Heath, Chap. 7 Bankruptcy Trustee v. Gong and Winner Ent.

Opinion

1 ZOI8 20 PM q: 37

CI:E:~OU T 2 INTHESDPERIORCOURTOFGUAM

) CIVIL CASE NO. CV0904-15 ·--~·- 3 MARK HEATII, CHAPTER 7 4 BANKRUPTCY TRUSTEE, ) 5 ) DECISION & ORDER ON PLAINTIFF'S Plaintiff, ) MOTION FOR PARTIAL SUMMARY 6 vs. ) JUDGMENT AND DEFENDANTS' ) CROSS-MOTION FOR SUMMARY 7 NELSON GONG and WINNER ) JUDGMENT ENTERPRISES, ) 8 ) Defendants. ) 9 ----------------------------- INTRODUCTION 10

11 This matter came before the Honorable Maria T. Cenzon on Plaintiff Mark Heath,

12 Chapter 7 Bankruptcy Trustee's ("Plaintiff') Motion for Partial Summary Judgment filed on 13 October 2, 2017, and upon the Opposition to Plaintiff's Motion for Summary judgment [and] 14 Cross Motion for Summary Judgment filed by Defendants Nelson Gong and Winner Enterprises 15 ("Defendants") filed on October 30, 2017. Plaintiff filed a Reply to Defendants' Opposition 16 and Cross-Motion on November 8, 2017. Plaintiff is represented by Attorney Gary W.F. 17 Gumataotao, Esq. Defendants are represented by co-counsels Attorney Edward C. Han, Esq. 18 and Attorney Peter C. Perez, Esq. The Court took the matter under advisement on January 22, 19 2018, without oral argument, pursuant to CVR 7.1 of the Local Rules of the Superior Court. 20

21 This Decision and Order now follows HEREBY DENYING PLAINTIFF'S MOTION

22 FOR PARTIAL SUMMARY JUDGMENT AND GRANTING IN PART DEFENDANTS' 23 CROSS-MOTION FOR SUMMARY JUDGMENT. 24

26 Mark Heath, Chapter 7 Bankruptcy TnLStee vs. Nelson Gong & Winner Enterprises; CV0904-l5 Decision & Order on Plaintiffs Motion for Summary Judgment and Defendants' Cross Motion on Summary Judgment Page 1 of 14 1 BACKGROUND 2 The undisputed facts pled in the Verified Complaint (Sep. 21, 2015) and admitted by 3 Defendants' Answer and Counterclaim (Nov. 30, 2015) are that Defendant Gong, on or around 4 April 3, 2015, tendered a check in the amount of $4,254.82 to Evangeline Valencia (Valencia), 5 the manager of Valencia Service Stations, LLC (VSS) with the memo line of the check 6 containing the writing "1st Payment of Inventory of Valencia Service Stations, LLC." 7 Defendant Gong had expressed to Valencia an interest in purchasing the inventory of three 8 Mobil stations operated by VSS. A physical inventory of the contents of all three stations was 9 conducted by Defendant Gong together with employees of VSS and Mobil. Plaintiff claims that 10

11 the parties entered into a contractual agreement for Defendant to purchase the entire inventory

12 of VSS, and Plaintiff is therefore entitled to collect full payment of the balance due from

13 Defendant, in the approximate amount of $80,000.

14 Defendant Gong maintains that the check was tendered as a loan to Evangeline so that

15 she could pay three outstanding GPA power bills for the Mobil Gas stations, and that in the 16 event that the parties reached an agreement to purchase the inventory, the $4,254.82 would be 17 considered an initial payment for the purchase. Def.'s Opp. to Pl.'s. Mot.; Cross-Motion at 3 18 (Oct. 30; 2017). Defendant Gong further asserts that the parties never reached an agreement to 19 consummate the purchase of the inventory. !d. 20 Plaintiff argues that the Court, in determining the existence of a contract, should not 21 look beyond the four corners of the writing (which is the check issued by Defendant Winner) 22 and should therefore grant Partial Summary Judgment on the issues of contract validity and 23

24 liability thereupon. Pl.'s Mot. for Partial Summary Judgment at 1 (Oct. 2, 20 17).

26 Mark Heath, Chapter 7 Bankruptcy Trustee vs. Nelson Gong & Winner Enterprises; CV0904-15 Decision & Order on Plaintiffs Motion for Summary Judgment and Defendants' Cross Motion on Summary Judgment Page 2 of 14 1 LAW AND ANALYSIS

2 A. Failure of Defendants' Opposition to comply with CVR 7.1. 3 In filing their Opposition to Plaintiff's Motion for Summary Judgment and Cross- 4 Motion for Summary Judgment, Defendants failed to include the CVR 7.1 Form 1; therefore, 5 the Plaintiff argues, that Defendants' Opposition is void and the Court should not consider it. 6 Plaintiff's Reply at 3 (Nov. 8, 2017). CVR 7.1 requires certain procedures to be met when a 7 party files a motion. These procedures include the filing of a CVR 7.1 Form 1. 8 CVR 7 .1. Motion Practice 9 (a) Applicability. The provisions of this Rule shall apply to motions, applications, 10 petitions, orders to show cause, and all other proceedings except a trial on the merits, matters arising in civil cases assigned to the Master Calendar, and 11 applications for a temporary restraining order, unless otherwise ordered by the court or provided by statute, the Guam Rules of Civil Procedure or the Local 12 Rules of the Superior Court of Guam. 13 (c) Moving Papers. There shall be filed and served: (1) A Notice of Motion and Motion using CVR 7.1 FORM 1 14

15 (f) Failure to File Required Papers. Papers not timely filed by a party including any memoranda or other papers required to be filed under this Rule shall not be 16 considered without leave of court.

17 While the Court, as a general rule, would hold all parties to strict compliance with the

18 Rules of Civil Procedure and would otherwise have denied consideration of the Defendants' 19 Cross-Motion for failing to attach the CVR 7.1 Form 1 to their responsive pleading, in the 20 interests of judicial efficiency and because Plaintiff has not been prejudiced by such failure to 21 file Form 1 as it has been given notice and an opportunity to respond to it, the Court will 22 continue to address the substantive issues raised therein. The Court cautions the parties, 23 however, that the Court may not be inclined in the future to exercise its discretion to permit 24

26 Mark Heath. Chapter 7 Bankruptcy Trustee vs. Nelson Gong & Winner Enterprises; CV0904-15 Decision & Order on Plaintiffs Motion for Summary Judgment and Defendants' Cross Motion on Summary Judgment Page 3 of 14 1 consideration of filings that are non-compliant with the applicable rules. The Court now turns

2 to the substantive issues raised in the parties' moving and responsive pleading. 3 B. Summary Judgment Standard. 4 Rule 56 of the Guam Rules of Civil Procedure regulates when a court may grant 5 summary judgment. Guam R. Civ. P. 56. Summary Judgment is appropriate if the pleadings, 6 depositions, interrogatories, and admissions on file together with the affidavits, if any, show that 7 there is no genuine issue as to any material fact and that, taken in the light most favorable to the 8 non-movant, the moving party is entitled to judgment as a matter of law. Guam R. Civ. P. 56(c). 9 /zuka Corp. v. Kawasho International, (Guam), Inc., 1997 Guam 10

11 [A] party seeking summary judgment always bears the initial responsibility of informing

12 the court of the basis for its motion and identifying those portions of "the pleadings, depositions,

13 answers to interrogatories, and admissions on file, together with the affidavits, if any," which it

14 believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,

15 477 U.S. 317,323 (1986) (citations omitted). 16 In rendering its decision on a motion for summary judgment, a court must draw 17 inferences and view the evidence in a light most favorable to the non-moving party. Bank of 18 Guam v. Flores, 2004 Guam 25. If, however, the movant can demonstrate that there are no 19 genuine issues of material fact, the non-movant cannot merely rely on allegations contained in 20 the pleading but must produce at least some significant probative evidence to support the 21 pleading. Edwards v. Pacific Financial Corporation, 2000 Guam 27

24 coupled with undisputed background or contextual facts, are such that a rational or reasonable

25 jury might return a verdict in its favor based on that evidence." /d.

26 Mark Heath, Chapter 7 Bankruptcy Trustee vs. Nelson Gong & Winner Enterprises; CV0904-15 Decision & Order on Plaintiffs Motion for Summary Judgment and Defendants' Cross Motion on Summary Judgment Page 4 of 14 1 The burden upon the moving party is significant in a motion for summary judgment. The

2 Guam Supreme Court has explained that a defending moving party may satisfy such burden "by 3 showing there is an absence of evidence" to support a claim. Guam Sanko Transportation, Inc. 4 v. Pacific Modair Corporation, 2012 Guam 2 lJI 7 (citations omitted). It may also satisfy its 5 burden by "producing evidence negating an essential element" of a claim. !d. 6 Although Subpart 56(b) of the Guam Rules of Civil Procedure allows that "[a] party 7 against whom a claim ... is asserted ... may, at any time, move with or without supporting 8 affidavits for a summary judgment," this does not relieve the movant from separately 9 identifying the disputed and undisputed facts and essential elements of the cause of action for 10

11 which summary dismissal is sought and applying and analyzing them under the appropriate

12 standard. Guam R. Civ. P. 56(b); Guam Sanko Transportation, Inc. v. Pacific Modair

13 Corporation, 2012 Guam 2lj{lj{ 7-8; see, Lamb v. Hoffman, 2008 Guam 2lj{lj{ 34-36 (In order to

14 conduct a meaningful review, the parties must articulate their arguments in a way that allows

15 this court to apply recognized rules of law); Guam R. Civ. P. 7 (An application to the court for 16 an order shall ... shall state with particularity the grounds therefor ... ). 17 C. Plaintiff and Defendants Each Seek Summary Judgment on the Existence and 18 Enforceability of the Parties' Agreement, Or Lack Thereof.

19 Both parties have moved for summary judgment on the issue of whether an enforceable

20 contract exists between them for the purchase of the inventory of the three Mobil stations.

21 Plaintiff asserts that summary judgment should issue because the check issued by Defendants 22 unequivocally evidences an enforceable contract because it is a negotiable instrument and 23 sufficient terms - the signature of the party against whom enforcement is sought and the subject 24 matter of the purchase (the inventory) and the purchase price (the amount of the check) - are 25

26 Mark Heath, Chapter 7 Bankruptcy Trustee vs. Nelson Gong & Winner Enterprises; CV0904-15 Decision & Order on Plaintiffs Motion for Summary Judgment and Defendants' Cross Motion on Summary Judgment Page 5 of 14 1 sufficient to grant summary judgment. On the other hand, Defendants argue that the check does

2 not contain necessary essential elements, not the least of which is a meeting of the minds as to 3 material terms and, therefore, because the parties do not dispute that there is no separate writing 4 containing the agreement of the parties, summary judgment should be granted in Defendants' 5 favor. Because the answer to the question of whether an enforceable contract exists is 6 determinative of both pending motions, the Court addresses the parties' collective arguments, 7 below. 8 1. The UCC pre-empts common law analysis in breach of contract cases. 9 Plaintiff argues that the Uniform Commercial Code (UCC) pre-empts common law 10

11 analysis and application pertaining to negotiable instruments such as checks. Pl.'s Mot. for

12 Partial Summary Judgment at 3-4 (Oct. 2, 2017). UCC § 1-103 allows the continued

13 application of all supplemental bodies of law unless they are displaced by the UCC. 13 GCA §

14 1103 (2005). The Supreme Court of Guam has ruled that the existence of a UCC remedy for

15 breach of contract precludes recovery for a common law breach of contract claim. Hemlani v. 16 Hemlani, 2015 Guam 16 <][ 31. As such, the Court analyzes Plaintiff's claim for summary 17 judgment under the provisions of the UCC, which is codified in Guam law as Title 13, Guam 18 Code Annotated. 19 2. Requirement of a writing sufficient to indicate the existence of a contract under 13 20 GCA § 2201(1).

21 In order to succeed in a breach of contract action under Guam law, the Plaintiff must 22 prove: 1) the existence of the contract, 2) the plaintiff's performance or excuse for 23 nonperformance, 3) the defendant's breach, and 4) resulting damages to the plaintiff. Hemlani at 24 <][ 19. (numerous citations omitted). The gravamen of Defendant's Opposition and Cross- 25

26 Mark Heath, Chapter 7 Bankruptcy Trustee vs. Nelson Gong & Winner Enterprises; CV0904-15 Decision & Order on Plaintiffs Motion for Summary Judgment and Defendants' Cross Motion on Summary Judgment Page 6 of 14 1 Motion for Summary Judgment is that no valid contract exists between the parties which serves

2 to obligate Defendants to purchase the inventory of the Mobil stores. 3 Guam law concerning statute of frauds provides that a contract for the sale of goods for 4 the price of $500 or more is not enforceable by way of action or defense unless there is some 5 writing sufficient to indicate that a contract for sale has been made between the parties and 6 signed by the party against whom enforcement is sought or by his authorized agent or broker. 7 13 GCA § 2201(1). "Goods" refers to all things which are moveable at the time of identification 8 to the contract for sale other than money, investment securities, and things in action. 13 GCA § 9 2105(1). 10

11 Plaintiff maintains that the check itself serves as a writing for the sale/purchase of goods

12 valued at over $500. Pl.'s Mot. for Partial Summary Judgment at 6 (Oct. 2, 2017). Plaintiff

13 further contends that the writing is signed by the party charged (Defendant Gong) and is

14 therefore a valid contract and the Court need not look beyond the four corners of the writing to

15 determine the validity of the contract. !d. at 5. In opposition to the Plaintiff's Motion, 16 Defendants cite to several disputed "facts" which were set forth in the Defendants' Amended 17 Answer as well as during the depositions of Evangeline Valencia and Plaintiff, thus giving rise 18 to general issues of material fact precluding summary judgment in Plaintiff's favor. See, Opp. 19 to Pl's Mot. for Summary Judgment; Cross Mot. for Summ. Judg. at pp. 13-20. 20 It is undisputed that there is no written document regarding any agreement between the 21 parties for the sale of goods which identifies the goods specifically sought to be purchased, 22 terms of the sale, including, but not limited to, purchase price, physical delivery of the goods, 23

24 consideration for the purchase or other significant and material terms. Plaintiff avers that the

25 check, as a negotiable instrument and despite that it contains no terms or provisions that would

26 Mark Heath, Chapter 7 Bankruptcy Trustee vs. Nelson Gong & Winner Enterprises; CV0904-15 Decision & Order on Plaintiff's Motion for Summary Judgment and Defendants' Cross Motion on Summary Judgment Page 7 of 14 1 ordinarily be found in a written agreement for the sale and purchase of goods, is sufficient to

2 evidence a legally binding and enforceable contract of the parties. While the check includes the 3 name of Defendant Winner Enterprises and the purported signature of Defendant Gong, the 4 amount of the sum paid, and the memo "1st Payment of Inventory of Valencia Service Stations, 5 LLC," the check does not include any other details concerning the transaction, as discussed, 6 supra. Because of the lack of particularity required in order for the Court to find an enforceable 7 contract existed between the parties, the Court finds that the check issued by the Defendant is 8 insufficient to satisfy the statute of frauds. Accordingly, even considered in the light most 9 favorable to the non-moving party, the Court finds that there is no genuine issue of material fact 10

11 as to whether the parties had an enforceable agreement- there simply was none. As such, the

12 Court GRANTS the Defendants' cross motion for summary judgment on the Plaintiffs breach

13 of contract claim.

14 D. Plaintiff's fraud claim does not satisfy requirements of GRCP Rule 9(b).

15 Plaintiff also asserts a claim against Defendants for "fraud in the inducement." Verified 16 Complaint at

24 of Civil Procedure, and that the Court should therefore grant summary judgment in favor of the

25 Defendants on this issue. Def.'s Opp. to Pl.'s Mot.; Cross-Mot. at 20-21 (Oct. 30, 2017).

26 Mark Heath, Chapter 7 Bankruptcy Trustee vs. Nelson Gong & Winner Enterprises; CV0904-15 Decision & Order on Plaintiffs Motion for Summary Judgment and Defendants' Cross Motion on Summary Judgment Page 8 of 14 1 The Guam Rules of Civil Procedure, Rule 9(b) requires that "in all averments of fraud ...

2 the circumstances constituting fraud... shall be stated with particularity. Malice, intent, 3 knowledge, and other conditions of mind of a person may be averred generally." (emphasis 4 added). Taitano v. Calvo Finance Corp., 2008 Guam 12 (comparing the requirements of Rule 9 5 with Rule 8 requiring only a "short and plain statement of the claim."). Allegations of fraud, the 6 Guam Supreme Court confirms, "must be 'specific enough to give defendants notice of the 7 particular [fraudulent] misconduct ... so that they can defend against the charge and not just 8 deny that they have done anything wrong."' ld. (citing Bly-Magee v. Cal., 236 F.3d 1014, 1019 9 (9th Cir. 2001)(quoting Neubronner v. Milken, 6 F3d 666, 672 (9 1h Cir. 1993)). Providing 10

11 additional guidance, the Guam Supreme Court has also ruled that "mere conclusory allegations

12 of fraud are insufficient" as are "allegations based entirely on information and belief." Id. at

13

14 In his Verified Complaint at

15 alleging as follows: 16 Defendants are also guilty of fraud in the inducement in that they procured the subject merchandise under a knowing and willful false promise to pay, said 17. promise induced Plaintiff to rely thereupon and transfer all said merchandise 18 subject to this suit, with justified reliance by Plaintiff upon Defendants' promise to pay for and receipt of partial payment and take possession thereof, Plaintiff 19 suffered damage equal to the compensatory value of all said merchandise to include those goods that may have been expired in "sell by" dates upon a promise 20 to pay and Defendants' (sic) have refused and/or failed to pay despite demands thereunto. 21 The Court finds that the Plaintiff's assertion of fraud contains vague statements which do not 22 meet the particularity required by Rule 9. The Complaint fails to identify the specific "promise 23

24 to pay" or how such promise to pay was a "knowing and willful false [sic]" one. It further fails

25 to specify how Plaintiff's reliance was "justified," which is particularly informative in this case

26 Mark Heath, Chapter 7 Bankruptcy Trustee vs. Nelson Gong & Winner Enterprises; CV0904-15 Decision & Order on Plaintiffs Motion for Summary Judgment and Defendants' Cross Motion on Summary Judgment Page 9 of14 1 where a promise to pay, if any were made, would have been made not to the Plaintiff in this

2 case, but to Valencia. As set forth in the Defendant's Opposition, to which Plaintiff filed no 3 reply, Plaintiff Mark Heath had no direct or personal knowledge of the purported contract 4 between Valencia and the Defendants and obtained the information which forms the basis of the 5 fraud claims through Plaintiff's counsel. Opp. at pp. 8, 9. 6 Accordingly, the Court finds that Plaintiff has failed to plead fraud with the requisite 7 particularity as required in GRCP 9 and, moreover, that because summary judgment is 8 appropriate with regard to Plaintiff's fraud claim, the Court hereby GRANTS the Defendants' 9 motion for summary judgment in regards to this claim. 10

11 E. Defendants are entitled to summary judgment on Plaintiff's damages claim under contract and quasi-contract theories. 12 As with the fraud claim, Plaintiff has failed to respond to Defendants' motion for 13 summary judgment on this issue. The Court will proceed nonetheless pursuant to the authority 14 cited above in Quitugua v. Flores. 15 Defendants argue that Plaintiff has failed to establish damages or a damages amount in 16 the pleadings, the deposition testimony, the answers to interrogatories, or in any other materials, 17

18 and that Defendants are therefore entitled to summary judgment on Plaintiff's damages claim

19 pursuant to Rule 26(a)(l)(C). Def.'s Opp. to Pl.'s Mot.; Cross-Mot. at 21 (Oct. 30, 2017).

20 (a) Required Disclosures; Methods to Discover Additional Matter.

21 ( 1) Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(l)(E), or to the extent otherwise stipulated or directed by order, a party 22 must, without awaiting a discovery request, provide to other parties: 23 (C) a computation of any category of damages claimed by the disclosing party, 24 making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which 25

26 Mark Heath, Chapter 7 Bankruptcy Trustee vs. Nelson Gong & Winner Enterptises; CV0904-15 Decision & Order on Plaintiffs Motion for Summary Judgment and Defendants' Cross Motion on Summary Judgment Page 10 of 14 1 such computation is based, including materials bearing on the nature and extent of injuries suffered. 2 In his initial disclosures, Section C, Plaintiff does not provide a calculation of damages 3 and instead states, "[a]t this time, discovery is still ongoing. Plaintiff/Counterclaim Defendant 4

5 will supplement their responses as additional documents, if any, become available through

6 further discovery in this matter." In his Supplemental Rule 26(a)(1) Initial Disclosures, Plaintiff

7 does not provide a damages calculation. In his Second Supplemental Rule 26(a)(l) Initial

8 Disclosures, Plaintiff again fails to provide a damages calculation.

9 In his Prayer for Relief, Plaintiff seeks "compensatory damages" of $80,000 for claims 10 arising in "contract, unjust enrichment and detrimental reliance." Verified Complaint at <[16; 11 Prayer at <[A. (Sep. 21, 2015). Rule 26 does not elaborate on the level of specificity required in 12 the initial damages disclosure and, further, Plaintiff has stated in his Initial Disclosures that 13 discovery is still ongoing and that his responses would be supplemented as discovery 14 progressed. Initial Disclosures at 2 (Jul. 20, 2016). Thus, the failure to include such specific 15 calculations does not justify the demise of the Plaintiff's claim for damages. However, what 16 does justify a motion for summary judgment on the issue of damages is Plaintiff's failure to 17

18 establish in the pleadings and record before the Court the existence of a valid, enforceable

19 contract or a viable claim for fraud. The Court further finds that Plaintiff's claims for damages

20 under equitable principles of unjust enrichment and detrimental reliance are unfounded by the

21 record.

22 1. Plaintiff fails to establish claims under equitable principles of unjust enrichment and detrimental reliance. 23

24 A Plaintiff asserting a claim for damages under a theory of unjust enrichment must

25 establish: (1) a benefit conferred upon the defendant by the plaintiff; (2) an appreciation or

26 Mark Heath, Chapter 7 Bankruptcy Trustee vs. Nelson Gong & Winner Enterprises; CV0904- 15 Decision & Order on Plaintiffs Motion for Summary Judgment and Defendants' Cross Motion on Summary Judgment Page 11 of14 1 knowledge by the defendant of the benefit; and (3) the acceptance or retention by the defendant

2 of the benefit under such circumstances as to make it inequitable for the defendant to retain the 3 benefit without the payment of its value. Williston on Contracts (3d ed. 1970) § 1499 (quoted 4 by Alternatives Unlimited, Inc. v. new Baltimore City Bd. of School Com 'rs, 843 A.2d 252, 299- 5 300 (Md. App. 2004), cited in Tanaguchi-Ruth +Associates v. MDI Guam Corp., 2005 Guam 7 6 (Guam 2005)). In the instant case, the Defendants did not receive any benefit from the plaintiff 7 -no goods, no inventory, no "stock"- thus, the Court need not go further than the first requisite 8 element to find that the Plaintiff's claim for unjust enrichment must fail. 9 Under a theory of detrimental reliance, recovery is based upon a theory of quasi- 10

11 contract. Tanguchi-Ruth, supra at <][48, 49 (citing Coleman Eng'g. Co. v. North Am. Aviation,

12 Inc., 420 P.2d 713, 729 (Cal. 1966)(en bane). The Guam Supreme Court has recognized

13 recovery under a theory of detrimental reliance as follows:

14 When two parties act in furtherance of the performance of services but fail to execute a contract to express their intent, and are both at 15 fault for this failure, the loss suffered should be borne by the person who requested performance from the other. It would be 16 unjust to force the loss to be borne by the person whose performance was undertaken upon reasonable reliance on a request 17 to perform. Recovery, therefore, is allowed based on "a moral 18 obligation to restore to his original position a party who has acted to his detriment in reliance on a representation, technically 19 unenforceable, by another that he will give value for a detriment suffered." Coleman Eng'g. Co. v. North Am. Aviation, Inc., 55 20 Cal.Rptr. 1, 420 P.2d at 729. The rule "place[s] the loss where it belongs-on the party whose request induced performance in 21 justifiable reliance on the belief that the requested performance would be paid for." ld. 22 We therefore hold that a person performing at the request of 23 another "should be paid by the person whose request induced the 24 performance." Earhart, 158 Cal.Rptr. 887, 600 P.2d at 1352. In recetvmg requested performance, the law implies that the 25 defendant received a "benefit" regardless of whether an actual

26 Mark Heath, Chapter 7 Bankruptcy Trustee vs. Nelson Gong & Winner Enterprises; CV0904-15 Decision & Order on Plaintiffs Motion for Summary Judgment and Defendants' Cross Motion on Summary Judgment Page 12 of14 1 benefit was received, and recovery under a quasi-contract theory should be permitted in such circumstances. 2 Applying these principles to the facts as alleged in the light most favorable to the Plaintiff- the 3 non-movant in relation to Defendants' Cross-Motion for Summary Judgment, the Court finds 4

5 that the record before the Court (the testimony of Valencia and of Heath as discussed, above, as

6 well as the pleadings, answers to interrogatories, admissions on file and all affidavits)

7 establishes that Valencia did not reasonably rely on any representation by the Defendants to

8 purchase the inventory or the "stock" of the Plaintiff. For these reasons, Defendants' motion for

9 summary judgment on the issue of damages under both a contract and quasi-contract theory is 10 therefore GRANTED. 11 CONCLUSION 12

13 Because the Court finds that the Plaintiff has failed to establish the existence of a

14 contract and any alleged breach thereof, Plaintiff's Motion for Summary Judgment on the issue

15 of "contract validity and liability thereupon" is hereby DENIED. Consistent with its findings of 16 no valid contract and that the fraud averments do not plead the claim as required under Rule 9, 17 the Court hereby GRANTS Defendants' cross motions for summary judgment on Plaintiff's 18 claims of breach contract and fraud. Finally, Defendants' motion for summary judgment on the 19 issue of damages under both a contract and quasi-contract theory is therefore GRANTED. 20 II 21 II 22 II 23

24 II

25 II

26 Mark Heath, Chapter 7 Bankruptcy Trustee vs. Nelson Gong & Winner Enterprises; CV0904- 15 Decision & Order on Plaintiffs Motion for Summary Judgment and Defendants' Cross Motion on Summary Judgment Page 13 of14 1 The Court's instant Decision and Order having disposed of all of Plaintiff's claims as set

2 forth in its Verified Complaint as a matter of law, a separate Judgment shall issue dismissing 3 Plaintiff's claims. 4 APR 2 0 2018 SO ORDERED t h i s - - - - - - - - - - - - 5

7 HO ~.._,u--1 8 Judge, Superior Court of Guam

26 Mark Heath. Chapter 7 Bankruptcy Trustee vs. Nelson Gong & Winner Enterprises; CV0904-15 Decision & Order on Plaintiffs Motion for Summary Judgment and Defendants' Cross Motion on Summary Judgment Page 14 of14