Moylan v. Axe Murderer Tours, Inc.

• Court: Superior Court of Guam
• Decided: April 26, 2022
• Docket: CV0760-16
• Status: Unknown

Opinion

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OFGUA

2022APR26 PH 3:55 1Y2 COURT

IN THE SUPERIOR COURT OF GUAM

RICHARD E. MOYLAN, Superior Court Case No. CV0760-16

Plaintiff/Counterclaim Defendants. vs. SECOND DECISION AND ORDER RE AXE MURDERER TOURS, INC., ETAL., MOTION TO DISMISS COUNTERCLAIMS & THIRD-PARTY Defendants/Counter-claimants. CLAIMS

AND RELATED COUNTERCLAIMS AND THIRD-PARTY CLAIMS.

The Court here considers unresolved aspects of the August 2, 2017 Motion to Dismiss

Counterclaims and Third-Party Claims filed by Plaintiff/Counterclaim-Defendant Richard

Moylan and Third-Party Defendant Douglas Moylan. The resolved aspects of that Motion are

addressed in Moylan v Axe Murderer Tours Guam, Inc., 2021 Guam 25. There, the Guam

Supreme Court affirmed this Court’s reconsidered decision to deny the applicability of Guam’s

Citizen’s Participation in Government Act of 199$ (“CPGA”).

Back on remand, the Court now addresses the parts of the Motion that concern dismissal

of counterclaims and third-party claims for trespass, harassment, and nuisance, pursuant to Guam

Rule of Civil Procedure 12. Having reviewed the Motion and reheard arguments, the Court

determines that Counterclaimants and Third-Party Claimants E.C. Development, LLP (“ECD”).

Paseo View Properties, Inc. (PVP”), and Axe Murderer Tours Guam/Beach House (‘AMT”)

have adequately stated these counterclaims and third-party claims. Accordingly, the Court

DENIES the Moylans’ motion to dismiss. CV0760-16 SECOND DECISION AND ORDER RE MOTION TO DISMISS COUNTERCLAIMS Page 2 & THIRD-PARTY CLAIMS

I. FACTUAL AND PROCEDURAL BACKGROUND

The Court incorporates its procedural discussion in its December 13, 201$ Decision and

Order. Now that the CPGA issues have been resolved, this Order specifically addresses the

counterclaims and third-party claims against the Moylans filed by ECD, PVP, and AMT dealing

with trespass, harassment, and nuisance.

II. LAW AND DISCUSSION

A. This Matter Will Not Be Converted into a Summary Judgment Motion.

The Moylans title their motion as one seeking dismissal; however, the text of the motion

at times seeks summary judgment relief. Moreover, the Moylans submit affidavits and other

extrinsic evidence supporting the motion. The Court then first tackles whether it will consider

such material and convert the motion to dismiss to a motion for summary judgment.

When a movant introduces extrinsic materia] in support of a motion to dismiss under

Rule 12(b)(6),’ the Court has the discretion to exclude such material from its consideration.

GRCP 12(b); Hamilton Materials, Inc. v. Dow Chein. Corp.. 494 F.3d 1203. 1207 (9th Cir. 2007)

(recognizing a trial court’s discretion to convert a dismissal motion). In exercising its discretion,

the Court examines the nature of the arguments remaining in the motion now that the matter has

moved past the CPGA phase.

Up until the present, the dominant issue of this litigation and this motion has been

whether the CPGA barred certain counterclaims and third-party claims.2 The CPGA directs that

a motion concerning the applicability of the CPGA shall be treated as one for summary

During the oral argument on february 15, 2022, the Court asked Attorney Moylan whether any of its arguments for dismissal fell under any authority other than Rule 12(b)(6). He committed that Rule 12(b)(6)’s standard of failure to state a claim for relief served as the only authority for dismissal. 2 The Guam Supreme Court ultimately held that AMT pled a substantial basis for liability other than or in addition to petitioning activity done by the Moylans, and therefore the CPGA did not offer the Movians protection. Movian, 2021 Guam 25 ¶ 15. CV0760-16 SECOND DECISION AND ORDER RE MOTION TO DISMISS COUNTERCLAIIvIS Page 3 & THIRD-PARTY CLAIMS

judgment, with the Court to review pleadings and affidavits. 7 GCA § 17 106(a), (d). In turn, the

parties submitted extensive evidence relative to the CPGA issues.

Beyond the motion itself, the CPGA restricts other litigation activities pending a CPGA

motio&s outcome. for example, the CPGA directs that discovery be suspended. 7 GCA §

17 106(b). Also, litigation of non-CPGA issues is halted. Enriquez i Smith, 2012 Guam 15 1$ ¶ (“Only after the trial court determines the motion to dispose of any claims under the CPGA

should it then proceed to determine any other motions to dispose of any other claims.”).3

The statutorily-drive focus on CPGA issues impacts how the Court now approaches the

remainder of the motion. Because of the suspension of discovery and non-CPGA issues, the

non-movants suffered a disadvantage when responding to the present motion to dismiss. They

could not engage in discovery,1 and were primarily focused on the affidavits which pertained to

CPGA issues. Also, the motion did not actively seek any conversion of the issues to be

dismissed under Rule 12(b)(6) to adjudication under Rule 56. Based on these factors, the Court

exercises its discretion and opts not to consider extrinsic material or convert the present motion

to dismiss.

in addition, because the Court is not considering extrinsic evidence, the Moytans’

September 5,2017 Motion to Strike affidavits under Rule 56 is now MOOT.

B. The standard for a motion to dismiss under Rule 12.

A claim may be dismissed for failure to state a claim upon which relief may be granted.

GRCP 12(b)(6). Under Rule 12(b)(6), the facts in the complaint are construed in the light most

favorable and all doubts are resolved in favor of the non-moving party. Lujan v 1L.H Trust,

In turn, this Court consistently declined the parties’ requests to consider non-CPGA arguments such as those now at issue. See, e.g., Order Re Further Briefing (Oct. 16. 2019).

All parties appear to agree that discovery--except perhaps for initial disclosures--has not and could not be exchanged. CV0760-16 SECOND DECISION AND ORDER RE MOTION TO DISMISS COUNTERCLAIMS Page 4 & THIRD-PARTY CLAIMS

2016 Guam 24 ¶ 10. A Rule 12(b)(6) motion tests only whether the claim has been adequately

stated in the complaint, and the purpose of a 12(b)(6) motion is to assess the legal feasibility of

the complaint, not to weigh the evidence which the plaintiff offers or intends to offer. Ryder

fnergt’ Distribution Corp. v. Merritt Lunch Commodilies. Inc., 748 F.2d 774, 779 (2d Cir. 1984).

Thus. on a motion under Rule 12(b)(6). the court limits its inquiry to the content of the complaint

and should not dismiss the complaint merely because of doubts the plaintiff will prevail in the

action. Scheuer v Rhodes. 416 U.S. 232, 236 (1974): Neitzke v. Williams. 490 U.S. 319. 327

(1929). Although the Court should not search for causes of action, if the complaint’s factual

allegations contain sufficient information to support a cause of action. the Court cannot dismiss

the complaint. Taitano v. Calvo finance Corp.. 2008 Guam 12 ¶J 11. 16.

C. The Trespass counterclaims and third-party claims are adequately pled.

ECD and PVP allege that ECD is the owner of Lots 1041-I NEW and 105$ NEW and

that PVP is the rightful assignee of Lots 1052, 1055, 1056, and 1057. They claim that in 2015

and 2016, Douglas Moylan and Richard Moylan committed trespass by entering Lots 1041-1

NEW, 1058 NEW, 1052, 1055, 1056, and 1 057 without permission of ECD or PVP. ECD

Countercl. ¶ 20-21 (July 19. 2017); ECD Third-Party Compl. (TPC”) ¶ 22-25 (July 19. 2017);

PVP Counterci. ¶J 22-25 (July 14, 2017); PVP TPC ¶ 22-25 (July 14, 2017). AMT claims to be

a sublessee of PVP on Lots 1051, 1052. 1055, 1056. and 107. AMT Counterci. ¶ 24 (July 13,

2017);AMTTPC9(Ju1y 13, 2017).

Trespass occurs when a tortfeasor intentionally enters land in possession of another or

causes a third person to enter. Guerrero v DLB Const. Co.. 1999 Guam 9 ¶ 16. Based on this

definition, all three claimants have adequately stated trespass claims. ECD stated a trespass

claim as the purported owner of Lots 1041-1 NEW and 1058 NEW alleging that Douglas entered CV0760-16 SECOND DECISiON AND ORDER RE MOTION TO DISMISS COUNTERCLAIMS Page 5 & THIRD-PARTY CLAIMS

those lots on behalf of Richard. PVP has stated a trespass claim as the purported assignee of

Lots 1052, 1055, 1056, and 1057, in alleging that Douglas, on behalf of Richard, entered those

lots. finally, as a sublessee of PVP, AMT has stated a trespass claim against Douglas and

Richard. See Veiseh v Stapp. 247 Cal. Rptr. 3d 858 (Ct. App. 2019) (lawful possessor of

property gives right to sue for trespass); Gaetan Weber, 729 A.2d 895, 898 (D.C. 1999)

(tenants have standing to sue third parties for damages arising from negligence, nuisance, and

trespass).

The Moylans raise other arguments for the Court’s consideration. Setting aside the

Moylans’ CPGA arguments in their motion, the Moylans focus on three issues: first, they believe

that dismissal of the trespass claims is appropriate because one cannot trespass upon property

open to the general public. Memo. Supporting Mot. Dismiss at 24 (Aug. 2, 2017). Second, the

Moylans argue--without citing any authority--that one cannot claim trespass absent barriers to

signs warning others to stay off property. Third, the Moylans claim that ECD, PVP, and AMT

fail to establish any damage related to the purported trespass.

As to the first and second arguments, again, the Court focuses on the language of the

claims. Nowhere in the counterclaims or third-party claims do any counterclaimants allege that

the property was open to the general public or that barriers did not exist. If in fact the law

supports that one cannot trespass upon property open to the public or that trespass cannot occur

absent the existence of signs or barriers, the Moylans’ arguments introduce a factual issue for the

trier of fact or the Court on summary judgment. However, as currently pled, the counterclaims

and third-party claims make no mention of the subject properties being open to the public or

barriers. Since these are not essential elements of the claim, and ECD. PVP. and AMT have

alleged the essential elements as just discussed, the Court finds that the claims are not subject to CV076046 SECOND DECISION AND ORDER RE MOTION TO DISMISS COUNThRCLAUdS Page 6 & flURD-PARW CLANS

dismissal under Rule l2(bX6).

The Moylans’ third argument introduces an element that is not required under RuleS.

Only ifthere are special damages must a pleading specifically explain such damages. GRCP

9(g). Otherwise, a pleading for trespass need not include any allegations regarding damages.

Moreover, the case cited by the Moylans for the proposition that trespass cannot occur absent

injury, flben v. Slominski, 692 N.Wld 133 (N.D. 2005), reinforces that “actual harm is not one

of the requisite elements to a claim for trespass.” Id. at 137. Again, ECD, PVI and AMT have

all alleged entitlement to file a claim for trespass and that a trespass occurred. Damages are not

required to be pled at the pleading sffige, and the lack of damages allegations is not a basis for

dismissal.

For these reasons, the motion to dismiss the trespass counterclaims and third- party

claims is DENIED.

D. AMT has standing to file the Harassment eountenlaim and third-party claim-

The Mdylans also move to dismiss AMT’s harassment counterclaim and third-party claim

due to lack of sanding. AMT’s harassment claim alleges that Douglas approached,

photographed, and even struck an AMT employee, which caused employees and customers to

fear for their safety.’

Both parties ask the Court to review a 114-year-old case from Minnesota as part of its

analysis. Hansen Mercantile Ca v. 115’man, Partridge & Ca, 117 N.W. 926 (Minn. 1908),

involved a claim of malicious attachment The defendant moved to dismiss on the grounds that

‘There is a second aspect ofAMVs harassment claim: AMT infers that the Moylans reported AMT toOTh and GEPA as a form of harassment Since the Moylans limit their attack of the harassment claim to whether AMT as a corporation has standing to bring such a claim, ft appears that the Moylans do not attack AMVa sanding to fib a complaint with government agencies. CV0760-16 SECOND DECISION AND ORDER RE MOTION TO DISMISS COUNTERCLAIMS Page 7 & THIRD-PARTY CLAIMS

the plaintiff corporation could not suffer a personal injury.6 The Supreme Court of Minnesota

declared that corporations could recover when they suffer an injury to property. for

corporations, property may include goodwill and credit. Id. at 927. Thus, injuries that destroy

the business’ credit, reputation, and standing. form not personal, but property, torts. Id.

Using this holding from Hansen, the Court finds that AMT has standing in asserting that

the Moylans caused harm to its business by causing AMT’s employees and customers to fear for

their safety.7 The Moylans’ motion to dismiss and/or strike AMT’s allegations supporting

AMT’s claim for harassment is therefore DENIED.

E. The Nuisance counterclaim and third-party claim are adequately pled.

A nuisance is ‘Anything which is injurious to health, or is indecent or offensive to the

senses, or an obstruction to the free use of property, so as to interfere with the comfortable

enjoyment of life or property, or unlawfully obstructs the fl-ce passage or use, in the customary

manner, of any river, bay. stream, canal, or basin. or any public park, square. street, or highway.”

20GCA 10101.

AMT’s nuisance claim asserts that Douglas placed a garbage bag containing an animal

carcass along the property line sepat-ating the portion of Old Dc La Corte Street owned by

Richard and that the bag emitted a pungent odor that entered onto Lots 1051 and 1O58NEW.

AMT Counterci. ¶J 29-30; AMT TPC ¶J 35-36. On its face, AMT’s claims satisfy the definition

of a nuisance because they indicate that Douglas took action detrimental to health and the senses

by dropping a garbage bag of a dead animal on a street and near the property where AMT

Notably, Hansen was not a harassment case.

The Guam Supreme Court has not yet analyzed the tort of harassment (outside of a sexual harassment context), and it is unclear to this Court what the elements of this tort are. At least one other Guam Superior Court case has found that the civil tort of harassment was subject to dismissal as a tort not yet recognized in Guam. See BuskerAtlev, Inc., ci a!. i: Kasperbauer, CVIO8I-12 (Dec. and Order (Sept. 20, 2013)). This issue has not been briefed here, so the Court declines to address it sua sponte. CV0760-16 SECOND DECISION AND ORDER RE MOTION TO DISMISS COUNTERCLAIMS Page 8 & THIRD-PARTY CLAIMS

conducts business.

The Moylans attempt to argue that Douglas did not commit a nuisance because it was a

jungle area, the bag was sealed, and the area is near a sewer treatment plant. The Moylans claim

that the nuisance must be “substantial and unreasonable.” The Court finds that these arguments

cannot sustain a dismissal at this phase. All that AMT must do is to make a short and plain

statement upon which relief may be granted. GRCP 8(a) .AMT has done so by stating that

Douglas caused a nuisance offensive to the senses. The Moylans’ arguments discuss issues of

fact that attack the merits of the claim and must be reviewed by a trier of fact.

The Court therefore DENIES the motion to dismiss AMT’s nuisance claims.

III. CONCLUSION AND ORDER

The Court DENIES the Moylans motion to dismiss the trespass claims brought by ECD,

PVP, and AMT and the nuisance and harassment claims filed by AMT.

SO ORDERED this 26th day of April 2022. SV)CE ‘AA E-MAIL tacknowledge that an electronic

tUf HON. ELYZE M. IRIARTE Judge, Superior Court of Guam Dety Celrk, Supeior Cou of Guam

Appearing Attorneys: Douglas B. Moylan, Esq., Law Offices of Douglas 3. Moylan, for Plaintiff/Counter-Defendant Richard E. Moylan Gary W.f. Gumataotao. Esq.. Law Offices of Gumataotao & Pole, P.C.. for Plaintiff/Counter-Defendant Richard E. Moylan and Third-Party Defendant Douglas 3. Moylan Curtis C. Van de Veld, Esq., The Vandeveld Law Offices, P.C., for Plaintiff/Counter-Defendant Richard E. Moylan and Third-Party Defendant Douglas B. Moylan. Jeffrey Cook, Esq., Law Offices of Cunliffe & Cook, for Defendant Axe Murderer Tours Guam/Beach House Mitchell Thompson. Esq., Thompson Thompson & Alcantara, P.C., for Defendant/Counterclaimant/Third-Party Plaintiff E.C. Development, LLP and Defendant Paseo View Properties, Inc.