SLIP OPINIONS
 
OF THE
 
LAND AND TITLES DIVISION
 
OF THE
 
HIGH COURT OF AMERICAN SAMOA
 
(2013)

CHARLES V. ALA’ILIMA, as trustee for the ESTATE OF LEFAGA SOLIAI BEAVER,
Plaintiff,

v.

TERRITORIAL REGISTRAR, ALBERT MAILO, SAM KUPA and NANCY KUPA, VIENA TIATIA and ATUMAUGA TIATIA, LUANI LU’UGA, FEO LAGAFUAINA, as administrator of the ESTATE OF LAGAFUAINA LAISENE, and DOES I-XX,
Defendants.
_____________________________________

FEO LAGAFUAINA, as administrator of  the ESTATE OF LAGAGUAINA LAISENE,
Cross-Plaintiff,

v.

ALBERT MAILO,
Cross-Defendant.
_____________________________________

SAM and NANCY KUPA and VIENA and ATUMAUGA TIATIA,
Cross-Plaintiffs,

v.
ALBERT MAILO,
Cross-Defendant.
 
High Court of American Samoa
Land & Titles Division
 
LT No. 02-09
 
July 19, 2013

[1] Laches is an equitable defense that bars an action where an unreasonable delay in one party‘s assertion of its rights results in another party‘s undue prejudice.  The court determines the applicability of laches on a case by case basis. 
 
[2] There are too many unknown facts surrounding the delay in filing suit to grant summary judgment on the ground of laches.  More evidence must be presented before it becomes clear whether laches should apply. 

[3] The defendant failed to prove adverse possession where the plaintiff consented to the his occupancy of the land, he had not met the 30 year statutory possession period, and he could not avail himself of tacking because he was not related to the individual who deeded him the subject land.  
 
[4] There is no conflict of interest where an attorney presently serving as the administrator of an estate and representing the estate and himself pro se previously represented a third party in an unsuccessful claim to a portion of land included in the estate that is the subject of the current litigation. 
 
[5] Where a defendant warranted to subsequent purchasers of parcels of his land that he had the authority and right to sell those parcels, he is required to defend the subsequent purchasers title against all other claims to their parcels and is required to indemnify the subsequent purchasers for any costs they incur defending the action.   
 
[6] Once title to land is registered, there is a prohibition against further registrations according to a policy favoring finality in title registrations that have been properly completed.  A landowner cannot register title to land which has been previously registered.  [**2**]  
 
Before RICHMOND, Associate Justice; MAMEA, Associate Judge; and FA‘AMAUSILI, Associate Judge. 
 
Counsel:   For Plaintiff Charles V. Ala‘ilima as trustee for Estate of Lefof, pro se 
For Defendant/Cross-Defendant Albert Mailo, Roy J.D. Hall, Jr. 
For Defendants/Cross-Plaintiffs Sam Kupa and Nancy Kupa, and Viena Tiatia and Atumauga Tiatia, Richard Desaulles 
For Defendant/Cross-Plaintiff Feo Lagafuaina as administrator of Estate of Lagafuaina, Marie A. Ala‘ilima 
 
ORDER GRANTING IN PARTAND DENYING IN PART THE PARTIES‘ SEVERAL MOTIONS FOR SUMMARY JUDGMENT
 
Background
 
This lawsuit involves disputed land in Malaeimi.  According to the complaint of Plaintiff Estate of Lefaga Soliai Beaver ("Beaver‘s Estate"), Laisene Lagafuiaina ("Lagafuaina") sold one acre of his individually owned land in Malaeimi to Lefaga  Beaver ("Beaver"), which transfer was recorded with the Territorial Registrar in 1971.  In 1991, after Lagafuaina‘s death, Talanoa Lagafuaina ("Talanoa"), Lagafuaina‘s son, transferred approximately six acres of land of Defendant/Cross-Plaintiff Estate of Lagafuaina ("Lagafuaina‘s Estate") in Malaeimi to Defendant/Cross-Defendant Albert Mailo ("Mailo"), which transfer recorded with the Territorial Registrar.  Beaver‘s Estate alleges that Talanoa was not the administrator of Lagafuaina‘s estate at the time of this land transfer and [**3**] that the land transferred from Talanoa to Mailo overlapped a significant portion of Beaver‘s one-acre parcel. 
 
In 1989, after a legal challenge to Lagafuaina‘s ownership of land, the High Court ruled in Puailoa v. Estate of Lagafuaina,  11 A.S.R.2d 54 (Land and Titles Div. 1989) that 60 acres of land in Malaeimi, allegedly including the land conveyed to Mailo and Beaver, belonged to Lagafuaina.  The Appellate Division affirmed that Lagafuaina‘s heirs and assigns owned the land in Puailoa v. Estate of Lagafuaina, 19 A.S.R.2d 40, 41 (App. Div. 1991). 
 
In 1992, Mailo sold a quarter acre lot of his Malaeimi land to Defendants/Cross-Plaintiffs Sam and Nancy Kupa ("the Kupas"), which transfer was recorded with the Territorial Registrar.  This land allegedly overlaps Beaver‘s one-acre lot.  In 1997, Mailo sold a quarter acre lot of his Malaeimi land to Defendants/Cross-Plaintiffs Vienna and Atumauga Tiatia ("the Tiatias"), which transfer was recorded with the Territorial Registrar.  This land also allegedly overlaps Beaver‘s one-acre lot. 
 
According to the Beaver Estate, Beaver advised Mailo, the Kupas, and the Territorial Registrar about the alleged overlaps in deeds on her land, but to no avail.  Beaver allegedly advised [**4**] Defendants [???] about this overlap as well.  In its Complaint,  Beaver‘s Estate seeks to have Mailo‘s deed, the Kupas‘ deed, and the Tiatias‘ deed all declared void to the extent they overlap with the land conveyed from Lagafuaina to Beaver. 
 
On October 27, 2011, Mailo, the Kupas, and the Tiatias moved for summary judgment.  In their motion, they argued that they were entitled to the property because they had been on the land for a long time, and that Beaver consented to their occupancy, so adverse possession thus applied.  They also argued the doctrine of laches applied because they made significant improvements to the land, and they also argued that Beaver‘s Estate‘s complaint was barred by the statute of limitations. 
 
Beaver‘s Estate responded in November 2011 with its opposition to the October 27, 2011 summary judgment motion and its own motion for partial summary judgment.  In its motion, Beaver‘s Estate argued that partial summary judgment was proper because Beaver merely permitted Mailo, the Kupas and the Tiatias to stay on the land but never transferred ownership of the land to them.  According to Beaver‘s Estate, the 1971 transfer of land to Beaver was properly recorded, and subsequent improper transfers of land to Mailo, the Kupas and the Tiatias must be [**5**] voided to the extent that they overlap with land belonging to  Beaver‘s Estate. 
 
In November 2011, Beaver‘s Estate filed its amended complaint, adding Defendant Luani Lu`uga ("Lu`uga") and Lagafuaina‘s Estate, and alleging that in 2003, Mailo improperly sold another overlapping quarter-acre of land to Lu`uga.   Beaver‘s Estate alleged that this deed was void to the extent that it overlapped with Beaver‘s Estate‘s land. 
 
In December 2011, Lagafuaina‘s Estate answered and cross-claimed against Mailo.  In its cross-claim, the Estate alleged that Mailo was compensated with land for services performed for the Lagafuiana family.  Lagafuaina‘s Estate further alleged that it was Mailo‘s responsibility to hire and pay for the surveyor and conduct a title search for the land he was given.  Mailo apparently conducted a title search negligently, resulting in the overlapping survey.  Lagafuaina‘s Estate stated that Mailo was solely liable to Beaver‘s Estate for any overlapping of surveyed property. 
 
In February 2012, Beaver‘s Estate filed a supplemental submission to its motion for partial summary judgment.  The supplement contained the affidavit of professional surveyor Lawrence French ("French", who surveyed the relevant land in [**6**] Malaeimi.  French stated that the Mailo survey, and the surveys of the deeds from Mailo to the Kupas, Tiatias, and Lu‘uga encroached upon the registered Beaver survey. 
 
In February 2012, Lafafuaina‘s Estate responded to Mailo‘s summary judgment motion.  In its response, Lagafuaina‘s Estate asserted that there was no genuine dispute as to the overlap of the deed issued to Beaver and the deed issued to Mailo.  Because the deed to Beaver was recorded first, it was valid. 
 
In April 2012, the Kupas and Tiatias filed their answer and cross-claimed against Mailo.  In their cross-claims, they asserted that they acquired their land from Mailo via a deed containing warranties requiring Mailo to defend their title against all other claims and that Mailo was liable for any costs incurred by them defending this action.  Mailo responded that  Lagafuaina‘s Estate is liable to the Kupas and Tiatias and also for any costs associated with the defense of this action. 
 
In July 2012, Mailo filed a supplemental memorandum in support of summary judgment in which he argued that Beaver‘s Estate was not entitled to have any of [Defendants‘] deeds declared void.  According to Mailo, the Appellate Division previously affirmed that the land belonged to Lagafuaina‘s heirs and assigns, and therefore title to all 60 acres in Malaeimi [**7**] vested in Lagafuaina‘s heirs, including the land deeded in 1971 to Beaver.  Therefore, Talanoa was entitled to deed portions of the land to Mailo.  Morever, Mailo claims that Beaver never objected to the registration of deeds by Mailo or any of the other [Defendants].  Mailo also argued that the doctrine of laches applied because significant improvements had been made upon the land by [Defendants], and voiding their deeds would prejudice them greatly.  Mailo again argued that adverse possession applied as well, and that Beaver‘s Estate‘s claims were time-barred by the statute of limitations.  Mailo also argued that Plaintiff Charles V. Ala‘ilima ("Beaver‘s Estate Trustee" or "Ala`ilima") should be disqualified from representing Beaver‘s Estate because he represented the plaintiff in Puailoa Tavete v. The Estate of Lagafuaina Laisene, LT No. 18-87, and also represented a party in another land dispute involving the same land.  Mailo asserted that this constituted a conflict of interest. 
 
In July 2012, the Kupas and Tiatias filed their own motion for summary judgment, asserting that there was no genuine material issue of fact with respect to the duty of Mailo to defend and indemnify them in this action. 
 
[**8**] In response to Mailo‘s supplemental submission, Beaver‘s Estate noted that the High Court stated that the 60 acres belonged to Lagafuaina‘s heirs and assigns.  According to  Beaver‘s Estate, Beaver was one of those assigns, having received the land in 1971, long before the Appellate Division‘s ruling. 
 
Discussion
 
"The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law."  T.C.R.C.P. 56(c).  When the moving party sets out a prima facie case for summary judgment, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial."  T.C.R.C.P. 56(e).  A party is not entitled to a trial upon the unsubstantiated hope that convincing evidence may be produced at trial.  Amer. Samoa Govt. Employees Federal Credit Union v. Galea’i, 26 A.S.R. 2d 74, 76 (Trial Div. 1994).  "Only disputes over facts that might affect the outcome of the suit under the governing law" are "material," and such a dispute is "genuine" only where the evidence is such [**9**] that a reasonable factfinder could return a verdict for the nonmoving party.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).  A court must resolve any factual issues in a controversy in favor of the nonmoving party, but conclusory, non-specific allegations are not sufficient to survive a motion for summary judgment, and missing facts will not be presumed.  Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990). 

We first address Mailo‘s motion for summary judgment.  Mailo first claims that Beaver‘s Estate is not allowed to challenge the transfer of six acres of land from Talanoa to Mailo because the Appellate Division previously stated that the 60 acres of land in Malaeimi, which included the six acres later conveyed to Mailo, belonged to Lagafuaina nd his heirs.  According to Mailo, Talanoa was one of these heirs, so the entire 60 acres at issue in Puailoa Tavete v. Estate of Lagafuaina Laisene belonged to Talanoa and he was well within his rights to deed the six acres of Malaeimi land to Mailo. 
 
Mailo‘s claim fails to recognize that the Appellate Division actually stated that the 60 acres belonged to Lagafuaina‘s heirs and assigns.  See Puailoa, 19 A.S.R.2d at 41.  This group would not only include Talanoa, but Beaver, who [**10**] received the land from Lagafuaina in 1971.  Additionally, as a practical matter, the High Court‘s declaration in Puailoa clearly was not intended to void any legitimate and proper land transfers by Lagafuaina of the Malaeimi land, including the 1971 transfer to Beaver, which was properly recorded prior to the High Court‘s declaration. 
 
Mailo next claims that all of Beaver Estate‘s claims are barred by the doctrine of laches.  Mailo argues that Beaver‘s Estate was aware of the 1991 transfer of land to Mailo shortly after it happened, yet it delayed approximately 18 years before challenging the transfer.  During this time, Mailo made changes to the land, including spending money to improve the properties and the subsequent transfers to the Kupas, Tiatias, and Lu‘uga.  Mailo states that Beaver‘s Estate‘s delay in challenging the transfer was unreasonable, and would result in significant prejudice to all [Defendants]. 
 
[1] Laches is an equitable defense that bars an action where an unreasonable delay in one party‘s assertion of its rights results in another party‘s undue prejudice.  Amituanai v. Sataoa, 6 A.S.R.3d 341, 345 (Land and Titles Div. 2002).  The court determines the applicability of laches on a case by case basis and will usually bar recovery only if a party has [**11**] voluntarily delayed asserting a right, and as a result, the opposing party‘s as well as the court‘s ability to ascertain the truth are harmed.  Blue Pacific Management Corp. v. Anderson, 8 A.S.R.3d 87, 96 (Trial Div. 2004). 
 
[2] Here, there is evidence that Ms. Beaver knew of the 1991 transfer to Mailo and the subsequent transfers to the remaining Defendants shortly after they occurred.  There is evidence that  Beaver may have acquiesced to [Defendants‘] occupancy of the land.  On the other hand, there is evidence that Beaver as well as her representatives repeatedly told [Defendants] that they were occupying her land and that she believed the transfer was improper.  If this is true, any improvements made by Mailo and the other Defendants were done with the full knowledge that they may have been making transfers and improvements on land that belonged to another.  In the case at bar, there are too many unknown facts surrounding the delay in filing suit to grant summary judgment on the ground of laches.  More evidence must be presented before it becomes clear whether laches should apply, and Mailo‘s argument for summary judgment based on laches therefore fails. 
 
Mailo next claims that Beaver‘s Estate‘s claims are barred because, even assuming Beaver validly owned her one-acre parcel [**12**] of land, Mailo had already adversely possessed the land by the time the Beaver Estate filed its complaint.  Mailo states that he actually possessed the land after the 1991 transfer and his predecessors (Lagafuaina‘s heirs) possessed the land prior to the 1991 transfer.  He claims that they both performed activities on the land for at least 30 years (from 1971 to today) that would constitute actual possession.  Moreover, the possession was open and notorious because Beaver was well aware of this possession on her alleged land.  He also claims that the possession was exclusive and hostile to others because the land was not shared with others and Mailo was asserting his ownership to the land during this time of possession. 
 
In order to succeed on an adverse possession claim, one must show that the possession was continuous, open, notorious, and hostile to any claim of ownership, for a period in excess of the time required by the adverse possession statute then in force.  Fa’atoafe v. Tuia’ana, 30 A.S.R.2d 163, 164-65 (Land and Titles Div. 1991).  The adverse possession statute was amended in 1962 to change the prescriptive period from 20 years to 30 years, so occupancy beginning after the effective date of the 1962 amendment must meet the 30-year requirement in order to acquire title by adverse possession.  Willis v. Fai’ivae, 17 [**13**] A.S.R.2d 38, 49 (Land Titles Div. 1990).  Permission defeats a permittee‘s claim of adverse possession.  Williams v. Tupuola, 6 A.S.R.3d 44, 49 (App. Div. 2002). 
 
[3] Here, Mailo has failed to meet the elements of adverse possession.  By his own admission in his original motion for summary judgment, Mailo states that Beaver consented to the occupancy on her alleged land.  This alone is sufficient to defeat any adverse possession claim.  See Williams, 6 A.S.R.3d at 49.  Moreover, given the fact that Mailo was only deeded his six acres in 1991, he has failed to meet the statutorily required possession period of 30 years.  Mailo asserts that he can tack his possession period onto that of the Lagafuaina heirs prior to 1991, citing to Talo v. Tavai, 2 A.S.R. 63 (Trial Div. 1939) in support.  However, Talo is distinguishable because the court there allowed the defendant to tack his possession onto the possession of his matai predecessor.  In the case at bar, Mailo is not related to Talanoa, the person who deeded him the six-acre parcel of land.  Moreover, there is no evidence that Talanoa was in possession of Beaver‘s one-acre parcel of land prior to the 1991 transfer.  Mailo‘s adverse possession claim thus fails. 
 
[**14**] Mailo finally asserts that Beaver‘s Estate‘s claims are time-barred by the statute of limitations.  Mailo states that the statute of limitations for real property actions is 20 years and that the complaint here was filed in 2009.  However, Mailo claims that he and his predecessors (Lagafuaina‘s heirs) have been in possession of the land prior to 1989.  In fact, he claims that he and his predecessors combined possession of the land prior to the 1971 transfer to Beaver. 
 
Actions for the recovery of real property must be brought within 20 years after their causes accrue.  A.S.C.A. § 43.0120(6).  See also Vaivao v. Craddick, 14 A.S.R.2d 108, 116 (Land and Titles Div. 1990). 
 
Here, Mailo‘s statute of limitations claim must be rejected because he was deeded the property by Talanoa in 1991, and the complaint was filed in 2009, within the [?]20-year statute of limitations period.  As explained above, Mailo‘s attempt to tack his possession onto the alleged possession of the subject land by Lagafuaina‘s heirs fails. 
 
[4] As a final matter, we reject Mailo‘s contention that  Ala`ilima should be disqualified as counsel.  While Mailo believes that Ala`ilima has a conflict of interest due to his prior representation of a party making claims upon the Malaeimi [**15**] land, there is insufficient evidence of such a conflict.  Ala`ilima represented a party who claimed that the 60 acres of Malaeimi land was his family‘s communal land, a claim which was defeated.  This prior representation does not affect his ability to represent himself as the trustee of the Beaver Estate on a claim made upon a portion of the same land.  Accordingly, Mailo‘s disqualification claim must be rejected. 
 
[5] The Kupas and Tiatias have also filed a motion for summary judgment on their cross-claim.  They essentially argue that there is no question that Mailo is required to defend their title against all other claims to their respective parcels of land in Malaeimi.  Because they have had to retain counsel to defend themselves in this lawsuit, they claim that Mailo is required them to indemnify for any costs they incur defending this action.  Mailo responds that he used due diligence to survey the property, and that Lagafuaina‘s Estate should be liable to the Kupas and Tiatias or indemnify him because he believed he received valid title to the property in question from Lagafuaina‘s Estate. 
 
There is no doubt that in both deeds of conveyance to the Kupas and Tiatias, Mailo warranted that he had the power to convey the premises to the Kupas and Tiatias, respectively. [**16**] Regardless of the fact that Mailo may have believed he received proper title to the property from Talanoa, there is also no question that Mailo warranted that he would defend the Kupas and Tiatias against all claims and demands made upon the land against the Kupas and Tiatias.  Accordingly, we grant the Kupas and Tiatias motions for summary judgment on their cross-claims.  See Edmonson v. Popchoi, 172 Wn.2d 272 (Wash. 2011). 

Finally, Beaver‘s Estate contends that partial summary judgment is warranted because there is no question of fact as to whether it has valid title to the one-acre parcel of land in Malaeimi.  Beaver‘s Estate argues that the parcel of land was deeded to Beaver and properly recorded in 1971, prior to any transfers of land to [Defendants].  Beaver‘s Estate‘s claim is supported by the affidavit of Lawrence French, the surveyor of the relevant land, who attested that the land deeded to Mailo, and subsequently to the Kupas, Tiatias, and Lu‘uga, encroached upon Beaver‘s Estate‘s land.  Moreover, Beaver‘s Estate‘s claim [**17**] was supported by Lagafuaina‘s Estate, which basically conceded that Beaver properly registered her land first in time, and that subsequent transfers of land to [Defendants] overlapped with  Beaver‘s Estate‘s land (due to Mailo‘s alleged negligence). 
 
[6] Once title to land is registered, there is a prohibition against further registrations according to a policy favoring finality in title registrations that have been properly completed.  Uiliata v. Puailoa, 31 A.S.R.2d 35, 39 (Land and Titles Div. 1996).  A landowner cannot register title to land which has been previously registered.  Uiliata, 31 A.S.R.2d at 39; see also A.S.C.A. § 37.0101(a). 
 
Here, there is no genuine issue of fact as to the overlap of the deed issued to Beaver and the deeds issued to [Defendants[.  Moreover, there is no genuine issue of fact as to the validity of the conveyance of the one-acre parcel of land to  Beaver.  She properly recorded the land in 1971, prior to all other relevant recordations by [Defendants] in this case.  Given this, [Defendants] should not have been able to register title to their land to the extent it overlapped with Beaver‘s Estate‘s land.  See Uiliata, 31 A.S.R.2d at 39.  Because Beaver was properly deeded the one-acre parcel of land and properly recorded it prior [Defendants‘] registrations, we grant Beaver‘s [**18**] Estate‘s motion for partial summary judgment.  The 1991 deed from Talanoa to Mailo is void to the extent it encroaches upon  Beaver‘s Estate‘s land as surveyed by French.  The 1992 deed from Mailo to the Kupas is void to the extent it encroaches upon  Beaver‘s Estate‘s land as surveyed Mr. French.  The 1997 deed from Mailo to the Tiatias is void to the extent it encroaches upon Beaver‘s Estate‘s land as surveyed by French.  The 2003 deed from Mailo to Lu‘uga is void to the extent it encroaches upon Beaver‘s Estate‘s land as surveyed by French.  Questions of fact still remain, however, as to any equitable claims made for laches and for compensation for any good faith improvements made upon the land by [Defendants]. 
 
Order
 
The Estate of Lefaga Soliai Beaver‘s motion for partial summary judgment is granted.  Sam and Nancy Kupas and Viena and Atumauga Tiatia‘s motion for summary judgment is granted.  Albert Mailo‘s motion for summary judgment is denied.   
 
It is so ordered.