Estate of John T. Blas

• Court: Superior Court of Guam
• Decided: December 16, 2020
• Docket: CV0108-19
• Status: Unknown

Opinion

FILED SUPEUOR COUf

2 TC I 6 P1 : ! 2 CLERK O CUR Br, 4

8 9 IN THE SUPERIOR COURT OF GUAM

10 RITA B. CARBULLIDO AS SPECIAL CRIMINAL CASE NO.: CV1O8-19 11 ADMINISTRATIX FOR THE ESTATE OF 12 JOHN T. BLAS, DECEASED. DECISION AND ORDER Plaintiff, ,

Re: Defendant s Motion to Dismiss or vs. for Summary Judgment 14 ANN A. KRUSEE, 15 Defendant. 16 17 INTRODUCTION 1$ This matter came before the Honorable Judge Anita A. Sukola on September 23, 19 2020, upon Defendant’s Motion to Dismiss or for Summary Judgment. Plaintiff, Rita B. 20 Carbullido as Special Administratrix for the Estate of John T. Bias (“The Estate”), is 21 represented by Attorney Darleen E. Hiton of Phillips & Bordallo, P.C. The Defendant, Ann A. Krusee (“Krusee”), is represented by Attorney Gary W.F. Gumataotao. for the 23 reasons set forth below, having reviewed the moving papers and the arguments therein, the 24 Court GRANTS the Defendant’s Motion to Dismiss or for Summary Judgment. 25 BACKGROUND 26

27 Krusee and Plaintiff, John T. Bias, purchased a condominium, Dai Ichi Unit No. A-21, on february 28, 2017. According to the Estate, they “entered into an agreement 28

CF0663-18, People of Guam v. Tenorio Page 1 of 8 Decision and Order (Motion to Dismiss). whereby. .. . John T. Bias provided. . . . Ann A. Krusee monetary funds,” to be used to renovate and repair the condominium unit. Compi. at 2 (Jan. 29, 2019). John T. Bias died 2 November 13, 2017. Id. Krusee allegedly only used a small amount of the $46,910 given to her by John T. Bias, for repairs and renovations in violation of their alleged agreement. Id. The Estate, in response, filed a complaint claiming breach of contract, unjust 5 enrichment, and fraud. Compl. (Jan. 29, 2020). 6 Krusee filed a Motion to Dismiss or for Summary Judgment on September 23, 2020, claiming that there existed no written contract as to the renovation and repairs of the

8 condominium as required by the statute of frauds, or alternatively, the Estate has not offered sufficient evidence proving the existence of an oral contract. Def.’s Mot. to Dismiss or For Summ. J. (Sept. 23, 2020). Therefore, according to Krusee, the claim for 10 breach of contract must be dismissed or otherwise disposed of through summary judgment. Id. The Estate argues that there is a genuine issue of material fact regarding the 12 existence of an oral contract, and the statute of frauds is not applicable to this case. Pl.’s 13 Opp. To Def.’s Mot. to Dismiss or For Summ. J. (Nov. 16, 2020). The Court took this 14 matter under advisement without oral arguments on December 10, 2020.

16 DISCUSSION

17 A. The Motion to Dismiss Has Been Converted to a Motion For Summary 18 Judgment 19 Guam law provides, “[i]f. . . matters outside the pleadings are presented to and not 20 excluded by the court, the motion shall be treated as one for summary judgment and 21 disposed of as provided in Rule 56.” Guam R. Civ. P. 12(c). “Tn ruling on a 12(b)(6)

22 motion, a court’s consideration is limited to the complaint, written instruments attached to

23 the complaint as exhibits, statements or documents incorporated in the complaint by reference, and documents on which the complaint heavily relies.” Newby v. Got’ ‘t of 24 Gucim, 2010 Guam 4 ¶ 14 (citing Mercado Arocho v. United States, 455 F. Supp. 2d 15, 25 19 (D.P.R. 2006)). A court need not give express notice that it will treat a Motion to 26 Dismiss as a Motion for Summary Judgment, but rather, “the proper question is whether 27 the nonmovant was on that notice that the. . . court could treat the motion as one for 28 Summary Judgment, not [whether] the court would in fact do so.” Gen. Retctit Servs., Inc.

CF0663-18. People of Guam v. Tenorio Page 2 of 8 Decision and Order (Motion to Dismiss). v. Wireless Toyz Franchise, LLC, 255 Fed. Appx. 775, 784 (5th Cir. 2007). Further, 1 “motions for summary judgment that are presented to the court as motions in the 2 alternative constitute sufficient notice to a non-moving party that the court may convert a 3 motion to dismiss into a motion for summary judgment.” Ctrver v. Flyer, 115 Fed. Appx. 532, 536 (3rd Cir. 2004). 5 Here, Krusee relies on affidavits submitted by the Plaintiff and the Defendant in 6 her Motion to Dismiss or For Summary Judgment. Def.’s Mot. to Dismiss or For 7 Summ. J. (Sep. 23, 2020). These affidavits were not attached to the complaint nor heavily

8 relied upon in the pleading stage. Thus, the Rule 1 2(b)(6) motion, should be converted to a Rule 56 motion, as this Court is considering matters outside of the pleadings. Further, the Estate was on notice that a conversion was possible because Krusee titled her motion in 10 the alternative. Therefore, pursuant to Guam Rules of Civil Procedure Rule 12(c), the 11 Court will convert this motion to a Motion for Summary Judgment. 12 B. Summary Judgment Standard 13 Rule 56 of the Guam Rules of Civil Procedure regulates when a court may grant 14 summary judgment. Guam R. Civ. P. 56. Summary Judgment is appropriate if the 15 pleadings, depositions, interrogatories, and admissions on file, together with the affidavits, 16 if any, show that there is no genuine issue as to any material fact and that, taken in the 17 light most favorable to the non-movant, the moving party is entitled to judgment as a 18 matter of law. Guam R. Civ. P. 56(c). See Izttka Corp. v. Kawasho International, (Guam), 19 Inc., 1997 Guam 19 ¶ 7, 8. A genuine issue of material fact exists “if there is ‘sufficient 20 evidence’ which established a factual dispute requiring resolution by the fact-finder.” 21 Fajardo ex rd. Fajardo v. Liberty Hottse Guam 2000 Guam 4 ¶ 5 (quoting Izttka Corp., 22 1997 Guam 19 ¶ 7.). A material fact is “one that is relevant to an element of a claim or 23 defense and whose existence might affect the outcome of a suit.” Id. 24 A court must draw inferences and view the evidence in the light most favorable to 25 the nonmoving party. See Edwards v. Factfic Financial Corp., 2000 Guam 27 ¶ 7. See 26 also Castro v. Peck, aba B.3.H.S. Contrcicting and Standard Plytrade Corp., 1998 Guam 27 10, ¶ 7. “If the movant can demonstrate that there are no issues of material fact, the non- 28 movant cannot merely rely on allegations . . . . but must produce probative evidence.”

CF0663-18, People of Guam v. Tenorio Page 3 of 8 Decision and Order (Motion to Dismiss). 1 Edwards, 2000 Guam 27 ¶ 7. Thus, the court’s “ultimate inquiry is to determine whether

2 the ‘specific fact’ set forth by the nonmoving party, coupled with undisputed background

3 or contextual facts, are such that a rational or reasonable jury might return a verdict in its

4 favor based on that evidence.” Izttka, 1997 Guam 10 ¶ 8.

5 A. The Statute of Frauds is Inapplicable To These Facts 6 Guam has codified the common law Statute of frauds with the relevant section reading, in part: 8

9 § $6106. What Contracts must be Written The following contracts are invalid, unless the same, or some note or memorandum 10 thereof, is in writing and subscribed by the party to be charged... 11 1. An agreement that by its terms is not be performed within a year of its 12 making thereof; 13 5. An agreement for the leasing for a longer period than one year, or for 14 the sale of real property, or an interest therein..

15 18GCA$6l06.

16 It is undisputed that there exists no formal written contract for the repairs and 17 renovations. Krusee argues that repairs and renovations are improvements which run with

18 the land and thus fall within subsection five, and are barred by the statute of frauds.

19 Krusee cites the proposition that “improvements include ‘a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or 21 valuable.” Def.’s Mot. to Dismiss or for Summ. I. at 6 (Sept. 23, 2020) (quoting Integrity, 22 Ftoorcovertng, Inc., v. Broan-Ntttone, LLC, 521 F.3d 914, 9 17-918 (8th Cir. 2008)). 23 Therefore she claims, “the alleged contract deals with an interest in real property by virtue 24 of valuable improvements,” and is thus unenforceable without a writing. Def.’s Mot. to 25 Dismiss or For Summ. J. at 7 (Sept. 23, 2020).

26 In response, the Estate argues that the claim against Krusee “did not involve the purchase, conveyance, or a grant of an interest in real property,” and therefore Title 18 of 27 the Guam Annotated Code, Section 86 106(5), does not apply. Pl.’s Opp’n to Def.’s Mot. 28

CF0663-18, People of Guam v. Tenorio Page 4 of$ Decision and Order (Motion to Dismiss). . . to Dismiss or For Summ. J. (Nov. 16, 2020). Therefore, according to the Estate, the 1 contract is one for services which could have been completed within a year, and thus, does 2 not implicate the statute of frauds. Here, the alleged oral contract did not involve, “the sale of real property or an interest therein.” 1$ GCA § 86106. In California, it has been held, “[a] parol promise to 5 pay for improvements made on land is not within the statute of frauds.” Hctstings v. 6 Mattock, 217 Cal. Rptr. 856, 863 (Ct. App. 1985). In Hastings, as in the case before us, 7 “the. . . agreement did not contemplate a transfer of title to the improvements, but rather

$ payment of their costs.” Id. (emphasis in original). S also Gauthier v. Blanco, 2002 Mass. App. Div. 121, (Mass. Dist. Ct. 2002) (holding there is no requirement for a contract for improvements to be in writing under the statute of frauds). Therefore, as this 10 alleged oral contract was not for the transfer of interest or ownership in the improvements from one party to another, but rather the payment for the goods and the installation of the 12 improvements, the statute of frauds is not implicated under § 86 106(5). 13 However, a contract can also fall within the statute of frauds, if it cannot be 14 completed within one year. See 1$ GCA § 86106(1). “Section 86106(1) is modeled after

15 section 1624(1) of the California Civil Code.” Yoshida v. Guam Trctnsport And Warehouse, Inc., 2013 Guam 5 ¶ 53. Therefore, California decisions interpreting Section 16 1624(1) are persuasive. In order for the statute of frauds to be implicated, “the agreement 17 must be one of which it can truly be said [alt the very mollzent it is made, ‘[t]his 18 agreement is not to be performed within one year’; in general, the cases indicate that there 19 must not be the slightest possibility that it can beftilly peifonned within one year.” id. 20 (quoting White Lighting Co. v. Woifson, 43$ P.2d 345, 349 n. 2 (Cal. 196$) (emphasis in 21 original).

22 Such an oral contract need not have language, “expressly stipulat[ing] that the

23 contract shall be completed within one year,” rather it only needs, “terms [that] are such that performance within a year is possible without a departure from such terms.” Hopper 24 v. Lennen & Mitchell, 146 f.2d 364, 36$ (9th Cir. 1944). Further, the oral contract is valid, 25 “even though it may not be performed, or is not likely to be performed, within a year.” Id. 26 .

There has been no offered evidence to suggest that performing the repairs and renovations 27 could not have occurred within one year, and thus, the statute of frauds, as to Section 2$ 86 106(1), is inapplicable to this case. Therefore, the statute of frauds does not apply to

CF0663-18, People of Guam v. Tenorio Page 5 of 8 Decision and Order (Motion to Dismiss). . e these facts, and the oral agreement did not have to be in writing in order for the agreement 1 to be binding. 2

B. There Exist Genuine Issues of Material facts In Regards to the Existence 4 of Mutual Consent to Contract

5 Alternatively, Krusee argues that “Plaintiff has failed to allege a prima fade case 6 for an oral contract.” Def.’s Mot. to Dismiss or for Summ. I. at 7 (Sept. 23, 2020). A

7 contract under Guam law consists of: “(1) parties capable of contracting; (2) their consent;

$ (3) a lawful object; and (4) sufficient cause or consideration.” 1$ GCA § 85102. “The question of whether an oral contract was formed is determined by looking to the intent of the parties.” Takano-Towa Guam Co., Ltd. v. Cox, 1993 WL 128214 *5 (D. Guam) (citing 10 Beta Sigma Tau v. Shrine Civic Auditoriunz, 323 P.2d 496, 499 (Cal. Dist. Ct. App. 1958). further, “{t]he intention of the parties is a factual question to be determined by the trial 12 court.” Id. As such, Krusee claims that the Estate has offered no evidence to show that the 13 parties consented to contract. 14 The Estate, argues in response, that evidence of Krusee’s consent to contract exists

15 because she accepted checks from the Decedent with the phrases “condo”, “repair/condo”, and “condo/paint supplies” written on the memo line. Pl.’s Opp’n to Mot. to Dismiss or 16 for Summ. J. at 7 (Nov. 16, 2020); See also Rita B. Carbullido Decl. Ex. A. at 26-39 17 (Nov. 16, 2020). Further, the Estate supplies an affidavit of the Decedent which claims a 1$ contract was created. Id. at 25 ¶ 10. 19 Guam law states, “an adverse party may not rest upon the mere allegations or 20 denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or 21 as otherwise provided in this rule, must set forth specific facts showing that there is a

22 genuine issue for trial.” Guam R. Civ. P. 56(e). Here, the Estate has supplied checks which

23 show payment was made for the purpose of, at least, repairing the condo, and obtaining paint supplies. See Rita B. Carbullido Decl. Ex. A. at 26-39 (Nov. 16, 2020). Under Title 24 18 of the Guam Annotated Code, Section $5102, the parties must have mutual consent for 25 a contract to form. 1$ GCA § $5102. “Consent is not mutual unless the parties agree upon 26 the same thing in the same sense.” Staiford Hosp. and Clinics v. Multinational 27 Underwriters, Inc., 2008 WL 205259 *2 (N.D. Cal. 200$). Further, “[mJutual consent is 2$ determined under an objective standard applied to the outward manifestations or

CF0663-18. People of Guam v. Tenorio Page 6 of 8 Decision and Order (Motion to Dismiss). . expressions of the parties, i.e., the reasonable meaning of their words and acts, and not 1 their unexpressed intentions of understandings.” Bustamante v. Intuit, Inc., 45 Cal. Rptr. 2 3d 692, 699 (Ct. App. 2006). During Summary Judgment the Court must draw inferences in the light most favorable to the nonmovant. Ethvards v. Pacific financial Corp., 2000 Guam 27 ¶ 7. The 5 offered checks, taken in the light most favorable to the Estate, create an inference that 6 mutual consent was formed. “Where the existence of a contract is at issue and the

7 evidence is conflicting or admits of more than one inference, it is for the trier of fact to

8 determine whether the contract actually existed.” Bustamante, 45 Cal. Rptr. 3d 692, 699 (Ct. App. 2006). Therefore, a reasonable jury could find that mutuality between the parties existed, and summary judgment is not appropriate as to the argument that the parties did 10 not mutually consent to contract. 11

12 C. There is No Valid Contract Because the Terms of the Alleged Agreement Were Not Definite. 13 Finally, Krusee argues that a contract cannot exist because the terms of the alleged 14 contract were not definite. See Def.’s Mot. to Dismiss or For Summ. I. at 8 (Sep. 23, 15 2020). Krusee cites the proposition that, “in the case of alleging a defendant’s breach of an 16 oral contract, definite contractual terms are necessary to make the contract enforceable.” 17 Mack v. Davis, 2013 Guam 13 ¶ 33. Therefore, “[hf a supposed contract does not provide 18 a basis for determining what obligations the parties have agreed to, and hence does not 19 make possible a determination of whether those agreed obligations have been breached,

20 there is no contract.” Kahn Creative Partners, Inc., v. Nt/i Degree, Inc., 2011 WL 1195680 *4 (N.D. Cal. 2011). Further, “[wJhere a contract is so uncertain and indefinite 21 that the intention of the parties in material particulars cannot be ascertained, the contract is void 22 and unenforceable.” Id. (citing Robinson & Wilson, Inc. u. Stone, 110 Cal. Rptr. 675, 683 (Ct. App. 1973)). “An ‘essential term,’ however, is not merely a term that one of the 24 parties views as ‘essential’ to inducing his or her assent. . . but rather a term integral to the 25 contract itself.” Boskoff v. Yano, 217 F. Supp. 2d 1077, 1088 (D. Hawai’i 2001). As such, 26 “terms of a contract must be sufficiently definite in all particulars essential to its

27 enforcement.” Netbula, LLC v. BindView Development Corp., 516 F. Supp. 2d 1137, 1156

28 (N.D. Cal. 2007).

Cf0663- 18. People ot’ Guam v. Tenorio Page 7 of 8 Decision and Order (Motion to Dismiss). Here, according to the Estate, the contract was to “complete renovations and 1 repairs to, and purchase the necessary supplies for the Condo.” Pl.’s Opp’n to Mot. to 2 Dismiss or for Summ. J. at 5 (Nov. 16, 2020). The Estate offers no evidence of more particular terms. Thus, it becomes impossible for the Court to determine whether a breach occurred because the terms of Krusee’s performance obligation are unknown. She 5 supposedly contracted “to complete renovations and repairs,” however, without evidence 6 as to what the renovations and repairs consisted of, the time in which they were to be 7 completed, and the cost of each repair, it is impossible to determine whether a breach

$ occurred, or the amount of damages owed due to any potential breach. Therefore, the Court finds the contract to be so uncertain and indefinite as to be void. Thus, as a matter of law, no contract existed, and as such, there can be no breach of contract. The Estate’s 10 claims for unjust enrichment and fraud remain untouched by this order. 11

12 CONCLUSION 13 Based on the foregoing, Defendant Krusee’s Motion to Dismiss or for Summary 14 Judgment is GRANTED. 15

18 SO ORDERED this /‘ 19

HONORABLE ANITA A. SUKOLA 22 Judge, Superior Court of Guam 23

24 -MAIL Rnowledge that an electronic 25 ipy of the original was e-maited to: /) ?/%/4/ 26

27 Date:_______

28 Deputy Cleric Superior Court of Guam

CF0663-18, People of Guam v. Tenorio Page 8 of$ Decision and Order (Motion to Dismiss).