13ASR2d

Series: 13ASR2d | Year: () | 13ASR2d
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Summary judgment is appropriate if the pleadings and supporting papers show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. T.C.R.C.P.56(c). [13ASR2d12]

In considering a motion for summary judgment, the court must consider all pleadings and supporting papers in the light most favorable to opposing party, and must also give such party the benefit of all inferences reasonably deducible from the evidence. T.C.R.C.P. 56.

Plaintiff suing for value of goods paid for by defendants with checks drawn against insufficient funds was denied summary judgment where defendants raised triable issues of tact, claiming that plaintiff coerced them into sales contract; supplied unordered goods and overcharged for incomplete quantities of goods; and induced one of the defendants to sign a letter acknowledging liability by assuring them it was merely “for the record” and that they should “not worry” about it. [13ASR2d13]

We hold that there is a factual dispute regarding the obligation underlying the returned checks and deny plaintiff’s motion accordingly.

It is so Ordered.

*********

TUTUPU A. MEAFUA, Plaintiff

v.

SIAKI MATA’U TALIU and VINETA ALLEN, Defendants

High Court of American Samoa

Land and Titles Division LT No.21-87 December 8, 1989

__________ Witness from one village, testifying on behalf of a land claimant from that same village, had no reason to lie when he said the land was in another village.

That territorial registrar office had abandoned its former practice of using unsworn certificates rather than notarized affidavits as evidence of posting, and that the new practice was more desirable, did not render the former practice illegal.

Even if territorial registrar had expressed a legal opinion on whether procedure followed by former registrar would render a registration invalid, this would be a question of law on which the court mus1 make its own judgment.

Before REES, Associate Justice, TAUANU’U, Associate Judge, and MATA’UTIA, Associate Judge.

Counsel: For Plaintiff, Gata E. Gurr

For Defendants, Tau’ese P.F. Sunia

On Motion for New Trial:

 

We took this motion under advisement in order to consider whether, as alleged by counsel for defendant Allen, our finding that this land was originally settled by Ili’ili people was without support in the record. Our recollection was that Mulinu’u Asapaolo, an elderly witness for defendant Siaki Mata’utia Taliu, had testified that the lands had belonged to lIi’ili people before Vaitogi people came there shortly before World War II. The English translation of this witness’s testimony includes the following exchange: [13ASR2d75]THE COURT: You were talking about period when everybody scrambled for land; this was before the war?

THE WITNESS [Mulinu’u]: Yes.

THE COURT: Now what was there before? You said it was a jungle, but did anybody own that land before the war?

THE WITNESS: My belief and knowledge is, Your Honor, that these lands are Ili’ili lands.

Because Mulinu’u had been in a positi9n to observe the events of which he spoke, and because as a Vaitogi person testifying on behalf of another Vaitogi person he had no reason to lie on this point, we found his testimony highly credible.

In any event, this finding was not essential to our primary holding, which was that defendant Allen was barred by A.S.C.A. §§ 37.0103(c) from presenting a claim contrary to that of plaintiff Meafua,

Defendant’s contention that the Territorial Registrar has expressed a “view that the registration seems improperly executed” is a highly partisan gloss on the Registrar’s testimony. With regard to one of several irregularities alleged by defendant — the use of an unsworn certificate rather than a notarized affidavit as evidence that the notice of registration was posted in accordance with A.S.C,A. §§ 37.0103 —the present Registrar did testify that his office now follows a different procedure. He also testified that the procedure used in connection with this registration in 1983 was the procedure followed by the Registrar’s office at the time. The practice in question, although not as desirable as the practice adopted by the present Registrar, was not illegal and did not render the registration invalid; A.S.C,A. §§ 37.0103 requires only that the notice be posted, not that an affidavit or certificate or any other particular evidence of posting be placed in the Registrar’s file. Even if the present Registrar had expressed a legal opinion that an unsworn certificate or improperly notarized affidavit of posting renders a registration invalid, this would be a question of law on which the Court must make its own judgment.

Finally, defendant urges that we “totally ignored the obvious lack of creditability in Plaintiff Meafua’s testimony. ” Aside from the problem that defendant’s own testimony was far more extravagant than [13ASR2d76]

anything asserted by the plaintiff, this objection fails because no finding of fact essential to our opinion rested on the uncorroborated testimony of any party.

Accordingly, the motion is denied.

It is so ordered.

*******”,*

V AIMAONA FOLOI, ARIET A VAIMAQNA, LAGIMA

VAIMAONA, and T AU FUlA V A, Plaintiffs

v.

FA’AMAMAFA TUITASI, Defendant

High Court of American Samoa

Trial Division LT No. 18-88

December 12, 1989

__________

 

Under territorial statute dealing with “title to land,” a procedurally valid registration precludes subsequent judicial inquiry into the validity of the record owner’s title; anyone who wishes to object on any ground whatever to the registrant’s claim of ownership has sixty days within which to do so, and ill the absence of such objection the land is registered in the name of the claimant and all other claims of ownership are forever precluded. A.S.C.A. §§§ 37.0101 et seq.

Territorial statute dealing with “alienation of land” provides substantive restriction on alienation and also sets forth procedures for the lawful alienation of land, which are designed to ensure that land will not be alienated lightly even in the absence of a specific substantive restriction, A.S.C.A. §§ 37.0201 et s~q.

Final step in the statutory procedure for alienation of communal land is recordation of the transaction with the territorial registrar; when a buyer and seller comply with all the statutory provisions for alienation of land, including this recordation provision, the buyer becomes the owner of whatever interest the seller had in the land. A.S.C.A. §§ 37.0210.

Distinction between separate statutory procedures tor registration “of the land” and “of the deed” is best characterized as distinction between substance and procedure: compliance with the land registration statute protects the landowner by precluding rival claimants from attacking the record owner’s title, whereas the statute on land alienation leaves rival claimants procedurally free to object to the record owner’s title but provides that anyone

[13ASR2d77]who complies with its provision; becomes the lawful owner of the land. A.S.C.A. §§§ 37.0101 et seq., 37.0201 et seq.

It would be to the advantage of a party who purchases land that has never been previous1y registered to apply for registration in accordance with both the “titles” chapter and the “alienation” chapter. A.S.C.A. §§ 37.0101 et seq., 37.0201 et seq.

Registrar’s certificate of title is presumed to be valid and a party asserting its procedural irregularity has the burden of presenting compelling proof. A.S.C.A. §§§§ 37.0101 et seq,

Territorial statute on alienation pf land does not prohibit tho: alienation of con1muqallands, but does prohibit such alienation without the written approval of the Governor or to any person who has less than one-half native blood.

Custom that major family decisions should be made in consultation with the whole family is not among those incorporated into statutory restrictions on the otherwise plenary powers of a sa’o over family lands.

Sa’o could not avoid his contract for the sale of land on the ground of his own violation of custom, and other family members’ remedies were against the sa’o, not the purchaser.

Objection to court’s finding that the signature on a deed was not a forgery, where the objecting party had judicia1ly admitted that he signed the deed, had had every opportunity to examine the document before trial, and had even appended it to his complaint as Exhibit. A, but had testified for the first time at trial that he had not signed the document after all, was without merit,

Issue not raised in the pleadings or at trial could not be raised for the first time by motion for new trial.

Land registration statute does not required that posting of noticed be evidenced by an affidavit or by any other particular form of notice. A.S.C.A. ~§§ 37 .0101 et seq.

Territorial statute providing for the registration of instruments, as opposed to the registration of title, itself does not specify posting or any other particular form of notice prior to registration. A.S.C.A. §§ 37.0210.

Where certificate of required posting of notice snid that notice was posted at “the Administration Building” rather than at “the Court House” as required by statute, the court would take judicial notice that the certificate tracked the language of a former statute and that the registrar had for some years posted notice not at the Administration Building but at the Court House, which was itself the former Administration Building. A.S.C.A. §§ 37.0103.

Before REES, Associate Justice. OLO, Associate Judge. and VAIVAO. Associate Judge. [13ASR2d78]

Counsel: For Plaintiffs, Togiola T.A. Tulafono

For Defendant, Charles V. Ala’ilima

On Motion for New Trial:

We held that a warranty deed signed by plaintiff Vaimaona Foloi conveying land to defendant Fa’amamafa Tuitasi was valid and that the land in question now belongs to the defendant. 12 A.S.J{.2d 6& {1989). Plaintiffs allege fourteen grounds of error in Our decision.

One of these grounds may have merit. Our finding that “on August 6, 1987, defendant Tuitasi had offered the deed for registration as her individually owned land, ” while technically an accurate statement of the record, may have been misleading.

It appears that defendant (and/or plaintiff Vaimaona) filed a copy of the warranty deed with the Territorial Registrar on August 6. See Plaintiffs’ Exhibit 2. The record reflects that the Registrar treated this filing as a request ( 1) for approval of the sale by the Land Commission and (2) for registration of the land as individually-owned land of defendant Tuitasi. See id. A notice was posted the saq1e day at the Court House and at two places in Lauli’i, stating that any objections could be filed with the Secretary of the Land Commission on or before September 8, 1987. No objections were filed. The sale was approved by the Land Commission on September 28 and by the Governor on October 2.

On October 20 the Territorial Registrar issued a “Certificate of Registration. ” It certified that “Warranty Deed, Portion of Land ‘Mulipa’ in the village of Lauli’i” had been offered for registration by Mrs. Tuitasi ”as her individually-owned land” and had been “duly registered.”

The Registrar’s certificate implies that the registration in question was both a registration of the deed as an “instrument. .. effectual to pass title” under A.S.C.A. §§ 37.0210 and a registration of the land described therein as the individually-owned land of defendant Tuitasi in accordance with A.S.C.A. §§§§ 37.0101 et seq. Although the statutes in question do not prohibit the registration “of the deed” and “of the land” from being initiated by a single application, the two processes are technically distinct. [13ASR2d79] Chapter 1 of Title 37 of the American Samoa Code Annotated (A.S.C.A. §§§§37.0101 et seq.) deals with “Titles to Land.” This chapter provides, inter alia, that the owner o(any land not previously registered may register his title with the Territorial Registrar. A.S.C.A. §§ 37.0101(a). The application for registration of titJe is done in accordance with the procedures set forth in A.S.C.A. §§§§ 37.0102-03, whose purpose is to give notice to anyone who might wish to file an objection to the application. Provided that no such objections are tiled, the Registrar records a title which is good against the world. A.S.C.A. §§ 37.0103(c); See Ifopo v. Siatu’u, 12 A.S.R.2d 24 (1989). A procedurally valid registration in accordance with A.S.C,A. §§ 37.0101 et seq. precludes subsequent judicial inquiry into the validity of the record owner’s title; the statutory scheme gives “anyone who wishes to object on any ground whatever to the registrant’s claim of ownership” a sixty-day period within which to do so, and provides that in the absence of such objection, “the land is registered in the name of the claimant and all other claims of ownership are forever precluded. ” Ifopo, supra, at 26.

The immediately succeeding chapter, A.S.C.A~ §§ 37.0201 et seq. , deals with” Alienation of Land. ” It provides a number of substantive restrictions on alienation and also sets forth procedures tor the lawful alienation of land. The latter, including a requirement that any proposed alienation of communal land be submitted to a Land Commission and to the Governor for approval or rejection, are designed to ensure that land will not be alienated lightly even in the absence of a specific substantive restriction. The final step in the procedure for alienation of land is set forth in A.S.C.A. §§ 37.0210, providing that “[n]o instrument shall be effectual to pass the title to any land. ..until such instrument has been duly registered with the territorial registrar.” When a buyer and seller comply with the provisions of A.S.C.A. §§§§ 37.0201 et seq., including the recordation provision of A.S.C.A. §§ 37.0210, the buyer becomes the owner of whatever interest the seller had in the land.

The distinction between registration “of the land” and “of the deed ” is best characterized as a distinction between substance and procedure. The protection afforded a landowner by compliance with A.S.C.A. §§§§ 37.0101 et seq. is essentially a form of estoppel: having been duly notified to come forward within sixty days, rival claimants are thereafter precluded from attacking the validity of the record owner’s title. The protection afforded by compliance with A.S.C.A. §§§§ 37.0201 et seq. is substantive: although rival claimants remain procedurally free to object to the record owner’s title, anyone who acquires land in [13ASR2d80] conformity with the substantive and procedural provisions of this chapter (and who acquires the land from someone who really was the owner) thereby becomes the lawful owner of the land. Thus a party who claims to own land, even though he may not have registered the land in accordance with the procedurally requirements of A.S.C.A. §§§§ 37.0101 et seq. and therefore cannot take advantage of the preclusive effect of that chapter, will nevertheless prevail on the merits provided that he bought the land from its lawful owner in compliance with A.S.C.A. §§ 37.0210 and the other statutes governing the validity of land transfers.

It would be to the advantage of a party who purchases land that has never previously been registered to apply for registration in accordance with both the “Titles” chapter and the” Alienation” chapter . The Certificate of Title issued by the Registrar suggests that defendant’s application was so construed. It does not appear from the evidence before us, however, whether the process of registration met all the statutory requisites for registration of land under A.S.C.A. §§§§ 37.0101 et seq. Specifically, although it does appear that a notice was posted telling interested persons that they had a right to object to the warranty deed, the last date specified for such objections was September 8. This was twenty -eight days sooner than the end of the sixty-day period specified by A;S.C.A. §§ 37.0103 for objections to land registrations.

It may be that the Registrar was relying on the sixty-day notice that had been posted pursuant to Vaimaona’s offer of registration in 1978 —which, together with the subsequent warranty deed from Vaimaona to Tuitasi, would arguably bar any objections to Tuitasi’s title .. or it may be that a separate notice was posted pursuant to A.S.C.A. §§37.0103 but not introduced into evidence in the present case. Although a number of documents pertaining to registration of the land were introduced by both parties, neither party called the Registrar to testify about whether the documents in evidence constituted his office’s entire file on the land, as is the usual practice in land registration cases. The record does reflect that the Registrar waited until October 20, which was more than sixty days after the application and posting of notices, before registering defendant’s title.

Contrary to another of plaintiffs’ assertions of error. the Registrar’s certificate of title is presumed to be valid and a party asserting its procedural irregularity has the burden of presenting “compelling proof.” lfopo v. Siatu’u, supra, at 28 ([989). “[T]hat a document should be missing from a file in the Registrar’s Office” … much less from what may have been only the partial contents of such a [13ASR2d81]file — “is so common as to be an extremely unreliable indicator of whether an event that might have been attested by the document did or did not occur. ” Id. at 28. Nevertheless, if our holding that defendant Tuitasi is the owner of the land rested squarely on the preclusive effect of plaintiffs’ failure to file objections within the sixty days prescribed by A.S.C.A. §§§§ 37.0103, we would be inclined to grant a new trial for the limited purpose of calling the Territorial Registrar to testify about the process by which Mrs. Tuitasi’s title was registered.

Such an exercise would be pointless, however, for plaintiffs cannot prevail on the merits even if A.S.C.A. §§ 37.0103 does not preclude them from attacking defendant’s title. This is because the record clearly shows that the land was validly purchased in accordance with all the provisions of A.S,C.A. §§§§ 37.0201 et seq. Defendant acquired the land from Vaimaona, who as sa’o of the family was the person vested by law with power to dispose of it within the statutory restrictions and procedures for alienation of communal land.

Plaintiffs’ assertion that A.S.C.A. §§ 37.0204 “specifically prohibits the alienation of communal lands” is simply wrong. On the contrary, the section prohibits such alienation only “without the written approval of the Governor” and “to any person who has less than one-half native blood. “This section is living proof that the Fono knows how to restrict the power of a sa’o when it wants to. The custom that major decisions should be made ip cor1sultationwith the whole family {a custom unfortunately honored perhaps as often in the breach as in the observance) is not among those the Fono has seen fit to incorporate into the statutory restrictions on the otherwise plenary powers of a sa’o over family lands. Vaimaona is therefore unable to avoid his contract on the ground of his own violation of this custom, and the other plaintiffs’ remedies are against Vaimaona and not the purchaser. When she “received her deed from the grantor and registered it. …title to the property described in her instrument passed to her and the grantor lost all of his interest therein. ” Moon v. Falemalmna, 4 A.S.R. 836, 839 (1975).1

Plaintiffs’ other objections are without merit. Our finding that Vaimaona signed the deed is supported not only by the weight of the evidence, but also by plaintiffs’ own judicial admission: paragraphs 5 and

 


1 The quoted passage cites former 27 A.S.C. §§ 601(a), the scction providing for registration of instruments which) was renumbered as A.S.C.A. §§ 47.0210 when the present Code was adopted. [13ASR2d82]

 

6 of the complaint state that he executed the document in question but that he did not understand what it was. Plaintiff Vairnaona had every opportunity prior to trial to examine the deed for possible forgeries; he even appended it to his complaint as Exhibit A. His discovery that he did not sign the document after all seems to have been a last-minute inspiration.

Similarly, Vaimaona’s testimony that he always thought he was just giving permission to renovate a house and not conveying land was contradicted not only by the defendant but also by the two Land Commission members who testified at trial. Although their recollections differed in some respects, both members specifically recalled explaining to Vaimaona the legal effects of his proposed action.

Plaintiffs also urge for the first time that notice of the deed and/or land registration should have been posted in Aumi, not Lauli’i. Aumi is usually regarded as a subdivision of the village of Lauli’i. In any case, plaintiffs did not raise this issue in their pleadings or at trial; indeed, paragraph 4 of their complaint alleges that the disputed land is located “in Aumi, Laulii, American Samoa.”

Plaintiffs further suggest that the registration was invalid beca4se the file contains no notarized affidavit of posting. This objection is moot insofar as our holding does not rest on the preclusive effect of A.S.C.A. §§ 37.0103. In any case, this section does not require that posting pe evidenced by an affidavit or any other particular term of evidence; see Ifopo, supra. (A.S.C.A. §§ 37.0210, the statute providing for registration of instruments as opposed to title itself, not only requires no affidavit but does not specify posting or any other particular form of notice prior to registration. In this case, however, the record shows that at least 52 days’ notice was given of the Land Commission hearing on the deed transferring title. Indeed, it is hard to see how plaintiffs can complain that they received no notice when plaintiff Vaimaona himself was there and testified.)

Finally, plaintiffs note that the certificate of posting says that notice was posted at “the Administration Building” rather than “the Court House. ” Again, this matters only insofar as our holding rests on the preclusive effect of A.S.C.A. §§ 37.0103; it has no bearing on whether defendant validly purchased the land. We take judicial notice, however , that the language in question tracks the language of A.S.C.A. §§ 37.0103 prior to its amendment in 1979, and that for some years now the Registrar has posted notices not at the Administration Building but at the [13ASR2d83]Court House (which is itself the former Administration Building). Although the Registrar’s office should certainly have gotten around to changing its form by now, we decline to accept this as a basis for the invalidation of every land title registered since 1979.

Accordingly, the motions are denied.

It is So ordered.

*********

In re Guardianship of the Estate of SOFA’I

FALELUA, A Minor Child, and concerning FUATINO

FALELUA, Guardian of the Estate FUATINO FALELUA, Guardian Ad Litem for the Minor

SOFA’I FALELUA, Plaintiff

v.

CONTINENTAL INSllRANCE COMPANY and

DOES I through V, Defendant

High Court of American Samoa Trial Division

PR No. 32~88

CA No.89-88 December 13, 1989

__________ No cause of action for “loss of filial consortium” was recognized at common law, although parents could recover damages for tangible losses such as child’s lost wages and medical expenses.

Although traditional limitation or damages for the injury of one’s child to palpable economic losses may ref1ect an outmoded view of children as mere economic assets, in a territory where the typical tortfeasor has few traceable assets and little or no insurance the recognition of a cause of action for collateral harm to a parent as a result of his child’s injuries would almost certainly have the principal effect of reducing the sum available; to compensate the child for injuries more palpable, direct, and severe than those suffered by the parent. [13ASR2d84]

Recognition of a cause of action for collateral harm to parent arising out of his minor child’s injuries would practically guarantee a conflict of interest in every settlement negotiation arising out of such injuries, since zealous representation of the child’s claims would deplete the fund available to compensate the fiduciary:

Case in which (I) child’s injuries were unlikely to have a shattering effect on the paren- child relationship; (2) the parent and guardian ad 1item might herself have contributed to the injuries; and (3) the parent/guardian had waived any claim in her personal capacity by submitting a stipulated judgment requesting in effect that the entire settlement be deposited in a trust account for the child, was inappropriate for the recognition of a new cause of action for loss of filial companionship.

 

Before REES, Associate Justice, MATA’UTIA, Associate Judge. Counsel: For Petitioner, John L. Ward II.

 

On Motion for Reconsideration:

This motion, tiled in connection with what would otherwise be a routine request by the guardian of a minor child for disbursement of funds held in trust for the child, raises the question whether the law of American Samoa recognizes a cause of action for “loss of filial consortium” for a parent whose child has been injured.

The child in question, Sota’i Falelua, was injured in a motor accident. The child had been riding in a pickup truck belonging to his father. The truck was being driven by someone else, apparently with permission of the father. The child’s mother sought appointment as guardian ad litem and then sued the driver and the owner’s (i.e., the child’s father’s) insurance company. The complaint alleged that the driver had negligently caused the minor’s injuries. Although plaintiff was identified throughout the complaint as guardian ad litem and purported to sue only in such capacity, her complaint also stated that she had “been deprived of comfort and happiness in minor’s society and has suffered a great deal of mental pain and anguish, has been deprived of the services of minor as her parent, and those other pleasures and rights growing out of the parent-child relationship known as consortium.”

On April 24, 1989, the parties submitted a proposed settlement and stipulated judgment for the approval of the Court. The stipulation provided in pertinent part that “[t]he Court, having previously appointed Plaintiff herein as Guardian ad Litem of the minor child. is [13ASR2d85]

respectfully urged to order deposit of the proceeds of this settlement in the Court Registry. ” The Court approved the proposed settlement and accepted the proposed deposit of funds into the registry of the Court in trust for the child.

On June 1, 1989, the guardian submitted a “petition for release of funds, ” The petition stated that the American Samoa Government had determined that the child Sofa’i should be sent to Hawaii for medical care; that, in accordance with its usual practice, the Government was to pay air fare for Sofa’i and also for the guardian herself as well all medical costs; but that the guardian anticipated certain other travel expenses for which she requested a disbursement from the child’s trust fund. The unitemized request was for $1,500. The Court felt that $300 was more consistent with the usual standard for supplemental travel expenses, and disbursed this amount subject to the guardian’s commitment to file an accounting upon her return from Hawaii.

On June 22 ~he Court received a request for a supplemental disbursement of $350. This request contained the following assertion:

[t]he funds on deposit. ..represent the settlement of claims on behalf of the minor child, as well as the parents as outlined in Count II of the original complaint. The actual amounts due the minor [and] the parents. ..has yet to be judicially determined.

This was news to the Court, which had already established a trust account for the minor child and approved a disbursement from this account. The Court did approve the requested supplemental disbursement of $350, subject to the requirement of a subsequent accounting, but observed that “the money belongs to the child. “

The Guardian subsequently moved for reconsideration of that part of the Court’s order decreeing that the entire sum held in the registry of the Court belongs to the child. Counsel has submitted authorities for the proposition that parents have a right to recover for loss of “filial consortium” in connection with injuries to a child, and argues that the Court should allocate part of the settlement to the mother/guardian as compensation for such loss.

“Loss of filial consortium” is a new idea in American Samoa and a relatively new one elsewhere. No such cause of action was recognized at common law, although parents could recover damages for [13ASR2d86]

tangible losses such as a child’s lost wages and medica! expenses. Prosser & Keeton on Torts §§ 125 at 934 (5th ed. 1982). Despite the traditional association of the term “consortium” with discontinued sexual relations between an injured person and his spouse, at least one court has used this term in connection with damages arising from the loss of filial companionship, society, and comfort. See Reben v. Ely, 705 P.2d 1360 (Ariz. App. 1985). Other courts have awarded such damages while avoiding the term “consortium. ” Shockley v. Prier, 225 N. W .2d 495, 499 (Wis. 1975); Bullard v. Barnes, 468 N .E.2d 1228, 1233 (Ill. 1984).

It may be true, as cases such as Shockley and Bullard suggest, that the traditional limitation of damages for the injury of one’s child to palpable economic losses reflects an outmoded view of children as mere economic assets. In American Samoa, however, where the typical tortfeasor has few traceable assets and is insured tor $10,000 if he is insured at all, the recognition of a cause of action for collateral harm to a parent as a result of his child’s injuries would almost certainly have the principal effect of reducing the sum otherwise available to compensate the child for injuries that are by definition far more palpable, direct, and severe. This, in turn, would practically guarantee a substantial conflict of interest in every settlement negotiation arising out of personal injuries to a minor child; unless the direct injury to the child is unusually slight or the fund available for settlement unusually large, zealous representation of the child’s claims will have the effect of depleting the fund available to compensate the fiduciary. Cf Galo v. American Samoa Government, 10 A.S.R.2d 94 (1989); Logoa’i v. South Pacific Island Airways, 111(:.,6 A.S.R.2d 28 (1987).

The facts of the pr~sent case, moreover, render it a singularly inappropriate vehicle for the recognition of a new cause of action for loss of filial companionship. On the face of the complaint it appears most unlikely that the injuries suffered by Sofa’i will have the sort of “shattering effect”on the parent-child relationship that has been found to justify such a cause of fiction. Shockley, supra, 225 N.W.2d at 499. It was also asserted in defendants’ answer that the guardian herself had contributed to the accident by permitting her child to ride in the back of a pickup truck. If proven at trial, this might have severely limited the guardian’s recovery.

If the guardian ever had a claim in her personal capacity, she waived it when she submitted a stipulated judgment which requested that the entire settlement be deposited in the Registry of the Court. In the context of High Court practice, such a request in connection with a [13ASR2d87] settlement involving a minor (and in a stipulation referring to the child’s mother as Guardian ad Litem and in no other capacity) can only be reasonably construed as a request for the establishment of a trust account. See: Judicial Memorandum No.1-88, 7 A.S.R.2d 146 (1988). Finally, a proposed order submitted by the guardian during the pendency of the present motion for reconsideration, formally requesting the establishment of a trust account and approval of the submitted expenses submitted by the guardian, appears even more clearly to waive any personal claim of the guardian to the funds in the trust account.

Accordingly, insofar as it requests a reconsideration of our decision that the entire settlement amount belongs to Sofa’i Falelua, the motion is denied.

Taking the motion as one for the approval of the submitted expenses, we find the following items to be related closely enough to the child’s medical condition to justify their satisfaction from the trust fund: $ 79.04 for prescription sunglasses; $ 8.78 for eye patches; $ 5.00 for medicine; and $45.00 for transportation to medical appointments while in Hawaii. The request for $131.20 for telephone calls from Samoa to Hawaii is granted on the guardian’s representation that the calls concerned the child’s medical treatment.

The guardian has also submitted a claim for $565.00 for food, representing payments the guardian says she made to the relatives with whom she was staying. Only those food costs in excess of what would have been expended in Samoa for food may be recovered. Despite the lack of any evidence on this, but in recognition of the fact that prices in Hawaii may be somewhat higher, $150,00 is granted for food costs.

The guardian has also submitted a bill for $168.34 for medical bills she herself incurred while in Hawaii. Because she was in Hawaii to care for Sofa’i during his medical appointments, and because she would have had access to free medical care had she remained in Samoa, these expenses may be recoverable provided that they were truly necessary. The guardian has submitted no evidence to establish the necessity of these expenses.

We therefore approve expenditures from the trust fund in the amount of $419.02, out of the total amount of $650 that was advanced to the guardian. The guardian should submit evidence to document the necessity of the $168.34 requested for her own medical expenses, and should return $62.64 to the trust fund. [13ASR2d88]

It is so ordered.

*********

SINIRA FUIMAONO LUTU, Plaintiff

v.

MUAMUA SEMEATU and SALA SEMEATU, Defendants

High Court of American Samoa

Land and Titles Division LT No. 9-87

December 14, 1989

__________ Counsel who wished to readvance an argument that had been rejected by the court should have done so by filing a timely motion to reconsider the court’s interlocutory order, not by simply ignoring the order.

Where it did not appear from the evidence that a common grantor had so1d two parties the same land, but on the contrary the two deeds clearly described two different adjoining parcels, a defect in the title conveyed to the first purchaser would not give him right to the land the common grantor had conveyed to the second purchaser.

Where a common grantor had sold two different adjoining parcels to two purchasers, and it appeared that strangers to these transactions had encroached on the land sold to the first purchaser, the first purchaser’s remedy was against the people who were encroaching on his land and not against the second purchaser .

Before REES, Associate Justice, TAUAN’U, Chief Associate Judge, and AFUOLA, Associate Judge.

Counsel: For Plaintiff, Afoa L.S. Lutu

For Defendants, Charles v. Ala’ilima This is a boundary dispute between two parties who purchased adjoining lots in the same subdivision.

Most of the facts are undisputed. Plaintiff and defendants each purchased a portion of a tract of land in Ili’ili called Leuluasi. This [13ASR2d89] tract, said to contain about 18 acres, had been registered and subdivided in 1974 by one Logotala Noa.

In 1975 Noa sold a lot in the northwest comer of the subdivisior1, described by reference to certain metes, bounds, and iron pins and further described as containing 1.027 acres more or less, to Vincent Ah San. In 1984 Ah San executed a contract of sale to the defendants, which was recorded in the office of the Territorial Registrar. Ah San also signed a deed conveying the land to the defendants but did not appear before the Territorial Registrar to attest to his signature, apparently because the Semeatu had not yet paid the purchase price. The Registrar has therefore not recorded the deed. Defendant Muamua Semeatu testified that he has paid Ah San about $IO,OOQ of the $15,000 purchase price.

In the meantime, plaintiff had purchased her lot from Noa and recorded the deed in 1981. This lot, like that of defendants, is defined by reference to metes and bounds and iron pins; it is further described as containing. 998 acres more or less. It is clear from the maps accompanying the 1975 deed to Ah San and the 1981 deed to plaintiff that the two lots were meant to share a 208-foot border. Plaintiffs property is along the western edge of the subdivision just to the southeast of defendants.

After purchasing their land in 1981 plaintiff and her hlsban4 di4 not immediately build on it. In 1986 plaintiff went to clear what she thought was her land and found much of it occupied by defendant. This lawsuit followed,

Each party hired a surveyor to retrace his or her boundaries. Each surveyor testified that he had found a few old pins and other landmarks, although not many, suggesting that the boundaries was where his client said it was. On balance this evidence was not particularly helpful to either party.

Each party also offered evidence offered that his or her boundaries were accepted as such by other neighbors. Unfortunately, this evidence also pointed both ways.

It appears that the line used by defendants to calculate their western boundary {i.e. , the western boundary of the whole Leuluasi subdivision) roughly corresponds to the boundary observed by the occupants of a tract to the west. This tract, called Lauofe, was [13ASR2d90] registered in 1981 as the property of Lupelele Letuligasenoa, and its occupants are there by permission either of Lupelele or the late Ti’a Misilagi. (Lupelele and Ti’a are prominent land claimants in and around Ili’ili.) The boundary observed by plaintiff, on the other hand, corresponds to the boundaries observed by most if not all of the other residents of the Logotala Noa subdivision.

Whether or not acceptance of certain boundaries by neighbors is part of the solution to this case, it definitely is part of the probleIJ1. If plaintiff is right about her boundary with defendants, then the tract purchased by defendants is further to the west than defendants claim it to be, and therefore includes an area currently occupied by the Lupelele or Ti’a people. If defendants are right, then not only plaintiff but everyone else in the subdivision is mistaken: plaintiffs eastern and southern neighbors are encroaching on her land, and those neighbor’s own eastern and southern neighbors are committing a similar encroachment, and so forth.

At the conclusion of the trial the Court observe<} that neither side had presented what appeared to b~ a crucial piece of evidence expert testimony with respect to the actual physical location of the two coordinates {X = 239,818.75′, Y = 283,953.05′) defining the starting point of the subdivision. The legal descriptions of both plaintiffs and defendants’ land consisted of metes and bounds defined by reference to this point. The point, in turn, is defined as being a relatively short distance (1328 feet) in a specified direction from a point (the Agogo Triangulation Station) whose location is undisputed. If this point could be relocated on the ground, and if it was correctly located when Noa did his survey in 1974, the Court would be able to identify with certainty the true boundary between plaintiffs land and that of defendants.

Plaintiffs surveyor apparently did not attempt to relocate the original starting point on the ground by reference to the Triangulation Station because he accepted the accuracy of a point identified by Tito Malae, an occupant of the subdivision who had purchased his lot from Noa in 1983. The Court asked defendants’ surveyor why he had not located this point on the ground; he said that he considered this exercise too time-consuming and that the evidence he had already presented was more probative than the physical location of the point in question. The Court respectfully disagreed and ordered the parties to present evidence by August 31, 1989, of the physical location of the starting point defined in the 1974 survey. The Court ordered that the parties agree on a single [13ASR2d91]surveyor to do the necessary work, or in the event such agreement should prove impossible that each party choose a surveyor and the two surveyors choose a third surveyor to locate the point of beginning.

August 31 came and went with no submission of evidence by the parties or either of them and no request for an extension. The Hi8h Court of American Samoa being an extraordinarily easygoing tribunal with respect to its treatment of those who inadvertently disobey its orders, the Court waited until mid. October and then asked the Clerk to inquire after the missing evidence.

Counsel for defendants responded with a memorandum reiterating his position that the evidence requested by the Court w~s unimportant comp~red to the evidence already submitted by defendants, and concluding with the observation that “defendants’ surveyor does not have sufficient information to either retrace the original surveyor’s control in the field or to calculate the accuracy of the mathematics used to establish the coordinates given.” Although couched in language suggesting the impossibility of compliance with the Court’s order, on closer inspection this statement amounts to yet another reiteration of defendants’ original position that the evidence sought by the Court was not important because the original surveyor might have been mistaken about the coordinates.

While it is impossible for a Court to evaluate evidence it has not yet seen, we have as yet no reason to believe that the coordinates depicted in the 1974 survey map —the key link in each party’s chain of title –.were anything but an accurate representation of the point from which Logotala made his original survey on the ground. Counsel for defendants advances no particular reason to believe any such error occurred, but seems to say that if the point depicted by the coordinates should turn out to be anywhere but where his surveyor says it ought to be, then the coordinates would necessarily be wrong. For reasons we shall discuss, this contention rests on a vastly inflated estimate of the strength of the evidence presented by defendants. If, however, counsel for defendants had wished to re-advance this argument in an effort to persuade the Court to reconsider its order, he should have filed a motion for reconsideration within ten days after the order was made. Instead he apparently chose simply to ignore the order.

Courts usually deal with a party’s refusal to produce evidence by pres~ming conclusively that the evidence would be unfavorable to the [13ASR2d92] party. In this case, however, the defendants were not alone in ignoring the order. When the Clerk contacted counsel for plaintiff to inquire about the supplemental evidence, counsel responded that he had been very busy and had not been able to get to it. Like counsel for defendants, he expressed the opinion that the evidence already presented clearly preponderated in favor of his own client and obviated the need for further evidence.

The Court has given serious consideration to imposing sanctions on both counsel. Our decision not to do so should not be regarded as a precedent likely to be followed in future cases.

We are left to decide the case on the preponderance of the evidence before us. This evidence, although hardly clear and convincing, favors the plaintiff.

Both parties agreed that many if not all of the original 1974 pins and monuments can no longer be located and have probably been removed, and that many new monuments have been placed by various persons since 1974. Defendant Muamua Semeatu himself admits to having removed survey pins, although he insists that he has removed only new illegitimate pins and not old legitimate ones. All of the pins and other man-made monuments (fences, hedges, etc.) “found” by defendants’ surveyor could easily have been placed there some years after 1974 by persons —most notably defendants themselves, their grantor Ab San, and the Lupelele or Ti’a people to the west —whose? interests may have consisted not in perpetuating the 1974 boundary but in relocating it, Indeed, one of the surveyors who surveyed the tract sold to Ah San by Noa in 1974 testified that he revisited the land in or around 1985 and that Ah San’s tract (which Ah San had contracted to sell to defendants) was by then located in a different place.

It further appears that the 1981 survey of Lauofe registered by Lupelele substantially encroaches on the northwestern corner of the 1974 Leuluasi survey registered by Logotala. According to the survey maps, any attempt by the residents of Lauofe to occupy the entire extent of the area claimed by Lupelele would consume all the land purchased by the defendants and much of that purchased by the plaintiff.

This evidence, together with the Court’s impression of the witness Ah San as a man with a healthy regard f(>r his own interests but no taste for outright disagreement with anyone, supports plaintiffs contention that Ah San —or possibly defendants themselves —moved

[13ASR2d93] to the south and east of the tract Ah San had purchased from Noa in order to avoid a boundary dispute with his western neighbors, or perhaps as the result of such a dispute. This put him in occupation of a substantial portion of the tract sold to plaintiff Lutu but not yet occupied by her. Although the evidence for this contention is circumstantial rather than direct, it is less speculative and more consistent with the record than defendants’ contention that the various other buyers in the Leuluasi subdivision —including the Nomuras, who purchased their tract in 1975, before the Ah San purchase and only a year after the origin31 survey by Noa —all made an identical mistake about the location of the boundaries of this survey.

Nor does the evidence support defendants’ intention that any conflict must be resolved in their favor because their grantor, Ah San, purchased his tract before plaintiff purchased hers. This does not appear to be a case in which a common grantor sold two parties the same land; on the contrary, the deeds to Ah San and the plaintiff clearly describe two different parcels which adjoin but do not overlap. If the tract sold to Ah San really belonged to Lupelele, there was no reason to take it out on Mrs. Lutu. If (as seems more likely in light of the undisputed tracts that Lupelele’s survey was not registered until seven years after Noa’s and that the area now in dispute was jungle in 1974) the Lupelele people began encroaching on Ah San’s land at sometime after he bought it, then his remedy was against them and not plaintiff Lutu.

Defendants could purchase from Ah San only what he owned. This appears to be a tract whose boundary with defendant is about 84 feet to the north and west of the boundary they claim, to the northwest of the land designated “disputed area” in Plaintiffs’ Exhibit 4.

Although it would appear from the evidence that defendants may have a claim against Ah San and/or their neighbors to the west, no such claims can be adjudicated in this action.

For the reasons stated, judgment will be entered for the plaintiff permanently enjoining the defendants from going on the tract belonging to plaintiff, including the land designated “disputed area” in Exhibit 4. Execution of this judgment will be stayed for sixty days to allow defendants time in which to harvest crops and remove any other property they may have in the disputed area.

 

It is so ordered.

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[13ASR2d94]

In the Matter of TWO MINOR CHILDREN

High Court of American Samoa

Trial Division JUV No.9-89

JUV No.43-89

December 15, 1989

__________

Petitions to terl11inate legal rights and obligations of natural parents in order to facilitate adoption by much older prospective adopting parents were not in the best interest of the children, where natural parents were; much younger, had potential to be good providers, and appeared to have strong bonds with the children.

Before REES, Associate Justice, MATA’UTIA, Associate Judge. and OLO , Associate Judge. Counsel: For Petitioner in JUV No.9-89! Isa-Lei F. Iuli

For Petitioner in JUV No.43-89, Togiola T.A. Tulafono and Roger Hazell These two cases involve the requested termination of parental rights in order to facilitate adoptions by much old~r sets of prospective adopting parents.

The prospective adopting father in JUV No.43-89 will be 82 when the child reaches the age of majority. The prospective adopting father in JUV No.9-89 will be 91 when the child reaches the age of majority.

In each case the prospective adopting parents are prominent citizens and fine people who wish to provide a good future for the child. Also, however, in each case the natural parents are much younger, have the potential to be good providers, and appear to have strong bonds to the child.

In each case the parties are free to adopt the child fa’a Samoa and to have the child live with them as long as this is the wish of the child and the natural parents. But in neither case cap we certify that [13ASR2d95]termination or the legal rights and duties of the natural parent would be in the best interest of the child.

Accordingly, the petitions are denied. It is so ordered. *********

SIVIA SIVIA, JR., BEN FALEAFAGA, and

FUATA PEPA, Objector/Plaintiffs

v.

ALAIMALO PEPINE HENRY PORTER and HEIRS,

Claimant/Defendants High Court of American Samoa

Land and Titles Division

LT No.88-81

December 18, 1989

__________

 

Claim to individual ownership of land in American Samoa requires proof of initial clearing of bush land and sustained use and occupation of the land thereafter.

Matai assigning or designating family land for the use of a particular member does not lose pule (authority) over such land.

Family member’s continued right to use and occupy communal land is conditional upon his providing tautua to the matai.

Matai cannot alienate land without complying with certain statutory procedures, including the approval of the Governor of American Samoa. A.S.C.A. §§§ 37.0201 et seq.

Offer to register certain land either as individual or communal property of claimants would be denied where: a prior suit held that land was owned communally by objectors to the registration; claimants cited two different theories of ownership in their offer of registration and at trial; and claimants’ theories were inconsistent with both law and custom.

Where objectors to registration of land cited a prior case holding that the land belonged to them, but offered no surveys delineating the extent of their respective claims within the disputed area, the court would deny the offer of registration but would express no opinion with regard to the claims of the objectors beyond the holding in the prior case. [13ASR2d96]

Before KRUSE, Chief Justice, OLO, Associate Judge, and VAIVAO, Associate Judge. Counsel: For Plaintiff Sivia, Togiola T .A. Tulafono and Roger Hazell

For Plaintiffs Utu family, Utu Sinagege R.M. For Defendants, Charles V. Ala’ilima In January 1981, Alaimalo Pepine Henry Porter surveyed a certain area of land which he then offered for registration as the individually owned and of” Alaimalo Pepine Henry Porter and his heirs. ” This offer prompted a number of objections from members of both the Utu family and the Paolo family of Amouli village in the County of Saole, Eastern District. The land, which the parties refer to as “Oloie, ” is located in Auasi towards the eastern outskirts of Amouli village. The objectors complain that Porter is attempting to claim their respective communal fami1y land. They point to an earlier title dispute which the Court resolved in favor of the Utu and Paolo families against certain people from Aunu’u who laid claim to a part of Oloie. Utu and Paolo v. Fonoti, 1 A.S.R. 208 (1907).

At the time of trial, claimant Porter aborted his claim of individual ownership. In lieu thereof, he sought to establish his family’s stake as being one in communal ownership pertaining to the title “Alaimalo. ” Mr. Porter has, since the commencement of this action, resigned from the title “Alaimalo” in favor of his daughter, Jane, who has joined in these proceedings as the Alaimalo title holder. The Porters are also members of the Utu family; however, they ground their claim to “Oloie” on the basis of an “assignment” of the land made by a former Utu to one Faimafili. They contend that this as assignment was in fact all outright transfer of ownership to Faimatili, a taute’ale’a (non.matai) who was at the time rewarded for tautua (traditional services) rendered to Utu. Faimafili is also the father of claimant Alaimalo Pepine Henry Porter .

The Porters further claim that the said Faimafili “created” for himself the matai title” Alaimalo” in 1941 with the blessings of the Utu. The conclusion one is invited to draw from the above is that Faimafili’s new found matai status then somehow merged with his estate in the land “Oloie,” giving the said land communal status appurtenant to his Alaimalo title, and, therefore, belonging to the Alaimalo family,

 


1

 

The offer to pursue his claim as one in “communal ownership as opposed to [13ASR2d97] Counsel for the Paolo family objected strongly against permitting the claimant to suddenly change story in midstream. His clients were not alert to contest a communal ownership claim. Alternatively, counsel pointed out that the new allegations by the claimant, regarding an assignment by a former Utu, did not take anything away from the Paolo family’s entitlement to “Oloie”as established in Utu and Paolo v. Fonoti, supra. Utu may not give away what is Paolo’s.2

For the Utu family, the incumbent senior matai, Utu Sinagege R. Morris, who himself besides on “Oloie,” also rejected the Porter’s ownership claim and vigorously denied the asserted conveyance. He explained their presence on “Oloie” as stemming from the fact that they are members of the Utu family occupying Utu family property in accordance with custom. Utu further claims that Alaimalo is a lesser matai of the Utu family.

Discussion

The claim to ownership asserted by the Porters sadly lacked coherence and hence the rather uncertain manner in which their claim evolved in the course of these proceedings. Credibility was immediately at issue with claimant’s change of theory. Among other things, a claim to “individual ownership is a claim to initial clearing of bushland as well as sustained use and occupation of the land thereafter. See, e. g. , Lealaimatafao v. Noa, 9 A,S.R.2d 9 (1988). The initial clearing of bushland by claimant would, therefore, have been a necessary often of proof, for a claim in individual ownership. Such an offer of proof, however, would be a contradiction of Utu and Paolo v. Fonoti, supra. In these circumstances, it is difficult to resist the conclusion that claimam ‘s change in theory was necessitated by the need to be consistent with the holding in Utu and Paolo v. Fonoti.

 


“individual ownnership is in essence the same: attempt to register the land in favor of the Porter family to the exclusion of the extended Utu family. Registration of title to the land “Oloie” is sought in the name of the “Alaimalo” family. The “Alaimalo” family is non~ other than the Porter family as the title “Alaimalo ” is claimed by the Porters as a creation of their grandfather, Faimafili, and, therefore, as the exclusive reserve of Faimafili’s immediate descendants.

 

2 Notwithstanding the reasoned submission by counsel, curiosity nonetitle remains aroused with Paolo’s admission that none of his family members had, within his time, occupied or maintained crops in the vicinity of Oloie. [13ASR2d98]

The amended claim to communa1 ownership is, however , without foundation. The claim to an outright assignment, or surrender by Utu of his family’s title to “Oloie,” in return for services rendered, is not only inconsistent with law but also with custom. Firstly, a matai assignment or designation of family land for the use of a particular family member does not divest the matai of his authority or “pule” over the land. Toleafo v. Tiapula, 7 A.S.R.2d 117(1988), (aff’d 12 A.S.R.2d 56 (1989); Leapalga v. Masalosalo, 4 A.S.R. 868 (1962); Pisa v. Solita, 1 A.S.R. 520{1935); Levu v. Maluia, 1 A.S.R. 197 (1908), If it were otherwise, there would be very little communal land left, if any, in the territory.

Moreover, a family member’s continued right to use and occupy communal land holdings is conditional upon his providing tautua to the matai. Toelefoa v. Tiapula, supra. 1f, as suggested by claimant, assignments could be construed as out and out grants, then there would be no further need for tautua, for matai, or indeed for a communal way of living and fa’a Samoa.

Finally, claimant’s theory of assignment (of communal land) cannot be reconciled with the legislative prohibition against matai alienation of land without compliance with certain statutory procedures, including the approval of the Governor of American Samoa. A.S.C.A. §§ 37.0201 et seq. See also Teo v. Totoa,2 A.S.R. 243 (1947); Tuafili v. Taape, 2 A.S.R. 155 (1944).

We sustain the objections and accordingly deny the application by Alaimalo Pepine Henry Porter and his heirs to register title to the land “Oloie.”

On the other hand, neither of the objecting families provided a survey delineating the exact extent of their respective claim for the Court’s consideration. At the same till1e the objectors both agree al1d submit that “Oloie” is a much larger area of land than that considered in Utu and Paolo v. Fonoti, supra, and that surveyed by the Porter family. They also both lay claims to greater Oloie, whatever that might be. With regard, therefore, to the respective claims of the Utu and Paolo families, we intimate no opinion beyond this Court’s holding in Utu and Paolo v. Fonoti.

Judgment accordingly. It is so Ordered.

*********

[13ASR2d99]JUDICIAL MEMORANDUM

High Court of American Samoa

May 8, 1989

__________ KRUSE, Chief Justice; Re: Scheduling of Jury Tria}s As you know, we are currently setting jury trials for about six months after the date on which trial is set. This has resulted partly from a receipt increase in the number of defendants requesting jury trials, and partly from the Court’s policy of scheduling no more than ono jury trial per week.

The Court has neither personnel nor facilities adequate to handle more than one jury trial at a time. However, it appears that fewer than one-fourth of the jury trials scheduled are actually taking place. Most cases are resolved by pleas bargains a week or two before the scheduled trial date. As a result, the Court is only hearing about one jury trial per month, while some defendants are facing several month$ of pretrial incarceration.

We are capable of hearing one jury trial every week or so; and are more than willing to do so in order to clear the current backlog. Accordingly, we have decided to change (our policy so as to schedule two jury trials per week until the backlog is substantially reduced.

In order to implement this change, the following steps should be taken during the next few days:

I) The Assistant Attorneys General handling criminal cases should review all such cases scheduled for trial after June I, 1989, to determine which cases should be reset to earlier dates. First priority should go to cases in which the defendants are incarcerated.

2) The Public Defender and private defense attorneys should also review their scheduled cases, and should contact the Attorney. [13ASR2d100]Generals office immediately in the event that an accelerated trial date is not desired or in the event that some dates would be inconvenient.

3) The Assistant Attorneys General should prepare stipulation in each case in which it is determine that a new trial date would be appropriate. The stipulation should be presented to the defense attorney for his approval, and then to the Court.

4) In any case in which one party wants an accelerated trial date and the other party does not, the party desiring acceleration can make a motion to the Court.

5) The Court will grant motions or stipulations sufficient to result in a schedule of two jury trials per week, beginning as soon as possible. Both trials should be set on Tuesday unless there are good reasons to prefer another day of the week.

6) On Monday of each week, the Attorney Generals office and the defense attorneys in the two cases set for the following week should report to the Court whether those cases will actually go to trial. If it appears that both cases will go no trial, it may be necessary to postpone one of them for a few days.

Thank you for your cooperation on this matter . *********

JUDICIAL MEMORANDUM High Court of American Samoa December 20 , 1989KRUSE, Chief Justice: Judiciary Memorandum and Order: The District Court is not ordinarily a court of record; however, in cases where a stenographic record of its proceedings has been made, final decisions of the District Court may be appealed directly to the [13ASR2d101] Appellate Division of the High Court. A.S.C.A. §§3.0309. In the case of proceedings taken without a record, appeal is by way of trial de novo before the Trial Division of the High Court. A.S.C.A. §§ 3.0309.

The Judicial Branch currently has under its full time employ three certified stenographic court reporters, no more then two of whom are required in the High Court at any on time. Since a reporter is, therefore, avai1able at most times to keep a record of the District Court’s proceedings, and because trials de novo are, in many instances, unecessary duplication of effort, in the interests of efficient and economic use of personnel, and pursuant to authority conferred by the A.S.C.A, §§ 3.0102; and §§ 3.0306.

IT IS HEREBY ORDERED: That a record shall be made in the fo1lowing proceedings before the District Court all criminal matters: all civil actions excepting small claims matters; and all traffic proceedings involving serious traffic offenses under Title 22, Chapter 7, A.S.C.A, §§§ 22.0701 et seq.

*******’* 101