1 13 Pl1 I: 51 2
5 IN THE SUPERIOR COURT OF GUAM 6
ROSARIO S. BAUTISTA and ) Civil Case No. CV0471-07 8 MANUEL C. SHOLING, ) ) 9 Plaintiffs. ) ) 10 vs. ) DECISION AND ORDER: Defendant ) Francisco Torres' Motion for Summary 11 FRANCISCO TORRES, Individually and ) Judgment as the Previous Special Administrator and ) 12 Now Executor of the Estate of Jesus U. ) Torres, Deceased, ) 13 ) Defendant. ) 14 ) ) DANIEL U. TORRES and BARBARA M. ) 15 ) 16 DeMELLO, TRUSTEE UNDER THE ) ESTEBAN TORRES F'AMILY TRUST ) 17 DATED MAY 12,1995 ) 18 Intervenor Plaintiffs. ~ ) 19 vs. ) ROSARIO S. BAUTISTA and ) 20 ) MANUEL C. SHOLING, ) 21 Defendants, ) ) 22 And ) ) 23 GLORIA C. SHOLING, ) 24 Third-Party Defendant. ~ 25 INTRODUCTION 26
27 This matter came before the Court on the Defendant Francisco Torres' Motion for
28 Summary Judgment. Attorney Wayson W.S. Wong represented Plaintiffs Rosario Bautista and
Bautista and Sholing v. Torres (CV0471-07) Decision and Order Manuel Sholing. Defendant Francisco Torres was represented by Attorney John C. Terlaje. 1
2 Upon review of the evidence, written arguments, and legal authorities presented, the Court
3 hereby issues this Decision and Order Granting Defendant Torres' motion. 4 BACKGROUND 1 5 In 1967, Mrs. Ana Sholing and her three children,2 Manuel Sholing ("Plaintiff Sholing") 6 Rosario Bautista ("Plaintiff Bautista") and Gloria Sholing, owned property in Tumon, Gua 7
8 ("PIC property") on which the Pacific Islands Club Guam ("PIC") is situated. 3 On Septembe
9 22, 1967, the Sholing family retained Attorney Jesus U. Torres ("Attorney Torres") to handl 10 legal matters regarding the PIC property for a monthly fee of $200. 4 Thereafter, on October 15 11 1987, Ana Sholing 5 entered into an amended agreement ("Amended Agreement") with Attorne 12
13 Torres regarding negotiation of an amended PIC lease and future legal services. 6 Under thi
14 Agreement, Attorney Torres was entitled to ten percent (10%) of revenue generated from PI 15 rents for twenty-five (25) years as attorney fees, commencing October 1, 1987, and terminatin 16 on September 30, 2012. 7 17 Pursuant to the Amended Agreement, Attorney Torres performed legal work to assis 18
19 Mrs. Sholing in negotiating the amended lease for the PIC property in 1987, which significant!
20 increased the amount of rent paid to the Sholing family. 8 After negotiating the amended lease 21 Attorney Torres took charge of collecting rent for the PIC property and distributed payments t 22 1 In order to ensure consistency in evaluation of the claims against Defendant Torres and Defendant Perez, the 23 pertinent facts in this section are largely adopted from this Court's Previous Decision and Order granting Defendant Perez's Motion for Summary Judgment. 24 2 All three children will be collectively referred to as the "Sholing family." 3 Third Amended Complaint~ 7 at 2, filed July I 0, 2009 ("Compl."). 25 4 Id ~ 9 at 2. 5 Ana Sholing became the attorney-in-fact for her three children to handle their collective interest in the PI 26 property. Id ~ 8 at 2. 6 See /d ~~ 11-I2 at 2-3; see also Compl., Exhibit B to Exhibit I (October I5, I987 Property Management an 27 Retainer Agreement ("Amended Agreement")). 7 Compl. ~~ II-I2 at 2-3; see Amended Agreement. 28 8 Compl. ~ IO at 2.
2 Bautista and Sholing v. Torres (CV04 7I-07) Decision and Order the Sholing family. 9 Along with said rental disbursements, Attorney Torres included periodi 1
2 rent statements to the Sholing family (including each of the plaintiffs) as early as the 1980s,
3 informing them of the total rent amount collected as well as the amounts deducted for taxes an 4 attorney's fees.I 0 These statements explicitly reflect that Attorney Torres deducted ten percen 5 ( 10%) of the PIC property rent in payment of attorney's fees. II 6
7 After the death of Attorney Torres on August 27, 2002, 12 Attorney Perez (a forme
8 defendant in this litigation) continued rent collections for the PIC propertyi 3 as well a 9 notifications of the ten percent fee deductions.I 4 As such, the rent statements sent by Attorne 10 Perez remained consistent with those previously sent by Attorney Torres to Plaintiffs. Is 11 Despite believing that the Amended Agreement took unfair advantage of their mother, 12
13 Ana Sholing, Plaintiffs nonetheless waited until after her death in September, 2005, I6 befor
14 raising concerns about the ten percent deductions. 17 Plaintiffs stated that, although the 15 suspected that such deductions were excessive, they had not challenged the collection of fee 16 prior to Ana Sholing's death out of respect for her. IS 17
18 9 !d. ~ 12 at 3. 10 19 Defendant's Motion for Summary judgment, filed May 10, 2010 ("Motion"), Manual Sholing Depositio Transcript ("Sholing Depo."), p. 103, II. 11-19 (March 10, 2010); Motion, Rosario S. Bautista Deposition Transcrip 20 ("Bautista Depo."), p. 67, II. 14-25 (March 11, 2010); Motion, Deposition Exhibit File for Sholing Depo. an Bautista Depo. ("Depo. Ex. File"), Exs. W, X, Y, Z, A-1, B~1, C-1, and D-1 (Statements of Rent from Attorne 21 Jesus U. Torres). 11 Motion, Sholing Depo., p. 103, II. 11-19 (March 10, 2010); see also Motion, Bautista Depo., p. 67, II. 14-25, p. 68 22 II. 1-2 (March 11, 2010); Motion, Depo. Ex. File, Exs. W, X, Y, Z, A-1, B-1, C-1, and D-1 (Statements of Rent fro Attorney Jesus U. Torres). 23 12 Compl. ~ 13, at 3. 13 Motion, Bautista Depo., p. 77, II. 17-25; p. 78, II. 1-22 (March 11, 2010); See, e.g., Motion, Depo. Ex. File, E-1 24 (Statement of Rent from Defendant Perez). 14 Motion, Depo. Ex. File, E-1 (Statement of Rent from Defendant Perez). 25 15 Compare Motion, Depo. Ex. File, Exs. W, X, Y, Z, A-1, B-1, C-1, and D-1 (Statements of Rent from Attorne Jesus U. Torres) with Motion, Depo. Ex. File, Ex. E-1 (Statement of Rent from Defendant Perez). 26 Complaint~ 47, at 7. 16 17 Motion, Sholing Depo., p. 192, II. 21-25; p. 193, II. 1-5 (March 10, 2010); Motion, Bautista Depo., p. 69, II. 16-21 27 p. 70, II. 1-25; p. 71, II. 1-17; p. 80, II. 1-25; p. 81, II. 1-4 (March 11, 2010). 18 Motion, Sholing Depo., p. 96, II. 13-25; p. 97, II. 1-25; p. 98; II. 1-10 (March 10, 2010); Motion, Bautista Depo., p. 28 68, II. 20-25; p. 69, II. 1-21, p. 70, II. 1-25; p. 71, II. 1-17; p. 80, II. 1-25; p. 81, II. 1-4 (March 11, 2010).
3 Bautista and Sholing v. Torres (CV0471-07) Decision and Order Plaintiffs had access to independent legal counsel as early as the 1990s, but decline 1 19 2 taking any action against Attorney Torres with regard to the deductions. Indeed, Plaintiff:
3 admitted this fact explicitly in their deposition testimony. 20 Plaintiffs eventually contacted thei 4 current counsel, Wayson W.S. Wong ("Attorney Wong") to represent them in the present case?' 5 On August 30, 2006, Attorney Wong advised Attorney Perez, via letter, that Plaintiffs wer 6
7 entitled to each receive $221,833.33 from the forthcoming PIC rental check. 22 This amoun
8 includes in its calculation the ten percent deduction for attorney's fees? 3 On November 15 9 2006, Attorney Wong, on behalf of Plaintiffs, sent another letter to Attorney Perez objecting t 10 further deductions under the Amended Agreement. 24 On April 23, 2007, Plaintiffs filed claim 11 against the Torres Estate and Attorney Perez, for breach of fiduciary duty, rescissiOn an 12
13 restitution, deceptive trade practices, and negligence. 25
14 On May 10, 2010, Attorney Perez moved for summary judgment, claiming, among othe 15 grounds, that Plaintiffs' claims were time-barred by the statute of limitations? 6 This Cou 16 granted summary judgment on April 17, 2013. 27 Based on the holdings in that decision 17 Defendant Torres moved for summary judgment on July 15, 2014, alleging that the claim 18
22 19 See Motion, Bautista Depo., p. 25, 11. 7-24; p. 30, ll. 3-7; p. 31, ll. 2-11 (March 11, 2010); Motion, Sholing Depo. 23 p. 50, 11. 4-9; p. 226, ll. 3-5 (March 10, 2010); Motion, Depo. Ex. File, Ex. T (Deed of Gift). 20 Motion, Sholing Depo., p. 193, ll. 6-11 (March 10, 2010); Motion, Bautista Depo., p. 71, ll. 4-10 (March 11 24 2010). 21 Motion, Bautista Depo., p. 21, 11.4-13 (March 12, 2010). 22 25 Motion, Bautista Depo., p. 33, 11. 12-17 (March 12, 2010); Motion, Depo. Ex. File., Ex. N-1 (August 30, 200 Letter from Attorney Wayson Wong to Defendant Perez). 26 23 /d. 24 Compl. ~ 49 at 7. 25 27 See generally id. 26 Notice ofMotion and Motion for Summary judgment, CV0471-07 (May 10, 2010). 28 27 Bautista and Sholing v. Torres and Perez, CV0471-07, Decision and Order (Apr. 17, 2013).
4 Bautista and Sholing v. Torres (CV04 71-07) Decision and Order against him were time-barred for the same reasons which entitled Attorney Perez to summar 1
2 judgment. 28
3 DISCUSSION 4 Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, 5 and admissions on file, together with the affidavits, if any, show that there is no genuine issue a 6 to any material fact." Gayle v. Hem/ani, 2000 Guam 25 , 20 (citing Bank of Guam v. Flores, 7
8 2004 Guam 25, 8; Guam R.Civ.P. 56(c) (1995)). There is a genuine issue if there is "sufficien
9 evidence" which establishes a factual dispute requiring resolution by a fact-finder. !d. (citin 10 Iizuka Corp. v. Kawasho Int'l, Inc., 1997 Guam 10,7 (citation omitted)). However, the disput 11 must be as to a "material fact." !d. "A 'material' fact is one that is relevant to an element of 12
13 claim or defense and whose existence might affect the outcome of the suit ... [d]isputes ove
14 irrelevant or unnecessary facts will not preclude a grant of summary judgment." !d. 15 In motions for summary judgment, a court must view the evidence and draw inferences i 16 the light most favorable to the non-movant. !d. If, however, there are no genuine issues o 17 material fact, the non-movant may not simply rely on allegations in the complaint, but mus 18
19 provide some significant probative evidence supporting the complaint. !d. , 21 (citing Anderso
20 v. Liberty Lobby, Inc., 477 U.S. 242,249, 106 S.Ct. 2505,2510, 91 L.Ed.2d 202 (1986)). 21 Statute of Limitations (Counts One, Two, and Three) 22 I. April17, 2013 Decision and Order 23 As with the claims against former-defendant Perez, the Court must first address whethe 24
25 the claims against Defendant Torres are time-barred. Count one (1) and Count Three (3) are eac
26 subject to a 3-year statute of limitations period. 7 GCA § 11305(d) (3-year statute of limitatio 27 28 Defendant Francisco Torres' Memorandum in Support of Motion for Summary judgment, CV0471-07 (Jul. 15, 28 2014).
5 Bautista and Sholing v. Torres (CV0471-07) Decision and Order for breach of fiduciary duty claim); see also 5 GCA § 32121 (3-year statute of limitation fo 1
2 deceptive trade practices claim). The breach of contract claim in Count Two (2) is subject to a 4
3 year statute of limitations period. See 7 GCA § 11303(a); Park v. Citibank, Civ. No. 05-00006 4 2008 WL 926660, at *8 (Dist. Guam Jan. 1, 2008) (citing 7 GCA § 11303(a)) ("the statute o 5 limitations for a contract action for breach of the covenant of good faith and fair dealing is fou 6 years."). Under Guam law, the limitations period commences when "the plaintiff suspects o 7
8 should suspect that his injury was caused by wrongdoing or that someone has done somethin
9 wrong to him." Gayle, 2000 Guam 25 ~ 24 (citing Custodio v. Boonprakong eta!., 1999 Guam 5 10 ~27). 11 In the Decision and Order granting Attorney Perez summary judgment, this Court ha 12
13 already found that the claims arising from breach of fiduciary duty, rescission and covenant o
14 good faith, and deceptive trade practices were each time-barred with regard to the Torres estate. 15 Bautista and Sholing v. Torres and Perez, CV0471-07, Decision and Order at 9 (Super. Ct. Apr. 16 17, 2013). As explained in that Order: 17 In this case, the statute of limitations for each of Plaintiffs' claims 18 against Attorney Torres began to run as early as the 1980s. First, 19 Plaintiffs had actual knowledge as early as the 1980s that Attorney Torres was deducting ten percent for attorney's fees. They 20 received periodic rent statements as early as the 1980s showing the ten percent deductions. Second, as early as the 1980s, Plaintiffs 21 suspected that Attorney Torres's ten percent deductions for 22 attorney's fee were excessive and believed that their mother was being taken advantage of by Attorney Torres. Plaintiffs, however, 23 waited until 2007, well after the statute of limitations period had passed for each of their claims, to commence this civil action. 24 Therefore, the statute of limitations for Plaintiffs' claims against 25 the Torres Estate expired long ago.
26 !d. at 10. 27
6 Bautista and Sholing v. Torres (CV04 71-07) Decision and Order ~~·! Substantial evidence and testimony in the record supported this conclusion. Indeed, deposition 1
2 from the Plaintiffs themselves established unequivocally that Plaintiffs knew about Attorne
3 Torres' ten percent attorney fee deductions. (See Motion, Sholing Depo., p. 140, ll. 5-10; 4 Motion, Bautista Depo., p. 68, 11. 7-13). As this Court articulated in the Perez Order: 5 Plaintiff Sholing knew of the ten percent deductions as early as the 6 1980s,29 and he admitted to thinking that the deductions were "unreasonable" and "too much" when he "first learned" about 7 them? 0 He also thought that Attorney Torres "wasn't doing it 8 right," and that his mother, Ana Sholing, was being "taken advantage of' by Attorney Torres. 31 Like PlaintiffSholing, 9 Plaintiff Bautista also thought that the ten percent deductions were 10 "too much" and felt that way since the 1990s when she received the rent statements from Attorney Torres. 32 11 Id. at 3. 12
13 Further, this Court has examined and rejected Plaintiffs' arguments that the limitation
14 period was tolled by a continuing representation or continuing wrong theory. The April17, 2013 15 Order clarified that "[e]ven if a fiduciary relationship existed between them and Attorney Torres, 16 Plaintiffs were still required to exercise reasonable diligence in discovering wrongful acts." !d. a 17 10. The Court concluded that Plaintiffs did not exercise such diligence, instead opting to foreg 18
19 litigation despite actual awareness of the purported wrongdoings decades before the present suit.
20 !d. at 10-11. Likewise, the Court determined that the continuing wrong doctrine "does not appl 21 to cases where the 'injury is definite and discoverable, and nothing prevents [plaintiffs] fro 22 coming forward to seek redress."' !d. at 11 (citing Gayle, 2000 Guam 25 ~ 33). Thus, becaus 23 Plaintiffs received periodic statements of the deductions and had access to independent counsel 24
25 29 Motion, Sholing Depo., p. 140, II. 5-10 (admitting that "[d]uring the '80s and '90s" he was aware of "the I percent deduction by J.U. Torres."). 26 30 Motion, Sholing Depo., p. 95, II. 21-25; p. 96, II. 1-5; p. 105, II. 4-11; p. 136, II. 5-12; p.l39, ll. 19-24; p. 191, II 22-25; p. 192, II. 1-9. 27 31 Motion, Sholing Depo., p. 192, ll. 21-23; p. 98, II. 7-14. 32 Motion, Bautista Depo., p. 68, II. 7-13 (admitting that she "knew all during the 1990s that Attorney Torres wa 28 deducting 10 percent."); p. 69, II. 16-21 (March 11, 2010).
7 Bautista and Sholing v. Torres (CV0471-07) Decision and Order they possessed the means and capacity to both discover and litigate these disputes as early as th 1
2 1980s. !d. Finally, this Court held that equitable tolling was not appropriate in this case, sine
3 Plaintiffs had not diligently pursued their rights and there were no exceptional circumstance ~.. 4 which prevented them from undertaking legal action within the limitation~ period. !d. at 11-12. 5 II. Law of the Case ). 6
7 The Law of the Case doctrine states that a court is not to reconsider an issue that ha
8 already been decided by the same court or a higher court in the same case. Carlson v. Perez 9 2007 Guam 6 , 19. Given the conclusive nature of these findings on identical facts, the abov 10 holdings regarding the limitations period for claims asserted against the Torres estate hav 11 become the Law of the Case and must be applied consistently to the present Motion fo 12
13 Summary Judgment. See Lujan v. Lujan, 2002 Guam 11 , 7 ("'[A] court is generally preclude
14 from reconsidering an issue that has already been decided by the same court, or a higher court i 15 the identical case. This rule is known as the 'law of the case.") (internal quotations omitted)· 16 Lower Elwha Band of S'Klallams v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000 17 ("The Law of the Case applies to issues that have been decided explicitly or by necessar 18
19 implication in [the] previous disposition.") (internal quotations omitted); Transamerica Leasing,
20 Inc. v. Institute of London Underwriters, 430 F.3d 1326, 1331 (11th Cir. 2005). Absent 21 showing of clear error, manifest injustice, or an intervening change in law, evidence, o 22 circumstances, "failure to apply the doctrine of law of the case ... constitutes an abuse o 23
24 discretion." People v. Hualde, 1999 Guam 3, 13.
25 In their opposition to the Motion to Dismiss, Plaintiffs explicitly concede that applyin 26 the Law of the Case would result in summary judgment on Counts One through Three. Se 27 Plaintiffs' Memorandum in Opposition to Francisco Torres' Motion for Summary Judgment, 28
8 Bautista and Sholing v. Torres (CV0471-07) Decision and Order CV0471-07 at 1-2 (Aug. 19, 2014). Additionally, there is no allegation of an intervening chang 1
2 in law, fact or circumstance in the case which would affect the holding of the previous Decisio
3 and Order. Thus, the Law of the Case will bind the present motion and necessitate summar 4 judgment unless clearly erroneous or manifestly unjust. Hualde, 1999 Guam 3 ~ 13. 5 Plaintiffs first allege that the Court erred by failing to apply the continuous representation 6
7 rule after the point where Plaintiffs had actual knowledge of Attorney Torres deductions under
8 the Amended Agreement. Plaintiffs contend that the continuous representation rule extends for
9 the entire pendency of the representation, regardless of actual knowledge of alleged wrongdoing. 10 See Opposition, at 4-15. As indicated in Plaintiffs' briefing, this theory of the rule is supported 11 by case law from several jurisdictions. See e.g. R.D.H Commc'ns, Ltd. v. Winston, 700 A.2d 766, 12
13 772-73 (D.C. 1997); Laird v. Blacker, 828 P.2d 691, 698 (Cal. 1992); Alagia, Day, Trautwein &
14 Smith v. Broadbent, 882 S.W.2d 121, 125 (Ky. 1994); Biomet, Inc. v. Barnes & Thornburg, 791 15 N.E.2d 760, 766 (Ind. Ct. App. 2003); Wall v. Lewis, 393 N.W.2d 758,762-65 (N.D. 1986). 16 However, this issue is by no means settled. Many Courts have altogether declined to apply the 17 continuous representation rule. See e.g. Sharts v. Nate/son, 885 P.2d 642, 647(N.M. 1994); 18
19 Barnes v. Turner, 606 S.E.2d 849, 852 (Ga. 2004); Witt v. Jones & Jones Law Offices, P.C., 646
20 N.E.2d 23, 25 (Ill. App. Ct. 1995); Broker House Int'l, Ltd. v. Bendelow, 952 P.2d 860, 864 21 (Colo. Ct. App. 1998); Quailes v. Ennis, 461 A.2d 694 (Del. 1983). Further, ofthose 22 jurisdictions that do apply the rule, several have explicitly held that a party may not continue to 23 employ the rule to toll a limitations period after they have become aware of the conduct that 24
25 gives rise to their cause of action. Economy Housing Co. v. Rosenberg, 475 N.W.2d 899, 900
26 (Neb. 1991); Sharp v. Teague, 439 S.E.2d 792,795 (N.C. App. Ct. 1994); Ranier v. Stuart & 27
9 Bautista and Sholing v. Torres (CV0471-07) Decision and Order Freida, P.C., 887 P.2d 339 (Ok.Ct.App. 1994); St. Paul Fire & Marine Ins. Co. v. Speerstra, 666 1
2 P.2d 255,259 (Or. Ct. App. 1983).
3 By definition, a point of law subject to a split of authority among different jurisdiction 4 may not give rise to clear and obvious error since the issue remains unsettled and subject t 5 judicial interpretation. United States v. Moore, 563 F. App'x 866, 869 (2d Cir. 2014); Unite 6
7 States v. Howell, 351 F. App'x 959, 960 (5th Cir. 2009); People v. Jones, 237081, 2003 W
8 22113959 at *2 (Mich. Ct. App. Sept. 11, 2003). Thus, division among jurisdictions regardin 9 the continuous representation rule precludes a finding of clear error necessary to overcome th 10 Law of the Case presumption. !d. 11 The Court is similarly unpersuaded by Plaintiffs' alternate arguments for clear error. A 12
13 an initial matter, Plaintiffs claim that their Fraudulent Concealment argument is set forth in thei
14 first amended motion to file a fourth amended complaint. However, the Court has already denie 15 Plaintiffs leave to file any further complaints. Decision and Order Plaintiffs' Motion for Leave t 16 File Fourth Amended Complaint, CV0471-07 (Feb. 17, 2014). While the Court indeed foun 17 futility with regard to Defendant Perez, it also found that Plaintiffs' inordinate amount o 18
19 attempts to amend their complaint itself constituted prejudice as to both Defendant Perez an
20 Defendant Torres. !d. at 4-5 (citing Mir v. Fosburg, 646 F.2d 342, 347 (9th Cir. 1980); Abels v. 21 JBC Legal Grp., P.C., 229 F.R.D. 152, 156 (N.D. Cal. 2005)). Thus, the Court made clear tha 22 Plaintiffs may make no further amendments to their complaint in this action and, despite an 23 ambiguity in its title, the February 17, 2014 Order constituted a Denial of Plaintiffs amende 24
25 motion for leave to amend their complaint for a fourth time.
26 Further, Plaintiffs case for fraudulent concealment is meritless on its face. As discusse 27 above, Undisputed transcripts and depositions definitively established that Attorney Torres sen 28
10 Bautista and Sholing v. Torres (CV0471-07) Decision and Order statements to the Sholing family (including each of the plaintiffs) beginning in the 1980s 1
2 informing them specifically of the total rent amount collected as well as the amounts deducte
3 for his attorney's fees.(see Defendant's Motion for Summary judgment, filed May 10, 201 4 ("Motion"), Manual Sholing Deposition Transcript, p. 103, ll. 11-19 (March 10, 201 0); Rosari 5 S. Bautista Deposition Transcript, p. 67, ll. 14-25 (March 11, 2010); De osition Exhibit File fo 6
7 Sholing Depo. and Bautista Depo. Exs. W, X, Y, Z, A-1, B-1, C-1, and D-1 (Statements ofRen
8 from Attorney Jesus U. Torres)). As indicated, these statements disclosed that Attorney Torre 9 deducted ten percent (10%) of the PIC property rent in payment of attorney's fees.( Sholin 10 Depo., p. 103, ll. 11-19 (March 10, 201 0); Bautista Depo., p. 67, ll. 14-25, p. 68, ll. 1-2 (Marc 11 11, 2010); Depo. Ex. File, Exs. W, X, Y, Z, A-1, B-1, C-1, and D-1 (Statements of Rent fro 12
13 Attorney Jesus U. Torres)). These facts are themselves more than sufficient to defeat a showin
14 of clear error needed to disturb the Law of the Case. Finally, the undisputed facts in the recor 15 similarly contradict Plaintiffs' attempt to assert Interdonato estoppel. Far from being "lulled int 16 inaction" by Defendant Torres, Plaintiffs explicitly admit that they were well aware of th 17 deductions, believed them to be improper and too high, and nonetheless declined to bring suit ou 18
19 of respect for their mother. Bautista and Sholing v. Torres and Perez, CV0471-07, Decision an
20 Order at 10. Thus, Plaintiffs' argument for estoppel is deficient on its face and this Court's initia 21 findings bind the outcome on the present questions. 22 Accordingly, Counts One through Three (1-3) against Defendant Torres and the Torre 23 estate are dismissed as time-barred by applicable statutes of limitations. 24
25 Mootness (Count Four)
26 The Court now turns to Plaintiffs' final claim applicable to Defendant Torres. Plaintiff: 27 assert that Defendant Torres breached his fiduciary duties as executor of the Torres estate b 28
II Bautista and Sholing v. Torres (CV047I-07) Decision and Order distributing ten million dollars of that estate to their detriment as creditors. However, because th 1
2 harm articulated would only result if, due to Defendant Torres' conduct, the value of the estat
3 was insufficient to pay a judgment awarded to Plaintiffs' on their other claims, this Decisio 4 renders their argument moot. 5 The question of Justiciability must be resolved before a court may assume jurisdiction t 6
7 adjudicate the merits of a claim. North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 40
8 (1971). Accordingly, if the issues of a case are no longer live or the parties lack a legall 9 cognizable interest in the outcome, the action is considered moot and this Court may not exercis 10 jurisdiction. Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 11 (1969); Soliman v. US. ex rel. INS, 296 F.3d 1237, 1242 (11th Cir. 2002). This rule applies eve 12
13 if a cause of action was live at the commencement of litigation but was thereafter rendered moo
14 by intervening events. Taitano v. Lujan, 2005 Guam 26 ~ 27 (citation omitted). 15 Given that all substantive claims for relief against the Torres estate have been dismisse 16 supra as time-barred, Plaintiffs possess no legally cognizable interest in the funds distributed b 17 Defendant Torres in his role as Executor. Consequently, Defendant Torres' conduct does no 18
19 constitute a wrong against plaintiffs for which meaningful relief can be granted. Knox v. Serv.
20 Employees Int'l Union, LocaliOOO, 132 S. Ct. 2277,2287 (2012) (a case becomes moot when "i 21 is impossible for a court to grant any effectual relief... ") (internal quotations omitted); Zhang v. 22 Streiff, 556 F. Supp. 2d 1310, 1312-13 (S.D. Ala. 2008)( "a case is moot when it no longe 23
presents a live controversy with respect to which the court can give meaningful relief."). A 24 !;..:.
25 such, Count Four (4) is dismissed as moot.
26 Doctrine of Laches 27
12 Bautista and Sholing v. Torres (CV0471-07) Decision and Order In granting Attorney Perez's Motion for Summary Judgment, this Court found that, i 1
2 addition to exceeding the statute of limitation, the claims against him were alternately barred b
3 the doctrine of laches. Decision and Order at 13-15 (Apr. 17, 20 13). Laches is "an equitabl 4 time limitation on a party's right to bring suit" designed to limit recovery of "those who sleep o 5 their rights." Duenas v. Guam Election Comm 'n, 2008 Guam 1 ~ 16 (internal quotation omitted). 6 For laches to bar a claim, there must be "inexcusable delay which prejudices the [opposin 7
8 party]'s ability to respond." !d. ~ 17 (quoting May v. People, 2005 Guam 17 ~ 27). I
9 determining whether to apply the doctrine, the Court must examine "both the length of the del a 10 between the potential and actual actions and the circumstances surrounding the delay." 11 v. Limtiaco, 2008 Guam 5 ~ 24 (internal quotation omitted). 12
13 With regard to the claims against Attorney Perez, This Court determined, based upon th
14 facts of this case, that "Plaintiffs' delay in bringing the suit was unreasonable because Plaintiff: 15 were well aware that the attorney's fee deductions were being made as early as th 16 1980s .... [and] they had access to independent counsel." Decision and Order at 14. In addition 17 the Court concluded that substantial prejudice resulted from the delay because the deaths of An 18
19 Sholing and Attorney Torres, the only two parties to the contract, deprived Attorney Perez o
20 "the opportunity to prepare a full and fair defense against Plaintiffs' claims regarding th 21 Amended Agreement." !d. This same rationale applies to bar the claims against Defendan 22 Torres. Each of the claims against him derives from the initial agreement negotiated between it 23 now-deceased participants, Ana Sholing and Jesus Torres. As such, their deaths eliminate th 24
25 only two persons "who had actual knowledge of what was discussed and disclosed regarding th
26 Amended Agreement." !d. Thus, the inexcusable, decades-long delay in challenging th 27
13 Bautista and Sholing v. Torres (CV04 71-07) Decision and Order agreement would render a fair defense impossible due to the deaths of all material witnesses t 1
2 the agreement.
3 Finally, the Court rejects Plaintiffs' attempt to bar Defendant Torres' use of Laches b 4 asserting that he comes to the Court with unclean hands. To prevail with an unclean hand 5 defense, a plaintiff must demonstrate that an opposing party has "engaged in particular! 6
7 egregious conduct which would change the equities significantly in plaintiffs favor." Exper
8 Microsystems, Inc. v. Univ. of Chicago, 712 F. Supp. 2d 1116, 1123-24 (E.D. Cal. 2010 9 (citations omitted). In addition "a plaintiff relying on the unclean hands doctrine to defeat 10 defense of laches must show not only that the defendant engaged in misconduct, but moreove 11 that the defendant's misconduct was responsible for the plaintiffs delay in bringing suit." !d. 12
13 (citing Serdarevic v. Advanced Med. Optics, Inc., 532 F.3d 1352, 1361 (Fed. Cir. 2008)); se
14 also Yeda Research & Dev. Co. v. Imclone Sys. Inc., 443 F.Supp.2d 570, 629-30 (S.D.N.Y.2006 15 ("Because we find that defendants' hands are unclean, i.e., they are responsible for plaintiff no 16 finding out about their patent applications, the laches defense is unavailable to defendants."). A 17 discussed at length supra, Plaintiffs were fully aware of the facts giving rise to their allege 18
19 claim and independently delayed exercising their rights until their mother had passed away out o
20 respect for her. Bautista and Sholing v. Torres and Perez, CV0471-07, Decision and Order at 10. 21 Thus, regardless of the veracity of Plaintiffs' claims concerning Defendant Torres with respect t 22 the agreement, their own responsibility in delaying suit forecloses use of the unclean hand 23
doctrine. Serdarevic, 532 F.3d at 1361. Accordingly, all claims are barred and summar 24
25 judgment is proper.
14 Bautista and Sholing v. Torres (CV0471-07) Decision and Order CONCLUSION 1
2 Based on the foregoing reasons, the Court GRANTS Defendant Torres's Motion for
3 Summary Judgment. Defendant Torres shall prepare a proposed judgment, obtain approval as 4 to form from the other parties and submit it to the Court. 5 SO ORDERED this 13th day of October 2014. 6
8 ~II L .. ' ,- /) Lj;/; /-----~ 9 v f!l/'71£11/W\J tL / //(1/t?l-/Vr\ ~{.~ 10 ORABLEKATHEruNEA.MARAMAN Judge, Superior Court of Guam 11
24 SERVICE VIA COURT BOX 25
15 Bautista and Sholing v. Torres (CV0471-07) Decision and Order