KELEMETE MISIPEKA, Plaintiff,
THE LEGISLATURE OF AMERICAN SAMOA, Defendant.
Court of American Samoa
 Summary judgment is appropriate when there is no
genuine issue as to any material fact.
 On a motion for summary judgment, the court
views the pleadings and supporting documents in the light most favorable to the
 Disputed legal questions present nothing for trial and are
appropriately resolved on a motion for summary judgment.
 Actions to enforce unwritten agreements
are subject to a three (3) year statute of limitations under A.S.C.A. §
 Actions to enforce written agreements
are subject to a ten (10) year statute of limitations under A.S.C.A. § 43.0120(3).
 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.
 A written contract is one which is all
in writing, so that all its terms and provisions can be ascertained from the
essential elements of a contract include the subject matter, parties, terms and
conditions, and price or other consideration.
memorandum that memorializes an oral agreement between the parties satisfies
the writing requirement for purposes of the statute of limitations.
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.
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.
 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.
GRANTING PLAINTIFF AND
DEFENDANT SUMMARY JUDGMENT
Before us are
cross-motions for summary judgment. We
grant plaintiff’s motion and deny defendant’s motion.
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.
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.
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.
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.
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, the consequence 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 officers”). Neither of the
binding officers, however, signed or initialed Misipeka’s invoice.
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.
[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 Dep’t 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
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). Furthermore, as in this case, “disputed
‘legal questions . . . present nothing for trial and [are] appropriately
resolved on a motion for summary judgment.’”
Flair Broad. 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)).
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 (App. 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 [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 Mortgage, 797 P.2d.
467, 469 (Utah App. 1990); Urban Dev., Inc. v. Evergreen Building Prods.,
L.L.C., 59 P.3d 112, 119 (Wash. 2003).
 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 Dev., 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
 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 Dev., Inc., 59 P.3d at 119; see
Evans v. Pickett Bros. Farms, 499 P.2d 273, 275 (Utah 1972); cf. Am.
Samoa Gov’t Employees Fed. 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 Dev., Inc., 59 P.3d at 119.
 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 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.
The Legislature’s argument is not only self-serving but also specious.
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.
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 would be invalid. Such a
scheme would lead to preposterous results and bring the government to a
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.
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
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.
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).