The Law of the Case
Introduction and History
The “law of the case” is a general legal term referring to the body of findings and conclusions which comprise the judicial precedent which must be applied and followed in any subsequent proceedings, where the parties, facts and circumstances require. The rationale behind the doctrine is the intention that the parties follow judicial precedent, so as to deter litigants from forum (court and judge) shopping, collateral attack, or other means of reaching non-judicial goals in the courts, and especially seeking another “bite at the apple.” The corollary doctrines are too numerous to mention here, but the most important is stare decisis, meaning “it is settled,” and intended to promote peace, order and certainty. So parties may move on and go about their day, in reliance on settled understandings (citations omitted).
Lena’s Probate
Estate of Adelina P. Kneubuhl, PR No. 008-80, Stipulation and Order, July 16, 1982; and Miyamoto, J., Order Granting Partial Summary Judgment, L&T 12-80, March 24, 1982.
The Kneubuhls have been in court six (6) times since 1978 – 1982 when they first addressed Lena’s will and trusts after her death in 1980. At that time 5 interrelated legal actions, all filed by the same person, were “settled” by Agreement. Regretfully, most of the claims raised were not addressed directly or stated clearly in their Agreement, although their fervent determination to avoid future disputes is revealed by the no-contest forfeiture clause they carefully crafted.
The law of the Kneubuhls’ case begins with the American Samoan statutes which forbid land ownership by non-Samoans (51% rule) and create a strict exception for intermarried couples (Ben and Lena) and their children for two generations only. Lena’s 1960 Land Trust was written based entirely upon this exception, and remarkably tracks its language.
The first decision was prepared by The Honorable Chief Justice Richard I. Miyamoto Judge Miyamoto in Douglas C. Kneubuhl v. B.F. Kneubuhl, et al, Land and Titles 012-80, “Order Grating Partial Summary Judgment,” MIYAMOTO, J., March 24, 1982. (Kneubuhl, 1982), resolving defendants’ Motion for Summary Judgment in favor of the then-defendants (now plaintiffs).
In this decision Judge Miyamoto set important precedents: he found the 1960 Lena P. Kneubuhl Land Trust irrevocable, non-modifiable, and valid and enforceable; he confirmed that the enabling statute is valid and constitutional under the case law of Craddick and its progeny, ordering that since none of Ben and Lenas’s children was qualified by blood to own the land, they could neither be trustee nor their own trustees, since not blood-qualified to hold legal title, despite attempting to do so in their 1969 and 1974 modifications. Judge Miyamoto wrote:
“[The Trust is irrevocable.] There is no provision in the trust instrument retaining in the settlor the power to revoke or amend the terms of the trust. It is a well-settled legal principle that unless the settlor retains such power and expressly so provides in the trust instrument that the settlor cannot later revoke or amend the trust. Whitfield v. Mathews, 334 So. 2d 876 (Ala. 1976); Mortimer and. Mortimer, 6 I11. App. 3d 217, 285 N.E. 2d 547 (1972); Bogert, Law of Trusts, §145 (5th ed. 1973). Adeline Kneubuhl could not, by implication, amend or revoke a portion of the trust by, for example, transferring by deed property which had already been placed in trust.” Id, 2.
In other words, once in the trust, the land was no longer hers to give away by deed, promise, bequest or devise, or by any other transfer.
Judge Miyamoto further addressed the nature of the interests and determined that any modification attempt requires consent by all the beneficiaries.
“The 1969 agreement did not revoke any part of the 1960 trust. Rather, it altered the nature of the beneficiaries’ equitable interests in the trust corpus from a general one to individual interests in designated pieces of property. Since all the parties agreed to this modification of the 1960 trust, it is valid. An irrevocable trust can be modified if the settlor and all the beneficiaries agree. Hatch v. Riggs_National Bank, 284 F. Supp. 396 (D.C.D.C. 1968); Crowslow v. Crowslow, 38 I11. App. 3d 373, 347 N.E. 2d 800 (1976); Grand Lodge of Ind. Order of Odd Fellows v. Gunnoe, 154 W.V. 594, 177 S.E. 2d 150 (1970); Bogert, § 145.” Id. 6-7.
Nor could they, he reiterated, (or any other non-blood qualified person) be their own trustees:
“One problem this Court notes . . . is the ability of the original trustee, William Opelle, to take title to the trust corpus. The person to whom title is passed by the creation of a trust, the trustee, must be able to take title to the Trust corpus because the settlor clearly divests himself or herself of the legal title over the trust corpus by executing a valid trust. See Baxter Jones, 14 N.C. App. 296, 188 S.E. 2d 622 (1972); Jennings v. Jennings, 211 Kan, 515, 507 P.2d 241 (1973); Bogert, §§30, 32. But a trustee here in American Samoa must meet the statutory requirements before any alienation of property to him or her is valid. 37.0204 ASCA. . . . . Although the 1969 and 1974 modification agreements to the 1960 trust instrument attempt to transfer Opelle’s interest as trustee to the settlor’s children and to appoint them as successor trustees, this he could not do. There is no dispute among the parties that the settlor’s six children do not meet the statutory requirements of alienation of property to them.” Miyamoto, Id, 2-3.
Judge Miyamoto addressed the validity of the statute enabling the trust:
“Plaintiff further contends that the 1960 trust is invalid because it is not permitted by statute. Section 37.0205 A.S.C.A., formerly Tit. 27, § 205 ASC, permits “any native proprietor of land, other than communal land, who desires to make provision for his son or daughter, in view of legal marriage with a nonnative, or for his son or daughter already married to a nonnative, or for any of the issue of any such marriage, by deed or will in favor of a trustee to hold in trust for the use of such son or daughter or such issue.” . . . .
Our interpretation of this statute is supported by its predecessor Naval regulation . . . .[citing] Atufili v, Timoteo, 3 A.S.R. 395, 397 (H.C.T.D. 1959)(in which) Two trusts established pursuant to this regulation by matais for their less than full Samoan heirs which placed communal lands in trust have been ruled upon by this Court. See Atufili v, Timoteo, supra; Fruean v. Mageo, 2 A.S.R. 591 (H.C.T.D. 1950).” Id.,5-6.
Judge Miyamoto’s decision was intentionally narrow, but most prescient in one regard, which requirement went unnoticed for almost three decades. He recognized the eventual requirement that the court delineate the nature of the interests in the trust and specify which law that would define these: This observation is the gravamen of one of the two declaratory judgments at issue today, i.e. whether the interests in trust are life estates or not.:
“Although a delineation of the interests created by the trust appears to be necessary before this issue [rule against perpetuities] can be addressed, we do not need to wrestle with the problem of determining whether the beneficiaries have only a life estate or an equitable fee or whether the settlor’s estate has a reversion.(emphasis added)
Section 1.0201 ASCA provides that only ‘so much of the common law of England as is suitable to conditions in American Samoa” is to be given effect here, if not inconsistent with the Constitutions of American Samoa and the United States and the American Samoa Code Annotated.’ ” Id.,4.
Addressing these difficult subjects was deemed unnecessary to resolve and dispose of the claims in front of the court in 1982. To the greater point, no one was trying to sell trust interests in 1982, so the definition was not especially necessary.
Judge Miyamoto reminded that the analysis required imposing the hierarchy of applicable law is as follows: First, the American Samoan Constitution, then the Constitution of the United States, and last, the American Samoan Code Annotated. If not inconsistent with these, in that order, only then may the court look to English Common Law. Parenthetically, counsel for both sides in 1982 agreed they were life estates. (citations omitted; see Memoranda of 1980 by both Attorneys Hall and Kruse)
Judge Miyamoto opened the door to further argument by the parties on the issue of trustee. They chose not to do so, and thereby waived this crucial claim and ruling; peace and quiet descended for nearly two decades
Landrigan v. Opelle
The next case which came to court had nothing to do with the trust, namely Landrigan v. Opelle, CA 49-85, Sept. 17, 1987, 5 A.S.R.2d,155,1987 which arose from an action to enforce a debt originating in a dispute at the BFK, Inc. Coca Cola Bottling Company. This unfortunate case brought new, negative judicial scrutiny and attention to the family when the court referred to complainants’ and witnesses’ “sketchy evidence,” and described atypical financial arrangements the court clearly wished to avoid. It made no contribution whatsoever to the law of the case.
John’s Probate
When John died in 1992 his estate was promptly probated in Estate of John Kneubuhl, Deceased, PR No. 45-92, Judgment and Final Distribution of Estate, July 20, 1996. (JAK Estate) When John died intestate (without a will), sadly, his wife Dorothy was becoming destitute, a fact not unnoticed by the court. Despite vague notice and living thousands of miles away, the biological children requested to be heard. They raised the issue of heirs by adoption, which the court avoided, as well as the present nascent issue about who can be an heir or beneficiary. Because John had no will, the question of whether the beneficiaries may give or distribute interests in trust in a will was also avoided. This was not raised again until Alai (see infra).
Legal precedent important to definition of the nature of the interests hinted at by Judge Miyamoto began when Judge Richmond gave Dotsy a life estate without a motion and without naming a measuring life other than her own, reminding heirs that she had waived dower rights under the Trust. Conspicuously, no one had remembered to ask for her maintenance, despite her dwindling resources.
Most important for the forfeiture analysis, the court required that any heir or other person claiming a right, must come to court to make the claim. The legal implication is not that this was the most or least John could have conveyed to her, or that the trust required life estates, but rather that life estates were not inconsistent with the terms of the trust; or if they were, the court could supersede the trust terms (and order a life estate under any circumstances). By making the measuring life distinct from that of any beneficiary, the court avoided the statutory life estates issue (as Judge Miyamoto had done). Conspicuously, the court made legal action both a requirement and a right, the forfeiture clause notwithstanding.
Realistically, Dotsy’s life estate likely would not have lasted longer than her children’s lives, and in any event, none of her grateful children objected.
“10. Except as provided in paragraph 11 below, however, the court is presently unable to determine the specific respective rights of the heirs in any real property, and it will be incumbent on any heir who claims rights to any real property to petition the High Court of American Samoa for determination of such rights.
11. The family residence on the land ‘Olo’ in the Village of Taputimu, American Samoa, shall be distributed to the spouse, in consideration of her waiver of dower rights in said property, for life with the remainder passing upon her death to whomever is determined to own the residence and the underlying land.” Id.4.
Kneubuhl v. Opelle and Alai
By the year 2000, John had died, Margaret had become a part time resident, the businesses closed, Ben had retired, and James quitclaimed out permanently (especially in his own mind) by transferring his 4.2 acres to Margaret, Ben and John. Earlier James had asserted long arm control as trustee of the residual, marital and commercial estates; it became his intention, over time, never to participate again in any litigation, except as a “ghost” litigant in the 2000 Alai action (infra).
In the next case, Kneubuhl v. Opelle and Alai,LT 22-01, October 3, 2003, Richmond, J., 7 A.S.R.3d, 272,(Alai) brought principally by Mike, the family looked askance at this litigation posture. They neglected to remind Mike and his counsel, his standing notwithstanding, in any event, could not be “trustee.” Margaret was dispatched to Connecticut to persuade the reluctant James to appear in the case. No writing can be found to dispose of the issue whether he agreed or not after nearly 20 years of complete silence and subsequent divestiture of his interests.
The Alai case sought a declaratory judgment that would make the 1974 Land Planning Agreement valid and enforceable, (rendering Lena’s trust therefore fairly toothless since, its contrary terms could be seen to supersede the trust. The purpose was to invalidate certain long term leases at Olo made by the Opelles. The plaintiffs (Mike, Margaret and James) listed themselves prominently as beneficiaries, but also, surprisingly, as “trustees” in the case caption, in clear defiance of Judge Miyamoto’s prior ruling that they could not be their own trustees.
The decision was important because it maintained the primacy of the trust and adhered to the principle of access to courts, finding a right of standing for all beneficiaries to protect their rights and interests. It also reiterated the importance of prompt resolution of disputes by appropriate parties (and a valid trustee). This decision, like its 1982 predecessor, was based upon acquiescence, the theory either prominent or implicit in almost every Kneubuhl case, including the present one. All of this implicated the forfeiture clause, again.
In this ruling, the court was clearly out of patience when it wrote:
“On October 31, 1974, all parties, John excluded, attempted to again modify the trust (“Modification Agreement”) . . . . In addition, the Modification Agreement instructed William to appoint each beneficiary as a successor trustee over that portion of the corpus of the trust called “Olo” as described in the [1969] Partition Agreement. William also was to appoint Alfred as the successor trustee for the remaining portion of the property held in trust.” Id., 3.
The court noted in FN 1 that the
“ [the] purported modification fails [since] not signed by one of the beneficiaries [John]. See Hatch v. Riggs Nat’l Bank, 284 F. Supp. 396, 397 (D.D.C. 1968); see generally RESTATEMENT (SECOND) OF TRUSTS § 338 (1959).”
Addressing standing, the court concluded that all beneficiaries have standing, writing that:
“. . . Under A.S.C.A. § 43.1101, a person is entitled to seek declaratory relief if he is ‘interested under a deed, will or other written instrument, or under a contract, or . . . desires a declaration of his rights or duties with respect to another, or in respect to, in, over or upon property.’” Id. 7.
“As beneficiaries to the Kneubuhl Trust (each has) standing to protect their rights and interests. See, e.g., Mountain Top Condo, Ass’n v. Stabbert, 72 F.3d 361, 367 (3rd Cir. 1995) (noting that “beneficiaries have a property interest in the trust res that is enforceable either in law or in equity”); RESTATEMENT (SECOND OF TRUSTS §§ 198-99 (1959)” while noting in FN 2:Id, 8-9.
“This seems particularly necessary in this case because the Plaintiffs and the other Kneubuhl Trust beneficiaries do not have a valid trustee to protect or assert their rights Id., FN 6, Id. 9(see discussioninfra pp. 11-12)”
While the plaintiffs had asked the court to declare the 1974 Land Planning Agreement valid, the court declined to do so, stating in a footnote:
“We offer no opinion as to the validity of the Land Planning Agreement. See disc. infra p. 13 n.11.”
The court revisited the issue of the status of the beneficiaries to be their own trustees, again reminding:
“Underlying this action is the legal status of the Kneubuhl Trust (and its trustees and beneficiaries) in light of the restrictions on the alienation of land to non-Samoans. Plaintiffs conceded that none of the current trustees or beneficiaries has 50% Samoan blood,” and reiterated the language and purposes of A.S.C.A. § 37.0204(b) which mandates:
“It is prohibited to alienate any lands except freehold lands to any person who has less than one-half native blood, and if a person has any nonnative blood whatever, it is prohibited to alienate any native lands to such person unless he was born in American Samoa, is a descendant of a Samoan family, lives with Samoans as a Samoan, lived in American Samoa for more that 5 years and has officially declared his intention of making American Samoa his home for life.
The validity of the restrictions on the alienation of Samoan lands has been affirmed time and time again by this Court. FN The alienation restriction on Samoan land has been upheld as narrowly tailored to preserve the compelling need to protect the Samoan culture and way of life. See Craddick, 1 A.S.R.2d at 14. The constitutionality of the alienation statues is not at issue in this case. It is undisputed that the Kneubuhl Trust beneficiaries and trustees do not meet this requirement.” Id, 10-11.
The court again addressed the exception permitting trusts for non-Samoans:
“However, the Legislature has carved out an exception to the restrictions on land alienation. Under A.S.C.A. § 37.0205, a Samoan can create a trust for the benefit of a son or daughter, “in view of legal marriage with a nonnative, or for his son or daughter already married to a nonnative, or for any of the issue of any such marriage.” Id, 10.
The court agreed with Judge Miyamoto in Kneubuhl v. Kneubuhl, LT. 012-80, “Order Granting Partial Summary Judgement,” at 5-6, 9 (Land & Titles Div., Mar. 24, 1982) holding the trust met the statutory requirements of A.S.C.A. § 37.0204(b). Judge Richmond refined the prior finding with the explicit holding that “ . . . the Kneubuhl Trust beneficiaries are allowed to hold equitable interest in the trust land as beneficiaries.” Id, 11.
It again reminded them of the prior holding that they could not be trustees, stating:
“Although the . . . modification agreements . . . attempt to transfer Opelle’s interest as trustee to the settlor’s children and to appoint them as successor trustees, this he could not do. This is because the trustees hold the legal title to the trust property while the beneficiaries hold the equitable interest. See In re Estate of Flake, 71 P.3d 589, 594 (Utah 2003); Coon v. City and County of Hawaii, 47 P.3d 348, 375 (HI 2002); see generally RESTATEMENT (SECOND) OF TRUSTS § 99 cmt. b (1959).” Id., 11.
The court was firmly dismayed that:
“However, contrary to this Court’s finding in 1982 and contrary to American Samoa law, the Kneubuhl beneficiaries have continued to hold themselves out as “trustees” of the Kneubuhl Trust. This they cannot do.” Id., 12.
Where the Plaintiffs had asked the court to declare Frances’ Olo leases, Agreement, Transfer and Amendment, “. . . void or voidable because they have not been approved by a majority of the trustees as purportedly required by the Land Planning Agreement,” the court declined to rule at all on the validity of the attempted modification or “amendment” and instead ruled in favor of defendants on the basis of acquiescence:
“Here, Plaintiffs acquiesced when Frances leased the land to Priscilla and Lawrence and later when she transferred the lease to Suhayl and then Lilian. “Acquiescence consists of assent by words or conduct on which the other party relies.” Hazard Coal Corp. v. Kentucky W. Virginia Gas Co., 311 F.3d 733, 740 (6th Cir. 2002). Id. 13.
‘When a party with full knowledge, or at least with sufficient notice or means of knowledge, of his rights, and of all the material facts, freely does what amounts to a recognition of the transaction as existing, or acts in a manner inconsistent with its repudiation, or lies by for a considerable time and knowingly permits the other party to deal with the subject matter under the belief that the transaction has been recognized or freely abstains for a considerable length of time from impeaching it, so that the other party is thereby reasonably induced to suppose that it is recognized, there is acquiescence and the transaction, although originally impeachable, becomes unimpeachable in equity . . . .’ Id. at 740-41 (quoting J. Pomeroy, 2 EQUITY JURISPRUDENCE § 965, at p. 2094 (5th ed. 1941)). Id. 13.
The factual findings for acquiescence included historical long term knowledge of the Agreements, Transfer and Amendment which were entered in 1979, 1986, and 1997 respectively, “ . . .and registered shortly after their execution with the Territorial Registrar. This demonstrates acquiescence. . . .” Id. 14-15.
The court was further required to find detrimental reliance, and did so, finding that in that:
“ . . . Frances and Lilian have relied on Plaintiffs’ acquiescence in assuming the Lease Agreement, Lease Transfer and Lease Amendment were valid instruments. Plaintiffs cannot complain now. Accordingly, we hold that Plaintiffs have waived their right to challenge the validity of the Lease Agreement, Lease Transfer and Lease Amendment.” Id, 15.
Opelle v. Kneubuhl Trust et al
After Mike brought the Alai case, Frances next challenged the trust, in Opelle v. Kneubuhl Trust et al., “Opinion and Order,” CA 50-04, Sept. 13, 2006; “Order Correcting,” April 16, 2007. Importantly, the trust remained without a trustee after James left (he was not valid anyway), since the family would not agree on a successor. In this action, Frances asserted her right to sell trust land at Olo as if the 10 ½ acres in her column were her individual lands, a belief which regrettably persists today.
Her claim was straightforward: since Lena intended to give her the land itself, the prohibition against sale without majority approval did not apply to her, but instead, applied only to the trustee. Prior to this time it had been an unexamined conclusion that majority consent of the beneficiaries was required prior to any transfer of any kind. Parenthetically, no objection appears on the record, leading to the conclusion that it did not trouble the parties that Frances had not sought majority approval or unanimous consent when she had earlier transferred 5 of her Olo acres to Mike and his children. It never came up. Nevertheless, the 1960 trust agreement, provides as follows:
“I empower my TRUSTEE to manage these parcels of land in whatever manner he deems best but in no case shall he mortgage, incumber [sic], lease, sell or otherwise dispose of any of the trust corpus without the majority consent and approval of the beneficiaries of this Trust.” (Trust , p.2)
Disagreeing with her legal conclusions, but sympathetic to her predicament, the court upended the long-standing majority belief that the majority rules, and reaffirmed the first refusal provision. Thus the fire sale of land at Olo began.
The court noted, that when approving the 1969 “Partition Agreement”:
. . . . [Lena] executed and signed a modification agreement to the trust (the “trust modification”) that allocated the Olo land amongst her children beneficiaries. Effective on September 30, 1969, all parties to the trust agreed to partition the beneficial interests in the Olo land and other portions of the trust land among the six beneficiaries. Essentially, the trust modification “altered the nature of the beneficiaries’ equitable interests in the trust corpus from a general one to the individual interests in designated pieces of property.” LT No. 12-80 supra, at 6. It was eventually recorded with the Territorial Registrar but not until July 10, 1995.”
However, both parties seemingly agree that should the court recognize a right of Petitioner to sell her interest under the trust, Plaintiff’s siblings should be entitled to a right of first refusal.”
In finding Lena’s intent, the court conducted the required analysis, first finding ambiguity and next examining contemporaneous circumstances:
“As an initial matter, and as noted in previous cases involving the trust, the beneficiaries to the trust, as opposed to the trustee, cannot hold legal title to their portion of the trust lands. Kneubuhl v. Kneubuhl, LT 12-80, supra, at 11 (the trust beneficiaries are not capable of holding legal title to land in American Samoa). This is because the trustee holds legal title to the trust property while the beneficiaries hold the equitable interest. See In re Estate of Flake, 71 P.3d 589, 594 (Utah 2003); Coon v. City and County of Hawaii, 47 P.3d 348, 375 (Haw. 2002); see generally RESTATEMENT (THIRD) OF TRUSTS § 42 cmt. a, § 2 cmt. d (2003) Id., 6.
Nevertheless, even though Plaintiff has no claim to legal title in her portion of the Olo land, as a beneficiary of the trust she has an equitable property interest in the subject matter of the trust; to wit, the Olo land. See SCOTT ON TRUSTS § 130 (4TH ED. 2001); See also Senior v. Braden, 295 U.S. 422 (1935) (interest of trust beneficiary was an interest in land); Blair v. Commissioner of Internal Revenue, 300 U.S. 5 (1937) (beneficiary was the owner of an equitable interest in the corpus of the property). Id. 7.
The nature and extent of this interest, however, depends upon the intention manifested by the Settlor. See RESTATEMENT (THIRD) OF TRUSTS § 49 (2003); SCOTT ON TRUSTS § 128 (4th ed. 2001). This is determined by the “terms of the trust [instrument]” as interpreted in the light of all the circumstances. SCOTT ON TRUSTS § 128 (4th ed. 2001). Such circumstances come into play where the written instrument is ambiguous or silent, and may include such things as the character and value of the trust, property, the purposes for which the trust is created, and the circumstances under which the trust is to be administered. RESTATEMENT (THIRD) OF TRUSTS § 4 cmt. A (2003). Id. 7.
We also recognize that in determining the terms of the trust, Settlor’s intention refers to her intention at the time of the trust’s creation, and not any subsequent intention. See id. However, Settlor’s intention in 1960 may be illustrated not only contemporaneous facts, but facts occurring after the trust’s creation as well. See id. 7-8.
. . . . [P]laintiff argues the subsequent deeds and trust modification indicate Settlor’s intent to give as much ownership rights as possible–in the specific parcels of Olo land–to each of her children. . . . .” Id. 8.
The Court agreed finding that
“Clearly, settlor established the trust under A.S.C.A. § 37.0205 as a necessary alternative to giving her children full legal title to her individually owned lands. Id. 9
. . . . [In] 1969, she orchestrated the trust modification that changed the beneficiaries’ interests in the trust from a general one to individual interests in designated pieces of property. See provision quoted supra note 3; see also, LT No. 12-80, supra, p. 6. In doing so, we believe Settlor’s intent was clear: give each beneficiary an interest in the trust lands generally and in the Olo land particularly approximating legal ownership to the fullest extent possible under current law.” [emphasis added] Id. 10.
Addressing the right of first refusal, the court wrote:
“However, Settlor also wished to restrict the alienability of each beneficiary’s interests in the trust lands to some extent beyond those imposed by statute. In 1960, she required the beneficiaries’ majority consent to the trustee’s alienation of trust lands. In 1969, she limited alienation by providing for the beneficiaries’ right of first refusal for any proposed alienation of a beneficiary’s equitable interest in the Olo land. Clearly, Settlor hoped to keep the trust lands within the Kneubuhl family and under the beneficiaries’ substantial ultimate control. [emphasis added] Id. 10-11.
. . . . [T]here is nothing in the trust itself, the trust modification, or in the circumstances surrounding its creation that suggest Settlor meant this restriction [on the Trustee] to apply to a transfer of a beneficiary’s interest. Id. 11.
. . . . We therefore find the majority approval requirement was intended for the sale or transfer of legal title of the Olo land by the Trustee, not for the alienation of an equitable proprietary interest by a beneficiary. Consequently, under the terms of the trust Plaintiff can sell her interest in the Olo land without having the sale approved by a majority of the beneficiaries. Id. 11.
Our analysis, however, does not end here. We must next determine whether a sale of Plaintiff’s interest must be subject to a right of first refusal for the other beneficiaries. . . . . While she wished to give each beneficiary as much ownership as possible, she also wanted to subject their rights to one condition: that any sale of the land be subject to a right of first refusal for the other beneficiaries. . . . [We] find that any sale of Plaintiff’s interest is subject to a right of first refusal for the other trust beneficiaries.” Id. 12.
In this litigation Frances’ attorney Alailima also brought certain constitutional claims against the 50% blood requirement
“. . . arguing it is constitutionally invalid and in ‘violation of her rights under the Cession of Tutuila and Aunu‘u. Plaintiff notes that such a finding would make valid Settlor’s deeds of the various parcels of Olo, and in doing so make the trust unnecessary.” [i.e. revoke it] Id., 13.
Frances sought relief by pressing constitutional claims to invalidate the statutes.
“. . . These are all dismissed. [Frances objected]. . .to the validity of A.S.C.A. § 37.0204(b) and (c) in light of the constitutional provision on protective policy legislation set forth in . . . the Revised Constitution of American Samoa of 1967 (quotations omitted), as plainly contrary to the protection of Samoan lands and culture. Id., 14.
The court did not agree, “ . . . since disinclined to change by judicial fiat a culture founded on its communal land system, Indeed, as the Appellate Division stated in Craddick III:
Preserving Samoan culture is of primary importance to American Samoa, and we cannot imagine anything that would so fundamentally alter the nature of Samoa than permitting non-full blooded Samoans to own and control land, whether native or individually held. Such an outcome would allow non-full blooded Samoans to decide the fate of American Samoa culture and identity, something abhorrent to the Treaty of Berlin and the Revised Constitution. Id., 17.
“Concluding . . . . [For] the time being, because of foregoing reasons–namely the holdings in Craddick I and Craddick III, and the uncertainty over whether Petitioner’s claim has any merit, we refuse to find § 37.0204(b) and (c) constitutionally invalid.” Id.
The court also dismissed further claims concerning the Cession of Tutuila and Aunu’u stating
“. . . . [The] High Court of American Samoa is not the proper venue for attacking the action or inaction of the United States Government. Accordingly, we refuse to strike down § 37.0204(b) and (c) for violating the Cession.” Id., 19.
The “Order Correcting”
The Opelle v. Kneubuhl “Opinion and Order” was promptly followed by an “Order Correcting Plaintiff’s Interpretation [of the prior ruling],” April 16, 2007. In the “Order Correcting,” new theories were addressed despite that both pleadings and evidence were closed.
The court again expanded the definition of equitable rights. In all prior decisions, these rights were referred to as “use and access”; now they were elevated to “exclusive rights” and “quiet enjoyment” (Id., 6), “as much ownership as possible over individual parcels of land,” (Id., 2)and deemed a bundle of rights “as close to legal title as possible.” Id. 5) Without so saying, the court had begun to address the nature of the interests which Judge Miyamoto had deemed unnecessary in 1982. Recall that Judge Miyamoto had stated in 1982 it was not necessary to address them at that time. Now, Frances was seeking to sell the land, to the determination of the nature of what was being sold was critical.
Frances also wanted to appoint her own trustee; she further claimed that a qualified buyer would, she asserted, by virtue of becoming a blood qualified owner, the equitable title would become full legal title. The court rejected this “unsupported” position.
The court was further concerned that the words chosen were “less than clear,” (Id. 6) “imprecise” (Id.7), or “. . .at times appears to be conveying legal title.” Id. All of these elements came into dispute again in the present litigation.
The court again noted in the Order Correcting:
“From its inception, the Kneubuhl Trust has been mired in legal disputes. Most recently, by this action, Frances sought a declaratory judgment to determine if her rights in the trust include the right to sell all or part of her interest related to the . . . (“Olo land”). Id. 2-3.
“Soon after we issued our Opinion and Order, Francis attempted to sell her interest in the Olo land. In a letter dated December 14, 2006, Wallace Jennings Jr, and Alexander Jennings (collectively “the Jennings”) made an offer to Frances “to buy one acre of real property which is a portion of the individually-owned land known as ‘Olo’ in Taputimu, American Samoa, and subject to the Kneubuhl Land Trust.” Def. Mot. Ex. A (December 29, 2006).” Id. 3.
Frances had diligently sought first refusal as the “Opinion and Order” required, Def. Mot. Ex. C. (Dec, 29, 2006), but had not allowed an adequate window in time to respond. Further, she advised that:
“ . . .she had “subdivided” her interest in the land and “appointed” Charles V. Ala’ilima, her attorney of record, as the trustee for her share of the Kneubuhl Trust in order to “execute the legal documents necessary to effect transfer of title.” Id.____
This was followed by defendants’ motion for contempt and a request for clarification, which the court found it had authority to address (citations omitted). In its review, the court reiterated its earlier findings, emphasized its judgments about the family’s relationships, and also further clarified, as follows:
Addressing the extent of the interests in trust it found that:
“It is evident that Adeline wished to convey as close to legal title as possible under American Samoan law to the beneficiaries. However, under American Samoan law, the beneficiaries cannot own legal title to the land, but only equitable title through the Kneubuhl Trust . . . . Id.,5.
In our September 13 Order, we determined that beneficiaries of the Kneubuhl Trust are able to transfer their equitable proprietary interest to a third party. [When] Frances attempted to transfer her equitable interest . . . which is her legal right, to the Jennings . . . [u]nfortunately, the language and terms used in the communications between Frances and the Jennings is less then clear and at times appears to be conveying legal title to the Jennings. As Frances does not hold legal title, she cannot attempt to transfer legal title to the Jennings. . . .”
In the interim, Frances had introduced a new theory, i.e.:
“. . .that if the equitable interest is transferred to an individual who is able to hold legal title to the trust property, then legal title is vested to the new beneficiary.” Id., 6.
It bears urgent notice that while this sentence is rife with problematic legal conclusions, and the court merely found it unpersuasive and “outside the scope of the September 13 order,” while declining to “explore it further.” Id. P 6.The court next addressed adequate time for notice of first refusal, repeating:
“The Kneubuhl Trust provides the beneficiaries the right of first refusal over any other beneficiary’s conveyance of their equitable interest to a third party . . . . on the same terms and conditions as a third party’s bona fide offer. See Crivelli v. General Motors Corp., 215 F.3d 386, 389 (3d Cir. 2000).” Id., 7.
The content of the letter, [sent by Frances to beneficiaries] beyond the imprecise wording as to the interest being sold, was adequate because it included notification of the proposed sale and terms thereof. However, the [13 day] period provided to the beneficiaries to exercise their right of first refusal was insufficient. The beneficiaries must be provided with a reasonable time exercise their right. Dyrdal v. Golden Nuggets, Inc, 689 N.W.2d 779, 784-85 (Minn. 2004). With multiple beneficiaries living in both the Territory and various U.S. states, a period of 13 days is not reasonable. A period of 45 to 60 days is a more reasonable time frame. . . .” Id., 7.
Frances next asserted a second new theory namely the right of a beneficiary to appoint his or her own trustee. The Court responded, writing:
“For two decades, we have advised the beneficiaries that a new trustee should be appointed to protect the interest of the trust. Unfortunately, a majority of the beneficiaries have been unable to select a new trustee. Id. 8.
While regrettable, this inability to select a new trustee does not allow a single beneficiary to appoint a trustee for his or her “share” of the trust property. It is the beneficiaries’ equitable interest that is divided, not the legal interest of the trust. See Mesce v. Gradone, 62 A.3d 394, 395-96 (N.J. 1948). A trust incorporates the whole of the trust property even if the equitable interest is divided into finite parts. A trust cannot be divided into “sub-trusts” with a trustee for each beneficiary without prior authority from the trust documents. Frances has no power or authority to singly appoint a trustee for her equitable interest in the Kneubuhl trust, especially one who is her attorney of record. The Kneubuhl Trust requires the beneficiaries’ majority approval to appoint a trustee.” Id. 8-9.
The court finally addressed attorney’s fees, which the court declined, ruling:
“. . . absent acts of bad faith, wantonness, oppressiveness, or if allowed by statute, attorney’s fees are not generally awarded. Fiaui v. Faumuina, 27 A.S.R.2d 36, 42 (Trial Div. 1994). Clearly, the parties struggle to maintain civility with each other, but we do not find any acts of bad faith, wantonness, or oppressiveness to justify attorney’s fees.” Id.,9.
For the next 6 years surreptitious and invariably unsuccessful sale activity took place. Eventually, Mike obtained and circulated his legal position authored by Hall (see Hall 2012 Memo) that the sales attempts were valid based on twin legal theories of laches and waiver and, in any case, because any legal action would allegedly subject complainants to the springing penalty of forfeiture, so any legal action was in no one’s interest. This veiled threat of forfeiture by defendants was an ineffective deterrent, since a rank misreading of the clause itself.
Ben, Robin and Frances responded with the present action. Frances brought an action to rescind her prior transfers. Ben and Robin claimed the intention of the 1982 Agreement was permanent separation of defendants from Lena’s estate including all Olo trust lands and decisions; that the interests were life estates; and the forfeiture clause did not apply, and even if it did, defendants cannot profit from it, since not beneficiaries. Frances did not support the life estates theory.
The cases were consolidated for trial which occurred in October, 2015. New issues have arisen since the trial began, some of which may require further judicial attention. When finally adjudicated on July 9, 2018, most of Judge Richmond’s conclusions were reversed, to everyone’s surprise.