
    LELEO L. SOLAITA, Plaintiff, v. LAGAFUAINA TALANOA, HUGO R. GEBAUER and JANE MAY GEBAUER, Defendants. SALATAIMA LAGAFUIAINA STANLEY, Administrator, on behalf of the ESTATE OF LAGAFUAINA LAISENE, Necessary Party J LEN T’S and PAGO PRINT SHOP, Plaintiffs, FALANIKO MIKAELE, FELETI MIKAELE, PULEIALA M. SALIMA, and DOES I through X, Defendants LAGAFUAINA TALANOA, Necessary Party AMERIKA SAMOA BANK, Intervenor FEO LAGAUAINA, Administrator on behalf of the ESTATE OF LAGAFUAINA LAISENE, Intervenor
    High Court of American Samoa Land and Titles Division
    LT No. 57-91
    LT No. 03-03
    August 3, 2004
    
      Before RICHMOND, Associate Justice, SAGAPOLUTELE, Associate Judge, and MAMEA, Associate Judge
    Counsel: For Plaintiff Leleo L. Solaita, TogiolaT.A. Tuafono
    For Defendant Lagafuaina Talanoa, Asaua Fuimaono
    For Defendants Hugo R. Gebauer and Jane May Gebauer, Roy J.D. Hall, Jr.
    For Necessary Party Salataima Lagafuaina Stanley, Pro Se
    
    For Plaintiffs J Len T’s and Pago Print Shop, Jeff Waller
    For Defendants Falaniko Mikaele, Feleti Mikaele and Puleial M. Salima, Charles V. Ala'ilima
    For Intervenor Amerika Samoa Bank, Jennifer L. Joneson
    For Intervenor Feo Lagafuaina, Administrator, on behalf of the Estate of Lagafuaina Laisene, Marie A. Lafaele
    For Necessary Party Leleo L. Solaita, Pro Se
    
   ORDER DISMISSING LT. No. 57-91 FOR LACK OF PROSECUTION, GRANTING INTERVENTION OF LAGAFUAINA LAISENE’S ESTATE, REPRESENTED BY FEO LAGAFUAINA, IN LT No. 03-03, AND INCLUDING LELEO SOLAITA’S ESTATE AS A NECESSARY PARTY TO LT No. 03-03

On July 23, 2004, the Court heard motions: (1) of the Court to consolidate LT No. 57-91 and LT No. 03-03; (2) of Intervenor Feo Lagafuaina (“Feo”) for permission to file an intervention complaint on behalf of Necessary Party Estate of Lagafuaina Laisene in LT No. 57-91; and (3) of attorney Jeff Waller (“Waller”) to withdraw as attorney of record for Plaintiffs J Len T’s and Pago Print Shop (together “JLT/PPS”) in LT No. 03-03 if the actions are consolidated as his firm Hall & Associates already represents Hugo R. Gebauer and Jane May Gebauer (“the Gebauers”) in LT No. 57-91. The Gebauers moved during the arguments to dismiss LT No. 57-91 for lack of prosecution.

Consolidation

Consolidation of both actions is appropriate at face value. Both actions concern disputes over ownership of and leasehold rights in the same land located in Nu'uuli, American Samoa. However, if LT No. 57-91 is dismissed and all necessary parties become parties to LT No. 03-03, consolidation will be unnecessary to complete resolution of the issues.

Dismissal of LT No. 57-91

Dismissal of LT No. 57-91 for lack of prosecution is appropriate for several reasons at this juncture.

First, Plaintiff Leleo L. Solaita (“Leleo”) in LT No. 57-91 claims inheritance of the land at issue under Lagafuaina Laisene’s will. Technically, Leleo was not properly served with Feo’s intervention motion. Her counsel of record is still Togiola Tulafono, who is unable to represent her as he is the present Governor of American Samoa. Leleo is, however, also now deceased, and her surviving spouse, Fagaima Milovale Solaita, has approached Marie A. Lafaele, Feo’s present counsel, to represent the interests of Leleo’s estate in the land as well. It appears that Leleo estate’s and Lagafuaina Laisene estate’s claims to the land are not at odds with one another. In any event, if LT No. 57-91 is dismissed, Leleo’s estate can be made a necessary party to LT No. 03-03 to protect her estate’s claim.

Second, the Gebauers allegedly had leasehold interests in the land when LT No. 57-91 was filed. The complaint in LT No. 03-03, however, clearly alleges that the Gebauers’ successors took over their leasehold interests, and the Gebauers no longer have any interest in the land. The Gebauers participation is not now necessary to determine the ownership and leasehold issues.

Third, the parties to LT No. 57-91 have done nothing to bring this action to trial after they stipulated to and the Court granted continuance of the trial scheduled on November 21, 1996. There is no reasonable excuse for this inaction for well over seven years.

Fourth, and especially important, the Secretary of Samoan Affairs’ certificate of irreconcilable dispute has never been filed in LT No. 57-91. Defendants in LT No. 57-91 maintain that the land at issue is communal land. Without the certificate, the Court lacks jurisdiction to proceed with a judicial resolution in this action. Though this void was noted at several hearings before the Court, the parties did nothing of record to initiate, let alone participate in, dispute resolution proceedings before the Secretary leading to issuance of the jurisdictional certificate. However, a certificate of irreconcilable dispute has been filed in LT No. 03-03. The Court can therefore resolve all ownership and leasehold issues, so long as all necessary parties are included in this action.

We will therefore dismiss LT No. 57-91 for lack of prosecution, and require that Lagafuaina Laisene’s estate and Leleo’s estate be made parties to LT No. 03-03.

Feo’s Intervention

Feo’s intervention on behalf of the Estate of Lagafuaina Laisene is also appropriate. The Estate alleges that the land at issue is property of the Estate by virtue of Lagafuaina Laisene’s claimed individual ownership. Feo would replace now deceased Necessary Party Salataima Lagafuaina Stanley, who was the first administrator of Lagafuaina Laisene’s estate but is no longer a necessary party for resolution of the issues. We will therefore grant Feo’s motion to permit the Estate of Lagafuaina Laisene to intervene as a party, represented by Feo the present administrator, but in LT No. 03-03 rather than in LT No. 57-91.

Leleo as a Necessary Party to LT No. 03-03

The Estate of Leleo L. Solaita is a necessary party to LT No. 3-03, along with the Estate of Lagafuaina Laisene, to judicial resolution of ownership and leasehold issues concerning the land. Leleo’s estate will therefore be made a necessary party to LT No. 03-03.

Motion to Withdraw as Counsel

Waller’s motion to withdraw as the attorney of record for JLT/PPS in LT No. 03-03 is moot with the dismissal of LT No. 57-91. This motion will therefore be denied.

ORDER

1. Consolidation of LT No. 57-91 and LT No. 03-03 is not necessary to judicial resolution of the ownership and leasehold issues raised in the land at issue to both actions and is denied.

2. LT No. 57-91 is dismissed for lack of prosecution.

3. Feo’s motion to intervene as the administrator on behalf the Estate of Lagafuaina Laisene is granted, but in LT No. 03-03 rather than LT No. 57-91.

4. The Estate of Leleo L. Solaita is included as a necessary party in LT No. 03-03, and her representative shall take the steps necessary to have counsel of record for her estate within 30 days after entry of this order.

It is so ordered.  