moluiliu, dated October 30, 2000, is legally valid. The Territorial Registrar shall register the agreement.

2. Matu`u and Moluiliu, on one hand, and Mataivai, Peao, Maliarosa Simeamamao Niu, Anasetasia, and Matalena, on the other hand, and their respective officers, agents, servants, employees, attorneys, and those persons in active concert or participation with them, including but not limited to other members of their family, are mutually and permanently enjoined from assaulting, threatening to assault, molesting, annoying, harassing, or in any other manner disturbing the peace of each other.

3. The Clerk of the Court shall have a certified copy of this opinion and order served on the Territorial Registrar.

It is so Ordered.

**********

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T`EO LAUTI TAVAI, Plaintiff

v.

LOPATI FAU and TE`O MALOUAMAUA, Defendants

High Court of American SamoaLand and Titles Division

LT No. 21-01

March 26, 2003

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

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

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

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

Counsel: For Plaintiff, Asaua Fuimaono For Defendant Lopati Fau, Fai`ivae A. Galea`i, L.P.

OPINION AND ORDER

Plaintiff Te`o Lauti Tavai offered to register with the Territorial Registrar title to certain land "Pago," located in the village of Vailoatai, as his own individually-owned land. Te`o's claim was publicly posted between November 30, 2000, through January 29, 2001,54 and it had in

54 Incidentally, the survey offered by Te`o for registration was, on its face, procured in 1979, some 21 years before the offer to register title. However, from the Territorial Registrar's file submitted to the Clerk's office, it was not at all clear that the requisite statutory certifications by the surveyor and pulenu`u, pursuant to A.S.C.A. § 37.0102, were ever given.

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turn attracted the objections of Lopati Fau, now holder of the Fau title of Vailoatai, and Te`o Malouamaua. The objectors both claimed that the land "Pago" was communal land of the Te`o family. Lopati Fau, a member of the Te`o family, so testified. We agree with the objectors and accordingly deny Te`o's claim for the reasons that follow.

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

The 1987 judgment held, among other things, that:

1. . . . the land known as Pago in the village of Vailoatai, American Samoa is the communal land of the Te`o family under the control of the senior matai or sa`o of the family, Teo.2. . . .Fau is a talking chief (tulafale) title of the Te`o titleholder in Vailoatai.

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

[1-3] Te`o's goal here, quite obviously, is to skirt the statutory restrictions against the alienation of communal lands as contained in A.S.C.A. §§ 37.0201 et seq., (the "Alienation of Communal Land Act"). The process set out in the Alienation of Communal Land Act, regulating the alienation of communal land, requires not only the involvement of the Land Commission, to check against improvident transactions, but gubernatorial approval as well. See generally, Pen v. Lavata`i, 30 A.S.R.2d 10, 13-14 (App. Div. 1996). But the Registration Act cannot trump the Alienation of Communal Land Act and it certainly does not provide a vehicle for evading the latter. Otherwise, the constitutionally mandated policy of protective legislation requiring the courts to interpret statutes in a way which is protective of the Samoan custom would be rendered quite meaningless. See REV'D CONST. AM. SAMOA, art. 1, § III.55

55 Section 3. Policy protective legislation.It shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against alienation of their

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

It is so Ordered.

**********BILLY JOE LARSON, a minor, by BILL LARSON,

his guardian ad litem, Plaintiff,

v.

RAY McMOORE and SESE McMOORE, Defendants.________________________________

PEARLITA CANDY FUAVAI, Intervenor/Defendant.

High Court of American SamoaLand and Titles Division

LT No. 12-01

July 17, 2003

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

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

lands and the destruction of the Samoan way of life and language, contrary to their best interests. Such legislation as may be necessary may be enacted to protect the lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry, and to encourage business enterprises by such persons. No change in the law respecting the alienation or transfer of land or any interest therein shall be effective unless the same be approved by two successive legislatures by a two-thirds vote of the entire membership of each house and by the Governor.

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

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

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

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

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

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

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

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

Counsel: For Plaintiff, Jeffrey Waller and Marshall Ashley For Defendants, Tauivi Tuinei and Arthur Ripley, Jr. For Intervenor/Defendant, Afoa L. Su`esu`e Lutu

OPINION AND ORDER

This action concerns removal of a rock wall that allegedly blocks a right of way and diverts entrants across land owned by plaintiff Billy Joe Larson ("Billy Joe"), a minor, to reach other land. Defendants Ray McMoore (“Ray”) and Sese McMoore (“Sese”) (together "the McMoores") admit that they constructed the rock wall, but deny that the right of way exists and claim that the rock wall is entirely on their land. Even though the lands involved are individually-owned lands

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and the issue did not require the Secretary of Samoan Affairs’ involvement under A.S.C.A. § 43.0302, upon the request of Bill Larson (“Larson”), Billy Joe’s adoptive father, the Secretary informally mediated the issue, but without success. Larson then filed this action as Billy Joe's "next friend," without judicial appointment.

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

Discussion

A. Factual Background

Four subdivided lots are involved.56 The lots are within a larger parcel of land, in Ili`ili, American Samoa, originally owned by Ione Fe`a (“Fe`a”) as his individually-owned land. The portion of the larger parcel at issue is cone-shaped with the apex at the north end. For purposes of this discussion, we designate the lots by number. Lot 1 encompasses the apex and is owned by Intervenor/Defendant Pearlita Candy Fuavai (“Fuavai”). Fuavai was not originally made a party to this action. After the trial, the Court added Fuavai as a necessary party for full and proper adjudication of the issues, as she is owner of land accessed by crossing Billy Joe’s land with the rock wall in place. Lot 2 is the second lot southwest down the left side. Sese owns Lot 2. Lot 3 is the first lot southeast down the right side of the cone. Billy Joe is the beneficial owner of Lot 3. Lot 4 lies between Lots 2 and 3 south of Lot 1. Ray, Sese, or the McMoores hold the title to Lot 4, informally in trust for the McMoore’s grandchildren.

56 We take judicial notice of the consolidated actions LT Nos. 14-93, 20-93, 10-95, 20-96, and 1-98 to complete certain details of the land transactions set forth below in the factual findings. We also take judicial notice and have inspected the Territorial Registrar’s records of these transactions. Additionally, we have appended to this opinion and order a not-to-scale diagram of the subdivided area, marked Exhibit A, to provide a picture of the area described below.

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During the planning for the subdivision of the larger parcel, in 1989 and 1990, Fe`a instructed the surveyor to provide for rights of way (“ROWs” when plural and “ROW” when singular) to ingress and egress the lots. Legal descriptions of these ROWs, however, were not officially recorded with the Territorial Registrar. Nevertheless, the evidence, based on the registered deeds and subsequent surveys, affirmed the existence of the ROWs, intended for the benefit and enjoyment of all the adjoining landowners. We designate the relevant ROWs by letter. ROW A lies between Billy Joe’s Lot 3 and the McMoores’ in-trust Lot 4, abuts with Sese’s Lot 2 and ROW C at its north end, and is 15’ wide. Ray was instrumental in developing and still assists in maintaining ROW A, even though the McMoores can access Lot 2 and Lot 5 without using ROW A. ROW B lies between Lot 1 and Billy Joe’s Lot 3, would provide access from the end of ROW A to Lot 1, and is also 15’ wide. ROW C lies between Lot 1 and Sese’s Lot 2, extends north from the end of ROW A, and is 7.5’ wide.57 The McMoores profess to no knowledge of the existence of ROW B and ROW C.

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

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

57 It appears that Fea intended ROW C to be 15’ wide, taking the additional 7.5’ from the Sese’s Lot 2. However, that extension is not clearly ascertained from the evidence and is not presently an issue before us.

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In 1991, Fe`a conveyed Lot 2 to Sese. It is unclear under the evidence whether Ray, Sese, or the McMoores hold the title to Lot 4, or the year when this title was acquired (though clearly some time after the 1991 conveyance to Sese but before the trial of this action). Though also unclear, it appears that Fuga was the grantor of the Lot 4 transaction, as he owned the major portion of the larger parcel after his two acquisitions from F`ea in 1990.58

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

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

B. Legal Analysis

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

[2-4] The rock wall is not situated entirely on Sese’s Lot 2. Instead, it physically encroaches on the 7.5’ ROW C and cuts off access to ROW B while diverting traffic across Billy Joe’s Lot 3. By both encroaching on ROW C and causing others to stray onto Lot 3, the McMoores are committing a trespass by their rock wall. See Letuli v. Le’i, 22 A.S.R.2d 77, 82 (Lands and Titles Div. 1992); RESTATEMENT (SECOND) OF TORTS § 158 (“One is subject to liability to another for trespass [if he] enters

58 At the present time, the conveyance of Lot 4, whether by Fe`a or Fuga, has been neither received nor recorded in the Territorial Registrar’ Office.

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land in the possession of the other, or causes a thing or a third person to do so”).59 [5-6] Whether or not to issue a mandatory injunction for removal of an encroachment, when the encroachment was not intentionally erected on another’s property, is within our discretion. See Whitlock v. Hilander Foods, Inc., 720 N.E.2d 302, 307 (Ill. App. Ct. 1999) (no balancing if encroachment was deliberate); Ridgway v. TTnT Development Corp., 26 S.W.3d 428, 433 (Mo. Ct. App. 2000) (same); Annotation, Mandatory injunction to compel removal of encroachments by adjoining landowner, 28 A.L.R.2d 679 § 8 (1953) (“Annotation”). We do not find that the McMoores intentionally erected the rock wall outside Sese’s Lot 2 on ROW C; instead, they were simply mistaken about the property line. Thus, we must “balance the hardship to the defendant[s] against the benefit to the plaintiff; if the former is great and the latter is slight, the court will ordinarily leave the plaintiff to his remedy at law.” Whitlock, 720 N.E.2d at 307; Annotation at § 6.

In this case, we find that the balance tips in favor of removal. Though the cost of the removal of the wall is not expressly in evidence, it will be relatively nominal, even done by inexpensive self-help, and the hardship to Fuavai and Billy Joe wins out. As of now, Fuavai is not able to fully

59 There was some evidence to support the McMoore’s contention that Lewis, representing Eletise when she owned Lot 3, acquiesced to the McMoores’ construction of the rock wall knowing that it would cause traffic to divert onto Lot 3. And, there was some evidence that Lewis’ permission was intended to be permanent. Thus, the McMoores’ argument that they acquired an irrevocable license is not frivolous. An irrevocable license, sometimes referred to as an easement by estoppel, arises where

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

Vaoga v. Wong, Opinion and Order, p. 4 (Land and Titles Div. June 9, 2003), quoting RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 2.10(1) (2000) (alterations in original). But, besides the need for caution in extending equitable land rights in American Samoa, we need not reach this issue. Firstly, because any permission was merely oral, no explicit easement was granted. Thus, it is not clear that Billy Joe is bound by Lewis’ actions. Secondly, Lewis did not have the sole authority to grant the McMoores permission to build a wall on property outside their Lot 2—in this case ROW C. Therefore, at the very least, there is no justification for that encroachment.

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exercise her rights to the enjoyment of her Lot 1. The rock wall renders nugatory ROW B and ROW C, which were intended as access to Lot 1. Instead, the wall forces Fuavai to enter Lot 1 by crossing Lot 3. Moreover, the 7.5’ encroachment on ROW C cannot be considered slight. Contrast Whitlock, 720 N.E.2d at 307-08; Generalow v. Steinberger, 517 N.Y.S.2d 22, 24 (1987). Additionally, Billy Joe is injured because parties entering Lot 1 will continue to use his Lot 3. Unless the rock wall comes down, the trespass on Lot 3 will be permanent, also depriving Billy Jo of the lawful enjoyment of his land. See Thompson v. Toluao, 24 A.S.R.2d 127, 132-33 (Land and Titles Div. 1993) (“Actual physical interference with the use and enjoyment of another's land constitutes the most common type of nuisance and is properly subject to the issuance of a permanent injunction”); Letuli, 22 A.S.R.2d at 86 (“continuing trespass that can be abated is properly eliminated by injunctive relief”); A.S.C.A. § 43.1302.

Order

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

It is so Ordered.

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120

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

v.

All testate and intestate successors of FRANK PRITCHARD, JR., and FRANK W. PRITCHARD, SR., deceased,

and DOES 1-10, Defendants.________________________________

All testate and intestate successors of FRANK PRICTCHARD, JR., Plaintiffs,

v.

ESTATE OF FUIAVAILIILI WILLIAM PRITCHARD, and DOES 1-10, Defendants.

High Court of American SamoaLand and Titles Division

LT No. 27-95LT No. 36-95

August 19, 2003

[1] Where movant had established by summary judgment motion that individually-owned land had passed from father to sons as tenants in common, that following deaths of sons their interests were subject to distribution by intestate succession, and that best way to effect distribution of land was through equitable division, Court nonetheless could not grant motion as determining whether proposed division was in fact equitable involved resolving factual issues and weighing all evidence.

[2] Summary judgment is appropriate only when “‘no genuine issue as to any material fact’” exists.

[3] Even where no genuine issue as to any material fact exists, it is within the Court’s discretion to deny a summary judgment motion in order to give the parties an opportunity to fully develop the case.

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

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Counsel: For Faatmaali`i Pritchard and the Estate of Fuiavailiili William Pritchard, Charles V. Ala’ilima For Frank Pritchard, Jr. and the Successors of Frank W. Pritchard, Sr., Pro Se

ORDER DENYING PARTIAL SUMMARY JUDGMENT

In LT No. 27-95, the Administrator and Estate of Fuiavailii`i William Pritchard (collectively “William”) sued Frank Pritchard, Jr. and the successors of Frank Pritchard, Sr. (collectively “Frank”) to quiet title for two pieces of property. The first property consists of approximately 12.51 acres of land (“Fuamete 12.51”), purportedly registered in 1990 as William’s individual land. The second concerns an adjacent area of land approximately 4.614 acres (“Fuamete 4.614”), purportedly registered by William and Frank in 1964. In LT No. 36-95 Frank sued William, contesting William’s registration of Fuamete 12.51. For purposes of convenience we consolidated the actions.60

On May 8, 2003, we heard oral arguments on William’s present motion for partial summary judgment. The motion seeks to resolve issues concerning Fuamete 4.614. Also at that hearing, Frank’s counsel moved for permission to withdraw from the case because he had not been able to contact his clients. Apart from that, Frank’s counsel did not submit any reply to or argue the merits of the motion for summary judgment, except to generally urge that the issues be resolved at the trial. Indeed, Frank has not even answered William’s original complaint in LT No. 27-95.61

William seeks summary judgment approving an equitable distribution of Fuamete 4.614. He posits that the original registration in 1964 was lawful and in compliance with the registration statutes. The registration confirmed that William and Frank owned the land as tenants in common, with no right to survivorship as between them. Following the deaths of both William and Frank, their interests are subject to distribution by intestate succession in accordance with A.S.C.A. §§ 40.0202. And

60 There is some confusion as to which lands are being referenced throughout some of the parties’ submissions since both properties are called “Fuamete.” Additionally, another action was initiated recently for a third piece of land, seemingly adjacent to the two current ones, also called “Fuamete.” See Kneubuhl v. Koko, LT No. 23-03. At this stage, we cannot tell whether it would be prudent to consolidate that case with the present action; we leave it to the parties to make that determination.61 We allowed Frank’s counsel to withdraw. Since then, no one has made an appearance or filed any papers on behalf of Frank. We are uncertain whether Frank has retained new counsel or is even aware of the progress of the case.

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finally, the best way to effect this distribution is through an equitable division as set out in an affidavit by a surveyor Sumeo Mataumu.

[1-3] However uncontroverted and provable the first three contentions are, William’s request for summary judgment concerning an equitable division must be denied. Whether the division is equitable clearly involves resolving factual issues and weighing all the evidence. Summary judgment is appropriate only when “‘no genuine issue as to any material fact’” exists. Plaza Department Store, Inc. v. Duchnak, 26 A.S.R.2d 82, 83 (Trial Div. 1994), citing T.C.R.C.P. 56(c). Even then, it is within our discretion to deny summary judgment if only “to give the parties an opportunity to fully develop the case.” Id.; YLK Japan Ltd. v. M/V Korbee, 25 A.S.R.2d 121, 124 (Trial Div. 1994). In light of Frank’s inactive participation up until this point, and given the factual determinations necessary to resolve the issues raised by the motion, summary judgment is simply not appropriate at this stage. The motion for partial summary judgment is therefore denied.

It is so Ordered.

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

Plaintiffs/Counterdefendants,

v.

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

Cross-Claimants,

v.

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

______________________________

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

v.

SEUTAATIA TOLUAO, Defendant.______________________________

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

High Court of American SamoaLand and Titles Division

LT No. 19-98LT No. 19-95

October 1, 2003

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

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

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Counsel: For Defendants/Counterclaimants/Cross-Claimants Nu`u Leomiti, and Leomiti Family, and Plaintiffs Filipele Leiu Leomiti and Leomiti Family, Arthur Ripley, Jr. For Plaintiffs/Counterdefendants Tuana`itau Tuia and Tuana`itau Family, and Cross-Defendant/Defendant Seutaatia Toluao and Cross-Defendants Toluao Family, S. Salanoa Aumoeualogo

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

OPINION AND ORDER

In Toluao v. Haleck, LT No. 40-80, slip op. (Land & Titles Div. Apr. 13, 1983) (“LT No. 40-80”), this Court divided a surveyed plot of land into three separate parcels, each parcel owned by a distinct family as communal land.62 Determination of the exact location of the communal land awarded to the three families is at the essence of the present consolidated actions.

Procedural Summary

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

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

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

62 The trial decision was appealed, Haleck v. Toluao, AP No. 10-83, but upon the stipulation of the parties to the appeal, the appeal was dismissed in due course.

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

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

Discussion

A. Location of the Land at Issue

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

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

French pointed out numerous significant errors and, in his opinion, unprofessional work in the preparation of the surveys used in LT No. 40-80 and LT No. 35-82/LT No. 10-83.63 He also depicted his retrace of both surveys in several single exhibits. Two of them, Exhibits No. 7 and No. 8, showed the relative locations of Plot A and Plot B (together “the plots”), based on French’s survey work before trial. Exhibit No. 7 shows the plots without land elevation contour lines. Exhibit No. 8 shows the

63 The responsible surveyors acknowledged the mistakes made in the preparation of the surveys used in LT No. 40-80 and LT No. 35-82/LT No. 10-83 and appeared to accept French’s retraces as providing essentially accurate locations in the field of both surveys.

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plots with contour lines. The third one, Exhibit No. 40, shows refined locations of the contoured plots, based on additional information acquired by French during the trial.

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

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

B. LT No. 40-80

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

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

C. LT No. 35-82/LT No. 10-83

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The Court decided LT No. 35-82/LT No. 10-83 on May 22, 1989.64

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

The Leomiti family eventually acted on the Court’s authorization in LT No. 40-80 and specifically in LT No. 35-82/LT No. 10-83. Upon Leomiti family’s application, the Territorial Registrar issued the certificate of registration for the Leomiti family’s portion on July 14, 1995. The registration was predicated on the Court’s decision in LT No, 40-80. However, it was generally consistent with the Leomiti family’s survey in evidence in LT No. 35-82/LT No. 10-83. The application contained another survey, done in 1994, showing the Leomiti family’s portion to be approximately 5.218 acres substantially located on the easterly slope of the ridge.65 The Tuana`itau family acted somewhat

64 Two other actions preceded these actions. In LT No. 63-81, Lefotu Tuilesu (“Lefotu”) sought to prevent Leomiti family members from trespassing on the Lefotu family’s communal land located adjacent to the public road up to the mountain from Pava`ia`i to A`oloau on the easterly side of the ridgeline. A short time later, in LT No. 67-81, the Leomiti family sought to enjoin Lefotu from trespassing on its land in the same area. Ultimately, all four actions were consolidated, but in 1985 LT No. 63-81 and LT No. 67-81 were dismissed without prejudice, leaving the land ownership dispute between Lefotu and the Leomiti family for decision in LT No. 35-82/LT No. 10-83.65 We will comment further on this survey during the discussion below

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more prudently by proposing registration of its portion in 1985, using a survey done that year, showing the area of the Tuana`itau family’s portion to be approximately 6.14 acres. The Tuana`itau family’s application was met with numerous objections by the Leomiti, Toluao, and Lefotu families, among others, and to this day has remained dormant and progressed no further. To our knowledge, the Toluao family has never attempted to register its portion despite the Court’s authorization.

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

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

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

Lualemana v. Atualevao, 16 A.S.R.2d 34 (Land & Titles Div. 1990) and 17 A.S.R.2d 151 (Land & Titles Div. 1990) (“LT No. 29-86/LT No. 41-86/LT No. 12-87”) was decided on August 6, 1990. Certain aspects and other matters in these consolidated cases are significant for purposes of

in connection with Lualemana v. Asifoa, Lualemana v. A`oloau Village Council, and Fuimaono v. Toluao, 16 A.S.R.2d 34 (Land & Titles Div. 1990) and 17 A.S.R.2d 151 (Land & Titles Div. 1990) (“LT No. 29-86/LT No. 4l-86/LT No. 12-87”).

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our decision in the present cases, because of their relation to a portion of the land at issue.

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

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

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

The A`oluao and Pava`ia`i parties to the three consolidated cases and to the present actions appear to agree that “L.ago” is the general name of a large area on the westerly side of the ridge. In dealing with the issues pertaining to this portion of the land within the A`oluao survey, the Court recognized that one powerful chief after another apparently dominated this part of the island of Tutuila during ancient times, and that current generations in both A`oluao and Pava`ia`i relish memories of more extended boundaries of their village confines. Lualemana, 16 A.S.R.2d at 38 (citing Lualemana v. Chiefs of Aitulagi, 4 A.S.R. 383 (Trial Div. 1963)). The Court found, however, that the A`oluao people began to continuously occupy and cultivate “Lago” at some time after 1946, without displacing people from Pava`ia`i or elsewhere. Any traditional Pava`ia`i use of the area during an earlier era was probably

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occasional and was, in any event, insufficient to defeat the later claim of the A`oluao people. Id. at 38-39 (citing Lualemana v. Brown, 3 A.S.R. 348, 352-53 (Trial Div. 1958)). The Court therefore held that land with “Lago” on the westerly side of the ridge was owned by A`oluao people and presumptively by A`oluao families in accordance with Samoan customary land ownership. Lualemana, 16 A.S.R.2d at 39.66

The Court in LT No. 29-86/LT No. 4l-86/LT No. 12-87 also specifically observed, and pointedly for present purposes, that the small area within the A`oluao survey on the easterly side of the ridge was just above the cinder pit areas held to be the Tuana`itau family’s and Toluao family’s communal lands, and above the adjacent and nearby lands held to be the Leomiti family’s and Lefotu family’s communal lands in LT No. 35-82/LT No. 10-83. Id. The Court also noted that it had insufficient evidence before it to determine any overlaps between the A`oluao survey and the adjudicated communal lands of these four families. Id.67

In LT No. 29-86/LT No. 41-86/LT No. 12-87, the Utu family of A`oluao claimed as its communal land approximately 2.076 acres (as retraced by French), designated as “Logo”. The 2.076 acres were located on the westerly slope of the ridge within the larger area generally known as “Lago” and within both the A`oluao and Pava`ia`i surveys then at issue. The Utu family intervened because the Toluao family was cultivating this area. Lefotu claimed that the Utu survey encroached upon other land he had registered, and by stipulation, the Court did not adjudicate the Utu-Lefotu issue.68 However, having determined that “Lago” on the westerly side of the ridge was property of A`oluao families, the Court did enjoin Toluao from further occupancy and cultivation of “Lago” on the westerly side, including the Utu family’s claimed land. Therefore, the Utu family’s claim pertains to an area outside of Plot B, the correct location of the land actually adjudicated in LT No. 40-80 and confirmed in LT No. 35-82/LT No. 10-83. The Utu family’s claimed land is largely

66 The Court declined to determine any precise boundary between A`oluao and Pava`ia`i, based on the law that only that the owner, almost always a family, of land in American Samoa can register ownership. Lualemana, 16 A.S.R.2d at 39. The concept of village ownership of land contravenes Samoan custom, except in limited circumstances not applicable in Lualemana situation. Id.; see also Olo v. Fuimaono, AP No. 27-81, slip op. (Appellate Div. April 18, 1981).67 The Court in LT No. 29-86/LT No. 41-86/LT No. 12-87 assumed that the lands judicially determined to be the communal lands of Toluao, Tuana`itau, Leomiti, and Lefotu families were registered. Lualemana, 16 A.S.R.2d at 39. In fact, only the Lefotu family’s communal land was registered when the decision in the three actions was issued on August 6, 1990.68 Neither the Utu family nor Lefotu is a party to the present action.

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within Plot A, determined by French in the present actions to be the location of the Haleck survey used in LT No. 40-80.

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

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

E. Outstanding Survey Issues

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

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

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F. Entitlement to Relief

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

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

Order

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

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

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

It is so Ordered.

**********

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

v.

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

Defendants.________________________________

All testate and intestate successors of FRANK PRICTCHARD, JR., Plaintiffs,

v.

ESTATE OF FUIAVAILIILI WILLIAM PRITCHARD, and DOES 1-10, Defendants.

High Court of American SamoaLand and Titles Division

LT No. 27-95LT No. 36-95

October 7, 2003

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

[2] A land title registration is presumptively valid.

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

Counsel: For Faatamaali`i Pritchard and Estate of Fuiavailiili William Pritchard, Charles V. Ala`ilima For all testate and intestate successors of Frank Pritchard, Jr. and Frank W. Pritchard, Sr., Pro Se

OPINION AND ORDER

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

Ultimate Issues

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

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

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

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

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Discussion

1. The 4.614 Acre Parcel

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

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

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

2. The 12.51 Acre Parcel

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

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

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

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

Order

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

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

It is so Ordered.

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

v.

TC TUFAGA OF AUA and TAGISIAALII FAUMUINA, Defendants

High Court of American SamoaLand and Titles Division

LT No. 07-03LT No. 23-90

LT No. 1418-74LT No. 1412-74

November 10, 2003

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

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

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

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

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

Counsel: For Plaintiffs, Marie A. Lafaele For Defendants, Asaua Fuimaono

OPINION AND ORDER

Historical Background

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

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Liufau family, while the Tufaga family claims it as being a part of "Feagai," communal property of the Tufaga family.

1903-Litigation

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

Post-1903

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

Apparently, while this Separation Agreement matter was pending, Unutoa commissioned a survey of the area, calling it Leasi, which he offered for registration as the communal property of the Liufau family on November 15, 1973. Evidently, nobody objected to Unutoa's offer and, consequently, he filed an application with the Land and Titles Division to register his offer. See In re Land Leasi, LT No. 1412-74. Then, on January 10, 1974, Tufaga also offered for registration his surveyed claim of the land, calling it "Feagai," and claiming it as his family's communal land. The result was overlapping surveys before the Territorial Registrar. Tufaga's offer, however, was timely objected to by Unutoa who claimed that Tufaga's survey encroached on his family's land Leasi. This dispute was also referred to the Land and Titles Division. See Liufau v. Tufaga, LT No. 1418-74. These matters were eventually consolidated.

We next see that the American Samoa Government ("ASG") intervened to, as it turns out, mistakenly claim an interest in the shoreline area on the seaward side of the road depicted in both Unutoa's and Faafua's

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respective surveys. Nonetheless, the court, because of ASG's claim,69

denied both the Liufau and Tufaga families' registration offers, as well as Tufaga's Separation Agreement offer, finding that neither party had proven "a clear right to the entire tract offered." Liufau v. Tufaga, LT Nos. 1279-72, 1412-74, 1418-74, Slip op. at 2 (Land & Titles Div. Dec. 30, 1976).

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

In 1990, a Tufaga family member, Tagisiaalii Faumuina, began bulldozing inside the disputed area. This action in turn spawned yet another file with the Clerk's office, see Liufau v. Tufaga, LT No. 23-90. This case resulted in a preliminary injunction against both families from any further activity on the disputed land. However, Unutoa passed away that same year and LT No. 23-90 was forgotten until a new generation of family members, as well as another succession of legal advisers, entered the picture. Shortly after Unutoa's death, Faafua's successor Tufaga Tavita ("Tavita"), commissioned yet another, and enlarged, survey of Feagai (the "1990 survey"). This time, the survey separately described the area seaward of the highway that ASG had once claimed and subsequently withdrawn from. This 1990 survey was also offered by Tavita for registration, and this offer was objected to by a Liufau family

69 The claim was apparently based on A.S.C.A. § 37.2050 which reads:The public highway declared and proclaimed by Regulations No. 15 and No. 16, 1900, enacted 3 September 1900 by B.F. Tilley, Commander, U.S.N., Commandant, and amended by W. Evans, Captain, U.S.N., on 10 May 1921, extending from Blunt's Point on the southern side of Pago Harbor, toward Observatory Point and around the harbor to Breaker's Point on the northern side of the harbor, along the shore at highwater mark, of a uniform width of 15 feet distant inland from the shore, the land included in the description being condemned and appropriated for public uses, is recognized as a public highway, and the rights of the government and public thereto is asserted.

The government later discovered that the government road had, since the condemnation action, been moved some distance inland. Thus it had asserted a claim to land that was not subject to the condemnation statute.

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member, Fagamalama Liufau Fuaalau, on behalf of the Liufau family. This new dispute eventually found its way to the Land and Titles Division on April 16, 2003, and was assigned the docket number LT No. 07-03. In the meantime, Unutoa's son Tanielu had, in 1999, succeeded his father to the Liufau title, while the Tufaga title, left vacant with the passing of Tavita, was succeeded by the present Tufaga Sapati.

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

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

Discussion

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

Findings

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

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

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

The documentary exhibits received into evidence further revealed that the Liufau family received compensation from the United States Government for crop and other property damage claims on Leasi caused by the war effort. From ASG's archives came corroborative proof relating to property damage claims made and filed by Liufau Tausolia and Unutoa before the War Claims Commission. These exhibits attest to Liufau's claim for crop destruction, attributed to the "See Bees," on two acres of Liufau family land referred to as Asi and a 40 x 1600 square yard area of Vaituliuta. Liufau's testimony was that "Asi" and "Leasi" are one and the same reference, and that the land Leasi derived its name from Asi trees that grew on the elevated slopes of the land. Moreover, these war claims exhibits present and added dimension of credibility to Liufau's position over Tufaga's. The latter would have us believe that

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Leasi's seaward side boundary-line runs approximately atop the excavated area. If we accept this, then we must also accept that the war effort included some sort of defense activity up on "two acres" of steep, hilly and elevated terrain. We would also have to accept that the Liufau family had at least "two acres" of compensable food crops growing among the Asi forest on hillside. We find such a state of affairs to be unlikely.

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

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

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

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

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

Conclusions

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

It is so Ordered.

***********

LUFILUFI LAFOIA AVA PENEUETA, Claimant

v.

AKAPO AKAPO JR., Counter-claimant_______________________________

[In Re the Matai Title "AVA" of the village of Pavaia`i]

High Court of American SamoaLand and Titles Division

MT No. 09-01

January 8, 2003

[1] On issue of first criterion (best hereditary right), where Court received conflicting testimony as to whether candidate was actually related by blood to previous title holder, Court resolved dispute in favor of candidate noting that she was, for all intents and purposes, raised as a

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family member, growing up in family’s village, living on family’s property, and participating in family affairs in a manner consistent with family entitlement.

[2] On issue of fourth criterion (value to country, family and village), Court found in favor of candidate who had actively participated in family affairs, and who had rendered tautua to the family, previous matai and relevant village for all of her life; despite other candidate’s superior service to territorial government.

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

Counsel: For Claimant, S. Salanoa Aumoeualogo For Counter-claimant, Arthur Ripley, Jr.

OPINION AND ORDER

On April 19, 2001, Lufilufi Lafoia Ava Peneuta ("Lufilufi") offered the matai title Ava, from the village of Pavaia`i, for registration with the Office of the Territorial Registrar. Akapo Akapo, Jr. ("Akapo"), filed his objection and counter-claim with the Territorial Registrar on June 15, 2001. The matter was referred to the Secretary of Samoan Affairs for extra-judicial resolution from where it was returned by the Secretary with a certificate of irreconcilable dispute pursuant to A.S.C.A. § 43.0302. The dispute is before us in accordance with A.S.C.A. § 1.0409.

Findings

In these matters, the court is guided by the four criteria set out in A.S.C.A. § 1.0409(c): (1) best hereditary right; (2) clan support; (3) forcefulness, character and personality, and knowledge of Samoan customs; and (4) value to family, village, and country.

1. Best Hereditary Right

Lufilufi traces her entitlement to Ava Lafoia Tulilefaga ("Tulilefaga"), her grandfather, and accordingly claims 25% hereditary right. By comparison, Akapo's claim to the Ava title is 1.6%. However, he contends to prevail on this consideration arguing that Lufilufi has no Ava blood whatsoever. His supporters, a faction of the family led by Pagofie Fiaigoa, urge the court to find that Lufilufi's father, variously referred to by the witnesses as either "Mapusaga" or "Lafoia Ava," was not the natural issue of Tulilefaga, but rather a stranger that was raised from an early age by Tulilefaga and his wife Fenika. Both Pagofie and Taeaolelei Tialavea, an undisputed daughter of Tulilefaga, testified accordingly as to Lufilufi's ancestry, on the basis of a "family account"

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handed down to them. In rebuttal, Lufilufi's paternal aunt Folole Tulilefaga Ava, 85 years of age, testified that she, her late brother Lafoia Ava, Lufilufi's father, and a third sibling Ailini, are the children of Tulilefaga by his first marriage to Ida Gaseuli Solitua. Her testimony was corroborated by 79 year old Fa`aliliu Paepule, a daughter of a former Pagofie titleholder, Saei, and grand-daughter of a former Ava, Vili I.

[1] The conflicting family accounts as to Lufilufi's heritage must be resolved in favor of Lufilufi's version. Folole and her siblings were, for all intents and purposes, raised as Ava family members; they grew up in Pavaia`i, lived on family property, participated in family affairs, not as strangers, but in a manner consistent with family entitlement. Their descendants so continue to live today.

We find that Lufilufi is not only a blood member of the Ava family, but that she prevails over Akapo on the issue of hereditary entitlement.

2. Clan Support

There are four clans of the Ava family: Vili, Levale, Sivai and Sa. We find that while Akapo enjoyed some support from the Sa clan, we are satisfied Lufilufi's candidacy enjoys support from all of the clans of the Ava family. Accordingly, we find that Lufilufi prevails on the issue of clan support.

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

From our observation of the candidates and from our review of personal background and achievements, we find that Akapo prevails on this consideration. While both candidates fared equally on the factors of character and personality, and knowledge of Samoan customs, we consider Akapo's personal achievements in education and career as a meteorologist to demonstrate greater forcefulness.

We find that Akapo prevails hereunder.

4. Value to Family, Village, and Country

[2] On value to country, Akapo's service to the territorial government and people of American Samoa clearly puts him before Lufilufi. However, on value to family and village, Lufilufi's service to family and village has unquestionably been superior to Akapo's. She has rendered tautua (traditional service) to the Ava family and matai all her life, actively participating in family affairs, whereas Akapo's primary ties have been to the Mase family in Vaitogi. Having lived and been raised

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within the Ava family, Lufilufi is, therefore, more familiar with family needs and family assets and would be better acquainted with those Ava family members who are confronted on a day to day basis with the family's interests. See Aano v. Sitau, 2 A.S.R. 107, 110 (Trial Div. 1940). At the same time, Lufilufi renders tautua to the village of Pavaia`i, where the Ava title belongs, whereas Akapo's service has principally been in Vaitogi where he holds a matai title.

We find in favor of Lufilufi on this criterion.

Conclusions

On the foregoing, we conclude that Lufilufi is qualified to hold the title Ava. She prevails over Akapo on the first, second, and fourth criteria. The Territorial Registrar shall, in accordance with A.S.C.A. § 1.0409(b), register the matai title Ava, attached to the village of Pavaia`i, in candidate Lufilufi Lafoia Ava Peneuta.70

It is so Ordered.

**********TUANU`UTELE SAI, Claimant

v.

SONNY LE`I THOMPSON, TIKERI N. THOMPSON, LEANA MISIUAITA, SOFENI VA`ENA, TAGATA A.T. LE`I

and POROTESANO T. TUIOLOSEGA, Counter-claimants

High Court of American SamoaLand and Titles Division

MT No. 03-98

June 6, 2003

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

70 In view of our conclusions reached, we find it unnecessary to decide Lufilufi's A.S.C.A. § 1.0403 motion to disqualify Akapo.

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

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

Counsel: For Tuanu`utele Sai, Pro Se For Sonny Le`i Thompson, Charles V. Ala`ilima For Tikeri N. Thompson, Afoafouvale L.S. Lutu For Sofeni Va`ena, Pro Se For Porotesano T. Tuiolosega, Pro Se

OPINION AND ORDER

Tuanu`utele Sai ("Tuanu`u") filed his application to be registered as the holder of the matai title Le`i, attached to the village of Ofu, Manu`a. This in turn triggered a number of objections and counter-claims, under A.S.C.A. § 1.0407; they included that of Sonny L. Thompson ("Sonny"), Tikeri N. Thompson ("Tikeri"), Sofeni Va`ena ("Va`ena"), and Porotesano T. Tuiolosega ("Porotesano").71 Following unsuccessful mediation attempts before the Secretary of Samoan Affairs, in accordance with the procedure set out in A.S.C.A. § 43.0302, this litigation ensued.

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

In the trial of title cases, the High Court shall be guided by the following considerations, in the priority listed:(1) the best hereditary right, as to which the male and female descendants are equal in families where this has been customary; otherwise the male descendant prevails over the female;(2) the wish of the majority or plurality of those clans in the family as customary in that family;(3) the forcefulness, character and personality of the persons under consideration for the title, and their knowledge of Samoan customs; and(4) the value of the holder of the title to the family, village, and country.

1. Hereditary Right

71 By the time of trial, the succession claims of Leana Misiuaita and Tagata A.T. Le`i had been withdrawn.

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

2. Wish of The Clans

A number of Le`i family gatherings to address the matai vacancy were held in Ofu beginning with a meeting in 1994. Shortly after the first and inconclusive family meeting, Tuanu`u bolted to the Territorial Registrar's office and offered to register the Le`i title in his name. Notwithstanding, the family further met on the issue and the only emergent consensus that arose at the initial series of meetings was support for either Tuanu`u or Tikeri to hold the title. Rather than persisting with the issue until a titleholder was decided upon, the family at a meeting in 1996, merely managed to agree to let Tuanu`u and Tikeri decide between the two of them as to who would be the matai. In effect, the family abdicated its responsibility.Following this family resolution and after some back and forth between the two leading candidates, Tikeri was eventually offered the title by Tuanu`u. The latter had apparently been offered the `ava cup for another vacant Ofu matai title, Sai. Two things, however, stalled, and eventually thwarted any prospect of the Le`i title being registered in Tikeri's name: first the counter-claims with the office of the Territorial Registrar were not immediately withdrawn, hence the dispute was legally very much alive; second, Tuanu`u's ambitions towards the Sai title were held in abeyance because of unresolved third-party objections.

A subsequent series of the requisite mediation conferences with the Secretary of Samoan Affairs proved to be of no avail. By letter of November 25, 1997, the Secretary certified an irreconcilable dispute, noting the convening of six meetings with the candidates and their failure to reach a settlement. On January 7, 1988, the matter was then referred to the Land and Titles Division in accordance with A.S.C.A. ' 1.0409.72

72 On February 3, 1998, a subsequent letter, dated February 2, 1998, from the Secretary of Samoan Affairs was filed with Clerk clarifying that while four of the candidates had stipulated to withdrawing, with a fifth having died, two of the candidates were holding out, and hence the continuing dispute.

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

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

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

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

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Sonny, the asserted outcome of the 2002 meeting appears to ring rather hollow.

We find the 2002 meeting to be nothing less than posturing efforts, with pending litigation in mind, by parties who not only ignored the Court's pre-trial notices but who were simply not in the assembled family's contemplation. Furthermore, we find that the Le`i family did not decide on any one candidate and, hence, no candidate can be said to prevail on this criterion.73

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

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

[1] Under the consideration of character and personality, Tikeri impressed most. Against the other candidates, Tikeri appeals to us as a humble, mature, and thoughtful person who has throughout this long drawn out succession ordeal, shown the greatest respect for the family. Too often in matai succession disputes, we recurringly encounter candidate maneuvering, tactics, and strategy motivated solely with

73 In view of our findings, we need not at this time decide on the issue of clan definition and the number of clans in the Le`i family. The only thing really clear on the evidence in this regard, apart from the very apparent fact that the research on family history was very much superficial and wanting, is that there was accord on the evidence suggesting that the Le`i family is compromised of more than one clan.

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individual gain in mind, to the detriment of family preference. For instance, a favored strategy to overcome a perceived adverse family sentiment towards one's candidacy is the unilateral removal of the matai succession issue altogether from the family, in favor of a government resolution, by premature offers to register the title with the Territorial Registrar. See e.g. In re Matai Title Olomua, 27 A.S.R.2d 20, 21 (Land & Titles Div. 1994); In re Matai Title Misa`alefua, 28 A.S.R.2d 106, 109 (Land & Titles Div. 1995). The matter at bar proved to be no exception. When Tuanu`u offered to register the title at the outset, after the family had only met once, he thereby effectively set the family's agenda, in terms of a slate of candidates, and accordingly fettered any further meaningful family discussion. His action opened the door for other family members, who were not even in the family's contemplation (Vaena unabashedly confessed that nobody supported his candidacy) to hop aboard the registration bandwagon in hope for the best.74 We have already alluded to posturing efforts by Vaena, Sonny, and Leama Misiuaita, to advance their concerted agenda even as the issue was before the Court. This agenda was pursued even to the extent of Sonny offering Tikeri the inducement of communal rental income for Tikeri's use if Tikeri would abandon his claim in favor of the latter's succession ambitions.

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

4. Value to Family, Village, and Country

In terms of value to the village, we rate all of the candidates to be about equal. As to public worth, all the candidates have in their different career choices contributed materially to the general well being of the

74 It is not lost on us that the Le`i matai title is that of to`oto`o or ranking orator from the Manu`a District. As such, its attendant political prestige is not only relevant within the traditional scheme of things but also within the government framework. It is, therefore, a coveted title among family members.

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Territory; however, Sonny and Tikeri's vocational background and experience sets them slightly ahead in this regard. Commensurate with their respective education and training, the public service these candidates have and are rendering is, by comparison, more pronounced in the scheme of things; they each offer a unique expertise. Tikeri's role with the hospital's pharmacy is crucial, just as is Sonny's disaster related planning background and organizational acumen.

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

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

Conclusion and Order

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

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

It is so Ordered.

**********

TEPATASI M. PUAILOA, Claimant

v.

TUITOGAMAATOE PUAILOA FANENE, LA`AU SEUI, MA`AE TAEI, and ARCHIE SOLIAI, Counter-claimants.

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________________________________

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

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

High Court of American SamoaLand and Titles Division

MT No. 05-01

May 1, 2003

[1] The only legal requirement that a Court’s written decision in a matai title case must meet is that it must contain findings of fact and conclusions of law on each of the four statutory criteria.

[2] In weighing the four statutory criteria in a matai title case, the trial court is required to give more weight to each criterion than the one that follows. However, it is within the Court’s discretion to establish precisely how much weight to accord.

[3] The weighing exercise in which the Court engages to determine the appropriate successor in a matai title case is incapable of being expressed in a mathematical formula.

[4] While the court may in its discretion grant a stay of execution pending appeal, that discretion should not be lightly exercised, and a stay should not be casually granted but only upon cause shown.

[5] A party moving for a stay pending appeal must establish: (1) failure to grant the stay would cause irreparable harm; (2) a likelihood of success on appeal; and (3) the public interest would be harmed by not granting the stay.

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

Counsel: For Tuitogamaatoe P. Fanene, Charles V. Ala`ilima For Ma`ae Taei, Salanoa S.P. Aumoeualogo For Avea Va`afusuaga, Tauivi Tuinei

ORDER ON MOTIONS FOR NEWTRIAL AND ON MOTION TO STAY

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The court awarded Ma`ae Taei's petition to be registered as the next holder of the matai title Puailoa of Nu`uuli. Counter-claimants Avea Va`afusuaga and Tuitogamaatoe P. Fanene each filed a motion for new trial, which came on for hearing on May 29, 2003. The parties appeared through counsel who stipulated to submit their arguments on the briefs.

A. Avea's Motion

Avea's motion simply objects to Ma`ae holding the title and registers disagreement with the court's assessment of the evidence. We see no grounds stated for a new trial. The motion will be denied.

B. Tuitogamaatoe's Motions

(1) New Trial

The motion states legal error because the court "[failed to state] the relative weight it attached to each statutory criteria under consideration." Tuitogamaatoe's Motion For New Trial & Stay at p. 2. We confess not having the slightest idea what the suggested legal standard purports to be.

[1] To the extent that this argument questions the depth of the court's factual findings, it is misplaced; our order complied with "the only legal requirement [of] a written decision containing findings of fact and conclusions of law on each of the four statutory criteria." Tovea v. Suafala, 22 A.S.R.2d 94, 95 (Land & Titles Div. 1994), citing A.S.C.A. § 1.0409(c) and T.C.R.C.P. 52(a). Likewise, Tuitogamaatoe's claim that the court failed to prioritize the four statutory requirements is, as a matter of law, equally deficient. The result was amply supported by the facts. See Luavasa v. Ta'avasa, 15 A.S.R.2d 65, 69-70 (Land & Titles Div. 1990).

[2-3] While the trial court must give more weight to each criterion than the one that follows, it is within our discretion to establish how much weight to accord. Id. The first criterion is not dispositive of matai succession contests,75 otherwise the remaining statutory considerations provided would be meaningless and superfluous. Id. Indeed, in the great number of matai succession cases, candidates who lost on the first criterion have nonetheless prevailed on a strong showing on the remaining factors. But there can be no mathematical formula or

75 We noted in our opinion that as between Tuitogamaatoe and Ma`ae, while Tuitogamaatoe prevailed on hereditary considerations under the traditional rule, based on the historical accident that her father was a titleholder, under the less arbitrary Sotoa rule these candidates would be equal.

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quantitative analysis involved with the weighing exercise, as Tuitogamaatoe seems to demand. Such is not only impossible but unwarranted.

The remaining portions of Tuitogamaatoe's motion for a new trial are like Avea's motion, nothing less than a quarrel with the court's assessment of the evidence. But assessment of the evidence is uniquely within the trial court's competence. The motion will also be denied.

(2) Stay

Tuitogamaatoe asks that a stay be granted if her motion for a new trial is denied. The motion is based on the submission that "[t]he court has noted in its opinion the animosity and distrust generated by this title dispute. It would promote further disharmony and animosity among family members and serious legal complications if there were attempts to enforce matai rights while the appeal is pending." Tuitogamaatoe's Motion For Stay, at p. 7.

[4-5] While the court may in its discretion grant a stay of execution pending appeal, T.C.R.C.P. 62, that discretion should not be lightly exercised, and a stay should not be casually granted but only upon cause shown. Asifoa v. Faoa, 17 A.S.R.2d 10, 12 (App. Div. 1990). The moving party must establish: 1) failure to grant the stay would cause irreparable harm; 2) a likelihood of success on appeal; and 3) the public interest would be harmed by not granting the stay. In re Matai Title Mulitauaopele, 17 A.S.R. 2d 71, 73 (Land and Titles Div. 1990). Movant has failed to adequately address these legal requirements and her motion for stay should not be casually granted. Therefore, the motion to stay will be denied. See In re Matai Title Mauga, MT No. 12-98 (Land & Titles Div. 2002) (Granting stay and leaving title unoccupied pending appeal may cause more disharmony than allowing investiture ceremony to proceed).

It is so Ordered.

***********

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