Bautista v. Torres

Opinion

0 FILED` r , T SUEFiRK)R

1 n 2

5 IN THE SUPERIOR COURT OF GUAM 6

7 ROSARIO S. BAUTISTA and ) Civil Case No. CV0471-07 8 MANUEL C. SHOLING, ) Plaintiffs. ) 9 VS. ) DECISION AND ORDER: Plaintiffs 10 Rosario Bautista and Manuel Sholing's FRANCISCO TORRES, Individually and ) "First Amended Motion for 11 as the Previous Special Administrator and ) Reconsideration of April 17, 2013 Decision Now Executor of the Estate of Jesus U. ) and Order" 12 Torres, Deceased, and PETER F. PEREZ ) 13 Defendant. ) 14 )

15 DANIEL U. TORRES and BARBARA M. De ME LL O , TRUSTEE UNDER THE 16 ESTEBAN TORRES FAMILY TRUST ) DATED MAY 12,1995 ) 17 Intervenor Plaintiffs. ) 18 vs. ) 19 ROSARIO S. BAUTISTA and ) 20 MANUEL C. SHOLING, )

21 Defendants, )

22 And ) GLORIA C. SHOLING, ) 23 Thi rd -Party Defendant. ) 24

25 INTR ODUC TION 26 This matter came before the Court on Plaintiffs' Motion to Reconsider the Court's April

17, 2013 Decision and Order Granting Defendant Peter Perez's Motion for Summary Judgment.

1 Bautista and Sholing v. Torres and Perez (CV0471-07) Decision and Order Attorney Wayson W.S. Wong represented Plaintiffs Rosario Bautista and Manuel Sholing. 1

2 Defendant Peter Perez was represented by Attorney R. Todd Thompson. Upon review of the

3 evidence, written arguments, and legal authorities presented, the Court hereby issues this 4 Decision and Order DENYING Plaintiffs' motion. 5 BA C K G RO U N D ' 6

7 In 1967, Mrs. Ana Sholing and her three children,2 Manuel Sholing ("Plaintiff Sholing")

8 Rosario Bautista ("Plaintiff Bautista") and Gloria Sholing, owned property in Tumon, Guarn 9 ("PIC property") on which the Pacific Islands Club Guam ("PIC") is situated.3 On Septembe 10 22, 1967, the Sholing family retained Attorney Jesus U. Tones ("Attorney Tones") to hand) 11 legal matters regarding the PIC property for a monthly fee of $200.4 Thereafter, on October 15 12

13 1987, Ana Sholing5 entered into an amended agreement ("Amended Agreement") with Attorney

14 Tones regarding negotiation of an amended PIC lease and future legal services.6 Under thi 15 Agreement, Attorney Tones was entitled to ten percent (10%) of revenue generated from PI 16 rents for twenty-five (25) years as attorney fees, commencing October 1, 1987, and terminating 17 on September 30, 2012.7 18

19 Pursuant to the Amended Agreement, Attorney Tones performed legal work to assis t

20 Mrs. Sholing in negotiating the amended lease for the PIC property in 1987, which significant) 21

23 ' In order to ensure consistency in evaluating the claims against Defendant Perez, the pertinent facts in this section are largely adopted from this Court's Previous Decision and Order granting Defendant Perez's Motion for Summary 24 Judgment. 2 All three children will be collectively referred to as the "Sholing family." 25 3Third Amended Complaint 1 7 at 2, filed July 10, 2009 ("Compl."). 4I d¶9at 2. 26 5 Ana Sholing became the attorney-in-fact for her three children to handle their collective interest in the PI property. Id. 18 at 2. 27 Retainer IN 11-12 at("2-3; See Id. Agreement Amended see also Agreement")). Compl., Exhibit B to Exhibit 1 (October 15, 1987 Property Management and 28 7Compl. ¶¶ 11-12 at 2-3; see Amended Agreement.

2 Bautista and Sholing v. Torres and Perez (CV0471-07) Decision and Order increased the amount of rent paid to the Sholing family.8 After negotiating the amended lease 1

2 Attorney Tones took charge of collecting rent for the PIC property and distributed payments t

3 the Sholing family.9 Along with said rental disbursements, Attorney Tones included periodic 4 rent statements to the Sholing family (including each of the plaintiffs) as early as the 1980s, 5 informing them of the total rent amount collected as well as the amounts deducted for taxes an 6

7 attorney's fees.10 These statements explicitly reflect that Attorney Torres deducted ten percent

8 (10%) of the PIC property rent in payment of attorney's fees.u

9 After the death of Attorney Torres on August 27, 2002,12 Defendant Perez continued real 10 collections for the PIC property13 as well as notifications of the ten percent fee deductions.14 A 11 such, the rent statements sent by Defendant Perez remained consistent with those previously sent 12 by Attorney Tones to Plaintiffs.'5 13

14 Despite believing that the Amended Agreement took unfair advantage of their mother 15 Ana Sholing, Plaintiffs nonetheless waited until after her death in September, 2005,16 befor 16 raising concerns about the ten percent deductions.17 Plaintiffs stated that, although the 17

19 8 Compl. I I Oat 2. 91d¶12at 3. 20 10 Defendant's Motion for Summary judgment, filed May 10, 2010 ("Motion"), Manual Sholing Deposition Transcript ("Sholing Depo."), p. 103, I1. 11-19 (March 10, 2010); Motion, Rosario S. Bautista Deposition Transcrip 21 ("Bautista Depo."), p. 67, 11. 14-25 (March 11, 2010); Motion, Deposition Exhibit File for Sholing Depo. an Bautista Depo. ("Depo. Ex. File"), Exs. W, X, Y, Z, A-l, B-l, C-I, and D-1 ( Statements of Rent from Attorney 22 Jesus U. Torres). Motion, Sholing Depo., p. 103, 11. 11-19 (March 10, 2010); see also Motion, Bautista Depo., p. 67,11. 14-25, p. 68 23 11. 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). 24 1i Compl. ¶ 13, at 3. 13 Motion, Bautista Depo., p. 77, I1. 17-25; p. 78, 11. 1-22 (March 11, 2010); See, e.g., Motion, Depo. Ex. File, E-1 25 (Statement of Rent from Defendant Perez). 14 Motion, Depo. Ex. File, E-I (Statement of Rent from Defendant Perez). 26 15 Compare Motion, Depo. Ex. File, Exs. W, X, Y, Z, A-l, B-1, C-1, and D-1 (Statements of Rent from Attorney Jesus U. Torres) with Motion, Depo. Ex. File, Ex. E-1 (Statement of Rent from Defendant Perez). 27 1fi Complaint ¶ 47, at 7. 17 Motion, Sholing Depo., p. 192, 11. 21-25; p. 193,11. 1-5 (March 10, 2010); Motion, Bautista Depo., p. 69, 11. 16-21 28 p. 70,11.1-25; p. 71,11. 1-17; p. 80,11.1-25; p. 81,11. 1-4 (March 11, 2010).

3 Bautista and Sholing v. Torres and Perez (CV0471-07) Decision and Order suspected that such deductions were excessive, they had not challenged the collection of fees 1

2 prior to Ana Sholing's death out of respect for her. 18

3 Plaintiffs had access to independent legal counsel as early as the 1990s, but decline 4 taking any action against Attorney Tones with regard to the deductions. 19 Indeed, Plaintiff 5 admitted this fact explicitly in their deposition testimony. 20 Plaintiffs eventually contacted thei 6 current counsel, Wayson W.S. Wong ("Attorney Wong") to represent them in the present case 21 7

8 On August 30, 2006, Attorney Wong advised Defendant Perez, via letter, that Plaintiffs were 9 entitled to each receive $221,833.33 from the forthcoming PIC rental check.22 This amount 10 includes in its calculation the ten percent deduction for attorney's fees.23 On November 15 11 2006, Attorney Wong, on behalf of Plaintiffs, sent another letter to Defendant Perez objecting t 12

13 further deductions under the Amended Agreement.24 On April 23, 2007, Plaintiffs filed claim

14 against the Tones Estate and Defendant Perez, for breach of fiduciary duty, rescission anrestitution, deceptive trade practices, and negligence. 25

16 On May 10, 2010, Defendant Perez moved for summary judgment, claiming, among 17 other grounds, that Plaintiffs' claims were time-barred by the statute of limitations.26 This CoUrq 18

22 18 Motion, Sholing Depo., p. 96,11. 13-25; p. 97,11. 1-25; p. 98; Il. 1-10 (March 10, 2010); Motion, Bautista Depo., p. 68,11. 20-25; p. 69, 11. 1-21, p. 70, 11. 1-25; p. 71, 11. 1-17; p. 80, 11. 1-25; p. 81, 11. 1-4 (March 11, 2010). 23 19 See Motion, Bautista Depo., p. 25,11.7-24;p. 30, 11.3-7; p. 31,11. 2-11 (March 11,2010); Motion, Sholing Depo., . 50,11.4-9; p. 226,11.3-5 (March 10, 2010); Motion, Depo. Ex. File , Ex. T (Deed of Gift). 24 ° Motion, Sholing Depo ., p. 193, 11. 6-11 ( March 10, 2010); Motion, Bautista Depo., p. 71, It. 4-10 (March 11 2010). 25 21 Motion, Bautista Depo., p. 21,11.4-13 (March 12, 2010). 22 Motion, Bautista Depo., p. 33, I1. 12-17 (March 12, 2010); Motion, Depo. Ex. File., Ex. N-I (August 30, 200 26 Letter from Attorney Wayson Wong to Defendant Perez). 23 !d 27 2 Compl. 149 at 7. ° See generally id. 28 26 Notice of Motion and Motion for Summary judgment, CV0471-07 (May 10, 2010).

4 Bautista and Sholing v. Torres and Perez (CV0471-07) Decision and Order granted summary judgment on April 17, 201327 Plaintiffs now move for reconsideration of tha 1

2 Decision.28

3 DISCUSSION 4 A trial court may reconsider its grant of final summary judgment under either Rule of 5 Civil Procedure 59(e) (motion to alter or amend a judgment) or Rule 60(b) (relief from 6

judgment). Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cit. 7

8 1993). Motions for reconsideration are under these rules are appropriate where the trial court:

9 "(1) is presented with new evidence; (2) committed clear error or the decision was manifestly 10 unjust, or (3) if there is an intervening change in controlling law." Ward v. Reyes, 1998 Guam 1 11 10 (citation omitted). Conversely, motions for reconsideration of an interlocutory order are 12

13 governed according to Rule 7.1 of the Superior Court of Guam's Local Rules. Guam. Super. Ct.

14 CVR. 7.1 (i); see also In re Benham, 2013 WL 3872185 at *2 (C.D. Cal. May 29, 2013); Lozano

15 v. AT & T Wireless, 2003 WL 25548566, at * 1 (C.D.Cal. Aug. 18, 2003). Under this standard, 16 reconsideration may be granted only upon showing of: 17 (1) a material difference in fact or law from that presented to the 18 Court before such decision that in the exercise of reasonable 19 diligence could not have been known to the party moving for reconsideration at the time of such decision, or, 20 (2) the emergence of new material facts or a change of law occurring after the time of such decision, or, 21 (3) a manifest showing of a failure to consider material facts 22 presented to the Court before such decision. Id. 23

In addition, "No motion for reconsideration shall in any manner repeat any oral or written 24

25 argument made in support of or in opposition to the original motion." Id.

26 :r Bautista and Sholing v. Torres and Perez, CV0471-07, Decision and Order (Apr. 17, 2013). 27 28 Though Plaintiffs filed this document as a "first amended" Motion for Reconsideration, this is not a pleading subject to the rules regarding leave to amend. See Guam R.Civ.P. Rule 15. Accordingly, the Court addresses it 28 simply as a Motion for Reconsideration

5 Bautista and Sholing v. Torres and Perez (CV0471-07) Decision and Order Timeliness

2 A motion for reconsideration must comply with the Guam Rules of Civil Procedure.

3 Guam. Super. Ct. R. CVR. 7.1. These rules state that a request for the Court's reconsideration 4 through a motion to amend judgment must occur within 10 days after a decision is rendered. 5 Guam R.Civ.P. 59 (e). If reconsideration is sought through a request for relief from judgment, it 6

must "be made within a reasonable time" and may not be submitted "more than one year after 7

8 the judgment, order, or proceeding was entered or taken." G.R.C.P. 60 (b). However, these time

9 limitations are applicable only to orders which constitute final judgments. Id. By contrast, 10 interlocutory orders are "subject to reconsideration by the court at any time." Preaseau v. 11 Prudential Ins. Co. ofAm., 591 F.2d 74, 79-80 (9th Cir. 1979); Guam Housing and Urban 12

13 Renewal Authority v. Pacific Superior Enterprises Corp., 2001 Guam 8 112-13. The pertinent

14 question is thus whether the Court's grant of summary judgment constitutes an interlocutory 15 order. 16 "A partial summary judgment differs from a complete summaryjudgment in that it 17 cannot end a proceeding and is therefore interlocutory." Rojas v. Rojas, 2007 Guam 13, n. 3 18

19 (citing Am.Jur.2d Summary Judgment § 63 (Westlaw through July 2007)). Additionally, a grant

20 of summary judgment is considered interlocutory until such time as it is "merged into a final 21 judgment disposing of all parties and issues." S. Texas Wildhorse Desert Invs., Inc. v. Texas 22 Commerce Bank-Rio Grande Valley, N.A., 314 B.R. 107, 117 (S.D. Tex. 2004). In this case, the 23

Court granted complete summary judgment as to all claims against Defendant Perez. See 24

25 Judgment, CV0471-07 (May 31 , 2013). However, on review, the Supreme Court of Guam

26 determined that the remaining disputes with regard to other parties prevented final judgment as 27 to any individual party absent severance. See Supreme Court Order, CVA13-020 (Dec. 2, 2013). 28

6 Bautista and Sholing v. Torres and Perez (CV0471-07) Decision and Order As such, the Decision and Order granting Defendant Perez summary judgment was merely 1

2 interlocutory and is subject to reconsideration at any time before final judgment in this case. See

3 Noreen v. Price Dev. Co. Ltd. P'ship, 25 P.3d 129, 133 (Id. Ct. App. 2001) ("until entry of a final 4 judgment or a Rule 54(b) certificate, an order for summary judgment must be considered 5 interlocutory and subject to reconsideration"); Pan Am. Petroleum Corp. v. Texas Pac. Coal & 6

7 Oil Co., 324 S.W.2d 200 (Tx. 1959) ("summary judgment which does not dispose of all parties

8 and issues in the pending suit is interlocutory.").

9 Merits of Plaintiffs' Motion for Reconsideration 10 In their request for reconsideration, Plaintiffs allege that the Court clearly erred in 11 dismissing Counts Ten through Twelve (10-12) as well as Counts Five (5) and Seven (7) of their 12

Third Amended Complaint. See First Amended Motion for Reconsideration, CV0471-07 at 2 13

14 (Jul. 25, 2014). Specifically, Plaintiffs state that, even if the claims against the Torres estate were

15 found to be time-barred, such determination would not warrant dismissal of the claims against 16 Defendant Perez. Id. at 5-8. To support this point, Plaintiffs reiterate that the alleged acts and 17 omissions of Defendant Perez occurred long after the Amended Agreement. Id. Additionally, 18

19 they assert that such conduct constituted fraud, deceptive trade practices , and breaches of

20 Defendant Perez's fiduciary duties. Id. Further, Plaintiffs dispute that Laches was applicable to 21 these allegations , as they claim Ana Sholing and Jesus Torres were not witnesses to the relevant 22 conduct. Id. at 9-11. Thus, Plaintiffs conclude that Defendant Perez's actions from 2002-2006 23 themselves constitute independent and actionable violations for which this suit is timely. Id. at 5- 24

25 8. The Court disagrees.

26 A motion for reconsideration will be denied "unless the moving party can point to 27 controlling decisions or data that the court overlooked... that might reasonably be expected to 28 7 Bautista and Sholing v. Torres and Perez (CV0471-07) Decision and Order alter the conclusion reached by the court." Davidson v. Scully, 172 F. Supp. 2d 458, 461-62 1

2 (S.D.N.Y. 2001) (citations omitted). Such a motion may not be used as a vehicle for rehashing or

3 re-litigating issues already decided by the Court. Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 4 (2d Cir.1995); see also Soto-Padro v. Public Buildings Authority, et al., 675 F.3d 1, 9 (1st 5 Cir.2012) ("[a] party cannot use a Rule 59(e) motion to rehash arguments previously 6

7 rejected...") (citations omitted); Sanchez Rodriguez v. Departamento de Correccion y

8 Rehabilitacion, 537 F. Supp. 2d 295, 297 (D.P.R. 2008) ("Whether under Rule 59 or Rule 60, a

9 motion for reconsideration cannot be used as a vehicle to rehash matters previously litigated and 10 decided by the Court.") (citations omitted). Accordingly, "a motion for reconsideration is not 11 properly grounded in a request for a district court to rethink a decision it has already made, 12

13 rightly or wrongly." Williams v. City of Pittsburgh, 32 F.Supp.2d 236, 238 (W.D.Pa., 1998).

14 Further, in the interest of finality, a court should treat reconsideration as an extraordinary 15 remedy, appropriate only in "unusual and extreme situations where principles of equity mandate 16 relief." Jinks v. AlliedSignal Inc., 250 F.3d 381, 387 (6th Cir.2001); Torres v. Gonzalez, 980 F. 17 Supp. 2d 143, 146 (D.P.R. 2013) ("because of the narrow purposes for which they are intended, 16

19 Rule 59(e) motions typically are denied.") (citations omitted).

20 In the present case, the Motion for Reconsideration is without merit. Plaintiffs present no 21 showing of an intervening change in law or facts which would affect the outcome of the Court's 22 decision. Instead, Plaintiffs merely echo their initial allegations against Defendant Perez and 23

assert that the Court committed clear error in dismissing them. This is precisely the type of 24

25 impermissible re-litigation of settled issues disfavored by case law and prohibited by the

26 Superior Court rules. See supra, Shrader 70 F.3d at 257; Soto-Padro 675 F.3d at 9; Guam. 27 Super. Ct. R. CVR. 7.1. Plaintiffs, apparently under the assumption that the Court misunderstood 28

8 Bautista and Sholing v. Torres and Perez (CV0471-07) Decision and Order or failed to properly consider their claims, emphasized that the alleged acts and omissions of 1

2 Defendant Perez occurred between 2002 and 2006, separate from the 1987 Amended Agreement.

3 However, the Court was well aware of this nuance when the initial summary judgment was 4 rendered. Decision and Order, at 3-4. Even accepting this fact, however, the determination of 5 whether such conduct constituted a breach of fiduciary duty nonetheless turned upon whether 6

Plaintiffs retained any rights with regard to the Agreement. Id. at 12-13. In this case, the statute 7

8 of limitations had extinguished any remedies plaintiffs had to rescind or challenge to the

9 contract. Id. at 10-11. Thus, Defendant Perez could not have committed fraud or breached a duty 10 by failing to disclose a right or recourse which Plaintiffs no longer possessed. Id. at 12-13. On 11 the contrary, advising Plaintiffs to violate their contractual obligations in order to bring a suit 12

13 they were incapable of litigating could itself constitute a potential breach of his fiduciary duty of

14 competence. Further, Plaintiffs' inability to challenge or alter the terms of the agreement 15 extinguished any potential conflict of interest, since Plaintiffs and Defendant Tones could no 16 longer litigate a cognizable claim as adversarial parties. Id. Finally, the scope of Defendant 17 Perez's duties of representation and disclosure regarding the terms of the Amended Agreement 1 8 19 necessarily depends on whether the Agreement was legitimate and enforceable. As such, the

20 Court correctly applied the Doctrine of Laches, finding that Plaintiffs' delay until after the deaths 21 of Ana Sholing and Jesus Tones had materially prejudiced Defendant Perez. Id. at 13-15. In light 22 of these reasoned conclusions and lack of new analysis by the Plaintiffs, the grant of summary 23 judgment easily satisfies the minimally-stringent standard of reconsideration review. 24

25 The Court recognizes that Plaintiffs disagree with its determination regarding both the 26 statute of limitations and Defendant Perez's performance of his fiduciary duties. However, such 27

28 disapproval is not sufficient to show manifest error in the decision. Oro v. Metro. Life Ins. Co.,

9 Bautista and Sholing v. Torres and Perez (CV0471-07) Decision and Order 224 F.3d 601, 606 (7th Cir. 2000) ("A manifest error is not demonstrated by the disappointment 1

2 of the losing party.") (internal quotations omitted). As correctly pointed out in Defendant Perez's

3 Opposition, the appropriate remedy for such dissatisfaction is appeal, not reconsideration. 4 Sanchez Rodriguez, 537 F. Supp. 2d at 297 ("This remedy motion is not to be used as a substitute 5 for appeal.") (citations omitted); Davidson, 172 F. Supp. 2d at 462 (citing Morales v. Quintiles 6

Transnational Corp., 25 F.Supp.2d 369, 372 (S.D.N.Y.1998) ("[A] motion for reconsideration is 7

8 not a substitute for appeal and may be granted only where the Court has overlooked matters or

9 controlling decisions which might have materially influenced the earlier decision. ") (internal 10 quotations omitted). Upon examination, the Court's reasoning for granting Defendant Perez 11 summary judgment remains sound and devoid of error. 12

13 CONCLUSION 14 Based on the foregoing reasons, the Court DENIES Plaintiffs' Motion for 15

16 Reconsideration.

17 SO ORDERED this day ofAugust, 2014. 18

20 yG� � � /1l� T� rw t `� 21 HONORABLE KATHERINE A. MARAMAN 22 SERVICEVIACOUR9' 7t Judge, Superior Court of Guam I wkm wlcdgc t4st a copy 906 23 Origmd h0M AVM pMm&int6e `coon box 24 6 gJlll[71/'/JFr rr (prdalp -wiN6 l - Ew 4 25 I 26

10 Bautista and Sholing v. Torres and Perez (CV0471-07) Decision and Order