JM Robertson v. Sterling Design Co.

Opinion

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1 EFHBFEB -9 PH l=32 2 CLERK Ag: CUURT

3 Sgt

4 IN THE SUPERICR COURT OF GUAM I 5 JM ROBERTSON, INC. db AMORIENT ) cIviL CASE NO.

6 ENGINEERING, CV0955-16 )

7 )

PLAINTIFF, )

8 )

v. )

9 DECISION AND ORDER RE:

)

10 STERLING DESIGN, INC. db STERLING ) PLAINTIFF'S MOTION DESIGN CONSTRUCTION ) TO EXCLUDE EVIDENCE OR 11 ) ALTERNATIVELY TO DEFENDANT. ) CONSOLIDATE CASES 12 )

13 STERLING DESIGN, INC. db STERLING > DESIGN CONSTRUCTION )

14 COUNTERCLAIM-PLAINTIFF, )

15 )

v.

)

16 )

)

17 JM ROBERTSON, INC. db AMORIENT ENGINEERING, )

18 )

COUNTERCLAIM-DEFENDANT.

)

19 ) 20 INTRODUCTION 21 This matter came before the Honorable Maria T. Cenzon on November 13, 2017 for a 22 23 hearing on Plaintiff JM Robertson, Inc. db ArnOrient Engineering's ("Plaintiff") Motion to

24 Exclude Evidence ("Motion to Exclude") or Alternatively to Consolidate Cases ("Motion to

25 Consolidate CV0775-16 and CV0955-16). Plaintiff was represented by Attorney Thomas

26 Tarpley. Defendant Sterling Design, Inc. db Sterling Design Construction ("Defendant") was 27

28 JM Robertson, Inc. v. Sterling Design, Inc.;CV0955-16 D&O Re: Plaintiff" s Motion to Exclude Evidence or Alternatively to Consolidate Cases Page l of 6 represented by Attorney Daniel Berman. At the conclusion of oral arguments, the Court took the 1

2 matter under advisement pursuant to CVR 7.1 of the Local Rules of the Superior Court of Guam.

3 Having reviewed the parties' arguments, the record, and the relevant law, the Court now issues 4 this Decision and Order DENYING Plaintiff's Motion to Exclude Evidence and rendering the 5 Motion to Consolidate Cases MOOT.

6 BACKGROUND

7

8 J o hn M . Ro b e r tso n ( "Ro b e r tso n") is the m a jo r ity ho ld e r o f Pla intiff Am Or ie nt

9 Engineering. Defendant Sterling Design Construction is owned by Michael Wirges ("Wirges"). 10 There are two pending cases before the Superior Court of Guam involving both parties, CV0775-

11 16 Wries v. Robertson, et al., and CV0955-16 JM Robertson, Inc. v. Sterling Design, Inc.

12

13 (1) Wirges v. Robertson, et al. (CV0775-16):

14 CV0775-16 is pending before the Honorable Anita A. Sukola ("Judge Sukola"). On

15 September 2, 2016 Wirges filed a complaint for breach of contract against Robertson. On June 16 16, 2017, Wirges amended the complaint adding claims against Herman Bonsembiante 17 18 ("Bonsernbiante"). Robertson and Bonsembiante also filed a motion to consolidate CV0775-16

19 and CV0955-16 before Judge Sukola, which was denied on October 5, 2017.

20 (2) JM Roberston, Inc. v. Sterling Design, Inc. (CV0955-16): 21 On November 1, 2016, about two months after Wirges filed a complaint against 22 Roberston, Plaintiff Bled three claims of breach of contract against Defendant. The complaint 23 24 alleges:

25 1) Breach of the May 1, 2015 agreement for plaintiff to provide engineering services for the proposed Guam Medical Arts Center Project, alleging Defendant owes $111,831.96 for 26 the services it refused to pay, 27 28 JM Robertson, Inc. v. Sterling Design, Inc.; CV0955-16 D&O Re: Plaintiff" s Motion to Exclude Evidence or Alternatively to Consolidate Cases

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2) Breach of the April 26, 2016 agreement where Plaintiff agreed to provide engineering services for the proposed CW Holdings-Building #3 Project of Defendant, alleging 2 Defendant owes $6,130.80 for the services it refused to pay, and

3 3) Breach of the July, 2015 and July, 2016 agreement where Defendant would travel with Plaintiff to two off-island destinations for exclusive benefit of Defendant. Plaintiff was 4 then to be reimbursed for paying the cost of travel following their return to Guam, but 5 Defendant refused to pay $4,817.77.

6 On November 29, 2016, Defendant filed an answer and counterclaim against Plaintiff in 7 the instant case alleging:

8 1) Breach of contract since the plans, services, and drawings submitted by Plaintiff were 9 defective and unusable, and 10 2) Breach of agreement to renovate and share an office space. Defendant seeks damages for 11 both the market value of the services and materials provided for the renovation. And expenses incurred to vacate its office space and later move back to its previously 12 occupied office space when the agreement fell through. 13 On July 18, 2017, Plaintiff filed the instant Motion to Exclude or to Consolidate CV0775-

14 16 and CV0955-16 before this Court. Defendant opposed the Motion for reasons set forth in its 15

16 Opposition. See Opp. of Sterling Design, Inc. to Plaintiff's Mot. to Exclude Evidence or

17 Alternatively to Consolidate Cases ("Opposition") (Aug. 16, 2017). Plaintiff tiled a Reply to the 18 Opposition on September 1, 2017.

19 At the hearing, the parties informed the Court that CV0775-16 is set for trial the 20 following week. Plaintiff retracted its request and stated that it is no longer seeldng for 21

22 consolidation. Consequently, the Court rendered the Motion to Consolidate CV0775-16 and

23 CV0955-16 MOOT. Nonetheless, Plaintiff continues to request to exclude evidence of the sale 24 of stock in AmOrient Engineering Inc. to Wirges by Robertson (the "sale of stock agreement")

25 arguing that issue is what will be decided in CV0775-16 before Judge Sukola. Defendant 26

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28 JM Robertson, Inc. v. Sterling Design, Inc.; CV0955-16 D&O Re: Plaintiff' s Motion to Exclude Evidence or Alternatively to Consolidate Cases disagreed reasoning that such evidence is necessary to demonstrate its reliance, specifically for 1

2 its second counterclaim regarding the agreement to renovate and share an office space.

3 Plaintiff cites to Rule 402 of the Guam Rules of Evidence ("GRE") as his basis for 4 excluding the sale of stock agreement between Wirges and Robertson. Mot. at p. 2. Plaintiff 5 contends that allowing the private dispute between Robertson and Wirges to be tried in two 6 separate court rooms is a waste of judicial resources, would be dupliticious and could lead to 7

8 contradictory rulings. Id. at p. 5.

9 Defendant states that the parties entered into a long-term lease agreement for space at the 10 KG Plaza in April, 2016. The agreement was for Plaintiff to provide materials and Defendant to 11 provide labor for the renovations. Defendant claims that it agreed upon this arrangement even 12

13 though it would only occupy 20% of the renovated office space and labor costs would be higher

14 than material costs. Defendant contends it agreed upon these terms "only because it anticipated

15 that Wirges would obtain majority control of [Plaintiff]." See Answer and Counterclaims (Nov.

16 29, 2016). Defendant argues that the "evidence relating to Wirges' claimed right to obtain the 17 controlling interest in AmOrient Engineering is [] relevant to explain why Wirges caused 18

19 Sterling Design to agree to provide labor for the renovation on non-commercial terms." Opp. at

20 p. 5. 21 DISCUSSION

22 Rule 402 of the GRE provides, "evidence which is not relevant is inadmissible." Rule 23 401 of the GRE defines relevant evidence as "evidence having any tendency to make the 24

25 existence of any fact that is of consequence to the determination of the action more probable or

26 less probable than it would be without the evidence." Rule 403 of the GRE allows exclusion of 27

28 JM Robertson, Ire. v. Sterling Design, Inc.; CV0955-16 D&O Re: Plaintiff' s Motion to Exclude Evidence or Alternatively to Consolidate Cases relevant prejudice if "its probative value is substantially outweighed by the danger of unfair 1

2 prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay,

3 waste of time, or needless presentation of cumulative evidence." 4 The Guam Supreme Court has opined, "A trial judge has wide latitude in the admission or 5 exclusion of evidence where the question is one of materiality or relevancy." Fenwick v. Watabe 6 Guam, Inc., 2009 Guam 1, *][ 64 (quoting Lies v. Farrell Lines, Inc., 641 F.2d 765, 773 (9th 7

8 Cir.1981)(emphasis added), See also United States v. Brannon, 616 F.2d 413, 418 (9th

9 Cir.1980)). The "tendency is to leave rulings as to the illuminating relevance of testimony 10 largely to the discretion of the trial court that hears the evidence." Id. (quoting Hauling u 11 United States, 418 U.S. 87, 125 (1974)(emphasis added)).

12

13 An interpretation of the identical Rule 402 of the Federal Rule of Evidence also holds

14 that evidence is admissible if it will tend to show that another party's reliance was justified. See

15 Darling v. Western ThrQ't & Loan, 600 FSupp.2d 189 (D. Me. 2009).1 16 The Court disagrees with Plaintiff that allowing evidence of the sale of stock agreement 17 as

would be "a waste of judicial resources, [] dupliticious and could lead to contradictory rulings.

18

19 Mot. at p. 5. Unlike in CV0775-16, this Court is not required to determine the enforceability of

20 the sale of stock agreement. Moreover, in CV0955-16, the Defendant seeks reliance damages on

21 the agreement to renovate and share an office space. The Court, therefore, Herds that evidence of 22 the sale of stock agreement is relevant to show whether Defendant's reliance on Plaintiff's 23 24 representations were justified.

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26 1 In Darling u Western ThrQ'i & Loan, the court held the Homeowners' statement of fact in a summary judgment affidavit that they thought that mortgage broker's employee instead worked for lender was relevant in deciding 27 broker's motion for summary judgment on homeowners' fraud claim against broker, if true, it tended to make it more probable that homeowners' reliance on employees representations was justified.

28 JM Robertson, Inc. v. SterlingDesign, Inc.; CV0955-16 D&O Re: Plaintiff' s Motion to Exclude Evidence or Alternatively to Consolidate Cases

Notwithstanding the parties' failure to argue the prejudicial effect of allowing or 1

2 excluding the sale of stock agreement, the Court does not find exclusion of such evidence is

3 warranted by Rule 403 . 4 CONCLUSION

5 For the reasons set forth above, the Court hereby DENIES the Plaintiff's Motion to .6 7 Exclude Evidence of the sale of stock agreement.

8 S0 ORDERED FEB 09 201B 9

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LE MARIA T. CENZON

13 JUDGE, SUPERIOR COURT OF GUAM

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22 SERVICE VIA COURT BOX 23 I acknowledge that a copy of the original hereto was placed I* /;.,, 24 court box of:

Pitman 0.c»ww4 mm 25 T. T<wrQ\wl . _~

26 Date: am Time: r.*Um Deputy Cleft, period cout of Guam 27

28 JM Robertson, Inc. v. Sterling Design, Inc.; CV0955-16 D&O Re: Plaintiff' s Motion to Exclude Evidence or Alternatively to Consolidate Cases