Milovale v Tapu [2004] ASLawRp 88; 9 ASR3d 268 (15 December 2004)

OPINIONS

OF THE

LAND AND TITLES DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2004)

FAGAIMA MILOVALE, as the sa'o of the Fagaima Communal Family, Plaintiff,

v.

TAPU TAPU, JR., HEIRS OF FAGAIMA A. TAYLOR, and DOES I - XX, Defendants.

High Court of American Samoa
Land and Titles Division

LT No. 25-04

December 15, 2004

[1] Where defendant had notice, knowledge, and the ability to comply with a preliminary injunction, defendant's failure to comply was willful and contemptuous.

[2] Where defendant's failure to comply with a preliminary injunction was willful and contemptuous, defendant was deemed to have been in contempt of court.

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

Counsel: For Plaintiff, Sharron Rancourt
For Defendant Tapu Tapu, Jr., S. Salanoa Aumoeualogo

JUDGMENT OF CONTEMPT

The order made on November 19, 2004, requiring Defendant Tapu Tapu, Jr. to show cause why he should not be held in contempt of court for violation of the preliminary injunction made and entered on August 3, 2004, as modified on October 25, 2005, was heard on December 14, 2004. Plaintiff Fagaima Milovale appeared in person and by his counsel, and Defendant Tapu Tapu, Jr. appeared in person and by his counsel.

The Court, having heard testimony and considered the evidence, finds:

1. The preliminary injunction entered on August 3, 2004, as modified by bench order October 25, 2004, was duly and regularly made.

[1] 2. At all times since the making of the preliminary injunction, as modified, Defendant Tapu Tapu, Jr. has had notice and knowledge of the preliminary injunction, as modified.

3. At all times since the making of the preliminary injunction, as modified, Defendant Tapu Tapu, Jr. had had, and now has, the ability to comply with the preliminary injunction, as modified.

4. Defendant Tapu Tapu, Jr. has failed to comply with the preliminary injunction, as modified, in the following particulars:

By the preliminary injunction, the Court ordered Defendant Tapu Tapu, Jr. to cease all construction activity on the Fagaima family's communal land in Tafuna. By the modification of the preliminary injunction, the Court ordered Defendant Tapu Tapu, Jr. to cease all further construction of the house at issue, except to complete an open portion of the roof to protect the house from the elements.

On November 16, 2004, Defendant Tapu Tapu, Jr. brought construction materials to the site of the house at issue and, with the hired help, proceeded to construct interior room partitioning and install windows. Since then, he has also arranged to supply electric power to the structure by an unauthorized power line from another structure and is now allowing children supervised by his wife to live in the essentially completed house.

[2] 5. In failing to comply with the preliminary injunction, as modified, Defendant Tapu Tapu, Jr. has acted willfully and contemptuously.

IT IS THEREFORE ADJUDGED that Defendant Tapu Tapu, Jr. is in contempt of this Court.

IT IS ORDERED that, as punishment for his contempt, Defendant Tapu Tapu, Jr. shall pay a fine of $500.00 to the Clerk of the Court no later than 3:30 p.m. on December 21, 2004, and shall pay an additional $500.00 to the Clerk of Court no later than 3:30 p.m. on December 28, 2004, as and for Plaintiff Fagaima Milovale's attorney's fees and costs for this contempt proceeding; the Clerk shall disburse the additional $500.00 Plaintiff Fagaima Milovale's counsel.

IT IS FURTHER ORDERED that while this action is pending or until further order of the Court, Defendant Tapu Tapu, Jr. (a) shall have all occupants immediately vacate the house at issue and not allow any persons to live in or occupy the house; (b) shall, at his expense, immediately have the line supplying electric power to the house at issue disconnected by a licensed electrician and not have power supplied to the house; and (c) shall not himself or permit any other person to do any further construction of the house at issue.

IT IS FURTHER ORDERED that this matter is continued to December 29, 2004, at 9:00 a.m., for further hearing and the Court's review of Defendant Tapu Tapu, Jr.'s compliance with this Court's orders, and that Defendant Tapu Tapu, Jr. shall appear before this Court at the December 29, 2004 hearing without further order, notice or subpoena.

**********