3 IN THE SUPERIOR COURT OF GUAM 4 KAlVILESH K. HEMLANI, individually ) and derivatively in the name of and on ) CiviL CASE NO. CV0758-12 5 behalf of RADHI PURAN TRUST, ) 6 ) Plaintiff, ) DECISION AND ORDER ON JOINT 7 ) MOTION TO DISMISS vs. ) 8 ) 9 RADHI P. HEMLANI, MANU MELWANI,) JETHMAL K. MELWANI, ISHWAR P. ) 10 HEMLANI, RADHI'S FOUNDATION, ) 11 RADHI PURAN TRUST, PACIFIC ) AMERICAN TITLE INSURANCE & ) 12 ESCROW COMPANY, VASUDEVB. ) HEMLANI, P.D. HEMLANI ) 13 FOUNDATION, LTD. and DOES 1-100, ) ) 14 Defendants. ) 15
16 INTRODUCTION 17 This matter came before the Honorable Alberto C. Lamorena III on 18 December 17, 2012 on Defendants' Motion to Dismiss. Plaintiff Kamlesh Hemlani 19 is represented by Thomas M. Tarpley, Jr. Defendant Radhi's Foundation is 20 represented by Attorney Jeffrey A. Cook. Defendants Manu Melwani, Jethmal 21 Melwani, Ishwar Hemlani, and Pacific American Title Insurance & Escrow 22 Company are represented by Attorney Bill R. Mann. Defendants Radhi Hemlani 23 and Radhi Puran Trust are represented by Attorney Elyze M. Iriarte. Defendants
24 Vasudev and P.D. Hemlani Foundation, LTD. are represented by Attorney Rodney
25 J. Jacob. After a Hearing, the Court took motions under advisement. The Court
26 now issues its Decision and Order.
28 Decision and Order Case No. CV0758-12
BACKGROUND 2 On June 25, 2012, Plaintiff Kamlesh Hemlani filed his Verified Complaint 3 with the Court. He seeks, inter alia, a declaration of the Court that Defendant 4 Radhi Hemlani, settlor and trustee of the Radhi Puran Trust, is incapacitated. See 5 Complaint p.34 ~ 6. Additionally, he seeks for this Court remove her as trustee and 6 name him trustee as he has already been designated as co-successor trustee. See
7 Id. ~ 7.
8 On August 14, 2012, Defendants Radhi Puran Trust, Radhi's Foundation, Manu Melwani, Jethmal Melwani, Ishwar Hemlani, and Pacific American Title 9 Insurance filed their Motion to Dismiss pursuant to Guam Rule of Civil Procedure 10 12(b)(1) and (6). On November 28, 2012, Defendant Radhi Hemlani joined in the 11 motion. On November 30, 2012, Defendants P.D. Hemlani Foundation and Vasudev 12 Hemlani joined in the motion. 13 Defendants argue that Plaintiff lacks standing to prosecute this action. 14 They acknowledge Plaintiffs status as successor co-trustee to the Radhi Puran 15 Trust as set forth in a 1998 amendment to the Trust. See Complaint Ex. 7. 16 However, they deny that the conditions for Plaintiff to be named trustee have not 17 been satisfied. 18 Further, Defendants have pointed out that there is an ongoing guardianship 19 case involving Radhi Hemlani in another Court. Those proceedings, captioned 20 SP0195-11, involve Radhi Hemlani's alleged incapacity. This Court is not privy to 21 the details in those proceedings, as they have been sealed by that Judge. 22 Plaintiff filed his Opposition to the motion on December 3, 2012. In it, he 23 contends he does have standing based on the finding of the Guardianship Court's 24 appointment of the Public Guardian to oversee the Trust and the Estate of Radhi
25 Hemlani. He argues that Court has made a finding as to incapacity due to that
26 Court's appointment of the Public Guardian.
27 Defendants filed their respective replies on December 10, 2012. They stress there has been no such finding as to incapacity in the Guardianship Court and 28 ;
reiterate Plaintiffs lack of standing.
-2- Decision and Order Case No. CV0758-12
DISCUSSION 2 I. Legal Standard. 3 Defendants bring their Motion to Dismiss pursuant to Rule 12(b)(1) and (6) of 4 the Guam Rules of Civil Procedure, alleging Plaintiffs lack of standing deprives the s court of jurisdiction over the matter and that Plaintiff has failed to state a claim 6 upon which relief can be granted. See Guam R. Civ. P. 12(b). Parties have brought
7 material outside of the pleadings for the Court's consideration. When matters
8 outside the pleadings are presented to and not excluded by the court, the motion
9 shall be treated as one for summary judgment and disposed of as provided in Rule 56. Guam R. Civ. P. 12(c). 10 In considering a motion for summary judgment, this Court "must draw 11 inferences and view the evidence in a light most favorable to the non-moving party." 12 .Bank of Guam v. Flores, 2004 Guam 25 ~ 7. Summary judgment is proper when 13 "the pleadings, depositions, answers to interrogatories, and admissions on file, 14 together with the affidavits, if any, show that there is no genuine issue as to any 15 material fact and that the moving party is entitled to a judgment as a matter of 16 law." Id. at~ 8 (quoting Guam R. Civ. P. 56(c)). 17 II. Standing Analysis. 18 Standing is a "threshold jurisdictional matter," and as such, this issue can be 19 raised "at any stage of the proceedings. Taitano v. Lujan, 2005 Guam 26 ~ 15. 20 When a party lacks standing, a Court lacks jurisdiction to hear a claim. See 21 Benavente v. Taitano, 2006 Guam 15 ~ 14. The Supreme Court of Guam has 22 adopted traditional standing requirements. Guam Mem'l Hosp. Auth. v. Superior 23 Court, 2012 Guam 17 ,[ 9. To establish constitutional standing, a party must show: 24 (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or 25 hypothetical; 26 (2) the injury is fairly traceable to the challenged action of the defendant; and 27 (3) it is likely, as opposed to merely speculative, that the injury will be 28 redressed by a favorable decision.
Pia Marine Homeowners Ass'n v. Kinoshita Corp. Guam, Inc., 2013 Guam 6 ,[ 16.
-3- Decision and Order Case No. CV0758-l2
The first element of common-law standing is injury in fact. As stated above, 2 an injury in fact must be concrete, particularized, and actual or imminent; it cannot 3 be purely conjectural or hypothetical. Guam l\tlem'l Hosp. Auth. v. Superior Court, 4 2012 Guam 17 ~ 12 (citing Friends ofthe Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 5 528 U.S. 167, 180 (2000); O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). 6 Plaintiffs basis for standing here is that he is the successor co-trustee to the
7 Radhi Puran Trust. Under the First Amendment to the Radhi Puran Trust, the
8 initial co-trustees are P.D. Hemlani and Radhi P. Hemlani. See Complaint Ex. 7
9 p.l. By the amendment's terms: Upon the death, resignation, removal or incapacity of either of the 10 INITIAL CO-TRUSTEES, the remaining INITIAL CO-TRUSTEE shall II serve as sole TRUSTEE, and, upon the death, resignation, removal or incapacity of the other INITIAL CO-TRUSTEE, KAMLESH K. 12 HEMLANI, ISHWAR P. HEMLANI and VASDEV B. HEMLANI are 13 appointed SUCCESSOR CO-TRUSTEES.
14 Id. p.2. The Trust's initial co-trustee P.D. Hemlani passed away on March 12, 2004. 15 Complaint~ 13. Under the Trust's provisions, Radhi Hemlani currently serves as 16 sole trustee. Plaintiff argues that because the Public Guardian has been appointed, 17 the Guardianship Court has made a finding that Radhi Hemlani is incapacitated
18 and otherwise been removed.
19 The trust defines "incapacity" as having the same meaning as that set forth
20 in 15 G.C.A. § 3801. Complaint Ex.6 p.VIII-1, 8.01(F).
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3 IN THE SUPERIOR COURT OF GUAM 4 KAlVILESH K. HEMLANI, individually ) and derivatively in the name of and on ) CiviL CASE NO. CV0758-12 5 behalf of RADHI PURAN TRUST, ) 6 ) Plaintiff, ) DECISION AND ORDER ON JOINT 7 ) MOTION TO DISMISS vs. ) 8 ) 9 RADHI P. HEMLANI, MANU MELWANI,) JETHMAL K. MELWANI, ISHWAR P. ) 10 HEMLANI, RADHI'S FOUNDATION, ) 11 RADHI PURAN TRUST, PACIFIC ) AMERICAN TITLE INSURANCE & ) 12 ESCROW COMPANY, VASUDEVB. ) HEMLANI, P.D. HEMLANI ) 13 FOUNDATION, LTD. and DOES 1-100, ) ) 14 Defendants. ) 15
16 INTRODUCTION 17 This matter came before the Honorable Alberto C. Lamorena III on 18 December 17, 2012 on Defendants' Motion to Dismiss. Plaintiff Kamlesh Hemlani 19 is represented by Thomas M. Tarpley, Jr. Defendant Radhi's Foundation is 20 represented by Attorney Jeffrey A. Cook. Defendants Manu Melwani, Jethmal 21 Melwani, Ishwar Hemlani, and Pacific American Title Insurance & Escrow 22 Company are represented by Attorney Bill R. Mann. Defendants Radhi Hemlani 23 and Radhi Puran Trust are represented by Attorney Elyze M. Iriarte. Defendants
24 Vasudev and P.D. Hemlani Foundation, LTD. are represented by Attorney Rodney
25 J. Jacob. After a Hearing, the Court took motions under advisement. The Court
26 now issues its Decision and Order.
28 Decision and Order Case No. CV0758-12
BACKGROUND 2 On June 25, 2012, Plaintiff Kamlesh Hemlani filed his Verified Complaint 3 with the Court. He seeks, inter alia, a declaration of the Court that Defendant 4 Radhi Hemlani, settlor and trustee of the Radhi Puran Trust, is incapacitated. See 5 Complaint p.34 ~ 6. Additionally, he seeks for this Court remove her as trustee and 6 name him trustee as he has already been designated as co-successor trustee. See
7 Id. ~ 7.
8 On August 14, 2012, Defendants Radhi Puran Trust, Radhi's Foundation, Manu Melwani, Jethmal Melwani, Ishwar Hemlani, and Pacific American Title 9 Insurance filed their Motion to Dismiss pursuant to Guam Rule of Civil Procedure 10 12(b)(1) and (6). On November 28, 2012, Defendant Radhi Hemlani joined in the 11 motion. On November 30, 2012, Defendants P.D. Hemlani Foundation and Vasudev 12 Hemlani joined in the motion. 13 Defendants argue that Plaintiff lacks standing to prosecute this action. 14 They acknowledge Plaintiffs status as successor co-trustee to the Radhi Puran 15 Trust as set forth in a 1998 amendment to the Trust. See Complaint Ex. 7. 16 However, they deny that the conditions for Plaintiff to be named trustee have not 17 been satisfied. 18 Further, Defendants have pointed out that there is an ongoing guardianship 19 case involving Radhi Hemlani in another Court. Those proceedings, captioned 20 SP0195-11, involve Radhi Hemlani's alleged incapacity. This Court is not privy to 21 the details in those proceedings, as they have been sealed by that Judge. 22 Plaintiff filed his Opposition to the motion on December 3, 2012. In it, he 23 contends he does have standing based on the finding of the Guardianship Court's 24 appointment of the Public Guardian to oversee the Trust and the Estate of Radhi
25 Hemlani. He argues that Court has made a finding as to incapacity due to that
26 Court's appointment of the Public Guardian.
27 Defendants filed their respective replies on December 10, 2012. They stress there has been no such finding as to incapacity in the Guardianship Court and 28 ;
reiterate Plaintiffs lack of standing.
-2- Decision and Order Case No. CV0758-12
DISCUSSION 2 I. Legal Standard. 3 Defendants bring their Motion to Dismiss pursuant to Rule 12(b)(1) and (6) of 4 the Guam Rules of Civil Procedure, alleging Plaintiffs lack of standing deprives the s court of jurisdiction over the matter and that Plaintiff has failed to state a claim 6 upon which relief can be granted. See Guam R. Civ. P. 12(b). Parties have brought
7 material outside of the pleadings for the Court's consideration. When matters
8 outside the pleadings are presented to and not excluded by the court, the motion
9 shall be treated as one for summary judgment and disposed of as provided in Rule 56. Guam R. Civ. P. 12(c). 10 In considering a motion for summary judgment, this Court "must draw 11 inferences and view the evidence in a light most favorable to the non-moving party." 12 .Bank of Guam v. Flores, 2004 Guam 25 ~ 7. Summary judgment is proper when 13 "the pleadings, depositions, answers to interrogatories, and admissions on file, 14 together with the affidavits, if any, show that there is no genuine issue as to any 15 material fact and that the moving party is entitled to a judgment as a matter of 16 law." Id. at~ 8 (quoting Guam R. Civ. P. 56(c)). 17 II. Standing Analysis. 18 Standing is a "threshold jurisdictional matter," and as such, this issue can be 19 raised "at any stage of the proceedings. Taitano v. Lujan, 2005 Guam 26 ~ 15. 20 When a party lacks standing, a Court lacks jurisdiction to hear a claim. See 21 Benavente v. Taitano, 2006 Guam 15 ~ 14. The Supreme Court of Guam has 22 adopted traditional standing requirements. Guam Mem'l Hosp. Auth. v. Superior 23 Court, 2012 Guam 17 ,[ 9. To establish constitutional standing, a party must show: 24 (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or 25 hypothetical; 26 (2) the injury is fairly traceable to the challenged action of the defendant; and 27 (3) it is likely, as opposed to merely speculative, that the injury will be 28 redressed by a favorable decision.
Pia Marine Homeowners Ass'n v. Kinoshita Corp. Guam, Inc., 2013 Guam 6 ,[ 16.
-3- Decision and Order Case No. CV0758-l2
The first element of common-law standing is injury in fact. As stated above, 2 an injury in fact must be concrete, particularized, and actual or imminent; it cannot 3 be purely conjectural or hypothetical. Guam l\tlem'l Hosp. Auth. v. Superior Court, 4 2012 Guam 17 ~ 12 (citing Friends ofthe Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 5 528 U.S. 167, 180 (2000); O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). 6 Plaintiffs basis for standing here is that he is the successor co-trustee to the
7 Radhi Puran Trust. Under the First Amendment to the Radhi Puran Trust, the
8 initial co-trustees are P.D. Hemlani and Radhi P. Hemlani. See Complaint Ex. 7
9 p.l. By the amendment's terms: Upon the death, resignation, removal or incapacity of either of the 10 INITIAL CO-TRUSTEES, the remaining INITIAL CO-TRUSTEE shall II serve as sole TRUSTEE, and, upon the death, resignation, removal or incapacity of the other INITIAL CO-TRUSTEE, KAMLESH K. 12 HEMLANI, ISHWAR P. HEMLANI and VASDEV B. HEMLANI are 13 appointed SUCCESSOR CO-TRUSTEES.
14 Id. p.2. The Trust's initial co-trustee P.D. Hemlani passed away on March 12, 2004. 15 Complaint~ 13. Under the Trust's provisions, Radhi Hemlani currently serves as 16 sole trustee. Plaintiff argues that because the Public Guardian has been appointed, 17 the Guardianship Court has made a finding that Radhi Hemlani is incapacitated
18 and otherwise been removed.
19 The trust defines "incapacity" as having the same meaning as that set forth
20 in 15 G.C.A. § 3801. Complaint Ex.6 p.VIII-1, 8.01(F). "The phrase incompetent person, incompetent or mentally incompetent, shall be construed to mean or refer to 21 any person, whether insane or not, who by reason of old age, disease, weakness of 22 mind or other cause, is unable, unassisted, properly to manage and take care of 23 himself or his property, and by reason thereof is likely to be deceived or imposed 24 upon by artful or designing persons." 15 G.C.A. § 3801. 25 Plaintiff contends that an appointment of the Public Guardian could not have 26 taken place without a finding of insanity or incompetence by the Court. This Court 27 will neither speculate as to factual matters not before it, nor will it subvert ongoing 28
-4- Decision and Order Case No. CV0758-12
proceedings properly before another Court. The recmd before this Court shows no 2 such finding by the Guardianship Court. 3 Further, under the trust provisions, a determination of any person's 4 incapacity shall be made either by an adjudication by a court of competent 5 jurisdiction that such person is an incapacitated person, or delivery to the trustee of
6 a written instrument signed by any two physicians, one of whom is currently
7 attending such person, stating that, by reason of such person's mental or physical
8 condition, such person is incapable of managing his or her business affairs.
9 Complaint Ex.6 p.VIII-1, 8.01(F). Neither of these conditions have been satisfied. Thus, there having been no death, resignation, removal or incapacity as to 10 trustee Radhi Hemlani, she remains the sole trustee to the Radhi Puran Trust; and 11 so she shall remain unless and until one of the conditions provided for in the trust 12 instruments is satisfied. Until that time, Plaintiff Kamlesh Hemlani continues in 13 his status as successor co-trustee. 14 As a successor co-trustee for the duration of Radhi Hemlani's term as sole 15 trustee, Plaintiff enjoys no powers, liabilities, or privileges under the Trust. His 16 current status under the Radhi Puran Trust could best be termed a mere 17 expectation. As such, this Court does not recognize any "injury in fact." Plaintiffs 18 purported injuries and perceived authority to sue are neither concrete nor 19 particularized and are conjectural or hypothetical. 20 There being no injury in fact, Plaintiff fails on the first prong of the standing 21 analysis. There is no need to consider the remaining two. This Court is cognizant 22 that the Trust's successor provisions may be triggered if one of the stated conditions 23 transpires; interspersed with the issue of Plaintiffs standing is the issue of 24 npeness. 25 CONCLUSION 26 For the reasons set forth above, Defendants' Motion to Dismiss is hereby
27 GRANTED. Because of the circumstances surrounding this case, dismissal is
28 granted without prejudice.
-5- Decision and Order Case No. CV0758-12
2 It is SO ORDERED this 9th day of July, 2013. 3
II
-6-