Kim v. Kim
Opinion
I
6 IN THE SUPERIOR COURT OF GUAM 7
CHUNG SOOK KIM, ) Civil Case no. CV0710-11 8 9 Plaintiff,
10 VS.
II MI HYE KIM, KI YOUNG KIM, MIN ) DECISION AND ORDER KYONG KIM, HEE SOON JEONG, BYUNG) 12 GON KIM , and DOES I through IV, ) 13 Defendants. ) 14
15 INTRODUCTION 16 Pursuant to Rule 7.1 of the Local Rules of the Superior Court of Guam, Defendants' 17
18 Hee Soon Jeong and Byung Gon Kim's, Motion for Trail by Court was taken under advisement
19 by the Honorable Judge Michael J. Bordallo on November 24, 2014. Defendants Mi Hye Kim, 20 Ki Young Kim and Min Kyong Kim (hereafter Defendants Kim) were represented by attorney 21 John R. B. Bell. Defendants Hee Soon Jeong and Byung Gon Kim (hereafter Defendants 22
Jeong) were represented by attorney Helkei S. Hemminger. Plaintiff was represented by 23
24 attorney William C. Bischoff. Having received and reviewed the arguments, papers, and file
25 herein, the Court now issues the following order denying Defendants Jeong's request. 26
Page 1 of 5 I BACKGROUND 2 1. 3 The instant matter arises out o f a civil complaint for cancellation of instrument 4
5 containing three counts for breach of fiduciary duty, aiding and abetting breach of fiduciary
6 duty and constructive trust, filed by the Plaintiff on April 22, 2011. Plaintiff filed a first
7 amended complaint for cancellation of instrument on May 6, 2011. Plaintiffs first amended 8 complaint contained four counts: 1) breach of fiduciary duty, 2) fraud, 3) aiding and abetting 9 breach of fiduciary duty and 4) constructive trust. 10
11 On February 17, 2012, the Court entered an order dismissing Count II of Plaintiffs
12 complaint and granting leave to amend a portion of her pleading. Plaintiff filed her second 13 amended complaint on March 9, 2012. In her pleading Plaintiff alleges counts of: 1) breach of 14 duty, 2) fraud, 3) aiding or abetting breach of duty, and 4) constructive trust. On April 9, 2013 15 Defendants Jeong filed a pleading entitled, Answer to Complaint; Counterclaim as to Plaintiff; 16
17 Cross-claim as to Defendants' Mi Hye Kim, Ki Young Kim, Min Kyong Kim; Demand for
18 Arbitration. In their counter-claim and cross-claim Defendants Jeong allege four causes of 19 action and a section entitled Demand for Arbitration. The causes of action alleged in 20 Defendants Jeong's pleading are: 1) quiet title, 2) breach of warranty, 3) recission and fraud. 21 On July 16, 2014, the Court allowed Defendants Jeong to amend their pleading and include an 22
23 additional affirmative defense of bona fide purchaser and two additional causes of action for
24 ejectment and unjust enrichment. 25 On September 26, 2014, the Court entered an order of partial summary judgment 26 dismissing Plaintiffs claims against Defendants Jeong for fraud and aiding or abetting breach 27
28 of duty.
Page 2 of 5 I II. 2 Defendants Jeong filed a Motion for Trial by Court on November 17, 2013 . Mot. at 1. 3 Citing rule 39( a)(2) of the Guam Rules of Civil Procedure they argue that the parties do not 4
5 have a right to trial by jury of the issues herein; the issues arising in equity. Id. 1-3. Defendants 6 Jeong argue and assert that the central issue of recission is not a remedy at law but in equity and
7 that any issue of resulting damages, likewise remains in equity. Id. at 2-5. On November 21, 8 2014, Plaintiff filed a non-opposition to Defendants Jeong's request. 9 Defendants Kim filed their opposition to Defendants Jeong's request on November 24, 10
11 2014. Opp. at 1. In support of their opposition Defendants assert that the pleadings herein have
12 raised the following claims: cancellation of instrument, fraud, breach of fiduciary duty, and 13 breach of warranty. Opp. at 1-2 . Defendants Kim argue and assert that questions of fact have 14 yet to be found regarding whether the contract at issue was intact. Id. at 2. They further argue 15 that actions of fraud and breach of fiduciary duty are legal and not equitable and entitle them to 16
17 a jury trial. Id. at 3. Lastly Defendants Kim argue that because, due to the passage of time and
18 the change in market values, the Court will not be able to place the parties in their original 19 positions that an equitable remedy is unavailable. Id. 20 Defendants Jeong filed their reply on November 24, 2014. Reply at 1. In it they dispute 21
that breach of fiduciary duty is an equitable claim and assert that the Court has dismissed the 22
23 Plaintiff's causes of action for fraud and breach of fiduciary duty against the Defendant' s Jeong.
24 Id. at 2. They re-emphasize their argument that actions for constructive trust and cancellation of 25 a deed are equitable and argue that neither hold a right to a jury. Id. Lastly Defendants Jeong 26 argue that Defendants Kim's failure to demand a jury trial in their pleading precludes them from 27
28 requesting it now. Id.
Page 3 of 5 I DISCUSSION 2 Rule 39 of the Guam Rules of Civil Procedure regulates a parties right to a trial by jury. 3 Guam R. Civ. P. 69. In pertinent part it provides, 4
5 (a) By Jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so 6 demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court 7 or by an oral stipulation made in open court and entered in the record, consent to 8 trial by the court sitting without a jury or (2) the court upon motion or of its own initiative finds that a right of trial by jury of 9 some or all of those issues does not exist under the Constitution, the Organic Act of Guam or the laws of Guam. 10
11 Id. Here Plaintiff and Defendants Jeong have not opposed and requested that the
12 remaining issues be tried to the Court in place of the jury. Mot. and Non-Opp. While it is 13 asserted that Defendants Kim did not file a demand for a jury the U.S. Federal Court's have 14 consistently held that a party is entitled to rely upon an opposing party's jury demand. Rachal 15 v. Ingram Corp., 795 F.2d 1210, 1215-16 (5th Cir. 1986). 16
17 The issues and claims remaining before this court from the parties' pleadings are: A)
18 from Plaintiff's second amended complaint: 1) breach of duty 2) fraud as to Defendants Kim 19 and 3) constructive trust; and B) from Defendants Jeong second amended counterclaim: 1) 20 quiet title, 2) breach of warranty, 3) recission and fraud, 4) ejectment and 5) unjust enrichment. 21
While the majority of these claims are equitable, the right to a jury not attaching, it is 22
23 undisputed that in a claim for fraud there is ordinarily a right to a jury trial. Reply at 3.
24 Accordingly the Court is unable to grant Defendants' request. Chauffeurs, Teamsters and 25 Helpers, Local No. 391 v. Terry, 494 U.S. 558, 570-74 (1990); Beacon Theaters, Inc. v. 26 Westover, 359 U.S. 500, 506 (1959)(rejecting the relevance of the chancellor's historic ability 27
28 to decide legal claims incidental to a case brought in equity and holding that, in mixed cases,
Page 4 of 5 I the parties are not only entitled to a jury trial on the legal claims but that this jury trial must 2 precede a decision on the equitable claims-with the attendant collateral-estoppel effects); Ross 3 v. Bernhard, 396 U.S. 531, 538 (1970)(requiring a jur y trial on the legal issues in a 4 shareholders' derivative suit even though the procedurally equivalent suit in the 18th century 5
6 would have been heard only in equity).
7 CONCLUSION 8 For the reasons set forth above Defendants Jeong's request is denied. 9
11 SO ORDERED, this day of e 2014.
14 _ LZ 15 HON BLE MICHAEL J.
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