OPINIONS

OF THE

APPELLATE DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2012)

MUAAU FOFO TUIOLEMOTU and VAITAGALOA TUIOLEMOTU,
Defendants/Appellants,

v.

TUILEPA TUILEATA (TELESIA) FIAME, PALE FE’A, SIMATIVA MAKIASI, and WILLIAM C. FE’A,
Plaintiffs/Appellees.

TUILEPA TUILEATA (TELESIA) FIAME, PALE FE’A, SIMATIVA MAKIASI, and WILLIAM C. FE’A,
Plaintiffs/Appellants,

v.

MUAAU FOFO TUILOLEMOTU and VAITAGALOA TUIOLEMOTU,
Defendants/Appellees.

High Court of American Samoa
Appellate Division

AP No. 10-10
AP No. 11-10

October 30, 2012

[1] A court abuses its discretion when it “does not apply the correct law or rests its decision on a clearly erroneous finding of material fact.

[2] In the context of a T.C.R.C.P. 60(b) motion, an abuse of discretion is only established where no reasonable person could agree with the trial court; if reasonable men could differ as to the propriety of the court’s action, no abuse of discretion has been shown.

[3] A party must file a motion for a new trial and/or to alter or amend a judgment, with the trial court, prior to appealing a decision on a T.C.R.C.P. 60(b) motion.

[4] A post-final-judgment-relief T.C.R.C.P. 60(b) movant does not have to re-comply with A.S.C.A. § 43.0302; hence, a separate certificate of irreconcilable dispute is not required in a Rule 60(b) motion involving the same parties and the same disputed land. 

[5] Having missed the one-year time limitation requirement, T.C.R.C.P. 60(b) nevertheless mandates that an “extraordinary circumstances” claim shall be made within a reasonable time. What constitutes a reasonable time will depend on the particular circumstances of a case, taking into consideration the strong interest in finality of judgments, the reason for delay, and the possibility of prejudice to the opposing party. 

[6] If a movant seeks to circumvent the one-year time limitation, the movant bears the heavy burden of showing “extraordinary circumstances” justifying relief. Further, the extraordinary circumstances (i) must be beyond the movant’s control, (ii) the delay must have been a direct result of the extraordinary circumstances, and (iii) the movant must have exercised “due diligence” in preserving the right to appeal. 

[7] Unfamiliarity with the law is not a proper basis for seeking relief under T.C.R.C.P. 60(b) beyond the limitations period.

Before WARD, Associate Justice; PATEA,* Acting Associate Justice; SU’APAIA, Associate Judge; SATELE, Associate Judge.

Counsel: For Tuiolemotu, et al., Marie A. Ala’ilima
For Tuileata, et al., Sharron I. Rancourt

OPINION AND ORDER

These appeals stem from a decision rendered by the trial court on June 15, 2010. On June 25, 2010, Muaau Fofo Tuiolemotu [**2**] and Vaitagaloa Tuilolemotu (“Tuiolemotu family” or “Tuiolemotu”), filed an appeal in AP No. 10-10, and raised three issues for our consideration. The first issue is whether the trial court had jurisdiction to reconsider its denial of Appellee’s (“Tuileata family” or “Tuileata”) T.C.R.C.P. 60(b) motion. The second issue is whether the trial court lacked jurisdiction to reconsider its Rule 60(b) motion without a certificate of irreconcilable dispute (“CID”). The third issue is whether the trial court violated Tuiolemotu’s constitutional right to due process when it decreased the land within Tuiolemotu’s survey without affording Tuiolemotu a new trial on the issue.

Also, on June 25, 2010, Tuileata filed an appeal in AP No. 11-10, and raised three issues for our consideration. The first issue is whether the trial court abused its discretion in denying relief to Tuileata under Rule 60(b). The second issue is whether the trial court erred in applying the doctrine of res judicata to bar Tuileata’s claims. The third issue is whether the trial court erred in failing to consider the independent action of LT No. 11-02 on its merits.

Oral arguments were held on May 31, 2012. For reasons set forth below, we affirm the Trial Division’s order denying in part Tuileata’s motion for reconsideration or new trial. [**3**]

Background

In 1911, in the case of Amituana’i v. Sopoaga, CA No. 18-1907, the court found that title to Olovalu lands should vest in the plaintiffs and not the defendant, but advised the plaintiffs to re-survey the property and present a proper plan showing the lands of each plaintiff to the court for confirmation. This was never done.

In 1956, in the case of Tuileata v. Liupua, LT No. 2-1956, the court refused to grant Tuileata’s request to evict Liupua from a portion of Olovalu. The court held that the land was Tuileata family land, but that the Tuileata family had given Liupua license to enter and use the land.

In 1975, Liupua petitioned to register a portion of Olovalu in Liupua v. Fe’a, LT No. 1518-75. The court held that Liupua could not register the land as his individually-owned land because the court in 1956 had found this land to be Tuileata communal land.

In 1987, the court determined the ownership of Olovalu as between Tuileata, Amituana’i, Tuiolemotu, and F’efe’aga (“Fe’a”), in the consolidated cases of LT No. 48-84 and LT No. [**4**] 27-86. Tuielata v. Amituana’i, 4 A.S.R.2d 168 (Land & Titles Div. 1987). The court: (1) found the outer boundaries of Olovalu were defined by the Amituana’i and Tuiolemotu surveys; (2) found the land within the Amituana’i survey is Amituana’i family land; (3) found the land within the Tuiolemou survey is Tuiolemotu family land, with the exception of approximately three acres of land located inside the boundaries of the Tuiolemotu and Fe’a family surveys; (4) ordered Fe’a’s survey to be registered; and (5) held the land within the Fe’a survey that overlaps the Tuiolemotu survey is Tuileata communal land. Tuileata, 4 A.S.R.2d at 168 (aff’d in Tuileata v. Amituana’i, 8 A.S.R.2d 173 (App. Div. 1988)). Fe’a’s survey was never introduced at trial, but all parties agreed that it was provided to the court after the close of evidence but before the court issued its Opinion and Order on May 22, 1987. The only survey relating to Fe’a’s claimed land reflects a 9.99-acre portion of the disputed land that was certified by the Manager of the Lands and Survey Division on April 14, 1987. The Tuileata family appealed in AP No. 16-87, but the Appellate Division affirmed the trial court’s decision in 1988. Id. The Fe’a survey was subsequently recorded by the Territorial Registrar as Tuileata communal land on January 20, 1989.

In 2002, the Tuileata family brought LT No. 11-02, seeking to enjoin the Tuiolemotu family from using land in Olovalu that [**5**] allegedly belonged to the Tuileata family. The court granted the preliminary injunction, holding that there was sufficient ambiguity as to the ownership of the disputed land.

In 2004, Tuileata surveyed 19.97 acres as Tuileata family land, which encompassed the 9.99 acres previously surveyed, and eventually sought a permanent injunction to enjoin the Tuiolemotu family from altering land claimed by the Tuileata family. In addition, the Tuileata family filed a motion for relief from Judgment and for clarification of the trial and appellate courts’ 1987 and 1988 decisions, respectively, pursuant to T.C.R.C.P. 60(b). The trial court consolidated and heard the trial of the injunctive relief action and the hearing on the Rule 60(b) motion together.

On August 26, 2009, following trial, the court issued an Opinion and Order (“August 26, 2009 Decision”), granting judgment in favor of Tuiolemotu and Defendants/cross-claimants, and against Tuileata. The trial court denied Tuileata’s Rule 60(b) motion because it was brought 18 years after the trial court decision it challenged, and was therefore untimely. Because Tuileata offered no explanation for this unreasonable delay, the trial court refused to address the merits of the Rule 60(b) motion for relief from judgment. The trial court also denied Tuileata’s land claim on the basis of res judicata because the court in 1987 had already examined and adjudicated the parties’ [**6**] competing claims to Olovalu, and that decision was affirmed by the appellate court in 1988. Finally, the court denied Tuileata’s request for preliminary injunction, and found Fe’a’s registered survey of 9.99 acres null and void because it encroached on Tuiolemotu communal land as decided by the trial court in 1987. The trial court ordered Tuileata and Tuiolemotu to negotiate in good faith the precise location of Tuileata’s three acres within Tuiolemotu land. The trial court made no determination of Tuileata claims to land outside of the lands whose ownership was decided in 1987.

Subsequently, Tuileata filed a motion for reconsideration, challenging the trial court’s August 26, 2009 Decision. Specifically, Tuileata claimed that the trial court erred by (1) invalidating the registration of the Fe’a 9.99-acre survey in the Tuileata name; (2) finding that no fraud was alleged with respect to the 1987 trial; (3) holding Tuileata unreasonably delayed bringing the Rule 60(b) motion; and (4) failing to apply prior land ownership decisions in a manner that benefited Tuileata.

On June 15, 2010, the trial court issued an Order on Motion for Reconsideration or New Trial. In that decision, the trial court reversed its holding on Fe’a’a 9.99-acre survey, finding that the 1987 decision ordered that it be registered. The trial court found no error in its August 26, 2009 Opinion and [**7**] Order, and denied the remainder of Tuileata’s motion for reconsideration. Both parties appealed the court’s June 15, 2010 decision.

Standard of Review

The Trial Division’s determination regarding Tuileata’s motion for reconsideration involves questions of law and fact. On appeal, pure questions of law are reviewed de novo. Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992). De novo review “acknowledges an appellate court owes no formal allowance or deference to the reasoning or conclusions of law a lower court proffers . . . .” 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)). Findings of fact, however, are reviewed deferentially under the “clearly erroneous” standard. A.S.C.A. § 43.0801(b); TCW Special Credits v. F/V Kassandra Z, 7 A.S.R.2d 7, (App. Div. 2003). “A finding [of fact] is clearly erroneous when the entire record produces the definite and firm conviction that the court below committed a mistake, according particular weight to the trial judge’s assessment of conflicting and ambiguous facts.” TCW Special Credits, 7 A.S.R.3d at 7.

[1-2] A court abuses its discretion when it “does not apply the correct law or rests its decision on a clearly erroneous finding [**8**] of material fact.” Casey v. Albertsons’, Inc., 362 F.3d 1254 (9th Cir. 2004). In the context of a Rule 60(b) motion, “an abuse of discretion is only established where no reasonable person could agree with the [trial] court; if reasonable men could differ as to the propriety of the court’s action, no abuse of discretion has been shown.” Smith v. Widman Trucking & Excavating, Inc., 627 F.2d 792, 795-96 (7th Cir. 1980).

Discussion

I. Reconsideration of the T.C.R.C.P. 60(b) Ruling

Tuiolemotu first argues that the trial court erred in its June 15, 2010 Order on Motion for Reconsideration or New Trial by finding that it had jurisdiction to hear and decide Tuileata’s motion to revisit its Rule 60(b) decision. Tuiolemotu argues that a decision on a Rule 60(b) motion is directly appealable to the Appellate Division.

In its Order on Motion for Reconsideration or New Trial, the trial court noted that it previously heard a motion for “reconsideration” of a Rule 60(b) decision in Reid v. Puailoa, 23 A.S.R.2d 144 (Land & Titles Div. 1993). Tuiolemotu argues that the Reid case is distinguishable from the instant case [**9**] because in Reid, the only decision that would have been affected by granting the motion for new trial would have been the Rule 60(b) motion; whereas here, if the motion for new trial regarding the Rule 60(b) decision had been granted, it would have affected the injunctive relief issues—which was dependent on the Rule 60(b) motion and had already been decided—thereby exposing Tuiolemotu to yet another trial.

[3] Tuiolemotu’s argument regarding Reid is specious. Reid is illustrative that a trial court in this jurisdiction may entertain a Rule 59 motion to revisit its ruling in a Rule 60(b) motion. After all, the Trial Court Rules of Civil Procedure is silent as to motions for new trial on Rule 60(b) rulings. Furthermore, pursuant to A.S.C.A. § 43.0802, a motion for new trial is a mandatory prerequisite to filing an appeal with the Appellate Division of the High Court. There are no statutory mandates requiring direct appeals to the Appellate Division from the decisions of the Land and Titles Division, or from Rule 60(b) rulings. Thus, the lower courts have allowed a motion for new trial after a denial or a Rule 60(b) motion. See Reid, 23 A.S.R.2d at 144; Rocha v. Rocha, 24 A.S.R.2d 55 (Trial Div. 1993). We therefore hold that a party must file a motion for a new trial and/or to alter or amend a judgment, with the trial court, prior to appealing a decision on a Rule 60(b) motion. We accordingly affirm the [**10**] trial court’s decision to hear and decide Tuileata’s motion for new trial regarding the trial court’s Rule 60(b) ruling.

II. Certificate of Irreconcilable Dispute

Tuiolemotu next argues that the trial court lacked jurisdiction to reconsider the Rule 60(b) motion without a CID regarding Tuileata’s claim to the 9.99 acres. Specifically, Tuiolemtou claims that the issue of the 9.99-acre survey was never a subject of mediation before the Office of Samoan Affairs. (“OSA”).

Prior to initiating an action relating to controversies over communal land in the Land and Titles Division of the High Court, “each party shall file with his complaint a certificate signed and attested by the Secretary of Samoan Affairs or his deputy, in which the Secretary or deputy affirms,” inter alia, that the parties have met on at least two occasions, attempted to resolve the controversy, and the controversy could not be resolved. A.S.C.A. § 43.0302. The statute is silent as to application of this requirement to post-final-judgment-relief requests, such as Rule 60(b) motions. Moreover, the language of A.S.C.A. § 43.0302 suggests that the CID requirement applies only [**11**] to original actions, and was not contemplated to apply to post-final-judgment-relief actions.

[4] In the instant case, the 9.99-acre survey was recorded as Tuileata communal land on January 20, 1989. This was after a trial in 1987 and an appeal in 1988. There exists a strong presumption that the original action(s) satisfied the requirements of A.S.C.A. § 43.0302. Given the statute’s silence regarding post-final-judgment-relief actions involving the same disputed land, we see no logic in requiring a post-final-judgment-relief movant to re-comply with A.S.C.A. § 43.0302. Therefore, we hold that a separate CID is not required in a Rule 60(b) motion involving the same parties and the same disputed land. Accordingly, we affirm the trial court’s implicit finding that the Rule 60(b) motion and the subsequent Rule 59 motion were properly before it.

III. Denial of Due Process

Lastly, Tuiolemotu argues that the trial court violated Tuiolemotu’s right to due process by “altering” the 1987 trial court decision, and “increasing” Tuileata land within Tuiolemotu’s survey from approximately three acres to 9.99 acres without first affording Tuiolemotu a hearing on the issue.

In the consolidated cases, Tuileata v. Amituana’i, LT No. 48-84 and Tuiolemotu v. Tuileata, LT No. 27-86, the court determined that a [**12**] significant protion of Olovalu’s boundaries was defined by the outer perimeters of Amituana’i and Tuiolemotu family surveys. After the trial of the consolidated cases ended, the court informed Fe’a’s attorney to submit “some kind of an exhibit” that “does not have to be a formal survey” of the tract of land claimed by Fe’a. In response, the Fe’a survey was provided to the court in 1987 before the court issued its Opinion and Order. On May 22, 1987, the court issued its written decision and held “that the land within Fe’a’s survey that is also within the Tuiolemotu survey is communal land of the Tuileata family. . . . the Tuielata family may register the Fe’a survey.” Tuileata, 4 A.S.R.2d at 168. The only survey in the trial record relating to Fe’a’s claimed land reflects a 9.99-acre portion of land. After the trial court rendered its decision, Tuileata appealed (AP No. 16-87). Tuiolemotu, on the other hand, did not challenge the trial court’s adoption of the Fe’a survey, by either bringing a motion for new trial or raising it on appeal. The Appellate Division in 1988 affirmed the decision on the trial court. Tuieata v. Amituana’i, 8 A.S.R.2d 173 (App. Div. 1988). Tuiolemotu’s failure to challenge on appeal the trial court’s adoption of the [**13**] Fe’a survey therefore cleared the way for Tuileata to record the 9.99-acfre survey as Tuileata communal land.

Tuiolemotu now claims that he was denied due process because he never got to challenge the 9.99-acre survey. Tuiolemotu had more than ample opportunity after the trial in 1987 to challenge the trial court’s adoption of Fe’a’s 9.99-acre survey. He failed to do so in post-trial proceedings; he failed to again raise the issue on appeal; and he failed to pursue any post-final-judgment-relief action since the appellate decision in 1988. Thus, when the trial court issued its June 15, 2010 Order on Motion for Reconsideration or New Trial, it simply restored what the 1987 trial court had ordered and that the 1988 appellate court had affirmed: the Fe’a 9.99-acre survey shall be registered as Tuileata communal land. Accordingly, Tuiolemotu’s claim of denial of due process is without merit.

IV. Denial of T.C.R.C.P. 60(b) Motion

The Tuileata family also appealed the trial court’s Order issued on June 15, 2010, and raised three issues. First, Tuileata argues that the trial court abused its discretion when it denied relief under Rule 60(b) because they met their burden of showing “extraordinary circumstances” pursuant to Rule 60(b). Tuileata argues that the inconsistency between the 1980s decisions and the decisions in Tuileata v. Liupua, LT No. 2-1956, and [**14**] Liupua v. Fe’a, LT No. 1518-75, amounted to extraordinary circumstances because the 1956 and 1975 cases held that approximately seven acres of land within Olovalu was Tuileata communal land; however, the consolidated cases in 1987 and 1988 gave away Olovalu land to Tuiolemotu. This, Tuileata argues that the tension between the cases in 1956 and 1975 and the cases in 1987 and 1988 constitutes “extraordinary circumstance” to justify relief under Rule 60(b)(6).

[5] Rule 60(b) claims based on “mistake, inadvertence, surprise, or excusable neglect” must be raised within one year of judgment or such claims are barred. T.C.R.C.P. 60(b)(1). Here, Tuileata asserted below that there was a “tension” between the 1956 court orders and the 1987/1988 court orders. Essentially, Tuileata is asserting a “mistake” by the 1987/1988 court. Having missed the one-year time limitation requirement, Rule 60(b) nevertheless mandates that an “extraordinary circumstances” claim “shall be made within a reasonable time.” T.C.R.C.P. 60(b). What constitutes a reasonable time will depend on the particular circumstances of a [**15**] case, taking into consideration the strong interest in finality of judgments, the reason for delay, and the possibility of prejudice to the opposing party. PRC Harris, Inc. Boeing Co., 700 F.2d 894, 897 (2d Cir. 1981); Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981)(because the time for appeal had passed, the interest in finality must be given great weight); see also Reid, 23 A.S.R.2d at 104 (“The strong interest in the finality of judgments means Rule 60(b) is rarely available, even if a judgment is subsequently found to be wrong.”); Reid v. Puailoa, 23 A.S.R.2d 144, 146 (Land & Titles Div. 1993)(The “[r]eluctance to reopen a final judgment is essentially strong in regards to land titles.”).

[6] If a movant seeks to circumvent the one-year time limitation, the movant bears the heavy burden of showing “extraordinary circumstances” justifying relief. Am. Samoa Gov’t v. S. Pac. Isl. Airsystems, Inc., 28 A.S.R.2d 170, 171 (Trial Div. 1995); see Ackerman v. United States, 240 U.S. 193, 199-200 (1950)(“The power to vacate judgments is only to be exercised in ‘extraordinary circumstances.’”). Such extraordinary circumstances suggest that the moving party is faultless in the delary. Pioneer Invest. Servs. Co. v. Brunswick Ass’n Ltd. P’ship, 507 U.S. 380 (1993). Further, the extraordinary circumstances (i) must be beyond the [**16**] movant’s control, (ii) the delay must have been a direct result of the extraordinary circumstances, and (iii) the movant must have exercised “due diligence” in preserving the right to appeal. Nelson v. Nicholson, 489 F.3d 1380, 1382 (Fed. Cir. 2007)(citing McCreary v. Nicholson, 19 Vet. App. 324, 332 (2005)(finding that movant could not satisfy the due diligence requirement of extraordinary circumstances test because he did not pursue his case with due diligence); see also United States v. Cirami, 563 F.2d 26, 30 (2d Xir. 1977)(an attorney’s neglect of a case will not provide the grounds for a Rule 60(b)(6) motion); cf. Nurani v. Marissa, 151 F.R.D. 32, 35-36 (1993)(finding that attorney’s mental illness combined with clients’ diligent attempts to contact the attorney justified relief.).

Here, the record below lacks any convincing explanation as to why Tuileata was prevented for 18 years from taking timely action to modify or correct what they now claim was an erroneous judgment. Tuileata was a party to the proceedings in 1956 and 1975, and the proceedings in 1987 and 1988. In 1987, Tuileata could have filed post-trial motions to address the “tension,” but did not. When Tuileata appealed in 1988, Tuileata again chose not to address the “tension” during that process. Even after the judgment became final after the appeal, Tuileata had up to one year to file a Rule 60(b) motion to address any mistakes. Instead, Tuileata waited 18 years to argue that the [**17**] 1987 and 1988 decisions failed to follow the 1956 and 1975 decisions.

During the combined hearing and trial in the current case, the primary Tuileata family member who commenced the action below, Tuilepa Tuileata Fiame (“Tuilepa”), testified that she returned to American Samoa in 1994. Trial Tr. 30, 179). Upon her return, Tuilepa was confronted by a Tuiolemotu family member and was told to get off the land; Tuilepa “left it like that” and started her “research.” Trial Tr. 30-31. Tuilepa’s “research” included talking to people in the village and going to “the survey office” and “the Registrar’s Office.” Trial Tr. 31, 34. Tuilepa did not hire an attorney until 2002, which when this current litigation was commenced. Trial Tr. 37. Tuilepa also testified that an existing home of a Tuiolemotu family member had been built on the disputed land after the 1987/1988 cases. Trial Tr. 43, 183-184, 191.

[7] The trial court found that Tuileata provided no persuasive explanation for the considerable delay in bringing the Rule 60(b) motion. The cumulative delay may be the result of unfamiliarity with the law, but that is not a proper basis for Rule 60(b) relief. As the facts in the foregoing paragraph demonstrate, and after a review of the record below, it is evident to us that the trial court was not only justified in [**18**] denying Tuileta’s motion, but also required to deny the request for relief. Accordingly, we hold that the trial court did not commit clear error in denying the Rule 60(b) motion.

V. Res Judicata

Tuileata next argues that the trial court erred in finding that their claims were precluded by the judgments rendered in the 1980s cases. Tuileata contends that the 1956 and 1975 cases determined that Tuileata owned communal land in Olovalu, and since the court in the 1980s cases took judicial notice of the 1956 case, then any application of res judicata must resolve in favor of Tuileata.

The doctrine of res judicata limits the claims and issues that may be raised in a subsequent proceeding. Tuitasi v. Lualemaga, 4 A.S.R. 798, 801-03 (Trial Div. 1973). Res Judicata applies when (1) there has been a final judgment on the merits, (2) in a prior action involving the same parties or their privies, and (3) the prior action involved the same claim. Puailoa v. Est. of Lagafuaina Laisene, 11 A.S.R.2d 54, 76 (Land & Titles Div. 1989). Privity describes the relationship between a party and a nonparty that is deemed close enough to warrant the application of claim or issue preclusion to the party. Mailei v. Te’o, 5 A.S.R.3d 266 (Land & Titles Div. 2001); [**19**] Taulaga v. Patea, 4 A.S.R.2d 186, 187 (Land & Titles Div. 1987)(a person who takes an interest in real property from one who litigated the property’s title is in privity with him and is bound by res judicata). The same claim is involved if both claims arise out of the same transaction. Mfg. Hanover Trust Co. v. Tifaimoana, 7 A.S.R.2d 84, 86 (Trial Div. 1988).

Tuiolemotu and Tuileata were parties to the 1980s cases, Tuileata v. Amituana’i, LT No. 48-84, and Tuiolemotu v. Tuileata, LT No. 27-86, concerning competing claims to Olovalu. After trial on the merits, the court held that 19.3267 acres of surveyed land was the communal land of the Tuiolemotu family, except for a portion located inside the boundaries of the Tuiolemotu and Fe’a family surveys. The portion contained in the Fe’a survey is entirely Tuileata communal land. The Appellate Division later upheld the trial court’s decision. Tuileata, 8 A.S.R.2d at 173. This judgment was final. We agree with the trial court that Tuileata’s current claims in LT No. 11-02 were barred by res judicata.

Tuileata, however, posits that the court below should have resolved any application of res judicata in Tuileata’s favor because the 1980s cases took judicial notice of the 1956 case, which recognized that Tuileata owned communal land in Olovalu. Tuileata’s argument fails, however, because res judicata applies [**20**] only to those cases involving the same parties or their privies. Puailoa, 19 A.S.R.2d at 46. Tuiolemotu was not a party, nor in privity with the parties, in the 1956 and 1975 cases. Therefore, the 1956 judgment cannot be applied in Tuileata’s favor against Tuiolemotu.

VI. Failure to Consider Injunctive Relief Action Independently on its Merits

Tuileata finally argues that the trial court erred when it failed to consider the injunctive relief action in LT No. 11-02 as an independent action for equitable relief. Tuileata argues that the trial court should have considered injunctive relief on its merits even though it ruled against re-opening and clarifying (i.e., Rule 60(b) motion) the 1987 and 1988 cases.

A party that seeks equitable relief should expressly plead it, as a reviewing court will not construe an action as such. See T.C.R.C.P. 8(a). Here, LT No. 11-02 was not expressly pled as an equitable action to set aside a judgment. Furthermore, Tuileata did not amend the complaint to put everyone on notice that relief from judgment in the 1987 and 1988 cases would be sought. Therefore, we hold that the trial court did not err when it elected not to consider LT No. 11-02 on its merits. [**21**]

Order

For the reasons stated above, we affirm the Trial Division’s ordere. It is so ordered.