5ASR3d164

Series: 5ASR3d | Year: () | 5ASR3d164
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SIULEO POUESI, Plaintiff,

 

v.

 

AMERICAN SAMOA GOVERNMENT,

AMERICAN SAMOA ENVIRONMENTAL PROTECTION AGENCY, and DOES 1-10, inclusive,

Defendants.

 

High Court of American Samoa

Trial Division

 

CA No. 84-00

 

August 15, 2001

 

 

[1] A motion to

dismiss will be treated as a summary judgment motion when evidence extrinsic to

the complaint is presented to and is considered by the court.

 

[2] Summary judgment is appropriate when there is no

genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law.

 

[3] On a motion for summary judgment, the court must

view the pleadings and supporting papers in the light most favorable to the

non-moving party. 

 

[4] If the moving party on a motion for summary judgment

makes a prima facie showing that would entitle him or her to a directed verdict

if uncontroverted at trial, the burden then shifts to the adverse party, who

must set forth specific facts showing that there is a genuine issue for trial.

 

[5] Tort claims against the American Samoa Government

are subject to the Government Tort Liability Act, which states that such claims

shall be forever barred unless an action on it is begun within 2 years after

the claim accrues.

 

[6] In actions for conversion, the cause of action

accrues on the date of the conversion, regardless of when the plaintiff

discovers the conversion or whether he demanded the return of the property,

unless the case involves fraudulent concealment or other act of deceit designed

to hide the defendant’s actions from the plaintiff.

 

Before RICHMOND, Associate

Justice, and ATIULAGI, Associate Judge.*

 

Counsel: For Plaintiff, Katopau T, Ainu`u

 For Defendants, Martin D. McCarthy, Asst.

Attorney General

 

ORDER

GRANTING DEFENDANTS SUMMARY

JUDGMENT

AND DISMISSING ACTION

 

On July 26, 2000, plaintiff Siuleo Pouesi (“Pouesi”)

brought this action against defendants American Samoa Government (“ASG”) and

American Samoa Environmental Protection Agency (“ASEPA”) to recover damages due

to the alleged conversion of a logo designed by Pouesi for ASEPA.  On August 7, 2000, pursuant to T.C.R.C.P.

12(b)(6), ASG and ASEPA moved to dismiss Pouesi’s complaint for failure to

state a claim on which relief can be granted based on the tolling of the

relevant statute of limitations.  Counsel

argued the motion on September 22, 2000.

 

On September 21, 2000, the day before the hearing on

the motion to dismiss, Pouesi filed a memorandum in opposition of the motion

and his affidavit stating additional facts. 

On September 27, 2000, ASG and ASEPA filed a reply to the opposition

memorandum and their counsel’s affidavit, stating he was unaware of Pouesi’s opposition memorandum

and affidavit until after the hearing.  Accordingly,

we have also considered the reply memorandum.

 

Standard of Review

 

[1] A motion to dismiss will be treated

as a summary judgment motion when evidence extrinsic to the complaint is

presented to and is considered by the court. 

Samoana Fellowship, Inc. v. Am. Samoa Power Auth., 24

A.S.R.2d 71, 72 (Trial Div. 1993) (citing Kulwicki v. Dawson, 969

F.2d 1454, 1462 (3d Cir.

1992)).  Pouesi’s affidavit explicated

new facts as evidence of the chronology of events to sustain his claim.  We considered the merit of the facts contained

in the affidavit and, therefore, must treat the motion to dismiss as a motion

for summary judgment.

 

[2-4] Summary judgment is appropriate when

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).  The Court must

view the pleadings and supporting papers in the light most favorable to the

non-moving party.  Amerika Samoa Bank v, United

Parcel Serv., 25 A.S.R.2d 159, 161 (Trial Div. 1994); Ah Mai v. Am. Samoa Gov’t (Mem.),

11 A.S.R.2d 133, 136 (Trial Div. 1989). 

If the moving party makes a prima facie case that would entitle movant

to a directed verdict if uncontroverted at trial, the burden shifts to the

adverse party, who must “set forth specific facts showing that there is a

genuine issue for trial.”  T.C.R.C.P.

56(e).

 

Facts

 

Pouesi designed a logo for ASEPA in 1986.  A disagreement then ensued between him and

ASEPA as to payment for and use of the design. Though Pouesi alleges that ASO

and ASEPA made unkept promises concerning the disagreement and that he

occasionally threatened legal action, he did not initiate any formal claim

until the present one was filed. ASEPA apparently used the logo for over a

decade.

 

Some 13 years after providing the logo to ASEPA, in or

about February 1999, Pouesi claims to have first discovered that ASEPA sold

T-shirts and mugs printed with the logo he designed.  On April 2, 1999, Pouesi submitted an administrative

claim to the Attorney General, a prerequisite under the Government Tort

Liability Act (“G.T.L.A.”), A.S.C.A. § 43.1205, to initiate tort actions

against ASG.  On May 18 and 20, 1999, the

Attorney General advised Pouesi that his claim does not fall under the purview

of the G.T.L.A.

 

Discussion

 

ASG and ASEPA argue that the statute of limitations

has tolled for Pouesi’s claim against ASG and ASEPA for damages due to tortious

conversion of his logo design.  This

argument is supported by statute and case law.

 

[5] Tort claims against ASG are subject

to the G.T.L.A., which states that such claims “shall be forever barred unless

an action on it is begun within 2 years after the claim accrues.”  A.S.C.A. § 43.1204.  Our most recent line of cases interpreting

the term “accrues” for purposes of A.S.C.A. § 43.1204 focuses on the

relationship between the accrual of a claim and the filing of the pre-requisite

administrative claim.  See Bradcock v. Am. Samoa Gov’t, 1

A.S.R.3d 42, 43 (App. Div. 1997) (applying tolling doctrine to the statute of

limitations, effectively adding a three-month period of administrative

processing to the two-year statute of limitations of G.T.L.A., thereby creating

a 27-month time period in which to file a tort action against ASG); Bradcock v. Am. Samoa Gov’t, 28 A.S.R.2d 62, 64 (Trial Div.

1995); Randall v. Am. Samoa Gov’t, 19 A.S.R.2d 111, 116 (Trial Div.

1991); Mataipule v. Tifaimoana, 16 A.S.R.2d 48, 50 (Trial Div.

1990) (claim under G.T.L.A. accrues for purposes of § 43.1204 when the

administrative claim is denied).

Thirteen years passed between Pouesi’s first dispute,

whereby he claims to have confronted ASEPA about its failure to pay for his

logo design, and his discovery and contest of ASEPA’s use of his design for

allegedly commercial purposes.  This more

than surpasses the 27-month statute of limitations applicable to conversion

actions against ASG under Braddock, and so seems to bar Pouesi’s action.

 

Pouesi argues, however, that the statute of

limitations should be regarded as accruing from the time he discovered the

conversion by commercial use of the logo in February 1999.  Such a ruling by the Court would render the

filing of this action well within the limitation period of 27 months.

 

[6] However, the majority common law is

definitive in holding that, in actions for conversion, the cause of action

accrues on the date of the conversion, regardless of when the plaintiff

discovers the conversion or whether he demanded the return of the property,

unless the case involves fraudulent concealment or other act of deceit designed

to hide the defendant’s actions from the plaintiff.  Therrell v. Georgia Marbel Holdings Corp.,

960 F.2d 1555, 1560 (11th Cir. 1992); Jackson v. Am. Credit Bureau, Inc.,

531 P.2d 932, 934 (Ariz. 1975); Small Business Admin. v. Echevarria,

864 F. Supp. 1254, 1260 (S.D. Fla. 1994); see generally 18 Am. Jur. 2d Conversion § 94

(1985); 51 Am. Jur. 2d Limitation

of Actions § 123 (1985).

 

There is neither allegations nor evidence of fraud in

this case.  All events surrounding the disputed

acquisition of the logo by ASEPA, the terms of the acquisition, and failures of

ASEPA to pay began much longer than 27 months ago, in 1986.

 

The statute of limitations has

clearly transpired, barring Pouesi from bringing this claim for conversion.  Therefore, this action will be summarily

dismissed.

 

Order

 

Summary judgment shall enter in favor of ASG and ASEPA

against Pouesi, and this action is dismissed.

 

It is so ordered.

 



* Temporary Associate Judge Tauanu`u Faisiota sat at the

hearing on this motion.  However, he

resigned from the Court to take his seat in the Senate of the Legislature of

American Samoa before the Court completed deliberations on the matter at hand

for purposes of issuing this order.