Moroni & Koegel v. Castro

• Court: Superior Court of Guam
• Decided: February 3, 2012
• Docket: CV1004-05
• Status: Unknown

Opinion

Territorial

1 IN THE SUPERIOR COURT OF GUAM 2 RON MORONI and PHYLLIS KOEGEL, ) 3 ) CIVIL CASE NO. CVlO04-05 Plaintiffs, ) 4 ) vs. ) 5 ) FINDINGS OF FACT ) AND 6 ) CONCLUSIONS OF LAW FRANKLIN CASTRO, ANTHONY JAMES) 7 CASTRO, and BANK OF HAWAIl, ) ) 8 ) Defendants. ) 9 ) 10 INTRODUCTION 11 This matter initially came before the Honorable Arthur R. Barcinas on the 16th day ofJune, 12 201 0, for trial. Trial was commenced on that day and was resumed and completed on the 16th day 13 of August, 2010. Attorney Ron Moroni represented the Plaintiffs, and Attorney Phillip Torres 14 represented the Defendants Franklin Castro and Anthony James Castro. The Bank of Hawaii did 15 not appear for trial, through counselor otherwise. At trial, all of the exhibits submitted by both 16 parties were admitted into evidence. The Court now issues the following Findings of Fact and 17 Conclusions of Law on the matter. 18 FINDINGS OF FACT 19 This Court has jurisdiction over this matter pursuant to 7 GCA §31 05. After hearing all 20 the evidence and testimony presented in this case, this Court finds by a preponderance of the 21 evidence, that: 22 1. The Plaintiffs appeared in this action by filing a Complaint on October 25,2005. 23 24 The Defendants Castro appeared by filing an Answer and Counterclaims on

25 November 14, 2005. The Plaintiffs filed an Answer to Counterclaims on

26 November 23,2005. Later, the Plaintiffs filed an Amended Complaint, adding

Defendant BOH as a party on August 30, 2006. Defendant BOH never filed an Moroni and Koegel v. Castros and BOH; CVlO04-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 answer. 2 2. Plaintiffs acquired Lot No. 16, Block 10, Tract 232, Sinajana, Guam (hereinafter 3 referred to as "Lot 16") by a Warranty Deed which they executed as Grantees on 4

5 December 2,2003. Defendant Anthony Castro is the owner of the adjoining lot,

6 Lot No. 15, Block 10, Tract 232, Sinajana, Guam (hereafter referred to as "Lot

7 15"), which is registered land, originally registered on August 19, 1949, under 8 Certificate of Title No. 3313, and now recorded under Certificate of Title number 9 118624. Defendant Franklin Castro currently resides on Lot 15. 10 3. At the time Plaintiffs acquired their property, they obtained a loan from the Bank 11 of Hawaii. As part of the loan process, Bank of Hawaii also conducted a survey 12

l3 and appraisal of the property. Efren Santos, a licensed surveyor, was hired by the

14 Bank of Hawaii to conduct a retracement survey. After surveying the property,

15 Mr. Santos also created a map which was recorded at the Guam Department of 16 Land Management. Robert Prieto, an appraiser, was hired by Bank of Hawaii to 17 make an appraisal of the property, and did so, writing an Appraisal Report dated 18 November 3,2003. 19 4. In 2005, Defendants decided to build a fence on Lot 15, just inside the boundary 20 line between Lot 16 and Lot 15. According to the testimony of Defendant 21

22 Franklin Castro and corroborated by Plaintiff Moroni's testimony, Plaintiff

23 Moroni objected to the proposed placement of the fence and stated that it would

24 encroach upon his property. The objection was based upon a visual sighting of 25 Plaintiff Moroni's understanding of the boundary line. 26

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1 5. In response, Defendant Franklin Castro hired Meliton Santos to identifY the points 2 and provide a sight line to identifY the boundary. Meliton Santos prepared a 3 detailed map containing the location points of the boundary between Lot 15 and 4 5 Lot 16. He identified the Southwestern terminal point of the boundary to be

6 located at N 196079.4553, E 100281.4862, and he identified the Northeastern

7 terminal point of the boundary nearest Senator Gibson Drive to be located at N 8 196109.8145, E 100413.8503. 9 6. Using these points to determine the boundary line, Meliton Santos found that the 10 driveway/CMU wall ofthe Plaintiffs is encroaching on Lot 15. He computed the 11 area of encroachment as having a length of3.9 meters, a width of .508 meters, and 12 13 a height of 3 .353 meters. In total area, the encroachment encompasses 1 square

14 meter or 11 square feet. Meliton Santos also found that there is a small

15 encroachment of the Plaintiffs' concrete stoop at the base of the stairwell landing, 16 which has a total area of .04 square meters or .48 square feet. 17 7. Defendant Franklin Castro drew a piece of colored string from the lower boundary 18 of the property all the way up to the top boundary marker that Meliton Santos 19 placed near the roadway. Based upon this line, it was made readily apparent that 20 the driveway/CMU wall on which Plaintiff Moroni parks his car is encroaching 21 22 upon Defendants' property. The fact of the encroachment is undisputed.

23 According to the testimony presented by all witnesses, the only disputed issue

24 regarding the encroachment is the size of the encroachment. 25 26

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1 8. Plaintiff Moroni hired surveyor Efren Santos to identifY the points of Lot 16, on 2 his behalf. Efren Santos conducted a survey and identified the same lower marker 3 as identified by Meliton Santos, however, he located the northernmost marker, 4 5 nearest the street, approximately three inches apart from the survey marker found

6 by Mr. Meliton Santos. Efren Santos did not provide an exact location for the

7 northernmost marker, and no latitudinal or longitudinal points were ever identified 8 for this marker by Efren Santos. Both Meliton Santos and Efren Santos testified 9 that their surveys are accurate, and that the driveway/CMU wall is encroaching on 10 Lot 15. 11 9. In September of2005, Defendant Franklin Castro built a fence near the boundary 12 13 between Lot 15 and Lot 16. The fence is located entirely on Lot 15.

14 10. According to the testimony ofEfren Santos, in 2005, he informed PlaintiffMoroni

15 that the boundary near the fence line was accurate at the time he conducted the

16 appraisal, and that the string which marked the fence line was not encroaching on 17 Lot 16. Thus, Plaintiff Moroni was aware that there was no evidence to support 18 claims of encroachment by the Defendants' fence prior to filing the lawsuit. 19 11. Plaintiff Moroni is also an attorney, and is the attorney representing the Plaintiffs 20 21 in this suit.

22 12. Mr. Ismael Hemlani, a pnor owner of Lot 16, testified that he built the

23 driveway/CMU wall in or about 1987 or 1988 upon what he thought was Lot 16.

24 13. Mary Castro Perez was the prior owner of Lot 15, and transferred ownership to 25 Plaintiff Anthony Castro in 2000. She testified in a deposition that she owned Lot 26

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1 15 when Mr. Hemlani built the driveway/CMU wall, and was unaware that Mr. 2 Hemlani had built the driveway/CMU wall on a portion of Lot 15. She testified 3 that she never objected to the building of the driveway/CMU wall as she was 4 5 unaware of the encroachment. She further stated that she never gave him

6 permission to build the driveway/CMU wall so that it encroached on Lot 15. She

7 testified in her deposition that she had Lot 15 surveyed in the 1990's, by Paul 8 Santos, after the driveway/CMU wall had been built, but that he did not tell her 9 that the driveway/CMU wall encroached on Lot 15, and she did not see any 10 encroachment on the survey map she signed. 11 14. Paul Santos, now the head of the survey department at the Department of Land 12 13 Management, prepared a survey of Lot 15 in 1992 or 1993. Pis.' Ex. 19. This

14 survey map did not specifically identify the geographical points ofthe boundary

15 between Lots 15 and 16. The survey map appears to show a possible boundary 16 encroachment in Detail "A." Although Detail "A" appears to show a possible 17 boundary issue, the words and numbers on the exhibit in the Detail "A" inset are 18 illegible. Paul Santos testified that he does not recall informing the Castro family 19 of the driveway/CMU wall encroachment when he performed the survey. Paul 20 Santos also testified regarding the two to three inch variation between the surveys 21 22 of Meliton Santos and Efren Santos. Paul Santos is unrelated to the other two

23 surveyors, and testified that when a minor location point dispute occurs,

24 oftentimes, he or the surveyors will compromise and split the numerical difference 25 between the two points by locating the point at a midpoint between the two points. 26

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1 15. Defendant Anthony Castro testified that the driveway/CMU wall is crumbling near 2 its foundations, and is showing signs of instability and deterioration. He stated 3 that portions of the CMU wall are now falling away, and landing on the ground 4 5 of Lot 15. Defendant Franklin Castro also testified and presented photographic

6 evidence that portions of the driveway/CMU wall are eroding and that the soil

7 underneath the driveway/CMU wall is washing away, undermining the support for 8 the driveway/CMU wall. 9 16. The Plaintiffs' claims are as follows: 10 A) Trespass, based upon their assertion that Defendants built their 11 fence on Plaintiffs' property, Lot 16; 12 l3 B) Ejectment, based upon the allegedly encroaching fence on

14 Plaintiffs' property;

15 C) Boundary dispute, requesting that the Court identify the proper

16 boundary line between the parties' properties; 17 D) Private nuisance, based upon the Defendants' construction of the 18 fence causing an intrusion onto Plaintiffs' property; 19 E) Adverse possession of a portion of Lot 15, based upon the 20 encroachment by the driveway/CMU wall onto the Defendants' 21 22 property, Lot 15;

23 F) Boundary by estoppel/acquiescence, based upon the allegedly

24 permissive encroachment of the driveway/eMU wall upon 25 Defendants' property; 26

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1 G) Easement by prescription, based upon encroachment by the 2 driveway/CMU wall upon Defendants' property; 3 H) Interference with easement, based on the placement ofthe fence on 4 5 Plaintiffs' property; and

6 I) Negligence, based upon the Defendant BOH's failure to inform the

7 Plaintiffs of a possible boundary issue regarding Lot 16. 8 17. The Plaintiffs' formal requests for relief are as follows: 9 A) that the Defendants be enjoined from trespassing on Lot 16; 10 B) that the Court determine the correct boundary between Lots 15 and 11 16, and adjudicate the rights of all parties to the disputed areas; 12 13 C) that the Defendants be ordered to remove the fence, if it is

14 encroaching on Lot 16;

15 D) that if the Plaintiffs' driveway/CMU wall is determined to be 16 encroaching on Lot 15, that the Court find that the Plaintiffs have 17 an easement over that portion of Lot 15; 18 E) that if the Plaintiffs are determined to have an easement over Lot 19 15, that the Defendants be enjoined from harassing, disturbing or 20 interfering with the Plaintiffs' quiet enjoyment of the easement; 21 22 F) that the Defendants Castro and the Defendant BOH be ordered to

23 pay monetary damages to the Plaintiffs; and

24 G) that the Plaintiffs be awarded any other relief to which they are 25 entitled. 26

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1 18. Rule 8(f) requires that "all pleadings shall be so construed as to do substantial 2 justice." From a plain reading of the Answer and Counterclaims filed by the 3 Defendants Castro, there appear to be requests forreliefwhich are not specifically 4 5 named, and thus, as determined by the Court, the Defendants' counterclaims and

6 requests for relief are as follows:

7 A) Trespass, for which the Defendants request Injunctive relief, 8 asking that the encroaching driveway/CMU wall be removed from 9 their property; 10 B) Declaratory Relief, asking for a determination of the correct 11 location of the disputed boundary, and a determination of the 12 disputed rights of the parties to Lots 15 and 16; l3 14 C) Declaratory Relief, requesting a determination that Plaintiffs'

15 fence does not encroach upon the Plaintiffs' property; and

16 D) an award of attorneys' fees and costs. 17 18 CONCLUSIONS OF LAW 19 Defendant Bank of Hawaii 20 21 The Court must first address Defendant Bank of Hawaii's absence from the trial. The

22 Plaintiffs filed an amended complaint on August 30, 2006, adding a single new claim of

23 negligence against three new defendants, Defendant Santos, Defendant Prieto, and Defendant 24 Bank of Hawaii (hereinafter "BOH"). Defendants Santos and Prieto are no longer defendants in 25 this case based upon the Court's previous detenninations. However, the Court did not dispose 26

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1 of the claim(s)l against Defendant BOH prior to trial. Defendant BOH never filed an answer in 2 this case, and first appeared through counsel only, at a hearing held on September 15,2008, for 3 which Defendant BOH received service of a "notice of hearing" on February 19, 2008, from the 4

5 Court. The notice ofhearing form served on Defendant BOH stated that the hearing would occur

6 on March, 31, 2008, however, this hearing did not occur, and presumably, was continued. 7 Accordingly, Defendant BOH's counsel made its first appearance at a scheduling conference in 8 the case on September 15,2008. 9 The Court is at a loss to explain its current situation. The Plaintiffs specifically amended 10 their complaint to add the Defendant BOH as a party and assert a claim of negligence against it. 11

12 However, during his testimony at trial, Plaintiff Moroni stated that he intentionally never served

l3 the Defendant BOH because he decided that he did not want to expand the lawsuit any further, 14 and at the conclusion of the trial, no judgment was requested on the claim of negligence against 15 the Defendant BOH. Despite this asserted intentional failure of service, the Plaintiffs also never 16 moved to dismiss the claim against Defendant BOH, so that it remains a named Defendant in the 17 case. In addition, although Defendant BOH's counsel made a first appearance at the scheduling 18 19 conference on September 15, 2008, Defendant BOH also has never requested dismissal of the

20 21 The Court has previously noted that due to the poor drafting of the Amended Complaint, it appears as though 22 all of the named Defendants are charged with all of the claims contained therein: The Amended Complaint continuously and repeatedly refers to the "Defendants" throughout 23 the entire pleading. The plain reading of the word "Defendants" without the addition of any qualifying statements or specific references to individual defendants includes all of the 24 named defendants. Accordingly, as it is written, the Court can find no method of distinguishing between each of the Defendants named in the Amended Complaint ... 25 Moroni et. at. v. Castro et. aI., Civil Case No. 1004-05, Decision and Order re Defendant Prieto's Motion for Summary Judgment, p. 13, lines 15-20 (September 9, 2009). 26

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1 claims against it. Accordingly, the Court must sua sponte address its ability to enter judgment 2 against Defendant BOH or dismiss the claim against it, as the trial on all claims has now 3 concluded. See Rule 4(m)(2010). 4 5 Rule 4 of the Guam Rules of Civil Procedure requires that each defendant named in a case

6 must be personally served with a copy of a summons and complaint in order for the court to assert

7 personal jurisdiction over each named defendant, unless such defendant files a waiver of service. 8 GRCP Rule 4(a), (b), ( c), and (d)(201O). GRCP Rule 4(e) requires that service must occur either 9 in person, at the person's residence by leaving it with a household member of suitable age, or by 10 serving the person's agent, in order to be effective as personal service. GRCP Rule 4( e)(2)(20 10). 11

12 Personal service under Rule 4 must be made within 180 days of the filing, but may be extended

13 by the Court for good cause. GRCP Rule 4( c), and (m)(20 I 0). In the alternative, GRCP Rule

14 4(e)(I) also allows the service to be made by any other means authorized by the laws of Guam, 15 pursuant to certain conditions. All of these rules apply to corporations that are named as 16 defendants. GRCP Rule 4(h)(2010). 17 Although the current version of GRCP Rule 4 no longer allows personal service through 18 19 publication and mailing, 7 GCA § 14106 still provides for service by publication and mailing

20 instead of personal service under GRCP Rule 4, when an application is made to the Court upon

21 a verified affidavit that the person cannot be found on Guam. 7 GCA § 14106 states in relevant 22 part: 23 (a) Where the person on whom service is to be made has departed from Guam, 24 and cannot, after due diligence, be found in Guam, or conceals himself to avoid the service of summons ... and the fact appears by affidavit to the satisfaction of 25 the court, or a judge thereof, and it also appears by such affidavit, or by the 26 verified complaint on file, that a cause of action exists against the defendant in

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1 respect to whom the service is to be made ... such court or judge may make an 2 order that the service be made by the publication o/the summons and by mailing the complaint and summons. (b) Service by mail shall be by any kind of U.S. 3 Postal Service delivery that provides for written proof of mailing, written proof of delivery and restricted delivery to the addressee only. 4 5 Title 7 GCA § 14106 (2010)(emphases added).

6 Service by publication and mailing under 7 GCA § 14106 may only be made in lieu of 7 personal service under GRCP Rule 4 pursuant to an order from a judge. Only upon verified 8 affidavit or complaint, to the satisfaction of the court that the person cannot be found, maya judge 9 issue an order for publication and mailing. A party may not take it upon themselves to provide 10 service through publication and mailing under 7 GCA § 14106, the court must order it first. Even 11 12 if ordered by the court, this service must still be effected upon the person or entity in order to

13 subject the person or entity to the jurisdiction of the court. 14 As of this date, the Plaintiffs have, admittedly, never complied with GRCP Rule 4 or 7 15 GCA § 141 06. There is no evidence of personal service, service at the Defendant's offices, or 16 service with an agent ofthe Defendant BOH, of the summons and amended complaint, as required 17

18 under GRCP Rule 4. Further, there is no record that the Plaintiffs have ever filed a verified

19 affidavit setting forth facts to show that the Defendant BOH cannot be located on Guam, nor is

20 there any order of the Court allowing service through publication and mailing. There is nothing 21 in the Court's record to show that the Defendant BOH was ever served with a summons and a 22 copy of the Plaintiff's Amended Complaint, filed on August 30, 2006. All that exists in the 23 record is evidence of service of a "notice of hearing," which was served on the Defendant BOH 24

25 on February 19, 2008. This does not satisfY the mandates of7 GCA § 14106 or Rule 4.

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1 Under Pineda v. Pineda, 2005 Guam 10, analyzing an entry of default after defective 2 service by mailing under 7 GCA § 14106: 3 It is well settled that when a default judgment is entered without proper service, 4 such default is void. This is because the trial court lacks personal jurisdiction if 5 service is defective, and thus, any judgment rendered is void. See M & K Welding, Inc. v. Leasing Partners L.L.C, 386 F.3d 361, 364 (lst Cir. 2004) (explaining as 6 the "governing principles ... that a default judgment issued without jurisdiction over a defendant is void, that it remains vulnerable to being vacated at any time, 7 and that such jurisdiction depends on the proper service of process or the waiver 8 of any defect"); Us. v. One Toshiba Color Television, 213 F.3d 147, 156 (3rd Cir. 2000) ("As a general matter, we have held that the entry of a default judgment 9 without proper service of a complaint renders that judgment void."); Recreational Props., Inc. v. Southwest Mortgage Servo Corp., 804 F.2d 311,314 (5th Cir. 1986) 10 ("If a court lacks jurisdiction over the parties because of insufficient service of process, the judgment is void and the district court must set it aside."). 11

12 Pineda v. Pineda, 2005 Guam 10 at ,10 (Sup.Ct. Guam 2005).

13 To this date, there is no evidence that personal service or service under 7 GCA § 14106 14 has been made upon the Defendant BOH. The Plaintiffhas failed to provide the Court with proof 15 of service upon Defendant BOH as required under GRCP Rule 4(1), and in fact, has admitted that 16 no service was effected upon the Defendant BOH. Accordingly, at this time, the Court has no 17 personal jurisdiction over the Defendant BOH, and no judgment can be entered against Defendant 18 19 BOH.

20 However, the Court's analysis does not end here, as no voluntary dismissal was ever filed 21 by the Plaintiffs pursuant to GRCP Rule 41 (a)( 1), and thus, dismissal can now only be made upon 22 such terms and conditions that the Court deems just under GRCP Rule 41 (a)(2). Pursuant to 23 GRCP Rule 4(m), personal service must be made within 180 days of the filing, but may be 24 extended by the Court for good cause. According to the Court's calculations, the last date upon 25

26 which the Plaintiffs could have effected personal service upon the Defendant BOH, within the

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1 time set by the rule, was February 26,2007. This date was also the last date upon which to timely 2 request an extension of time to provide service for good cause, or to request service through 3 4 publication and mailing upon filing a verified affidavit with the Court pursuant to 7 GCA §

5 14106. The Plaintiffs failed to timely perform any of the above options.

6 More importantly, the Defendant BOH's appearance through counsel did not constitute 7 a waiver of personal service. Personal service can be waived, if a defendant files an answer or a 8 motion (whichever occurs first) without raising an objection to the manner in which he was 9 served. GRCP Rule 12(h)(I); see also Ins. Corp. onr. v. Compagnie des Bauxites de Guinee, 456 10 11 U.S. 694, 703 (1982) (a defendant who has a defense to personal jurisdiction may waive the

12 defense by his subsequent conduct). However, Defendant BOH never filed an answer or a waiver

13 of personal service, as would waive personal service under GRCP Rules 4(d) and 12(h)(1), and 14 in fact, never filed anything in the case. Defendant BOH was only present at a hearing at the 15 instance of the Court, which issued a summons to Defendant BOH specifically to command its 16 appearance at that hearing. Further, Defendant BOH's appearance occurred approximately one 17 18 year after the expiration ofthe 180 days for service. Therefore, Defendant BOH' s appearance did

19 not waive the personal service requirement. See IDS Life Ins. Co. v. SunAmerica Life Ins. Co.,

20 136 F.3d 537, 540 (7th Cir.1998)(a defendant does not waive personal jurisdiction when it is 21 entitled to raise the defense but participates in litigation at the court's direction). 22 Consequently, the Court currently has no personal jurisdiction over the Defendant BOH, 23 as personal service was never made pursuant to GRCP Rule 4, nor did the Plaintiffs request 24

25 service through publication or mailing pursuant to 7 GCA § 14106, within 180 days ofthe filing

26 of the complaint. As no personal jurisdiction was ever acquired by the Court over Defendant

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1 BOH, the claim against the Defendant BOH must be dismissed for that reason, and the Court may 2 do so "on its own initiative." GRCP Rule 4(m)(2010); see also Vanderbilt v. Vanderbilt, 354 3 U.S.416, 418 (1957); Hansberryv. Lee, 311 U.S. 32,40-41(1940); andPennoyerv. Neff, 95 U.S. 4 5 714 (1878).

6 Because dismissal must now occur on the Court's own initiative, pursuant to Rule 4(m), 7 and under the terms the Court deems just, pursuant to Rule 41 (a)(2), the Court is left with the 8 question of whether the claim should be dismissed with or without prejudice. Rule 4(m) states 9 that the claim should be dismissed without prejudice by the Court ifthe reason for dismissal is 10 the failure to timely serve under the rule. GRCP Rule 4(m)(20 10). Despite this rule, it appears 11

12 to the Court that no personal jurisdiction can now be acquired by the Court over Defendant BOH,

13 as to the claim of negligence asserted in the Plaintiffs' Amended Complaint. 14 When a statute oflimitations is set by federal law, "for limitations purposes, a civil action 15 is commenced upon the filing of a complaint, and 'remains pending in an inchoate state until 16 service is completed unless and until an action is dismissed for failure to prosecute under Rule 17 41(b). '" U.S. v. Wahl, 583 F.2d 285, 289 (6th Cir.1978)(quoting Messengerv. United States, 231 18 19 F.2d 328, 329 (2d Cir. 1956)). Thus, a federal statute oflimitations is tolled merely by the filing

20 of a complaint under Rule 3, whether or not personal service is effected, and is tolled until the 21 case is dismissed. Id.; accord Bomar v. Keyes, 162 F.2d 136 (2d Cir. 1947); Isaacks v. Jeffers, 22 144 F.2d 26 (10th Cir. 1944); Moore Co. of Sikeston, Mo. v. Sid Richardson Carbon & Gas Co., 23 347 F .2d 921 (8th Cir. 1965); Windbrooke Development Corp. v. Environmental Enterprises, Inc. 24 of Fla., 524 F.2d 461 (5th Cir. 1975); Metropolitan Paving Co. v. Int'l Union of Operating 25 26 Engineers, 439 F.2d 300, 306 (lOth Cir. 1971); Weaverv. United California Bank, 350 F.Supp.

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1 1373 (N.D.Cal.l972); and McCrea v. General Motors Corp., 53 F.R.D. 384 (D.Mont.l971). 2 However, a state statute of limitations is not similarly affected. As stated by the United 3 4 States Supreme Court:

5 In a suit on a right created by federal law, filing a complaint suffices to satisfy the statuteoflimitations. See Westv. Conrail, 481 U.S. 35,39,107 S.Ct. 1538,1541, 6 95 L.Ed.2d 32 (1987). In a federal-court suit on a state-created right, however, a plaintiff must serve process before the statute of limitations has run, if state law 7 so requires for a similar state-court suit. See Walker v. Armco Steel Corp., 446 8 U.S. 740, 752-753, 100 S.Ct. 1978, 1986,64 L.Ed.2d 659 (1980) (reaffirming Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530,69 S.Ct. 1233,93 9 L.Ed. 1520 (1949».

10 Henderson v. U.S., 517 U.S. 654, 657, n.2 (1996). 11 When a cause of action is subject to a state statute of limitations, "insufficient service of 12 process will not suffice to toll the statute oflimitations," even when interpreted under the Federal 13 Rules of Civil Procedure. Procter & Gamble Cellulose Co. v. Viskoza-Loznica, 33 F.Supp.2d 14

15 644,667 (W.Dist.Tenn.1998); see also Cole v. Travelers Ins. Co., 208 F.Supp.2d 248, 256--8

16 (Dist.Conn.2002)(state statute oflimitations on claims, though tolled by the filing of complaint,

17 will begin to run again when plaintiff does not serve the defendants within time period under Rule 18 4(m), unless good cause is shown for failure to serve, thus warranting extension); Smith v. 19 Commodore Cruise Line Ltd., 124 F .Supp.2d 150, 155 (S.Dist.N.Y.2000) (action would be barred 20 by the statute of limitations, for failure to provide personal service within time period provided 21 22 by Rule 4(m), unless court would be inclined to exercise its discretion to allow for late service).

23 In this case, the Guam statute of limitations for negligence is three years. 7 GCA §

24 11305(1) (2010). The same is true for the remainder of the Plaintiffs' claims of trespass and 25 injury to real property. 7 GCA § 11305(2) (2010). The Plaintiffs claim that Defendant BOH 26

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1 owed them a duty to infonn them of any deficiencies or disputed boundaries on the real property 2 they purchased. The Plaintiffs allege that they were first made aware of a disputed boundary 3 between Lots 15 and 16 in September of 2005, when Defendant Castro showed intentions of 4 5 erecting a fence on the disputed portion of property, by placing string along the proposed

6 boundary line. PIs.' Am. CompI., p.2, ,4 (filed August 30, 2006); see also Exhibit H, labeled 7 Exhibit 3, Defendants Castro Exhibit Binder. 8 When Plaintiffs first filed their claim of negligence against Defendant BOH, 9 approximately eleven months had elapsed since the discovery ofthe property dispute. The statute 10 oflimitations was tolled during the 180 days allowed for service, however, it began running again 11 12 on February 26,2007. Thus, the statute of limitations expired in approximately.March of2009.

13 No personal service was ever effected, and trial in the matter began in June of20 1O. Accordingly, 14 the Court finds that case against the Defendant BOH must be dismissed with prejudice, as the 15 Plaintiffs can no longer re-file the claim(s) against Defendant BOH. 16 In addition, this Court has previously warned the Plaintiffs' attorney that it would not 17 tolerate the pendency of lingering claims, stating: 18 19 the Court, on its own, will not hesitate to issue an order to show cause, and ultimately, issue sanctions for the failure to dismiss Defendant Prieto from the 20 remainder of the complaint under Rule 11, including costs and fees to Defendant Prieto. Additionally, the Plaintiffs' attorney could be subject to discipline for a 21 violation of Rule 3.1 of the Guam Rules of Professional Conduct if there is no 22 basis in fact to support the pendency of the remaining claims of trespass, ejectment, boundary dispute, nuisance, adverse possession, boundary by 23 acquiescence, boundary established by estoppel, easement by prescription, and interference with easement against Defendant Prieto. 24 !:.!£~!!LC!:::!;.:...!:!.!:.:....!..;....:~~~:.:...l:!:ll:.' Civil Case No. 1004-05, Decision and Order re Defendant Prieto's 25 26 Motion for Summary Judgment, p. 15, lines 4-12 (September 9,2009).

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1 In this case, the Plaintiffs added Defendant BOH as a named defendant, but never served 2 Defendant BOH, and Plaintiffs' attorney admitted that they intentionally failed to serve the 3 Defendant BOH, as they had abandoned any ideas of prosecuting the action against Defendant 4

5 BOH, yet, the Plaintiffs' attorney never moved to dismiss the case against Defendant BOH. This

6 failure has cost the Court additional time and effort in order to resolve this case, and evidences

7 little to no concern for the efficient use of judicial resources. 8 Rule 11 ofthe Guam Rules of Civil Procedure prohibits an attorney from filing a pleading 9 for an improper purpose, and allows the Court, sua sponte, to sanction any attorney who makes 10 such a filing, after notice and an opportunity to be heard. The rule states: 11 12 (b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, 13 an attorney or umepresented party is certifYing that to the best of the person's !mowledge, information, and belief, formed after an inquiry reasonable under the 14 circumstances,- (1) it is not being presented for any improper purpose, such as to 15 harass or to cause unnecessary delay or needless increase in the cost of litigation;

16 GRCP Rule II(b)(2010). 17 Whereas it appears that the Plaintiffs' attorney has violated GRCP Rule 11, regarding the 18 19 failure to dismiss the Defendant BOH from the case when the decision was made not to prosecute

20 the same, the Court has the ability to order Plaintiffs' attorney to show cause before this Court and 21 give reason why he should not be sanctioned for violating the Guam Rules of Civil Procedure. 22 ill Defendants Castro 23 Plaintiffs' claims against the Defendants Castro are for trespass, based upon their assertion 24 that Defendants were building their fence on Plaintiffs' property; ejectment, based upon the 25 26 encroaching fence on Plaintiffs' property; a boundary dispute, requesting that the Court identify

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1 the proper boundary line between the parties' properties; private nuisance, based upon the 2 Defendants' construction of a fence upon Plaintiffs' property causing an intrusion onto Plaintiffs' 3 property; adverse possession, based upon the encroachment by the driveway/carport onto the 4 5 Defendants' land claiming to have adversely possessed the property that is encroached upon;

6 boundary by estoppel, based upon the encroachment of the carport upon Defendants' property; 7 easement by prescription, based upon encroachment by the carport upon Defendants' property; 8 and interference with easement, based on the placement ofthe fence on Plaintiffs' property. 9 Defendants have counterclaimed for trespass, asking that the encroaching driveway/CMU 10 wall be removed from their property, asking for a determination of the correct location of the 11

12 disputed boundary marker near the street, and requesting a determination that Plaintiffs' fence

l3 does not encroach upon the Plaintiffs' property. Defendants also request an award of attorneys' 14 fees and costs. 15 The Court will organIze and address the Plaintiffs' claims and the Defendants' 16 counterclaims as they relate to three subjects: (A) the location of the entire boundary line; (B) the 17 fence dispute; and (C) the driveway/CMU wall dispute. The Plaintiffs' claims relating to the 18 19 fence dispute are: (1) Private Nuisance; (2) Trespass; and (3) Interference with Easement. The

20 Castros have no counterclaims specifically concerning the fence dispute. The Plaintiffs' claims 21 relating to the driveway/CMU wall dispute are: (4) Ejectment; (5) Adverse Possession/Easement 22 by Prescription; and (6) Boundary by EstoppeL The Castros' counterclaim relating to the 23 driveway/CMU wall dispute is: (7) Trespass. The Court will first address the overarching claim 24 of (A) Boundary Dispute, in which the Plaintiffs ask that the Court settle the exact location ofthe 25 26 boundary, and the Castros request the same, as it will determine all other issues.

Page 18 of 37 Moroni and Koegel v. Castros and BOH; CV I 004-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 CA) Establishing the Boundary; Boundary Dispute 2 The evidence of all surveys and surveyors overwhelmingly establishes that the fence built 3 by the Defendants Castro does not encroach on Lot 16, owned by the Plaintiffs. It also 4

5 overwhelmingly establishes that the driveway/CMU wall does encroach partially on Lot 15,

6 owned by Defendant Anthony Castro. The only difference of opinion between the surveyors 7 regards the amount ofthe encroachment of the driveway/CMU wall. The testimony and survey 8 of Meliton Santos conclusively establishes boundary points and a definite calculation ofthe total 9 area of the encroachment, whereas the testimony and survey of Efren Santos contains no 10 geographical location of the boundary points and no concrete estimate of the area of the 11 12 encroachment of the driveway /CMU wall. Because the survey of Meliton Santos contains exact

13 data from which the Court may establish boundary points, the Court adopts the boundary from 14 his survey map as the actual boundary between Lots 15 and 16. Accordingly, the Southwestern 15 terminal point ofthe boundary is located at N 196079.4553, E 100281.4862, and the Northeastern 16 terminal point of the boundary nearest Senator Gibson Drive is located at N 196109.8145, E 17 100413.8503, and the boundary between Lots 15 and 16 is the straight line drawn between those 18 19 two points.

20 (B) The Fence Dispute 21 ill Private Nuisance 22 Guam's real property nuisance law states: 23 [a]n action may be brought by any person whose property is injuriously affected, 24 or whose personal enjoyment is lessened by a nuisance, as the same is defined in 20 GCA, Remedies, and by the judgment in such action, the nuisance may be 25 enjoined or abated as well as damages recovered therefore .... 26

Page 19 of 37 Moroni and Koegel v. Castros and BOH; CV I 004-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 21 G.C.A. §23101 (2008). 2 20 GCA §10101 defines a nuisance as "[a]nythingwhich is ... an obstruction to the free 3 use of property, so as to interfere with the comfortable enjoyment of life or property, .... " Id. 4 5 (2011).

6 Because the Court has determined that the boundary between Lots 15 and 16 is the 7 boundary stated in the survey map created by Meliton Santos, the fence is not located on the 8 Plaintiffs' real property, and therefore, it is not an obstruction to the Plaintiffs' free use of their 9 real property, Lot 16. Accordingly, the Defendants are entitled to judgment in their favor as to 10 11 this claim.

12 Trespass

13 In Guam, "[ a] party claiming trespass must prove the following elements: a) the tortfeasor 14 intentionally; b) enters land in possession of another, or causes a thing or a third person to do so; 15 or c) remains on the land; or d) fails to remove from the land a thing which he is under a duty to 16 remove." Guerrero v. DLB Const. Co., 1999 Guam 9, ~ 16 (Sup. Ct. Guam 1999) (citing and 17 adopting the Restatement (Second) Torts § 158 (1988». 18 19 As the Court has determined that the fence built by the Defendants Castro is not located

20 on Lot 16, but is wholly located on Lot 15, the Defendants Castro have not placed a thing on land 21 in possession ofthe Plaintiffs, and the Plaintiffs' claim of trespass fails. The Defendants Castro 22 are entitled to judgment in their favor as to this claim as well. 23 ill Interference with Easement 24 25 The Court will first address whether the Plaintiffs have an easement on Lot 15, and

26 therefore, whether the Defendants have interfered with that easement.

Page 20 of 37 Moroni and Koegel v. Castros and BOH; CVI004-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 "An easement is defined as 'an interest in land created by grant or agreement, express or 2 implied, which confers on its owners a right to some profit or benefit, dominion, or lawful use out 3 of or over the estate of another. '" Lizama v. Department of Public Works, 2005 Guam 12, ~16 4

5 (Sup. ct. Guam 2005)(quoting Costa Mesa Union School Dist. v. Security First Nat. Bank, 62

6 Cal.Rptr. 113, 118 (Cal.Ct.App.1967)). There are two tenements involved in every easement: (1) 7 the dominant tenement, which holds the right to the easement; and (2) the servient tenement, upon 8 which the servitude of the easement rests. 21 GCA § 7103; see also Lizama v. Department of 9 Public Works, 2005 Guam 12, ~16 (Sup.Ct. Guam 2005). Under Guam law, there are four primary 10 ways in which an easement may be created: (1) by express grant; (2) by implication; (3) by 11

12 necessity; and (4) by prescription. Id. at ~19, n.2.

13 The first two methods of creating an easement require a written instrument delineating 14 or referencing such easement. Id. at ~20 (quoting 28A C.J.S. Easements § 53 (2004)), and ~24. 15 No such written instrument has been presented by the Plaintiffs in this case. 16 An easement by necessity "typically arises where an owner severs a landlocked portion 17 of his property by conveying such parcel to another." Id. at 38 (quoting Ludke v. Egan, 274 18

19 N.W.2d 641,645 (Wis.1979)). Lot 16 is not landlocked, and has clear access to rights of way.

20 The Court will separately detennine whether the Plaintiffs have an easement by 21 prescription later in this decision, as the Plaintiffs have separately set that forth as a claim. 22 Accordingly, the Court finds that the Plaintiffs do not have an easement by express grant, by 23 implication, or by necessity, and the Defendants cannot have interfered with such easement by 24 building a fence on Lot 15. The Defendants are entitled to judgment on these claims. 25

Page 21 of 37 Moroni and Koegel v. Castros and BOH; CVI004-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 eC) The Driveway/CMU wall Dispute 2 Ejectment 3 The Plaintiffs claim that they are entitled to maintain an action for ejectment based on the 4

5 existence of the driveway/CMU wall. Black's Law Dictionary defines ejectment as:

6 1. The ejection of an owner or occupier from property. 2. A legal action by which a person wrongfully ejected from property seeks to recover possession, damages, 7 and costs. 3. The writ by which such an action is begun.· The essential allegations 8 in an action for ejectment are that (1) the plaintiff has title to the land, (2) the plaintiff has been wrongfully dispossessed or ousted, and (3) the plaintiff has 9 suffered damages. - Also termed action of ejectment; action for the recovery of land; ejection. 10 BLACK'S LAW DICTIONARY (9th ed. 2009), ejectment. 11

12 Under Guam's Land Title Registration Law, protections against ejectment are specifically

13 afforded to holders of certificates of title, pursuant to 21 GCA § 29142. That section provides:

14 § 29142. Conclusiveness of Certificate of Actions of Ejectment or Partition or 15 Possession. In any action or proceeding brought for ejectment, partitions, or possession of land, the certificate of title of a registered owner shall be held in 16 every court to be conclusive evidence, except as herein otherwise provided, that such registered owner has a good and valid title to the land, and for the estate or 17 interest therein mentioned or described, and that such registered owner is entitled 18 to the possession ofsaid land.

19 21 GCA § 29142 (2011)( emphases added).

20 Under both the definition ofthe elements of an action for ejectment and 21 GCA § 29142, 21 as Defendant Anthony Castro is the holder of a certificate of title to the entirety of Lot 15, the 22 certificate of title is conclusive proof that he is entitled to the possession of Lot 15, against the 23 Plaintiffs' claims of ejectment. The Plaintiffs have not proven that they own title to the portions 24 of Lot 15 which are encroached by their driveway/CMU wall, and the Defendants Castro are 25 26 entitled to judgment as to this claim.

Page 22 of 37 Moroni and Koegel v. Castros and BOH; CVI004-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 ill Adverse Possession/Easement by Prescription 2 Guam law provides that, "[a]n estate in real property, other than an estate at will or for a 3 term not exceeding one year, can be transferred only by operation of law, or by an instrument in 4

5 writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by

6 writing." 21 G.C.A. § 4101 (2011). 7 The Plaintiffs argue that they acquired a prescriptive easement across the property, Lizama 8 v. Department of Public Works, 2005 Guam 12, ~19. n.2 (Sup.Ct. Guam 2005), through adverse 9 possession. The Plaintiffs argue that under Guam law, a prescriptive easement arises so long as 10 the easement is used, uninterrupted for a period of ten (l0) years, under the statute for adverse 11 12 possession. See 7 GCA §11212 (2011). Plaintiffs claim that the use of the CMU wall was

13 uninterrupted for approximately 18 or 19 years, and therefore, undisputably, they have met the 14 requirements for the creation of an easement by prescription. 15 A prescriptive easement is substantially related to the concept of adverse possession, and 16 a party claiming an easement by prescription must meet the requirements of a statute of adverse 17 possession. However, the Plaintiffs have overlooked nearly all of the elements essential to the 18 19 establishment of a prescriptive easement.

20 First, registered property may not be acquired through adverse possession. 21 GCA 21 §29136 (2011). There is no dispute that Lot 15 is registered land, and has been registered since 22 1949. Therefore, the Plaintiffs cannot acquire any portion of Lot 15 through adverse possession, 23 and may not claim a prescriptive easement. 24 Next, even if a prescriptive easement were an available remedy, the Plaintiffs have failed 25

26 to meet any of the requirements for adverse possession. 21 GCA § 25111 is the statute for

Page 23 of 37 Moroni and Koegel v. Castros and BOH; CV 1004-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 adverse possession. 7 GCA § 11212 merely sets the statute of limitations period for adverse 2 possession. The elements of adverse possession under 21 GCA § 25111 require that the party 3 or his predecessor in interest must be in possession ofthe property for twenty (20) years prior to 4

5 filing a complaint for adverse possession. The testimony at trial was that the encroaching structure

6 was built in 1986 or 1987, but the original Complaint was filed in 2005 by the Plaintiffs, which 7 is less than the twenty (20) years of continuous possession necessary to adversely acquire the 8 property. 9 N ext, the statute requires that the Plaintiff s must have paid five (5) years of property taxes 10 on the claimed area before filing the complaint. In addition, 7 GCA § 11212 mandates that the 11

12 filing party must "have paid all taxes which have been levied and assessed on such land." The

13 Plaintiffs provided no evidence to show that they have paid any taxes on the land which they have 14 allegedly acquired through a prescriptive easement. 15 21 GCA § 25111 further mandates that a complaint alleging adverse possession must be 16 verified. Neither the Plaintiffs' Complaint nor the Amended Complain is verified and therefore, 17

18 the Plaintiffs may not proceed with such a claim.

19 The final requirement of an easement by prescription is that the use must be hostile to the

20 possessor of the land, and cannot occur if the possessor is unaware of such use. In general, "[t]o 21 create a prescriptive easement, the use and enjoyment of the property must be adverse, under a 22 claim of right, continuous, uninterrupted, open, visible, exclusive, with the knowledge and 23 acquiescence a/the owner of the servient tenement, and must continue for the full prescriptive 24 period." Burlison v. U.S., 533 F.3d 419, 428 (6 th Cir. 2008) (emphases added); see also Chevy 25

26 Chase Land Co. of Montgomery County, MD v. U.S., 37 Fed.CI545, 593--4 (Fed.Cl. 1997); Ellis

Page 24 of 37 Moroni and Koegel v, Castros and BOH; CVI004-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 V. Arkansas Louisiana Gas Co., 609 F.2d 436, 441 (loth Cir. 1979); Confederated Salish and 2 Kootenai Tribes of Flathead Reservation v. Vulles, 437 F.2d 177, 180 (9 th Cir. 1971); 3 4 RKO-Stanley Warner Theatres, Inc. v. Mellon Nat. Bank & Trust Co., 436 F.2d 1297, 1301 (3d

5 Cir. 1970); Southern Bell Tel. & Tel. Co. v. Southern Precision Pattern Works, 251 F.2d 537,540

6 (5 th Cir. 1958). 7 In this case, the Plaintiffs cannot meet the burden of proving that their use of the property 8 was adversely made with knowledge of the owner for the period of ten or twenty years. Their 9 own evidence demonstrates that the previous owner of Lot 15, Mary Castro Perez was unaware 10

11 that the CMU wall had been partially built on Lot 15. Further, the Defendants Castro testified that

12 they were unaware that the CMU wall encroached on Lot 15 until 2005, when the Defendants

13 hired Meliton Santos to determine the boundary between Lots 15 and 16. More importantly, both 14 the previous owner of Lot 16, Mr. Hemlani, and the Plaintiffs were unaware that their CMU wall 15 was encroaching on Lot 15 until 2005, when the Plaintiffs filed suit. Such use cannot amount to 16 the adverse use required to sustain a claim of easement by prescription. Burlison v. U.S., 533 17 18 F.3d 419, 428 (6 th Cir. 2008) (citing Livelyv. Noe, 460 S.W.2d 852, 854 (l970); Chevy Chase

19 Land Co. of Montgomery County, MD v. U.S., 37 Fed.CI 545,593-4 (Fed.Cl. 1997); Nature

20 Conservancy v. Machipongo Club, Inc., 571 F.2d 1294 (4th Cir. 1978); U.S. v. Fallbrook Public 21 Utility Dist., 347 F.2d 48,57 (9 th Cir. 1965). Both parties submitted evidence showing that the 22 Plaintiffs' entry onto the property was made accidentally, without the knowledge of any of the 23 owners of either Lot 15 or Lot 16, and was not open, notorious, or adverse to either Mary Castro 24

25 Perez or the Defendants Castro until 2005, see Restatement (Second) of Torts, § 171 (b), comment

26 (e). Therefore, the Court cannot find that an easement by prescription was created in this case.

Page 25 of 37 Moroni and Koegel v. Castros and BOH; CVI004-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

I Because the Plaintiffs have failed to meet even one of the requirements of 21 GCA § 25111, the 2 Defendants Castro are entitled to judgment as to this claim. 3 Bound;;:uy by Estoppel 4 5 Under section 158 of the Restatement (Second) of Torts, conduct which would otherwise

6 constitute trespass is not a trespass ifit is privileged in any manner. Restatement (Second) Torts 7 §158 (1988)(comment (e)). A party may be privileged to enter property by consent, license, or 8 through the creation ofan easement. Restatement (Second) of Torts §§ 892-:892D, and 167-.·190; 9 see also N.L.R.B. v. Calkins, 187 F.3d 1080, 1092-3 (9th Cir.l999); and La! v. CBS, Inc., 726 10 F.2d 97, 101 (4th Cir. 1984). In addition, the doctrine of equitable estoppel may be raised as a II 12 defense to an action for trespass. Steel Creek Development Corp. v. Smith, 268 S.E.2d 205,

13 210-11 (N.C. 1980). 14 In this case, there are three separate questions which are determinative of whether the 15 Plaintiffs' CMU wall may rightfully remain on the land of the Defendants Castro, and will not 16 constitute a continuing trespass because the Plaintiffs have an easement established through 17 estoppel: 1) whether an easement was created, which constituted a legally valid encumbrance on 18 19 Lot 15, which runs with the land; 2) whether a license or consent was granted by the Defendants;

20 and 3) whether the Defendants Castro are equitably estopped from claiming trespass because the 21 license has become irrevocable. Accordingly, the substantive laws governing trespass, easements, 22 title, and land registration are all determinative as to the facts that are material to this issue. 23 As the Court has already found that the Plaintiffs do not have an easement through Lot 15, 24 the Court must address whether the Plaintiffs were privileged to enter Lot 15 through a license 25 26 Page 26 of 37 Moroni and Koegel v. Castros and BOH; CV I 004-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 granted by the Defendants, and whether any such license could have become irrevocable through 2 estoppel. 3 4 A license is express or implied consent from an owner of real property to perform an act

5 or acts upon property, which may granted orally, or in writing. Markstein v. Countryside 1,

6 L.L.C., 77 P.3d 389,398 (Wyo. 2003) (a license maybe created by parol or a writing, or can be 7 implied from the acts of the parties, from their relations, and from usage and custom); Colvin v. 8 Southern Cal. Edison Co., 240 Cal.Rptr. 142, 146 (Cal.App. 2 Dist., 1987) (distinguished on other 9 grounds by Ornelas v. Randolph,! 7 Cal.Rptr.2d 594, 599 (Cal.1993); Waterville Estates Ass'n 10

11 v. Town of Campton, 446 A.2d 1167, 1169 (N.H.l982). A license that has not been revoked is

12 a complete defense to trespass. N.L.R.B. v. Calkins, 187 F.3d 1080, 1092-3 (9 th Cir.1999); and

13 Lalv.CBS,Inc., 726F.2d97, 101 (4 th Cir.1984). Like an easement, it is an interest in property 14 which is less than an estate, but is the right to some use or benefit of the property. O'Shea v. 15 Claude C. Wood Co., 97 Cal.App.3d 903, 909 (Cal.1979). The primary distinction between a 16 license and an easement is that a license is normally revocable at will by the grantor. Golden 17 18 West Baseball Co. v. City of Anaheim, 31 Cal.Rptr.2d 378, 395 (Cal.App.4 Dist. 1994);

19 Markstein v. Countryside 1, L.L.C., 77 P.3d 389, 398 (Wyo. 2003).

20 In this case, the testimony of Mary Castro Perez, Ismael Hemlani, and the Defendants 21 Castro unambiguously establishes that no permission or license was ever granted by the owners 22 of Lot 15 to the owners of Lot 16 to build the driveway/CMU wall on any portion of Lot 15. 23 There is one generally recognized exception to the rule that a license is revocable, which 24 25 is license by estoppel. When a licensor grants consent to erect structures or make improvements

26 on the licensor's real property, which is followed by an actual expenditure of labor on

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1 improvements to the servient tenement by the licensee, in reliance on the grant of consent, the 2 license becomes irrevocable. Golden West Baseball Co. v. City of Anaheim, 31 Cal.Rptr.2d 378, 3 395 (Cal.App.4 Dist. 1994); Geddes v. Mill Creek Country Club, Inc., 751 N.E.2d 1150, 1157 (Ill. 4

5 2001); Dancev. Tatum, 629 So.2d 127, 128-9 (Fla. 1993); Holbrookv. Taylor, 532 S.W.2d 763,

6 764-6 (Ky. 1976); Hammond v. Mustard, 64 Cal.Rptr. 829, 831-2 (Cal.App. 1967); Powers v. 7 Coos Bay Lumber Co., 263 P.2d 913, 950-3 (Or. 1953); Shepard v. Purvine, 248 P.2d 352,361-2 8 (Or. 1952) (irrevocable license granted to construct water line); see also Restatement (Second) 9 of Property § 519 (4), comments (e) through (g). 10 In many of the aforementioned authorities, the courts have detennined that the license 11

12 becomes irrevocable through the doctrine of estoppel. In these jurisdictions, irrevocable license

13 through estoppel may be raised as a successful defense to a claim of trespass when an owner of 14 property voluntarily imposes an apparent servitude on his or her property, and another person, 15 acting reasonably and in good faith, believes that the servitude is pennanent and in reliance upon 16 that belief enters the property and makes improvements which he or she would not have made 17 otherwise, to his or her detriment. Geddes v. Mill Creek Country Club, Inc., 751 N.E.2d 1150, 18

19 1157 (Ill. 2001); Steel Creek Development Corp. v. Smith, 268 S.E.2d 205, 211 (N.C., 1980);

20 Holbrook v. Taylor, 532 S.W.2d 763, 764-66 (Ky. 1976); Hammond v. Mustard, 64 Cal.Rptr. 21 829, 831-2 (Cal.App. 1967); Shepard v. Purvine, 248 P.2d 352, 361-2 (Or. 1952); see also 22 Restatement (Second) of Property § 519 (4), comments (e) through (g); but cf Dance v. Tatum, 23 629 So.2d 127, 128-9 (Fla. 1993) (irrevocable license is just an irrevocable license and is distinct 24

25 from easement through estoppel).

Page 28 of 37 Moroni and Koegel v. Castros and BOH; CV 1004-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 Guam has codified the doctrine of estoppel in 6 GCA § 5106(3), which provides: 2 Specification of Conclusive Presumptions. The following presumptions, and no 3 others, are deemed conclusive: . . .(3) Whenever a party has, by his own declaration, act or omission, intentionally and deliberately led another to believe 4 a particular thing true, and to act upon such belief, he cannot, in any litigation 5 arising out of such declaration, act or omission be permitted to falsify it; .... "

6 6 GCA § 5106(3) (2011). 7 In the present case, the Plaintiffs have not met their burden of presenting evidence to 8 support the defense of irrevocable license by estoppel. The Plaintiffs have failed to prove that 9 there was ever a license granted by any of the owners of Lot 15 to any of the owners of Lot 16, 10 for the construction of the driveway/CMU wall to be built on a portion of Lot 15, and therefore, 11

12 cannot show reliance upon that permission in order to show that the license became irrevocable.

13 Further, the Plaintiffs have not shown that the Defendants Castro or Mary Castro Perez 14 "intentionally and deliberately" led any of the owners of Lot 16 to believe that they were allowed 15 to build or maintain the driveway/CMU wall on any portion of Lot 15, as required under 6 GCA 16 § 5106(3). The Plaintiffs have failed to prove that the boundary should be moved to 17 18 accommodate the Plaintiffs' driveway/CMU wall due to equitable estoppel considerations, and

19 the Defendants are also entitled to judgment as to this claim.

20 Trespass Counterclaim 21 The Defendants Castro have brought a counterclaim alleging trespass based upon the 22 retaining CMU wall that was partially built on Lot 15. The Court has concluded that the wall, 23 does in fact, encroach on Lot 15, and therefore, it constitutes a trespass. The Defendants Castro 24 have requested that the Court grant injunctive relief by ordering the Plaintiffs to tear down those 25

26 portions ofthe eMU wall which encroach on the Castros' real property. The Plaintiffs claim in

Page 29 of 37 Moroni and Koegel v. Castros and BOH; CV 1004-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 defense that the encroaching CMU wall was built by previous owners of Lot 16, with the 2 knowledge of the previous owners of Lot No. 15. On this basis, the Plaintiffs assert that no claim 3 of trespass can be maintained against them, because they did not build the wall, and the 4

5 Defendants Castro did not own the property when the wall was built. The Plaintiffs further argue

6 that the statute of limitations for trespass based upon the existence of the CMU wall has lapsed, 7 and that laches should prevent the Defendants from maintaining an action regarding the CMU 8 wall. 9 Effect of Transfer of Legal Interest in Trespassing Structure 10 The Court has previously detennined that the Restatement (Second) of Torts § 160 11

12 specifically allows a party to maintain an action in trespass against a subsequent owner of the

13 trespassing object. Moroni et. al. v. Castro et. aI., Civil Case No. 1004-05, Decision and Order 14 re Defendant Santos' Motion for Summary Judgment, pp. 14-15 (June 14,2010). Section 160 15 states: 16 A trespass may be committed by the continued presence on the land of a structure, 17 chattel, or other thing which the actor or his predecessor in legal interest has placed on the land . .. if the actor fails to remove it after the consent has been 18 effectively terminated, or ... if the actor fails to remove it after the privilege has 19 been tenninated, by its accomplishment or otherwise.

20 The Restatement (Second) of Torts § 160 (1988)(emphasis added). 21 Accordingly, the Defendants Castro are able to maintain an action against the Plaintiffs 22 for trespass based upon an encroaching structure built by the Plaintiffs' predecessor in interest. 23 Continuing Trespass/Statute of Limitations 24 25 The Court has already detennined that the Defendants' claim of trespass is not barred by

26 the statute of limitations. Moroni et. ai. v. Castro et. aI., Civil Case No. 1004-05, Decision and

Page 30 of 37 Moroni and Koegel v. Castros and BOH; CV 1004-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 Order re Defendant Santos' Motion for Summary Judgment, pp. 15-16 (June 14,2010). 2 Defendants' Standing to Maintain Trespass Action as Successor in Interest 3 4 Comment (d) to the Restatement (Second) of Torts § 162 states, "[i]fthe conduct of the

5 actor is a continuing trespass, any person in possession of the land at any time during its

6 continuance may maintain an action for trespass." Restatement (Second) of Torts § 162, comment 7 (d) (1988). Therefore, as previously explained by the Court, under Guam's adoption of the 8 Restatements of Torts for trespass, the Defendants Castro are entitled to maintain an action 9 against the Plaintiffs for the continuing trespass as successors in interest to the land. Moroni et. 10

11 aI. v. Castro et. aI., Civil Case No.1 004-05, Decision and Order re Defendant Santos' Motion

12 for Summary Judgment, p. 16 (June 14,2010).

13 Laches 14 In order for the doctrine oflaches to apply, there must be: '(1) lack of diligence 15 by the party against whom the defense is asserted, and (2) prejudice against the party asserting the defense.' Responsible Choices, 2007 Guam 20 ~ 77 (quoting 16 Torres v. Superior Court, CV90-00049, 1990 WL 320360, at *5 (D. Guam App. Div. Oct. 26, 1990)). In other words, laches protects against "inexcusable delay 17 which prejudices the [opposing party]'s ability to respond." May v. People, 2005 18 Guam 17 ~ 27.

19 Duenas v. Guam Election Com'n., 2008 Guam 1, 17 (Sup. Ct. Guam 2008).

20 "[L]aches is not, like [a statute of] limitation[s], a mere matter of time; but principally a question of the inequity of permitting the claim to be enforced-an 21 inequity founded upon some change in the condition or relations of the property 22 or the parties." Id. (quoting Galliherv. Cadwell, 145 U.S. 368, 373 (1892)). Thus, an equitable claim may be barred by laches even though the statute of limitations 23 has not yet run on the related legal claim. Id.; but see Ikelionwu v. United States, 150 F.3d 233, 238 (2d Cir.1998) (noting that "[i]n an equity action, if the 24 applicable legal statute of limitations has not expired, there is rarely an occasion 25 to invoke the doctrine of laches").

26 Yanfag v. Cyfred, Ltd., 2009 Guam 16, ~13 (Sup. Ct. Guam 2009).

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1 What will constitute laches is in part detennined by the statute oflimitations for an action, 2 and by the statute governing the action itself. Id. at ~~ 14-15. However, the party asserting 3 laches must always show that they were prejudiced by the act constituting laches. 4 5 In this case, the Court has detennined that the statute of limitations begins to run anew

6 with every moment of the continuing trespass of the driveway/CMU wall on portions of Lot 15. 7 Although the Court recognizes that an action may be barred by laches even when it is not barred 8 by a statute oflimitations, the Court finds that it is clear, under the Restatement of Torts (Second), 9 §§ 158-162, that an action for trespass may be maintained whenever the trespass is discovered, 10 and there has been no license or easement granted by the owners of the real property. 11 12 Here, the Court finds that the Defendants Castro discovered the trespass in 2005, when

13 they hired Meliton Santos to survey the boundary between Lots 15 and 16. Mary Castro Perez, 14 the previous owner of Lot 15 was unaware of the encroachment/trespass of the driveway/CMU 15 wall while she owned the lot. Suit based on the trespass was brought in 2005, the same year as 16 its discovery, and the same year that the Plaintiffs purchased Lot 16, with its attached 17 driveway/CMU wall. Accordingly, the Court finds that the Defendants Castro were not guilty of 18 19 laches in bringing a claim for trespass based on the driveway/CMU wall, and that the Plaintiffs

20 were not prejudiced by any alleged failure to bring an action for trespass prior to 2005, when they 21 bought Lot 16. Accordingly, laches does not bar the claim. 22 2). Other Theories Have not been Presented and Supported 23 Because the Defendants Castro are requesting an injunction to force the Plaintiffs to tear 24 down portions of their long existing retaining wall based on the alleged trespass, Defs.' Castro 25 26 Ans. and Countercl., p.6, ~~ 15 and 18, filed November 14,2005, the Court previously suggested

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1 that the Plaintiffs might be able to assert the doctrine of relative hardship as a defense to the 2 alleged trespass. See Moroni et. al. v. Castro et. al., Civil Case No.1 004-05, Decision and Order 3 4 re Defendant Santos' Motion for Summary Judgment, pp. 17-18 (June 14,2010).

5 The doctrine of relative hardship applies to trespass actions in which a party requests

6 judicial relief in the form of an injunction for the removal of a permanent structure, and states, 7 in general: 8 Despite a proper showing in other respects of a right to injunctive aid, if a plaintiff 9 is merely seeking to protect a technical and unsubstantial right, and the issuance ofthe injunction will bring no actual advantage, it may be properly refused where 10 to do otherwise would result in unusual hardship to the defendant .... 11 Wright v. Best, 19 Cal.2d 368, 386, 121 P.2d 702 (Cal.Sup.Ct.1942). 12 This rule is applicable to actions where trespass is proven, and the relief sought is removal 13 of an erected structure. Greenv.NormandyPark, 151 P.3d 1038, 1055 (Wash.App.Div.l, 2007); 14 15 Brookside Townhouse Ass'n v. Clarin, 682 N.W.2d 762, 768-69 (S.D.2004); Aragon v. Brown,

16 134 N.M. 459, 464, 78 P.3d 913,918 (N.M.App.2003); and Pelosi v. Wailea Ranch Estates, 91 17 Hawai'i 478, 488, 985 P.2d 1045, 1055 (Hawai'i 1999). The doctrine is appropriately applied 18 where "the encroachment does not irreparably injure the plaintiff, was innocently made, and 19 where the cost of removal would be great compared to the inconvenience caused plaintiff by the 20 continuance of the encroachment .... " Christensen v. Tucker, 114 Cal.App.2d 554, 559, 250 21 22 P.2d 660 (Cal.App.l Dist. 1952).

23 Despite the Court's guidance, the Plaintiffs have never asserted the doctrine of relative 24 hardship as an affirmative defense to the Defendants' counterclaim of trespass, requesting an 25 injunction to tear down the Plaintiffs' CMU wall. 26

Page 33 of 37 Moroni and Koegel v. Castros and BOH; CVI004-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 Rule 12(b) requires that "[ e]very defense, in law or fact, to a claim for relief in any 2 pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the 3 responsive pleading thereto, if one is required." GRCP RuIe 12(b). Thus, under Rule 12(b), in 4 5 order to raise it as a defense, the Plaintiffs were required to affirmatively plead the issue in their

6 answer, or in a subsequent amended answer as allowed by the Court. See G.R.C.P. Rule lS(a); 7 and Arashi & Co., Inc. v. Nakashima Enterprises, Inc., 200S Guam 21, ~lS. 8 On November 23, 200S, Plaintiffs filed an Answer which failed to set forth the defense 9 of the doctrine of relative hardships. PIs.' Ans., filed November 23, 200S. No mention of 10 hardship regarding removal ofthe driveway/CMU wall is made anywhere within the Answer filed 11

12 by the Plaintiffs. Id.

13 G.R.C.P. lS(a) provides in relevant part: 14 Amendments. A party may amend the party's pleading once as a matter of course 15 at any time before a responsive pleading is served, or if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon 16 the trial calendar, the party may so amend it at any time within 20 days after it has been served. Otherwise a party may amend the party's pleading only by leave of 17 court or by written consent of the adverse party; and leave shall be freely given 18 when justice so requires.

19 GRCP RuIe lS(a)(2008).

20 Rule I S(a) generally grants a court the discretion to liberally allow a party to amend its 21 pleading, so long as the party receives leave of the court. The Guam Supreme Court and the 22 United States Supreme Court have held that, in general, a court may not deny a party's request 23 for leave to amend without a justifying reason. 24 25 Inc., 200S Guam 21, ~16 (Guam Terr. 200S)(citingFoman v. Davis, 371 U.S. 178,182,83 S.Ct.

26 (1962)).

Page 34 of 37 Moroni and Koegel v. Castros and BOH; CVIO04-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 In Arashi, addressing a similar procedural issue, the Supreme Court 0 f Guam held that the 2 trial court did not abuse its discretion in allowing a party to amend its pleadings to include the 3 4 affinnative defense of failure to obtain a business license even though its request for leave to

5 amend was first raised in a motion for summary judgment. Id., at ~~15 and 19. Despite the

6 obvious similarities, there is a key distinction between the procedure of that case and the situation 7 before this Court. In this case, the Plaintiffs have never requested leave of the Court to amend 8 their answer to allow them to assert the doctrine of relative hardships, either orally, in a fonnal 9 motion, or in their previous Motion for Summary Judgment. 10 11 The holding of Arashi did not dispense with the requirement of Rule 15(a) that a party

12 request leave of the Court before amending their pleadings. Nothing in Arashi allows a party to

13 fail to make a request to amend its pleadings in order to assert a new defense. Arashi merely 14 holds that there are no fonnal requirements as to the manner of the request. A party may request 15 leave to amend either in a fonnal motion or as part of a motion to dismiss/motion for summary 16 judgment, but the party must still make the request. Here, Plaintiffs have ignored the mandates 17

18 of the Guam Rules of Civil Procedure and the Supreme Court of Guam.

19 There is no point in the requirement that a party file an answer if not to give the opposing

20 party and the Court notice of the possible defenses to be asserted. Because the Plaintiffs have 21 never requested (in either a fonnal motion for leave or within its previous Motion for Summary 22 Judgment), nor received leave of Court to amend their answer, and have never amended their 23 answer to assert the defense ofthe doctrine of relative hardships, the Court finds that the Plaintiffs 24 25 have waived this defense by failing to raise it in an answer or amended answer prior to trial. See

26 Manvil Corp. v. E.C. Gozum & Co., Inc., 1998 Guam 20, ~ 16 (Sup. Ct. Guam 1998); and

Page 35 of 37 Moroni and Koegel v. Castros and BOH; CVIO04-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 Citizens Security Bank v. Bidaure, 1997 Guam 3, ~ 20 (Sup. Ct. Guam 1997). 2 More importantly, the Plaintiffs have failed to submit any evidence during the trial which 3 would be required for the Court's application of the aforementioned doctrine, such as actual cost 4 5 estimates regarding the removal ofthe CMU wall, or even testimony which would show that there

6 would be great inconvenience and cost to the Plaintiffs should the Court order such. 7 In contrast, the Defendants Castro have actually submitted evidence to show that removal 8 ofthe CMU wall is a necessary precaution, rather than the exercise or enforcement of a technical 9 and inconsequential right, as they have shown that the CMU wall is starting to crumble at the 10 foundations, and is showing signs of instability, which would support the issuance of a Court 11

12 order requiring its removal.

13 Because the Defendants Castro have proven that the Plaintiffs' predecessor in interest 14 intentionally caused a thing, the driveway/CMU wall to enter land in possession of their 15 predecessor, in interest, Mary Castro Perez, which remains on the land, the Court finds that the 16 Defendants Castro have proven all of the elements required for the tort of trespass. See Guerrero 17 v. DLB Const. Co., 1999 Guam 9, ~ 16 (Sup. Ct. Guam 1999) (citing and adopting the 18 19 Restatement (Second) Torts § 158 (1988».

20 As the Court has also determined that the Plaintiffs have failed to prove the elements of 21 any legal defense to the claim oftrespass, the Defendants Castro are entitled to judgment in their 22 favor as to their counterclaim oftrespass, and are entitled to the relief they seek. 23 Accordingly, the Court grants judgment in favor of the Defendants as to the counterclaim 24 oftrespass, and the Court issues an injunction requiring the Plaintiffs to remove all encroaching 25 26 portions.ofthe driveway/CMU wall, i.e., the eleven square feet of concrete which are located on

Page 36 of 37 Moroni and Koegel v. Castros and BOH; cv 1004-05 FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 the Northwestern side of the boundary line of Lots 15 and 16, as depicted on the Survey Map 2 created by Meliton Santos, within one hundred and eighty (180) days of the date of this Order. 3 In granting the judgment in favor of the Defendants Castro as to every claim alleged in 4

5 both the Amended Complaint filed by the Plaintiffs, and the Answer and Counterclaim filed by

6 the Defendants, the Court could find no evidentiary support shown at trial or in the exhibits for 7 the Plaintiffs' positions. More importantly, based on the evidence at trial, Plaintiff Moroni was 8 informed in 2005 by his own hired surveyor, Efren Santos, that his driveway/CMU wall 9 encroached upon Lot 15, and that the Defendants' fence did not encroach upon Lot 16. 10 Accordingly, there was no evidence to support the Plaintiffs' allegations of trespass, and Plaintiff 11

12 Moroni was aware of this lack of evidence prior to filing this suit. Because Plaintiff Moroni is

13 an attorney representing himself and Plaintiff Koegel, Plaintiff Moroni is subject to Rule 11 14 sanctions. It is apparent to this Court that Plaintiff Moroni signed his complaint in 2005, and his 15 amended complaint in 2006, while he was aware that there was no evidentiary support for the 16 positions taken in those pleadings. Again, the Court has the ability to order Plaintiffs' attorney 17 to show cause before this Court and give reason why he should not be sanctioned for violating the 18 19 Guam Rules of Civil Procedure. However, in light ofthe relief afforded to the Defendants, and

20 against the Plaintiffs, the Court will refrain from issuing an Order to Show Cause against Plaintiff 21 Moroni at this time. 22 All findings of fact may be interpreted as conclusions oflaw and vice versa. 23 SO ADJUDGED, this _ _ _ _ _ _ _ __ 24 25

26 HONORABLE ARTHUR R. BARCINAS Judge, Superior Court of Guam

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