'Terri rial Law Library
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3 IN THE SUPERIOR COURT OF GUAM 4 ) 5 GOVERNMENT OF GUAM ) CIVIL CASE NO. CV0084-08 6 ) vs. ) 7 ) DECISION AND ORDER 1,348,474 SQUARE METERS, MORE ) ON CIU DEFENDANT'S OBJECTIONS 8 OR LESS, SITUATED IN THE ) TO GOVGUAM'S FACTS NOT IN MUNIPCALITY OF INARAJAN EVIDENCE IN CLOSING ARGUMENTS 9 ) AND GOVGUAM'S MOTION TO GUAM, et. aI., 10 ) STRIKE CIU DEFENDANTS' ) OBJECTIONS TO GOVGUAM'S REPLY Defendants. ) BRIEF II --------------------------~) 12 INTRODUCTION 13 On November 28, 2011, the Honorable Alberto C. Lamomea, III, held a hearing on th 14 Government of Guam's ("GovGuam") Motion to Strike CIU Defendants,J Objections t 15 GovGuam's Reply Brief. Also before this Court is the CIU Defendants' written Objections t 16 GovGuam's Facts Not in Evidence in Closing Arguments, though the parties did not present ora 17 arguments on this matter. Present at the hearing was counsel for CIU Defendants, Attome 18 Rodney J. Jacob; counsel for Oxford Defendant's, Anita P. Arriola; and Assistant Attome 19 General Kathy A. Fokas, appearing on behalf of GovGuam. Having considered the parties' 20 arguments and related law, the Court now issues its Decision and Order on the above matters. 21
24 I For purposes of clarity, throughout this litigation the parties and this Court have distinguishe 25 the various defendants based on their choice of counsel and have provided separate labels t 26 refer to each. Defendants Oxford Properties & Finance Ltd., Joaquin Arriola, Douglas F. Cushni are collectively referred to as "Oxford Defendants." Calvo's Insurance Underwriters Inc., Jone 27 and Guerrero Company, Inc., Alfred C. and Diane Z. Ysrael, Valencia Investments Corp., Le 28 M. and Joan S. Holmes, and Henry Sy are collectively referred to as "CIU Defendants." Th remaining defendant is Young Chull Kim. Defendant Kim did not appear in person or throug counsel during the trial or in the hearing on this matter. -1-
Case No. CVOO84-08 Decision and Order on Plaintiff's Motion to Strike Objections FACTUAL BACKGROUND 2 This case involves a bench trial to detennine just compensation owed to 3 landowners following the Government of Guam's taking of land in Inarajan in 2008 for th 4 purpose of constructing and operating a public landfill. Following the close of the parties' 5 respective cases-in chief and rebuttal this Court issued an Order on September 16th ("Order" 6 directing the parties to submit written documents containing arguments necessary prior to endin 7 the trial. The Order directed the parties to file closing arguments, opposition and replies to th 8 closing arguments, proposed findings of fact and conclusions of law, and oppositions to th 9 proposed findings. The issues presently before the Court relate to the closing arguments an 10 response briefs. Closing arguments were to be filed by October 3rd , 2011; oppositions to thos 11 arguments were due on October 18th ; and replies were due on October 24th. The Order stated tha 12 the trial would end on October 24th after the parties' filed their reply briefs. The parties timel 13 filed their respective closing arguments and oppositions, and GovGuam filed its timely Reply 0 14 October 24th. Also on October 24th, CIU Defendants filed "Objections to GovGuam's Facts No 15 in Evidence in Closing Arguments." And on November 1St, 2011, CIU Defendants file 16 "Objections to GovGuam's Reply Brief' in which the defendants argue that in its Reply 17 GovGuam raised new arguments not discussed in its initial arguments and that GovG 18 referred to facts not in evidence. GovGuam filed a motion to strike CIU Defendants' objectio 19 on grounds that CIU Defendants failed to obtain leave of court to submit an additional documen 20 which was not filed pursuant to the Court's Order and requesting, in the alternative, tha 21 GovGuam be granted leave to file a response to the objections. 22 DISCUSSION 23 The following discussion first addresses CIU Defendant's Objections to GovGuam' 24 Facts Not in Evidence in Closing Arguments, and is followed by a discussion regardin 25 GovGuam's Motion to Strike CIU Defendants' Objections to GovGuam's Reply Brief. 26 /1// 27 /1// 28 /1//
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Case No. CVOO84-08 Decision and Order on Plaintiff's Motion to Strike Objections 1. CIU Defendant's Objections to GovGuam's Facts Not in Evidence in Closin Arguments 2
3 In its "Objections to GovGuam's Facts Not In Evidence in Closing Arguments" C 4 Defendants requested of this Court that, in making its findings regarding just compensation, th 5 court not consider various statements within GovGuam's Closing Arguments 6 Defendants contend are inadmissible or that refer to facts not in evidence. 7 A party who fails to promptly object to an improper statement made in closing argumen 8 may be deemed to have waived the right to object to the error. See ~ United States v. Sehnal 9 930 F.2d 1420, 1425 (9th Cir. ) cert. denied, 112 S.Ct. 300 (1991) (holding defense counsel' to failure to object to misleading argument by plaintiffs counsel constituted waiver of the error); 11 Guzman v. Tower Development, Inc., 1994 WL 549860 (D. Guam, 1994) (failure to object t 12 portion of opposing counsel's argument during closing waived any objection defendant had t 13 the argument); U.S. Bank v. YMCA of Metropolitan Chicago, 409 Ill.App.3d 548, 563, 94 14 N.E.2d 850, 863 (Ill. Ct. App. 2008) (declining to consider objections to remarks made b 15 counsel during closing arguments where counsel failed to contemporaneously object t 16 statements at trial); Good Samaritan Hosp. Ass'n, Inc. v. Saylor, 495 So.2d 782, 783 (Fla. Ct 17 App. 1986) (where no objection was made to closing arguments at the time the imprope 18 statement was made, any error was waived). Where a party has the opportunity to respond to 19 argument in writing, objections should be raised in the response and not in a later writing. Se 20 Partminer Worldwide Inc. v. Siliconexpert Technologies Inc., 2011 WL 587971 *6 (D. Colo 21 Feb. 9, 2011) (evidentiary objections filed after defendant's response to plaintiffs initial motio 22 were considered untimely). 23 In the present case, CIU Defendants had an opportunity to object to any imprope 24 reference to facts or evidence by GovGuam in the defendants' October 18th opposition t 25 GovGuam's closing arguments. However, CIU Defendants chose not to include their objectio 26 in their opposition, and instead waited to file a separate written objection six days later 0 27 October 24th. Given this Court's Order outlining the specific documents to be submitted by th 28 parties, it is not unreasonable to expect those parties to have included all their opposition points
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Case No. CV0084-08 Decision and Order on Plaintiff's Motion to Strike Objections including any evidentiary objections - within their response briefs. Because the CIU Defendant 2 opted not to address the alleged misstatements in their opposition brief this Court finds CI 3 Defendants' separate and subsequently filed Objections to be untimely.2 4 II. GovGuam's Motion to Strike C/U Defendants' Objections to GovGuam's Repl Brief 5
6 On November 1, 2011, after GovGuam filed its Reply to CIU Defendants' Response t 7 GovGuam's Closing Arguments, CIU Defendants filed a document entitled "Objections t 8 GovGuam's Reply Brief' in which CIU Defendants argue that GovGuam raised new argumen 9 in its Reply that did not appear in its original Closing Arguments. CIU Defendants also clai 10 that the Reply improperly cited to facts not in evidence.
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'Terri rial Law Library
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3 IN THE SUPERIOR COURT OF GUAM 4 ) 5 GOVERNMENT OF GUAM ) CIVIL CASE NO. CV0084-08 6 ) vs. ) 7 ) DECISION AND ORDER 1,348,474 SQUARE METERS, MORE ) ON CIU DEFENDANT'S OBJECTIONS 8 OR LESS, SITUATED IN THE ) TO GOVGUAM'S FACTS NOT IN MUNIPCALITY OF INARAJAN EVIDENCE IN CLOSING ARGUMENTS 9 ) AND GOVGUAM'S MOTION TO GUAM, et. aI., 10 ) STRIKE CIU DEFENDANTS' ) OBJECTIONS TO GOVGUAM'S REPLY Defendants. ) BRIEF II --------------------------~) 12 INTRODUCTION 13 On November 28, 2011, the Honorable Alberto C. Lamomea, III, held a hearing on th 14 Government of Guam's ("GovGuam") Motion to Strike CIU Defendants,J Objections t 15 GovGuam's Reply Brief. Also before this Court is the CIU Defendants' written Objections t 16 GovGuam's Facts Not in Evidence in Closing Arguments, though the parties did not present ora 17 arguments on this matter. Present at the hearing was counsel for CIU Defendants, Attome 18 Rodney J. Jacob; counsel for Oxford Defendant's, Anita P. Arriola; and Assistant Attome 19 General Kathy A. Fokas, appearing on behalf of GovGuam. Having considered the parties' 20 arguments and related law, the Court now issues its Decision and Order on the above matters. 21
24 I For purposes of clarity, throughout this litigation the parties and this Court have distinguishe 25 the various defendants based on their choice of counsel and have provided separate labels t 26 refer to each. Defendants Oxford Properties & Finance Ltd., Joaquin Arriola, Douglas F. Cushni are collectively referred to as "Oxford Defendants." Calvo's Insurance Underwriters Inc., Jone 27 and Guerrero Company, Inc., Alfred C. and Diane Z. Ysrael, Valencia Investments Corp., Le 28 M. and Joan S. Holmes, and Henry Sy are collectively referred to as "CIU Defendants." Th remaining defendant is Young Chull Kim. Defendant Kim did not appear in person or throug counsel during the trial or in the hearing on this matter. -1-
Case No. CVOO84-08 Decision and Order on Plaintiff's Motion to Strike Objections FACTUAL BACKGROUND 2 This case involves a bench trial to detennine just compensation owed to 3 landowners following the Government of Guam's taking of land in Inarajan in 2008 for th 4 purpose of constructing and operating a public landfill. Following the close of the parties' 5 respective cases-in chief and rebuttal this Court issued an Order on September 16th ("Order" 6 directing the parties to submit written documents containing arguments necessary prior to endin 7 the trial. The Order directed the parties to file closing arguments, opposition and replies to th 8 closing arguments, proposed findings of fact and conclusions of law, and oppositions to th 9 proposed findings. The issues presently before the Court relate to the closing arguments an 10 response briefs. Closing arguments were to be filed by October 3rd , 2011; oppositions to thos 11 arguments were due on October 18th ; and replies were due on October 24th. The Order stated tha 12 the trial would end on October 24th after the parties' filed their reply briefs. The parties timel 13 filed their respective closing arguments and oppositions, and GovGuam filed its timely Reply 0 14 October 24th. Also on October 24th, CIU Defendants filed "Objections to GovGuam's Facts No 15 in Evidence in Closing Arguments." And on November 1St, 2011, CIU Defendants file 16 "Objections to GovGuam's Reply Brief' in which the defendants argue that in its Reply 17 GovGuam raised new arguments not discussed in its initial arguments and that GovG 18 referred to facts not in evidence. GovGuam filed a motion to strike CIU Defendants' objectio 19 on grounds that CIU Defendants failed to obtain leave of court to submit an additional documen 20 which was not filed pursuant to the Court's Order and requesting, in the alternative, tha 21 GovGuam be granted leave to file a response to the objections. 22 DISCUSSION 23 The following discussion first addresses CIU Defendant's Objections to GovGuam' 24 Facts Not in Evidence in Closing Arguments, and is followed by a discussion regardin 25 GovGuam's Motion to Strike CIU Defendants' Objections to GovGuam's Reply Brief. 26 /1// 27 /1// 28 /1//
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Case No. CVOO84-08 Decision and Order on Plaintiff's Motion to Strike Objections 1. CIU Defendant's Objections to GovGuam's Facts Not in Evidence in Closin Arguments 2
3 In its "Objections to GovGuam's Facts Not In Evidence in Closing Arguments" C 4 Defendants requested of this Court that, in making its findings regarding just compensation, th 5 court not consider various statements within GovGuam's Closing Arguments 6 Defendants contend are inadmissible or that refer to facts not in evidence. 7 A party who fails to promptly object to an improper statement made in closing argumen 8 may be deemed to have waived the right to object to the error. See ~ United States v. Sehnal 9 930 F.2d 1420, 1425 (9th Cir. ) cert. denied, 112 S.Ct. 300 (1991) (holding defense counsel' to failure to object to misleading argument by plaintiffs counsel constituted waiver of the error); 11 Guzman v. Tower Development, Inc., 1994 WL 549860 (D. Guam, 1994) (failure to object t 12 portion of opposing counsel's argument during closing waived any objection defendant had t 13 the argument); U.S. Bank v. YMCA of Metropolitan Chicago, 409 Ill.App.3d 548, 563, 94 14 N.E.2d 850, 863 (Ill. Ct. App. 2008) (declining to consider objections to remarks made b 15 counsel during closing arguments where counsel failed to contemporaneously object t 16 statements at trial); Good Samaritan Hosp. Ass'n, Inc. v. Saylor, 495 So.2d 782, 783 (Fla. Ct 17 App. 1986) (where no objection was made to closing arguments at the time the imprope 18 statement was made, any error was waived). Where a party has the opportunity to respond to 19 argument in writing, objections should be raised in the response and not in a later writing. Se 20 Partminer Worldwide Inc. v. Siliconexpert Technologies Inc., 2011 WL 587971 *6 (D. Colo 21 Feb. 9, 2011) (evidentiary objections filed after defendant's response to plaintiffs initial motio 22 were considered untimely). 23 In the present case, CIU Defendants had an opportunity to object to any imprope 24 reference to facts or evidence by GovGuam in the defendants' October 18th opposition t 25 GovGuam's closing arguments. However, CIU Defendants chose not to include their objectio 26 in their opposition, and instead waited to file a separate written objection six days later 0 27 October 24th. Given this Court's Order outlining the specific documents to be submitted by th 28 parties, it is not unreasonable to expect those parties to have included all their opposition points
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Case No. CV0084-08 Decision and Order on Plaintiff's Motion to Strike Objections including any evidentiary objections - within their response briefs. Because the CIU Defendant 2 opted not to address the alleged misstatements in their opposition brief this Court finds CI 3 Defendants' separate and subsequently filed Objections to be untimely.2 4 II. GovGuam's Motion to Strike C/U Defendants' Objections to GovGuam's Repl Brief 5
6 On November 1, 2011, after GovGuam filed its Reply to CIU Defendants' Response t 7 GovGuam's Closing Arguments, CIU Defendants filed a document entitled "Objections t 8 GovGuam's Reply Brief' in which CIU Defendants argue that GovGuam raised new argumen 9 in its Reply that did not appear in its original Closing Arguments. CIU Defendants also clai 10 that the Reply improperly cited to facts not in evidence. GovGuam then filed the present Motio 11 to Strike essentially arguing that the crn Defendants' Objection is improper because the CI 12 Defendants failed to seek leave of court to file documents that were not authorized by thi 13 Court's Order. CIU Defendants claim that because the documents at issue in this case relate t 14 closing arguments rather than traditional motion papers, the procedures governing motio 15 practice do not apply and the parties were not required to seek leave of court prior to submittin 16 an objection. This Court disagrees. 17 The Order in this case regarding submission of closing arguments and response 18 essentially adopted the argument-opposition-reply format applicable to motions practice 19 provided by Civil Rule 7.1 (c). The Order authorized the filings of specific briefs and response 20 and did not allow for an objection or surreply to a party's reply. Under Civil Rule 7.1(k), in 21 motions practice context "The Court need not consider motions, oppositions to motions or brief: 22 or memoranda that do not comply with [Rule 7.1] .... " Similarly, where the filing of document 23 is explicitly provided for by a court order mirroring the civil rules, this Court sees no reason wh 24 it may not disregard documents that do not conform to the order and for which the submittin 25 party has not sought leave of court to file such documents.
2 Alternatively, this Court finds that it may also disregard the Objections to GovGuam's Fact 28 Not in Evidence in Closing Arguments based on this Court's reasoning in Part II of this Decisio and Order regarding submission of unauthorized documents without seeking leave court. -4-
Case No. CVOO84-08 Decision and Order on Plaintiff's Motion to Strike Objections A recent Tenth Circuit District Court case is instructive. In Partminer Worldwide Inc. v 2 Siliconexpert Technologies Inc., 2011 WL 587971 (D. Colo. Feb. 9, 2011), the District Cou 3 considered, inter alia, a Magistrate Judge's ruling granting PlaintiffPartminer's Motion to Strik 4 a document submitted by Defendant Siliconexpert titled "Evidential Objections ... to Statement 5 in Partminer's Motion for Sanctions." Partminer, 2011 WL 587971 *4. The objections were file 6 after the parties had completed their briefing on Partminer's Motion for Sanctions. Id 7 Siliconexpert had argued before the Magistrate Judge that Partminer's Reply brief containe 8 improper evidentiary defects. The Magistrate Judge equated the objections to an imprope 9 surrpely and struck the objections from the record. Id. at *6. On review, the District Court foun 10 that "when a party believes that the contentions in the opponent's reply brief require a response 11 the proper approach is for that party to seek leave to file a surreply." Id. at *6 (citing Pi in v 12 Burlington Resources Oil & Gas Co., 440 F.3d 1186, 1191-92 (lOth Cir. 2006)). The court th 13 determined that the Magistrate Judge correctly found that Siliconexpert's "objections t 14 misstatements in Partminer's reply brief ... were an improper surreply." Id. 15 In the present case, instead of heeding this Court's Order regarding the submission 0 16 particular documents or the provision in that Order stating that the trial would end on Octobe 17 24th, 2011, CIU Defendants forged ahead in filing its objections on November 1st, 2011. Whil 18 this Court understands the frustration expressed by CIU Defendants regarding what defendant 19 clearly feel are improper statements and arguments asserted by GovGuam, this Court must, in th 20 interest of managing its docket, require that parties request leave prior to straying beyond th 21 bounds of a court order. Because CIU Defendants did not seek leave to file additiona 22 documents, this Court will not consider CIU Defendants' Objections. 23 CONCLUSION 24 Based on the foregoing this Court finds that by failing to include evidentiary objection 25 within its response to GovGuam's Closing Arguments, CIU Defendants waived the opportuni 26 to object in a later submission to this Court. As such, CIU Defendants' Objections to Facts No 27 in Evidence in GovGuam's Closing Arguments are untimely and will not be considered. Th 28 Court further finds that because CIU Defendants did not seek leave of this Court prior to filin
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Case No. CVOO84-08 Decision and Order on Plaintiff's Motion to Strike Objections its Objections to GovGuam's Reply Brief, filed beyond the filing or trial deadline, this Court wil 2 disregard those objections. However, because the objections should be preserved on the recor 3 for appeal they will not be stricken as requested by GovGuam. Notwithstanding the abov 4 rulings, the Court takes this opportunity to assure all parties in this case that this Court will tak 5 care to base its findings and conclusions only on admitted evidence and facts in the record. 6
7 SO ORDERED, this 13th day of March, 2012. 8
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Case No. CVOO84-08 Decision and Order on Plaintiff's Motion to Strike Objections