The long litigation seemed without end, with no closure in sight, as we awaited assignment of a new judge.  Finally, in January, 2018, The Hon. Judge Elvis Patea was assigned and the pace accelerated at dizzying speed.  It appears (for now, at least) that nothing will be appealed, though a re-open is procedurally possible for another year. The High Court finally issued a decision by way of a Declaratory Judgment on July 9, 2018, written by Judge Patea.  He vacated all the Olo transfers and ruled in favor of the plaintiffs on two of three issues: life estates and the forfeiture clause (Memo Nature of Interests, Memo in Support of the Defendants, Memo of the Forfeiture Clause, Memo of the Points of Authorities). The third issue (whether or not Mike remained a beneficiary after 1982) was not ruled upon.  The Judge reasoned at the last minute that this was “not claimed,” despite that it was, albeit imperfectly, and despite that the parties had tried the issue without objection, and filed a motion for permission to amend and thereby to reinstate the claim, since that was the only claim we had really wanted to make, after all.  All to no avail.   (Motion and Memo: The Defendants are no Longer Beneficiaries, Motion to File Supplemental Pleading)It came as a great surprise to all that Judge Patea reversed, in part,  Judge Richmond’s earlier decision, which had been law for 12 years, but which, in fact, and in retrospect, was indeed the springboard for most of the misunderstandings which had led to the current litigation.  He ruled that beneficiaries could not sell their interests, and further jettisoned the “first refusal” provision.  Although not asked to do so, he more precisely defined when and how the trust would end, and when the beneficiaries’ “land” would return to Lena’s estate.  This decision certainly put the return of the land to American Samoans on a much faster track.  It also completely eliminated the supposition that the estates could be bequeathed or passed in a will.  Anticipating some surprises, and because precedent counts heavily, early in the proceedings, we had prepared The Law of the Case, a comprehensive summary of Kneubuhl Litigations, and submitted that to the court on March 29, 2018; we made minor corrections in April. Those appear here The Law of the Case Amended and here The Law of the Case.  We do not know if anyone read it other than Utu Abe Malae.Judge Patea’s decision had another completely unexpected (and unnerving) surprise:  Interpreting the word “issue,”  he deemed that only biological grandchildren could be beneficiaries.  Frances, Robin and Karen requested reconsideration.  Most surprisingly, defendants opposed the reconsideration, preferring to see their adopted family and cousins all disinherited.   These reconsideration motions and objections can be found here:  (Memo in Support of Motion for Reconsideration (Robin)) and another by Frances, (Motion in Support of Reconsideration), which was actually written by Robert and Melissa. Robin objected (Objection to Memo in Support of Motion for Reconsideration (Robin) to Frances’ motion for reconsideration based on legal sufficiency, and Defendants objected to both as well. The judge denied all reconsideration motions. All parties declined to appeal.  Ironically, this controversial ruling was not requested and no claim was made, the judge thereby exceeding his prior limitation about new claims.   The adoption ruling will likely resonate throughout American Samoa, if it ever becomes known.  By disinheriting Lena’s non-biological grandchildren, the decision stands in contravention of Samoan culture and social policies which are entirely inclusive of all children.  Not a single observer fails to express surprise.  Frances’ novel theory that the trust did not include provision for any grandchildren was correctly left without comment by the court.

The decision was not complicated. The judge merely vacated the transfers, as Attorney Sunia had predicted long ago.  Status Hearings were held on January 15, 2018, February 15 (Transcipt of Proceedings), and March 29. Position papers were filed by Karen and Robin and Frances (Position in Reply to Status Hearing February 15, 2018 , Opelle Position for Status Hearing, Motion Miscellaneous Orders), while Frances filed numerous motions as well. (Motion To Substitute (Karen), Motion to Stay Updated, Motion To Compel, Motion to Strike, Motion to Reply, Motion for Continuance, Stipulation of Non Objection). Karen and Robin recognized that Frances wanted a new trial, but they did not, (Motion Objection to New Trial) being confident of their positions on forfeiture and life estates, and also confident then-Attorney Sunia had prevailed at trial,  and therefore filed a motion for de-consolidation (Motion to Vacate Orders of Consolidation) which was promptly granted (Order Deconsolidating Cases). See Plaintiffs’ Memoranda (Memo Support Vacate Orders) and Defendants’ Memoranda in objection. The court issued orders for the first and second (Order of Case Status) hearing, and orders setting summary judgment while deconsolidating the proceedings for the third hearing (Order Deconsolidating Cases), followed by the final decision, the Declaratory Judgment of July 9, 2018, noted above.

The defendants’ writings for their positions were combined into unitary memoranda, some of which may not have been received, and therefore may not appear here. Their forfeiture and life estate positions were combined into single memoranda (Objection to Plaintiffs, Memo In Support of Defendants), to which plaintiffs wrote a brief reply(Memo in Reply to Defendants).

Frances’ litigation goal changed after Judge Richmond went on “extended leave,” in early 2016, especially when it became clear that the court was not sufficiently satisfied with the lawyers’ pleadings about its own jurisdiction to address all of her claims in one forum, especially those relating to the Samoa lands.  Another conundrum:  Frances had to await the appointment of a judge- any judge-  to obtain any relief at all, including finding a court of competent jurisdiction with a sitting judge.  She determined that removal to California federal courts was the only realistic route to achieving settlement of her most important claim- Fagaiofu.  “Removal” is a procedural step which is not procedurally complicated, and is eminently achievable, but politically very risky.  It looks like “forum shopping” and risks inconsistent rulings and findings.  It is taught in first year civil procedure.  Frances filed a case in California in mid-2017; California could (and did) readily take jurisdiction, but had to wait until after the High Court disposed of her local claims on July 9, 2018.   The High Court of American Samoa had no objection whatsoever (understandably) to removal, and very likely appreciated relief from the obligation to have a new trial.  Although defendants’ objections were loud, they were not successful.

While Frances had filed in California, the case continued for a time in the High Court.  Initially, defendants opposed everything in general no matter how small; in the end, they relied on one assertion concerning the validity of the deed transferring Fagaiofu.   (Defendant’s Objection to Plaintiffs, Defendant’s Objection To Supplemental Pleading, Defendant’s Opposition to Motion to Strike, Defendant’s Opposition to Continuance)

The transcript (coming soon) for the March 29, 2018 hearing which only Karen and Robin attended at the High Court (Frances and Mark not appearing), and for the June 15, 2018 hearing which Robin Karen and Frances attended together by speakerphone from Honolulu appears here.

The High Court heard the reconsideration motions on August 23, 2018 (notices are here).  A final transcript of that hearing is pending, but the preliminary transcript (errors are not yet corrected) can be seen here Preleminary Transcript. The clerk will correct the transcript if an appeal is filed.  It appears the time has lapsed for an appeal.

Frances’ California Case

We are not concerned with the California case, but, since it may impact future events at Olo, we include only the most important pleadings.  The California trial took place early January, 2019, and the decision followed promptly.   Frances did not prevail.  It is unknown whether she will appeal.   There were well over 125 entries at federal court as of February 1, 2019.  The documents are all publicly available online through the various court doc websites.  Documents and testimony she may use in that case are not  available at this time on this website, remaining pin access only, and may be obtained by request.  Included here are:  Frances’ California docket summary, her complaint for breach of fiduciary duty and more,  Judge Patea’s Order Denying Defendant’s Anti-suit Injunction, which is the defendant’s effort to stop the California case, Defendants’ Reply to Frances’ objection to their objection,  the Order of the California court denying defendant’s objection to Frances’ bringing the case. In the California case, the defendant’s attorney requested that the court take judicial notice of a number of pleadings Frances had filed in American Samoa, including Hall’s Motion to Stay, and these appear here. They include both her complaint and Amended Complaint, and finally, certain of Frances’ pretrial disclosures.  We add her initial California complaint (see above), defendant’s reply, the Proposed Findings of Fact and Law of both plaintiff and defendant, and of course, the decision itself. The Judgment (damages if any are awarded) is not relevant, and will not be included when published.