Asia Tiger, Inc. v. J&C International, LLC

Opinion

IN THE SUPERIOR COURT OF GUAM

ASIA TIGER, INC., )

CIVIL CASE NO . CV0 0 6 -13 Plaintiff, )

vs. ) DECISION AND ORDER

J&C INTERNATIONAL, LLC, HYUNG SIK )

KWON, ALBERT S. FEJERAN, JR., JERRY )

WHIT E and BIG BEN & COMPANY, and )

Doe Defendants 1-V, )

9 Defendants. )

10

11 12 INTRODUCTION 13 Thi s mat t er came befo re t he Ho no rabl e James L. Cant o II o n P l ai nt i ff Asi a Ti ger, Inc.' s 14 motion for partial summary judgment, filed January 31, 2014. T he motion wa s ta ke n unde r

15 advi sement o n Apri l 7 , 2 0 1 4 . Having considered the parties' briefs and the applicable law, the

16 Court now issues the following Decision and Order. 17 BACKGROUND

18 On February 23, 2013, Plaintiff Asia Tiger, Inc. filed a verified amended complaint to

19 assert claims of conversion and constructive trust against Defendants J&C International, LLC 20 (hereinafter "Defendant J&C"), Hyung Sik Kwon, Albert S. Fejeran, Jr., Jerry White, and Big

21 Ben & Company. (Verified Am. Compl., 3-4, Feb. 26, 2014). In essence, Plaintiff alleges that

22 Defendant s t o o k P l ai nt i ff' s heavy equ i pment and vehi cl es (a cat erpi l l ar backho e, a sal vageabl e

23 dump truck, and a dump truck) from Plaintiffs property without Plaintiff's permission and that

24 Defendants sold them without Plaintiff's permission for Defendants' benefit. Id. at 3. Plaintiff

25 prays for the following relief: (1) compensatory damages, including the value of the property 26 and costs expended i n pursuit o f t h e prope rty; (2) punitive damages in the amo u nt o f 27 $500,000.00; (3) a constructive trust for the use and benefit of Plaintiff; and (4) attorney's fees 28 and c osts. Id . at 4-5.

On April 4, 2013, an Entry of Default was executed against Defendant Fejeran for the failure to timely file an answer to Plaintiffs verified amended complaint. (Entry of Default, 1,

Apr. 4, 2013). On April 16, 2013, an Entry of Default was executed against Defendants White and Bi g Ben & Co mpany fo r t he fai l u re t o t i mel y fi l e an answer t o P l ai nt i ffs veri fi ed amended complaint. (Entry of Default, 1, Apr. 16, 2013).

On January 31, 2014, Plaintiff filed a motion for partial summary judgment regarding the issue of ownership of the two heavy equ i pment vehicles which are the subject o f t hi s

litigation. (Mot. Partial Summ. J., 1, Jan. 31, 2014). Plaintiff argues that there are no genuine 9 issues of material fact that it is the sole owner of the dump truck and backhoe when a Certificate

10 of Ownership and Motor Vehicle Registration certificate for the dump truck and backhoe are II issued to Plaintiff. Id. at 5; (Decl. Marlene Slomka, Exhibits 1-3, Jan. 31, 2014).

12 On F ebru ary 2 8 , 2 0 1 4 , Defendant fi l ed an o ppo si t i o n. Defendant asserts that there is a 13 genuine issue of material fact when "there is nothing to establish that the items sued upon, and 14 in the possession of Defendants J&C and Kwon are the caterpillar backhoe, a salvageable dump 15 truck and a dump truck which Plaintiff asserts are the subject matter of this litigation." (Opp'n 16 Mot., 2, Feb. 28, 2014). 17 On Ma rc h 14, 2014, Plaintiff filed a reply. P l ai nt i ff argu es t hat su mmary j u dgment i s 18 warranted when Plaintiff has presented sufficient evidence of ownership as to the dump truck 19 and backhoe in question and when Defendants have not presented any evidence sufficient to 20 create a genuine issue of material fact. (Reply, 1-4, Mar. 14, 2014). 21 D IS C U S S IO N 22 1. Summary Judgment Standard 23 Gu am R. Ci v. P. 56(c) provides that a co u rt may gra nt summary judgment "if the 24 pleadings, depositions, answers to interrogatories, and admissions on file, toge the r with the 25 affidavits, if any, show that there is no genuine issue as to any material fact and that the moving 26 party is entitled to a judgment as a matter of law." A genuine issue of fact exists when "there is 27 `su ffi ci ent evi dence' whi ch est abl i shes a fact u al di spu t e requ i ri ng reso l u t i o n by a fact -fi nder." 28 lizuka Corp. v. Kawasho In1 '1 (Guam), Inc., 1997 Guam 10 ¶ 7 (citing T. W. Ele c. Serv., Inc. v.

G(NR

I Pacific Elec. C ontr actor s As s n, 809 F.2d 626, 630 (9th Cir. 1987)). "A `material' fact is one 2 that is rele vant to an e le me nt o f a c la im or defense and whose existence might affec t t he 3 outcome of the suit.... Disputes over irrelevant or unnecessary facts will not preclude a grant of 4 summary judgment." Id . "If the movant can demonstrate that there are no genuine issues of material fact, the non-movant cannot merely rely on allegations contained in the complaint, but

must produce at least some significant probative evidence tending to support the complaint."

Id . at ¶ 8 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)).

In order to determine whether summary judgment may be granted, "the Court must view 9 the evidence and draw inferences in the light most favorable to the nonmovant." Edwards v. 10 Pacific Fina ncial Corp., 2000 Guam 27 ¶ 7 (citing Anderson, 4 7 7 U.S. at 2 4 9 ). "The co u rt ' s I1 ultimate inquiry is to determine whether the `specific fact' set forth by the nonmoving party, 12 coupled with undisputed background or contextual facts, are such that a rational or reasonable 13 jury might return a verdict in its favor based on that evidence." lizuka, 1 9 9 7 Gu am 1 0 ¶ 8 14 (quoting T. W. Elec. Serv., 809 F.2d at 631) (internal quotations omitted). "St at ed si mpl y, t here 15 is a trial issue if there is sufficient evidence for a jury to return a verdict in the non-moving 16 party's favor." Kim v. Hong, 1997 Guam 11 18 (citing Anderson, 477 U.S. at 250). 17 H. Owne rship o f a Ve hic le 18 Under Guam law, "[u]pon registering a vehicle, the Department of Revenue and 19 Taxation shall issue a certificate of ownership to the legal owner and a registration card to the 20 owner, or both to the owner if there is no legal owner of the vehicle." 16 GCA § 7115 (2013). 21 The Ninth Circuit has defined an owner under the Guam vehicle code as either:

22 a person with all rights in the automobile, in which case he holds both the 23 registration card and the certificate of owne rs hip, or s ome one who has so me rights, including use, but whose interest is subject to a defined interest held by 24 another, in which case only the registration card is in his name and possession, the certificate of ownership being in the name and possession of the other, who is 25 called the `legal owner.'

26 Look v. Mobley, 323 F.2d 214, 216 (9th Cir. 1963).

27 In this c a s e , on or a bout Augus t 2012, Defendant J&C was co nt act ed by Def endant 28 Fejeran regarding three pieces of heavy equipment on his property in Mangilao. (Aff. Jo seph

Camacho , 1 , F eb. 2 8 , 2 0 1 4 ). Joseph Camacho, an employee of Defendant J&C, saw the three pieces of heavy equipment in the jungle near the Japanese School on the back road to Anderson.

Id. at 2 . They appeared to have been abandoned in the eyes of Mr. Camacho. Id. Plaintiff's

property in Mangilao is on the back road to Anderson and near the Japanese School. (Decl .

5 Marlene Slomka in Support of Reply, 1, Mar. 14, 2014). On or about August 25, 2012, Marlene

6 Sl o mka, President and majority shareholder of Plaintiff, was informed that certain hea vy

7 equipment was stolen from Plaintiff's property in Mangilao, and she later discovered that a 8 du mp t ru ck, a backho e, and a sal vageabl e du mp t ru ck had been st o l en fro m P l ai nt i ffs pro pert y.

9 Id. at 1-2. On or a bout September 26, 2012, Defendant Kwon a lle ge dly a dmitte d tha t the 10 vehicles that were towed to his lot from Mangilao did not belong to him or Defendant J&C. Id .

11 at 2 . To substantiate its claim of ownership over the dump truck and backhoe, Plaintiff has 12 pro vi ded the Court with a certificate of owne rs hip and motor vehicle registration for the

13 following vehic les: (1) 1986 Di amo nd Reo Du mp Truck, License No . Z3 4 5 TBG, Vehicle 14 Identification No . 1D9ACZ181G1009870; and (2) 20 08 Caterpillar Backho e, License No .

15 Z1845EQ, Vehicle Ident i fi cat i o n No . CAT24161CEHAC5411. ' (Decl. Marlene Sl o mka in 16 Support of Motion, Exhibits 1-3, Jan. 31, 2014).

17 Viewing the above evidence and drawing inferences in the light most favorable to the 18 nonmovants, Defendants J&C and Kwon, the Court finds that Plaintiff has not met its burden to 19 show that there are no genuine issues of material fact as to the ownership of the dump truck and

20 backho e. lizuka, 1 9 9 7 Gu am 1 0 ¶ 8 . Plaintiff has presented evidence showing that it owns a

21 dump truck and backhoe, which were stolen from its property in Mangilao. (Decl. Marlene 22 Slomka in Support of Motion, Exhibits 1-3, Jan. 31, 2014). Furthermore, Defendants have

23 conceded that a dump truck and backhoe were towed from Mangilao to Defendant J&C's lot 24 and they remain there today. (Aff. Joseph Camacho, 1 , F eb. 2 8 , 2 0 1 4 ). Although one ma y 25 surmise that the vehicles that were taken from Plaintiff's property are the same vehicles that 26 Defendant J&C had towed to its lot, this interpretation requires an inferential step - namely, the

27 1 The Li cense Numbers and Vehi cl e Identi fi cati on Numbers w ere di ffi cul t to ascertai n from Exhi bi ts 1-3 of the 28 Decl arati on of Marl ene Sl omka and the numbers l i sted are the Court ' s i nterpretati on from the exhi bits.

B IN

I identical identities of the vehicles allegedly stolen and the vehicles towed. Plaintiff fails to offer 2 evidence that the vehicles in possession of Defendants J&C and Kwon were specifically towed 3 from Plaintiff's property, rather than simply from somewhere in the village of Mangilao.

4 An owner under the Guam Vehicle Code is a "person with all rights in the automobile, 5 in which case he holds both the registration card and the certificate of ownership." M o b l ey, 323

6 F.2d at 216. A registration card and certificate of owner ship are issued upon registering a 7 vehicle. 16 GCA § 7115 (2013). The Court is unable to grant summary judgment in favor of 8 P l ai nt i ff wi t h respe ct t o o wner shi p of the dump tru ck and backho e in question without a 9 sufficient showing that the registration cards and certificates of ownership presented by Plaintiff

10 belong to the vehicles on Defendant J&C's lot. Without this nexus, there remains a factual 11 dispute requiring resolution by a fact-finder as to the ownership of the dump truck and backhoe.

12 Iizuka, 1 9 9 7 Gu am 1 0 ¶ 7 . Plaintiff argues that "Defendants do not present any evidence that 13 Plaintiffs do not own the vehicles in que s tion. " (Re ply to Opp'n. Mo t ., 4 , Mar. 14, 2014).

14 However, this statement misapprehends where the onus lies. As mova nt, Plaintiff failed to 15 show any evidence, such that might be derived from discovery efforts, to indicate the Vehicle 16 Identification Numbers of the vehicles in the possession of Defendants J&C and Kwon, and that

17 those numbers match those found on Plaintiff's ownership documents.

18 For these reasons, Plaintiff's motion for partial summary judgment is denied. 19

20 21 22 23 24 25 26

CONCLUSION

Based upon the foregoing, P l ai nt i ff Asi a Tiger, Inc.' s motion for partial summary

judgment is hereby DENIED.

The Court will issue a new scheduling order in writing, setting the matter back on for tri al.

SO ORDERED this 1 7-M day of June, 2014.

10 11

12 HON. JAMES L. CANTO II

J udg e, Superior Court of Guam 13

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