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IN THE SUPERIOR COURT OF GUAM
GT A T ELEGUAM, LLC , CIVIL CASE NO. CV1317-12 9 Plaintiff,
10 vs. DECI SI O N AND O RDER
ROADSIDE SERVICES AND TOWING, 12 Defendant. 13
14 INTRODUCTION 15 Thi s matter came before the Honorable James L. Cant o II o n Defendant Roadside 16 Service and Towing's motion for summary judgment, filed May 8, 2014.1 Oral arguments were 17 heard on J uly 7, 2014. Attorney Terrence M. Brooks appeared o n behalf of Plaintiff and 18 Attorney William B. Pole represented Defendant. Having considered the parties' briefs, oral 19 arguments, and the applicable law, the Court now issues the following Decision and Order. 20 BACKGROUND 21 On November 29, 2012, Plaintiff filed a complaint against Defendant for non-payment 22 on an Open Account. (Compl., 1-2, Nov. 29, 2012). The Superior Court of Guam subsequently 23 issued a judgment by default on July 17, 2013. On December 18, 2013, Defendant filed a 24 motion to set aside entry of default and default judgment, and a motion to request leave to file 25 an answer. On January 28, 2014, the parties entered into a stipulation that the entry of default 26
27 1 Defendant fi l ed a moti on enti tl ed " Moti on to Di smi ss," but the substance of moti on entai l s a moti on for summary 28 judg ment . For cl ari ty purposes, the Court shal l treat Defendant ' s mo tion as a mo tion for summary judgment.
nl
Page 1 of 4 and default judgment be set aside, and that Defendant be granted leave to file an answer. (Stipulation & Order, Jan. 28, 2014). Defendant filed an answer on January 16, 2014, denying
the alleged nonpayment. (Answer, 1, Jan. 16, 2014).
On May 8, 2014, Defendant filed a motion for summary judgment. Defendan t argu es that Plaintiff has no basis for its cl ai m b ecau se: (1) Plaintiff provides an unsigned illegible document purported to be a contract; (2) no contract, invoice, or account cited by Plaintiff in support of the claim that Defendant's owe an obligation for payment; (3) no wrongdoing or fraud on the part of Defendant is alleged in the complaint; and (4) Plaintiff cannot establish a factual basis for any duty owed by Defendant to Plaintiff nor can it establish that Defendant breached su ch du t y. (Mot. Summ. J., 4-5, May 8, 2014).
P l ai nt i ff fi l ed an o ppo si t i o n o n May 2 3 , 2 0 1 4 . P l ai nt i ff assert ed t hat t here are genu i ne
issues of material fact, and offered exhibits purporting to evidence a contract entered into by 13 Defendants to pay for publication of advertisements in the GTA Yellow Book. (Opp' n M o t ., 2 ,
14 May 23, 2014). 15 D IS C U S S IO N
16 1. Summary Judgment Standard
17 Gu am R. Ci v. P. 5 6 (c) pro vi des that a co u rt may gra nt s umma ry judgme nt "if th e
18 pleadings, depositions, answers to interrogatories, and admissions o n fi l e, t o get her wi t h the
19 affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
20 party is entitled to a judgment as a matter of law." A genuine issue of fact exists when "there is
21 `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."
22 lizuka Corp. v. Kawasho Int'1 (Guam), Inc., 1997 Guam 10 ¶ 7 (citing T. W. Elec. Serv., Inc. v.
23 Pacific Elec. Contractors Assn, 809 F.2d 626, 630 (9th Cir. 1987 )). "A `material' fact is one 24 that is rele vant to an element of a c la im or defense a nd whos e existence might affect the
25 outcome of the suit.... Disputes over irrelevant or unnecessary facts will not preclude a grant 26 of summary judgment." Id. "If the movant can demonstrate that there are no genuine issues of
27 material fact, the non-movant cannot merely rely on allegations contained in the complaint, but
UGINA Page 2 of 4 1 must produce at least some significant probative evidence tending to support the complaint."
2 Id. at ¶ 8 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)).
3 In order to determine whether summary judgment may be granted, "the Court must view
4 the evidence and draw inferences in the light most favorable to the nonmovant." Edwar ds V.
5 Pacific Financial Corp., 2000 Guam 27 ¶ 7 (citing Anderson, 477 U.S. at 249). "The co u rt ' s
6 ultimate i nqu i ry is to determine whether the `specific fact' set forth by the nonmoving party,
7 coupled with undisputed background or contextual facts, are such that a rational or reasonable
8 jury might return a verdict in its favor based on that evidence." Iizuka, 1 9 9 7 Gu am 10 ¶ 8
9 (quoting T. W. Elec. Serv., 809 F.2d at 631) (internal quotation marks omitted). "St at ed si mpl y,
10 the re is a trial issue if there is sufficient evidence for a jury to return a verdict in the non-moving
11 party's favor." Kim v. Hong, 1997 Guam 11 ¶ 8 (citing Anderson, 477 U.S. at 250).
12 II. Ope n Ac c o unt
13 There is a paucity of Guam case law relating to an "open account." Borrowing from
14 cases in other jurisdictions, an open account is defined as: "An a c c ount whic h ha s not be e n
15 finally settled or closed, but is still running or open to future adjustment or liquidation. Op en
16 account, in legal as well as in ordinary language, means an i ndebt edness su bj ect t o future
17 adjustment, and which may be reduced or modified by proof." Cambridge Toxicology Group,
18 Inc. v. Exnicios, 495 F.3d 169, 173-174 (5th Cir. 2007) (quoting BLACK'S LAW DICTIONARY 18
19 (6th ed.1990)); see also Smith v. Da vi s, 323 U.S. 111, 114 (1944) (an o pen account is "an
20 unsettled cla im or demand made by the creditor which appears i n hi s acco u nt bo o ks").2 To
21 determine whether a course of dealing qualifies as an open account, courts have considered the
22 following factors: "(1) whether there were other business transactions between the parties; (2)
23 whet her a line of credit was extended by one party to the other; (3) whether there are running or
24 current dealings; and (4) whether there are expectations of other dealings ." Id. at 174; see also
25 B a n k o f Ameri ca v. Jef f T a yl o r L L C, 358 S.W.3d 848, 861 (Tex. Ct . App. 2 0 1 2 ) (t o pro ve t he
26 2 A cl ai m of an open account and a cl ai m of breach of contract are consi dered di sti nct causes of ac tion. Cambridge 27 Toxi cology Group, Inc. v. Exni ci os, 495 F.3d 169, 174 (5th Cir. 2007). "An open account i s si mi l ar to a l i ne of credi t . . . and requi res an ongoi ng rel ati onshi p w i th an extensi on of credit to the debtor. " Id. (i nternal quotati on 28 marks and ci tati ons omitted).
Page 3 of 4 existence of an open account, a party must show that there were "(1) transactions between the parties, (2) creating a creditor-debtor relationship through the general course of dealing, (3) with
the account still being open, and (4) with the expectation of further dealings").
In this case, Plaintiff is attempting to collect the amounts due on two alleged contracts between Plaintiff and Defendant in which Defendant contracted to purchase advertisements in
the 2009 and 2010 versions of the GTA Yellow Book, produced in part by Plaintiff. (Opp'n Mot., 2, May 22, 2014).
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IN THE SUPERIOR COURT OF GUAM
GT A T ELEGUAM, LLC , CIVIL CASE NO. CV1317-12 9 Plaintiff,
10 vs. DECI SI O N AND O RDER
ROADSIDE SERVICES AND TOWING, 12 Defendant. 13
14 INTRODUCTION 15 Thi s matter came before the Honorable James L. Cant o II o n Defendant Roadside 16 Service and Towing's motion for summary judgment, filed May 8, 2014.1 Oral arguments were 17 heard on J uly 7, 2014. Attorney Terrence M. Brooks appeared o n behalf of Plaintiff and 18 Attorney William B. Pole represented Defendant. Having considered the parties' briefs, oral 19 arguments, and the applicable law, the Court now issues the following Decision and Order. 20 BACKGROUND 21 On November 29, 2012, Plaintiff filed a complaint against Defendant for non-payment 22 on an Open Account. (Compl., 1-2, Nov. 29, 2012). The Superior Court of Guam subsequently 23 issued a judgment by default on July 17, 2013. On December 18, 2013, Defendant filed a 24 motion to set aside entry of default and default judgment, and a motion to request leave to file 25 an answer. On January 28, 2014, the parties entered into a stipulation that the entry of default 26
27 1 Defendant fi l ed a moti on enti tl ed " Moti on to Di smi ss," but the substance of moti on entai l s a moti on for summary 28 judg ment . For cl ari ty purposes, the Court shal l treat Defendant ' s mo tion as a mo tion for summary judgment.
nl
Page 1 of 4 and default judgment be set aside, and that Defendant be granted leave to file an answer. (Stipulation & Order, Jan. 28, 2014). Defendant filed an answer on January 16, 2014, denying
the alleged nonpayment. (Answer, 1, Jan. 16, 2014).
On May 8, 2014, Defendant filed a motion for summary judgment. Defendan t argu es that Plaintiff has no basis for its cl ai m b ecau se: (1) Plaintiff provides an unsigned illegible document purported to be a contract; (2) no contract, invoice, or account cited by Plaintiff in support of the claim that Defendant's owe an obligation for payment; (3) no wrongdoing or fraud on the part of Defendant is alleged in the complaint; and (4) Plaintiff cannot establish a factual basis for any duty owed by Defendant to Plaintiff nor can it establish that Defendant breached su ch du t y. (Mot. Summ. J., 4-5, May 8, 2014).
P l ai nt i ff fi l ed an o ppo si t i o n o n May 2 3 , 2 0 1 4 . P l ai nt i ff assert ed t hat t here are genu i ne
issues of material fact, and offered exhibits purporting to evidence a contract entered into by 13 Defendants to pay for publication of advertisements in the GTA Yellow Book. (Opp' n M o t ., 2 ,
14 May 23, 2014). 15 D IS C U S S IO N
16 1. Summary Judgment Standard
17 Gu am R. Ci v. P. 5 6 (c) pro vi des that a co u rt may gra nt s umma ry judgme nt "if th e
18 pleadings, depositions, answers to interrogatories, and admissions o n fi l e, t o get her wi t h the
19 affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
20 party is entitled to a judgment as a matter of law." A genuine issue of fact exists when "there is
21 `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."
22 lizuka Corp. v. Kawasho Int'1 (Guam), Inc., 1997 Guam 10 ¶ 7 (citing T. W. Elec. Serv., Inc. v.
23 Pacific Elec. Contractors Assn, 809 F.2d 626, 630 (9th Cir. 1987 )). "A `material' fact is one 24 that is rele vant to an element of a c la im or defense a nd whos e existence might affect the
25 outcome of the suit.... Disputes over irrelevant or unnecessary facts will not preclude a grant 26 of summary judgment." Id. "If the movant can demonstrate that there are no genuine issues of
27 material fact, the non-movant cannot merely rely on allegations contained in the complaint, but
UGINA Page 2 of 4 1 must produce at least some significant probative evidence tending to support the complaint."
2 Id. at ¶ 8 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)).
3 In order to determine whether summary judgment may be granted, "the Court must view
4 the evidence and draw inferences in the light most favorable to the nonmovant." Edwar ds V.
5 Pacific Financial Corp., 2000 Guam 27 ¶ 7 (citing Anderson, 477 U.S. at 249). "The co u rt ' s
6 ultimate i nqu i ry is to determine whether the `specific fact' set forth by the nonmoving party,
7 coupled with undisputed background or contextual facts, are such that a rational or reasonable
8 jury might return a verdict in its favor based on that evidence." Iizuka, 1 9 9 7 Gu am 10 ¶ 8
9 (quoting T. W. Elec. Serv., 809 F.2d at 631) (internal quotation marks omitted). "St at ed si mpl y,
10 the re is a trial issue if there is sufficient evidence for a jury to return a verdict in the non-moving
11 party's favor." Kim v. Hong, 1997 Guam 11 ¶ 8 (citing Anderson, 477 U.S. at 250).
12 II. Ope n Ac c o unt
13 There is a paucity of Guam case law relating to an "open account." Borrowing from
14 cases in other jurisdictions, an open account is defined as: "An a c c ount whic h ha s not be e n
15 finally settled or closed, but is still running or open to future adjustment or liquidation. Op en
16 account, in legal as well as in ordinary language, means an i ndebt edness su bj ect t o future
17 adjustment, and which may be reduced or modified by proof." Cambridge Toxicology Group,
18 Inc. v. Exnicios, 495 F.3d 169, 173-174 (5th Cir. 2007) (quoting BLACK'S LAW DICTIONARY 18
19 (6th ed.1990)); see also Smith v. Da vi s, 323 U.S. 111, 114 (1944) (an o pen account is "an
20 unsettled cla im or demand made by the creditor which appears i n hi s acco u nt bo o ks").2 To
21 determine whether a course of dealing qualifies as an open account, courts have considered the
22 following factors: "(1) whether there were other business transactions between the parties; (2)
23 whet her a line of credit was extended by one party to the other; (3) whether there are running or
24 current dealings; and (4) whether there are expectations of other dealings ." Id. at 174; see also
25 B a n k o f Ameri ca v. Jef f T a yl o r L L C, 358 S.W.3d 848, 861 (Tex. Ct . App. 2 0 1 2 ) (t o pro ve t he
26 2 A cl ai m of an open account and a cl ai m of breach of contract are consi dered di sti nct causes of ac tion. Cambridge 27 Toxi cology Group, Inc. v. Exni ci os, 495 F.3d 169, 174 (5th Cir. 2007). "An open account i s si mi l ar to a l i ne of credi t . . . and requi res an ongoi ng rel ati onshi p w i th an extensi on of credit to the debtor. " Id. (i nternal quotati on 28 marks and ci tati ons omitted).
Page 3 of 4 existence of an open account, a party must show that there were "(1) transactions between the parties, (2) creating a creditor-debtor relationship through the general course of dealing, (3) with
the account still being open, and (4) with the expectation of further dealings").
In this case, Plaintiff is attempting to collect the amounts due on two alleged contracts between Plaintiff and Defendant in which Defendant contracted to purchase advertisements in
the 2009 and 2010 versions of the GTA Yellow Book, produced in part by Plaintiff. (Opp'n Mot., 2, May 22, 2014). Plaintiff submits two alleged contracts entered into by the parties in 2009 and 2010, as well as a November 3, 2009 check for $1,000.00 from Defendant to Plaintiff
9 for the purpose of "advertisement." (Opp'n Mot., Exhibit 1, 2 & 5, May 22, 2014).
10 Though Defendant alle ges a si gnat u re i s mi ssi ng from one of the alle ged contracts,
11 viewing the contracts and the payment in light most favorable to Plaintiff, the Court finds that a
12 rational jury could interpret the contracts and payment as evidence of a transaction between
13 Plaintiff and Defendant in which a creditor-debtor relationship was created. Iizu ka, 1997 Guam
14 1 0 ¶ 8 . Furthermore, the dealings between the parties were at least for a period of two years,
15 from which a rational jury could find a continuing relationship between Plaintiff and Defendant
16 wi t h an expectation of furthe r dealings. Id. Lastly, a rat i o nal j u ry could find that the
17 arrangement bet ween the parties resulted in the alleged unsettled debt arising from the
18 advertisements under the contract. Id.
19 For these reasons, Defendant's motion for summary judgment is denied.
20 CONCLUSION
21 Based upon the foregoing, Defendant Roadside Service and T owi ng's motion for
22 summary judgment is hereby DENIED.
24 SO ORDERED this t 7 2 ' s P d a y of August, 2014.
26 SERVICE VIA COURT BOX 27 I a cknowledge that a c opy of t he original he reto w as pl aced I n the court box of: ON. JAM ES L . C AN T O II 28 J udg e , S upe rio r Co urt o f Gua m
a &,ty Clerk, Superior Courtof Guam P age 4 o f 4