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High Court ruling finds ASG overpaid contractor suing the government

fili@samoanews.com

The Trial Division of the High Court has found that the American Samoa Government had overpaid a contractor for the Fono roofing project by close to $200,000 and ordered a judgment in favor of ASG.
 
The contractor, Talia Toa, dba, International Roofing, sued the government in 2006 for breach of contract, alleging that ASG failed to make full payment on the contract for the repair of the Fono building roof and the Samoan Guest Fale.
 
However, ASG argued that, due to clerical and accounting oversights, it actually paid more than the total invoices submitted by the plaintiff.  A trial on the matter was conducted for two days in April and one day in May this year.
 
According to court documents, the original contract was for $78,000 in 1994 and upon undertaking initial repairs, the plaintiff discovered substantial problems with the Fono building roof and the Samoan Fale.
 
After the parties agreed that plaintiff would complete all necessary repairs regardless of the additional cost, ASG officials at the time authorized nine change orders submitted by International Roofing between 1995 and 1996.
 
These change orders increased the contract price to $987,183, according to the judges, who pointed out in a footnote in the decision, that due to mislabeling—allegedly incorrect change order amounts and inconsistent factual allegations submitted by both parties— it’s not clear whether there were eight, nine or ten change orders.
 
The final invoice for the job, submitted December 1997, claimed the plaintiff had performed repairs totaling $900,345 and received $603,000 in payment, leaving a balance due of $297,345. But a final change order for $198,500 included with the final invoice increased the total outstanding balance to $495,845.
 
ASG continued to make payments on the contract and final invoice until early 2001 when officials realized ASG had substantially overpaid. However, after payments stopped, plaintiff claimed it had only received “about” $387,000 of the $495,845 outstanding balance. 
 
According to the plaintiff, it attempted to collect the outstanding balance for about six years beginning in 1999 and in December 2005, plaintiff’s attorney wrote to then Senate President Lolo Matalasi Moliga demanding full payment.
 
Although the difference between what the plaintiff claimed was received and the outstanding balance due was less than the $117,120 demanded by the plaintiff, Lolo didn’t dispute the figure demanded and instructed the plaintiff to seek payment from Treasury Department. Instead the plaintiff wrote to the Attorney General at the time, but received no further payment, resulting in the lawsuit.
 
The court noted that plaintiff didn’t explain why he had contacted the Attorney General instead of Treasury Department.
 
DISCUSSION
 
“Despite extensive discovery proceedings, a number of contracts and account statements admitted in evidence, and a full trial, neither party has presented a particularly compelling case,” according to the Nov. 13 decision signed by Associate Justice Lyle L. Richmond and associate judges Mamea Sala Jr. and Muasau T. Tofili.
 
Ultimately, this shortcoming weighs against the plaintiff who bears the burden to provide his case by preponderance of evidence, the decision states.
 
“Furthermore, what limited credible evidence before the court indicates that ASG has in fact overpaid on the contract,” the judges said.
 
The judges also pointed out that plaintiff submitted what is at best an incomplete accounting record with the final entry made on May 1997 and this record does not appear to identify the last change order included with the final invoice on Dec. 11, 1996 and provides yet another total “invoice amount” of $978,888.
 
Moreover, the plaintiff's written closing arguments present three possible calculations for ASG’s arrearage, any of which plaintiff would accept as final payment.
 
“…that plaintiff cannot establish a firm number from his own evidence is indicative of the muddled evidence before the court,” the judges said. “Overall, plaintiff has sabotaged his own case through inconsistent and deficient evidence that fails to meet the burden of proof.”
 
“When considered in conjunction with the evidence presented by ASG, plaintiff’s case erodes even further,” the judges point out and reemphasize that neither party presented an entirely persuasive case with sufficient evidence to reach a definitive conclusion as to the amount owed or paid on the contract.
 
“However, based on what evidence is available, our best conclusion is that ASG overpaid the contract,” the judges noted.
 
Based on evidence - invoices including change orders - presented to the court, the judges said ASG’s total contractual obligation came to just over $1.18 million while ASG has made a total payment of over $1.36 million - leaving an overpayment by ASG to the tune of $180,225.
 
In conclusion, the court entered a judgment in favor of ASG, represented by Assistant Attorney General Jay Sayles, while Matailupevao Leupolu Jr. represented the plaintiff.
 



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