Epifania CHAND, Mukesh Chand, Appellants v. Pusa Fa’aoso, Uila Fa’aoso, Appellees

Home » Epifania CHAND, Mukesh Chand, Appellants v. Pusa Fa’aoso, Uila Fa’aoso, Appellees

[1] [1] T.C.R.C.P. 60(b)(4) states, “On motion and upon such terms as are just, the court may relieve a party or his legal representative from final judgment, order, or proceeding [because] the judgment is void.”

[2] [1] T.C.R.C.P. 60(b)(4) states, “On motion and upon such terms as are just, the court may relieve a party or his legal representative from final judgment, order, or proceeding [because] the judgment is void.”

[3] [2] Though the appellate court typically reviews a lower court’s T.C.R.C.P. 60(b) decision under an abuse of discretion standard, when the appeal questions whether the lower court’s judgment is void pursuant to T.C.R.C.P. 60(b)(4), the appellate court will review the issue de novo. Either the judgment is legally void or the judgment is not.

[4] [3] A judgment is void only when the trial court rendering the judgment lacked the subject matter jurisdiction to render the judgment or if the parties or the court acted in a manner inconsistent with due process of law.

[5] [4] This Territory’s Due Process Clause is contained in Article I, § 2, of the Revised Constitution of American Samoa, and reads, “No person shall be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use without just compensa tion.” The Fifth and Fourteenth Amendments of the United States Constitution contain similarly-worded provisions, for which the courts will turn to U.S. precedent to lend understanding to the contours of this Territory’s Constitutional Due Process Clause.

[6] 5] Procedural due process, at its irreducible minimum requires (1) notice (whether it be constructive or actual as appropriate under the circumstances), and (2) an opportunity to be heard (a hearing) before a party is deprived of its property.

[7] [7] Defendants who appear within the meaning of T.C.R.C.P. 5(a) in a civil action are entitled to actual notice of a trial date. If such a defendant did not receive actual notice of a trial date, and because of that lack of notice did not present a defense at trial, such lack of notice is a denial of that defendant’s procedural due process rights and the judgment issued below is void.

Epifania CHAND, Mukesh Chand, Appellants

 

v.

 

Pusa Fa’aoso, Uila Fa’aoso, Appellees

___________________________________

 

High Court of American Samoa

Appellate Division

 

AP No. 08-10

 

August 7, 2012

 

 

[1] T.C.R.C.P. 60(b)(4) states, “On motion and upon such terms as are just, the court may relieve a party or his legal representative from final judgment, order, or proceeding [because] the judgment is void.”

 

[2] Though the appellate court typically reviews a lower court’s T.C.R.C.P. 60(b) decision under an abuse of discretion standard, when the appeal questions whether the lower court’s judgment is void pursuant to T.C.R.C.P. 60(b)(4), the appellate court will review the issue de novo. Either the judgment is legally void or the judgment is not.

 

[3] A judgment is void only when the trial court rendering the judgment lacked the subject matter jurisdiction to render the judgment or if the parties or the court acted in a manner inconsistent with due process of law.

 

[4] This Territory’s Due Process Clause is contained in Article I, § 2, of the Revised Constitution of American Samoa, and reads, “No person shall be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use without just compensa tion.” The Fifth and Fourteenth Amendments of the United States Constitution contain similarly-worded provisions, for which the courts will turn to U.S. precedent to lend understanding to the contours of this Territory’s Constitutional Due Process Clause.

 

 

[5] Procedural due process, at its irreducible minimum requires (1) notice (whether it be constructive or actual as appropriate under the circumstances), and (2) an opportunity to be heard (a hearing) before a party is deprived of its property.

 

[6] Article I, § 2, of the Revised Constitution of American Samoa prevents the deprivation of a person’s property without notice of the grounds and an opportunity to be heard at a meaningful time and in a meaningful manner.

 

[7] Defendants who appear within the meaning of T.C.R.C.P. 5(a) in a civil action are entitled to actual notice of a trial date. If such a defendant did not receive actual notice of a trial date, and because of that lack of notice did not present a defense at trial, such lack of notice is a denial of that defendant’s procedural due process rights and the judgment issued below is void.

 

 

Before: KRUSE, Chief Justice; WARD, Associate Justice; PATEA,[1] Acting Associate Justice; SU’APAIA, Associate Judge; and SATELE, Associate Judge.

 

                                Counsel:               For Appellants, Fiti A. Sunia

                                                                For Appellees, Marie Alailima.

 

OPINION & ORDER

 

BACKGROUND

In May of 2002, the Appellees Pusa and Uila Fa’aoso approached Appellants Epifania and Mukesh Chand to purchase the Chands’ used 2001 Toyota Tacoma. The Chands indicated the sale price to be $19,000. It remains unclear, but the Appellants now argue on appeal that the sale may have been “as is.” Regardless, the Fa’aosos put up $4,000.00 in cash and took out an ANZ bank loan for $15,000 to purchase the vehicle. On May 23, 2002, the Fa’aosos purchased the used Toyota Tacoma[2] from the Chands for $19,000.

 

According to the Fa’aosos, by May 24, 2002, the vehicle began malfunctioning. For the next two weeks, the Fa’aosos [**2**] brought the vehicle to the Chands four times for servicing for various mechanical malfunctions. By June 11, 2002, the Fa’aosos learned from other sources that the vehicle had been damaged in a car accident while, or slightly before, the Chands owned the vehicle. Upon learning of the accident, the Fa’aosos parked the vehicle at the Chands’ store in Nu’uuli and requested reimbursement for the full $19,000 paid via a demand letter the Fa’aosos sent to the Chands on July 22, 2002; the demand letter went unanswered.

 

The Chands never reimbursed the Fa’aosos. The Fa’aosos defaulted on their bank loan. Consequently, by October 2, 2002, ANZ Bank repossessed the vehicle and sold the same for $10,500, informing the Fa’aosos that the loan’s balance then tallied $6,219.19.[3]

 

On June 16, 2003, the Fa’aosos filed a verified complaint demanding the $19,000. On July 10, 2003, Counsel Asaua Fuimaono filed an Answer on behalf of the Chands. By doing so, the Chands appeared in the civil action.[4] See T.C.R.C.P. 5(a). At a hearing, on June 23, 2005, Counsel Fuimaono first voiced his intention of withdrawing from representing the Chands; however, [**3**] Counsel Fuimaono did not formally make a withdrawal motion until March 1, 2007, citing the Chands’ uncooperativeness as grounds for his withdrawal. On April 16, 2007, at the conclusion of a hearing scheduled for the same day, the lower court granted Counsel Fuimaono’s motion to withdraw.

 

On October 3, 2008, the Fa’aosos filed their Motion to Set Trial Date, the motion was set for hearing on November 6, 2008; however the November 6th hearing was continued to November 24, 2008 so as to effect service upon the now pro se Chands. This Motion and Notice of Hearing was served upon the Chands. On November 24, 2008, the lower court set trial for February 19, 2009, the Chands did not appear at said hearing. Epifania Chand did arrive at the courthouse on November 24, 2008, however she missed the hearing. Consequently, she asked court staff what the court decided at the hearing. A court staff member told Epifania Chand that the trial date was set for February 9, 2009 (an incorrect statement as trial was actually set for February 19, 2009). Epifania Chand did indeed report back to the High Court on February 9, 2009, where she was told by court staff that her trial was not scheduled for that date. Epifania Chand then left the courthouse without inquiring further as to when the actual trial date was set.

 

On February 19, 2009, the Chands did not appear at trial. The Fa’aosos initially averred that the Chands had been notified of the trial date. The Fa’aosos then proceeded to present their case unhindered by the Chands’ defense.   At trial, the Fa’aosos [**4**] prayed for the following relief: $14,257.74 ($4,000.00 for the cash payment, $40.00 for vehicle licensing, $174.00 for insuring the vehicle, and $10,043.74 for the loan’s balance and accrued interest as of February 2009); attorneys’ fees; and costs.

 

On June 23, 2009, the lower court issued an Opinion and Order, finding that the Chands agreed to provide to the Fa’aosos a vehicle in excellent condition, but that the vehicle did not perform as promised. The lower court then went through the Fa’aosos damages estimation, and awarded judgment to the Fa’aosos for $14,257.74 plus costs and post-judgment interest at the rate of six percent per annum. The lower court denied attorneys’ fees.

 

On June 29, 2009, the Marshals Office personally served the Opinion and Order upon the Chands. The Chands did not file a motion to reconsider by July 3, 2009 (ten days after the June 23, 2009 Opinion and Order). The Chands did, however, retain counsel sometime after the Opinion and Order issued in the summer of 2009. Indeed, by August 13, 2009, the Chands, through counsel, Fiti A. Sunia, filed a “Motion for Relief from Judgment.” In the Motion for Relief from Judgment, the Chands utilize T.C.R.C.P. 60(b) to argue that they were improperly notified of trial and did not fully represent themselves because of excusable neglect—namely that a court staff member failed to properly notify the Chands of their trial date. They further argue that the judgment was a default judgment and that adjudication upon the merits is preferred and that the judgment [**5**] was void for lack of due process (proper notice). The Motion for Relief from Judgment came on for hearing on September 3, 2009.

 

On December 4, 2009, the lower court issued its Order Denying Motion for Relief From Judgment, ruling that the original judgment was not a default judgment,[5] that the Chands were notified of the motion-to-set-trial-date hearing in November of 2008, and that,

As business persons, [the Chands] were, or should have been, fully aware of their responsibilities as pro se parties to safeguard their interests. Those responsibilities reasonably include taking the initiative to adequately inquire about the progression of their litigation. Although Epifania was told there was no trial on February 9, it is reasonable and expected that she would ask the Court staff about when the trial of the case filed against them was actually scheduled to begin. Every party to any case is responsible for maintaining a minimal level of information about the proceedings, and pro se parties must keep themselves fully informed. The Chands were notified of their attorney’s resignation and were then on their own as pro se parties. However, the Chands stood idly by without taking any defensive action, most importantly hiring another attorney to represent them, until both were served with the notice of the trial scheduling hearing. By then at the very least, each of them should have but did not become proactively involved in this case…. In short and sum, the Chands’ neglect is not excusable because a reasonable person in their situation would have sought more information to self-protect their legal interests.

Fa’aoso v. Chand, CA 39-03, slip op. at 3-5 (Trial Div. Dec. 4, 2009) (order denying motion for relief from judgment). [**6**]

 

On December 15, 2009, the Chands filed a Motion to Reconsider the December Order Denying Motion for Relief From Judgment. The same came on for hearing on January 28, 2010. On May 21, 2010, the Court maintained its ruling from December of 2009, denying the Chands’ Motion to Reconsider. On May 28, 2010, the Chands filed a Notice of Appeal. On May 31, 2012, this appeal came on for oral arguments, counsel for both parties appearing.

 

STANDARD OF REVIEW

The Appellate Division reviews pure questions of law de novo. Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992). De novo review is the least deferential standard of review, it “acknowledges an appellate court owes no formal adherence or deference to the reasoning or conclusions of law a lower court proffers; indeed, de novo review allows the appellate court to entertain and determine an issue of law anew.” Metro Samoa, Inc. v. Binaco Textiles, Ltd., AP No. 10-09, slip op. at 3-4 (App. Div. Mar. 19, 2012) (citing Salve Regina College v. Russell, 499 U.S. 225, 231-32 (1991)).

 

DISCUSSION

Initially, we note our jurisdiction to hear this appeal under A.S.C.A. § 43.0802. Moreover, we only focus on the Appellants’ (the Chands’) due process argument under T.C.R.C.P. 60(b)(4), finding that issue dispositive.

 

For reasons set out below, we hold that Appellants were denied their procedural due process rights and that the lower [**7**] court’s judgment is void for that reason. The Chands properly raised this argument under T.C.R.C.P. 60(b)(4).

 

I. T.C.R.C.P. 60(b)(4)

[1] T.C.R.C.P. 60(b)(4) states, “On motion and upon such terms as are just, the court may relieve a party or his legal representative from final judgment, order, or proceeding [because] the judgment is void.”

 

[2] Though the appellate court typically reviews a lower court’s T.C.R.C.P. 60(b) decision under an abuse of discretion standard, Taulaga v. Patea, 12 A.S.R.2d 64, 65 (Land & Titles Div. 1989), when the appeal questions whether the lower court’s judgment is void pursuant to T.C.R.C.P. 60(b)(4), the appellate court will review the issue de novo. See New York Life Ins. Co. v. Brown, 84 F.3d 137,142 (5th Cir. 1996) (citations omitted). Either the judgment is legally void or the judgment is not. Id.

 

[3] A judgment is void only when the trial court rendering the judgment lacked the subject matter jurisdiction to render the judgment or if the parties or the court ‘“acted in a manner inconsistent with due process of law.”’ Id. at 143 (quoting Williams v. New Orleans Public Serv., Inc., 728 F.2d 730, 735 (5th Cir. 1984). See Aetna Ins. Co. v. Hartshorn, 477 F.2d 97 (5th Cir. 1973); see also Nouta v. Pasene, 1 A.S.R.2d 25, 31 (App. Div. 1980).

 

II. Procedural Due Process

[4] This Territory’s Due Process Clause is contained in Article I, § 2, of the Revised Constitution of American Samoa, and [**8**] reads, “No person shall be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use without just compensa tion.” The Fifth and Fourteenth Amendments of the United States Constitution contain similarly-worded provisions, for which we turn to U.S. precedent to lend understanding to the contours of this Territory’s Constitutional Due Process Clause.

 

The Supreme Court has described procedural due process as a process, which,

following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by the law; it must be adapted to the end to be attained; and wherever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. The clause in question means, therefore, that there can be no proceeding against life, liberty, or property which may result in the deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights.

Hagar v. Reclamation District No. 108, 111 U.S. 701, 708 (1884) (emphasis added).

 

[5] Indeed, the Supreme Court has held that procedural due process, at its irreducible minimum requires (1) notice (whether it be constructive or actual as appropriate under the circumstances), and (2) an opportunity to be heard (a hearing) before a party is deprived of its property.   Mulane v. Central Hannover Bank & Trust Co., 339 U.S. 306, 314 (1950) (citations omitted); Matthews v. Eldridge, 424 U.S. 319, 333 (1976). [**9**]

 

[6] In point of fact, this Territory’s lower courts have acknowledged (while citing U.S. Supreme Court precedent) that Article I, § 2, of the Revised Constitution of American Samoa prevents the deprivation of a person’s property without “notice of the grounds and [an] opportunity to be heard ‘at a meaningful time and in a meaningful manner.”’ Fa’amausili v. Am. Samoa Gov’t, 6 A.S.R. 3d 259, 272 (Trial Div. 2002) (quoting Matthews v. Eldridge, 424 U.S. 319, 333 (1976)). See also Suluai v. Nat’l W. Life Ins. Co., 6 A.S.R.3d 216, 219 (Trial Div. 2002); Ferstle v. Am. Samoa Gov’t, 7 A.S.R.2d 26, 49 (Trial Div. 1988) (citations omitted).

 

[7] Here, Appellants were not afforded their procedural due process rights below. Appellants appeared within the meaning of T.C.R.C.P. 5(a) and, under those circumstances, were entitled to actual notice of the trial date. The Appellants did not receive actual notice of the trial date and were prevented from being heard. The lack of notice and an opportunity to be heard constitutes a lack of procedural due process and voids the judgment issued below; the trial court was in error to issue a final judgment under such circumstances.

 

We therefore REVERSE the trial court’s decision on the Chands’ T.C.R.C.P. 60(b)(4) motion and REMAND this action for a trial on the merits with actual notice provided to both parties.

 

It is so ordered.



[1]* Honorable Elvis R. Pila Patea, Judge, District Court of American Samoa, serving by designation of the Secretary of the Interior.

[2] VIN No. 5TEGN92N11Z875778.

[3] The Fa’aosos did not pay the balance on the loan; by February 2009, the interest on the loan amounted to $3,824.55.

[4] The phrase appearances, in this context, ‘“include a variety of informal acts on defendant’s part which are responsive to plaintiff’s formal action in court, and which may be regarded as sufficient to give plaintiff a clear indication of defendant’s intention to contest the claim.”’ Id. at 141-42 (quoting Sun Bank of Ocala v. Pelican Homestead and Sav. Assoc. 874 F.2d 274, 276 (5th Cir. 1989) (internal quotation omitted)). ‘“[B]y appearing at any time in the action, a party becomes entitled to have his attorney notified of all subsequent proceedings and receive copies of all papers, even if he later chooses to default.”’ Id. at 141 (quoting 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1144 (2d ed. 1987)).

[5] Fa’aoso v. Chand, CA 39-03, slip op at 5-6 (Trial Div. Dec. 4, 2009) (order denying motion for relief from judgment).