2018 30 PH 3: .s 2 COURT 3
5 IN THE SUPERIOR COURT OF GUAM 6
7 DELLE SWEGLER NADLER, MOANA Superior Court Case No. CV0452-16 SWEGLER LUKA, and MARK SWEGLER, (Supreme Court Case No. CVA17-025) 8 derivatively on behalf ofFAD IAN 9 DEVELOPMENT INC.
10 Plaintiffs-Appellees, 11 v. 12 MYUNG MOK BAE, B&K 13 DEVELOPMENT, LLC., KEIZA RYU BAE, 14 AND DOES 1-10
15 Defendants-Appellees, DECISION AND ORDER ON 16 and PLAINTIFFS-APPELLEES MOTION 17 FOR ORDER REQUIRING FADIAN DEVELOPMENT, INC. APPELLANT, B&K DEVELOPMENT, 18 LLC, TO ORDER ADDITIONAL TRANSCRIPTS 19
20 MARIANA STONES CORPORATION,
21 Plaintiff-Intervenor Appellant, 22 v. 23 FADIAN DEVELOPMENT, INC., B&K 24 DEVELOPMENT, LLC, and MYUNG MOK 25 BAE,
26 Defendants-Appellees.
ORIGINAL Decision and Order CV0452-16 Delle Swegler Nadler, et al. v. Myung Mok Bae, et al.
INTRODUCTION 2 This matter came before the Honorable Arthur R. Barcinas on January 23, 2018, upon 3 Plaintiffs-Appellees' Motion for Order Requiring Appellant to Order Additional Transcripts 4 filed on January 9, 2018 ("Motion"). Plaintiffs-Appellees Delle Swegler Nadler, Moana 5 Swegler Luka, and the Estate of Swegler (collectively known as "the Sweglers"), are 6 represented by Attorneys Joyce C.H. Tang and Leslie Travis. Attorney Georgette B. Conception
7 represents Defendant-Appellee B&K Development, Inc. ("B&K"). Plaintiff-Intervenor 8 Appellant Mariana Stones Corporation ("MSC") is represented by Attorney Leevin T. 9 Camacho. Defendant-Appellee Fadian Development, Inc. ("Fadian") is represented by Attorney 10 Anthony Perez. Having reviewed the pleadings and oral arguments in this matter, the Court 11 GRANTS Plaintiffs-Appellees' Motion for Order Requiring Appellant to Order Additional 12 Transcripts.
13 BACKGROUND 14 This dispute arises from a shareholder derivative action filed by the Sweglers against 15 Fadian for the execution of a quitclaim deed transferring and conveying thirty-three parcels of
16 real property to B&K. Prior to executing the quitclaim deed, Fadian entered into a five-year 17 contract with MSC for the clearing, leveling, and grading of land owned by Fadian. Thereafter,
18 Fadian assigned the contract with MSC, and all of its rights and obligations, to B&K.
19 On September 15, 2017, the Court issued a Decision and Order on MSC's Motion for
20 Clarification of Preliminary Injunction and Alternatively, Opposition to Preliminary Injunction 21 Against Mariana Stones Corporation and Request for Modification. In its Decision and Order,
22 the Court found that the terms and conditions set by the Stipulation and Order Granting 23 Preliminary Injunction ("SPI") signed by the Sweglers and B&K applies to and binds MSC,
24 denied MSC' s Request for Modification, and ordered MSC to stop all leveling, grading, and
25 clearing activities on Tract 157 of the Fadian property purportedly conveyed to B&K by Fadian.
26 On October 4, 2017, the Court issued a Decision and Order on B&K' s Motion for Order
27 Vacating or Modifying Preliminary Injunction. In its Decision and Order, the Court found that
28 as a signatory to the SPI, B&K bound itself to the terms of the preliminary injunction and thus,
Page 2 of6 Decision and Order CV0452-16 Delle Swegler Nadler, eta!. v. Myung Mok Bae, eta!.
prohibited B&K from removing any real property on Tract 157 or any parcels subject to the SPI. 2 Further, reiterating its order from the June 22, 2017, hearing on the Swegler's Order to Show 3 Cause regarding B&K' s violation of the preliminary injunction, and the Court's previous 4 Decision and Order issued on September 15, 2017, the Court denied B&K's Motion for Order 5 Vacating or Modifying the Preliminary Injunction. 6 On October 26, 2017, B&K filed a Notice of Appeal in Supreme Court Case No. 7 CVA17-025, giving notice of its appeal of the Court's Decision and Order issued on October 4, 8 2017. On November 3, 2017, B&K filed a Request for Transcripts requesting the transcripts of 9 the August 1, 2017, hearing on B&K' s Motion for Order Vacating or Modifying Preliminary 10 Injunction. However, on November 15, 2017, B&K filed a Cancellation of Request for 11 Transcripts and Certificate of No Transcript, canceling its Request for Transcripts filed on 12 November 3, 2017. Thereafter, on November 16, 2017, B&K filed its Statement of Issues in 13 CVA 17-025, requesting the Supreme Court review the following: 14 1. Did the trial court err in finding that B&K and Plaintiff-Intervenor Mariana Stones
15 Corporation are bound by contractual privity? 16 2. Did the trial court err in denying B&K's motion for order vacating or modifying the 17 stipulated preliminary injunction? 18 See Declaration in Support of Motion for Order Requiring Appellant to Order Additional 19 Transcripts, January 9, 2018.
20 On November 30, 2017, the Sweglers filed a Designation of Additional Transcripts to be 21 ordered by Appellant ("Designation of Additional Transcripts"), designating B&K to order the 22 following additional transcripts: 23 1. TRO Hearing, June 1, 2016;
24 2. Order to Show Cause Hearing, April 4, 2017; 25 3. Order to Show Cause Hearing, April 25, 2017; 26 4. Order to Show Cause Hearing, May 19, 2017; 27 5. Order to Show Cause Hearing, June 22, 2017; 28
Page 3 of6 Decision and Order CV0452-16 Delle Swegler Nadler, et al. v. Myung Mok Bae, et al.
6. Hearing on B&K's Motion for Order Vacating or Modifying Preliminary Injunction, 2 August 4, 2017. 3 See Designation of Additional Transcripts to be Ordered by Appellant, November 30, 2017. 4 On January 9, 2017, having not received notice that B&K ordered the additional 5 transcripts, the Sweglers filed the instant motion, requesting that the Court order B&K to order 6 the additional transcripts requested in their Designation of Additional Transcripts. B&K filed its 7 Opposition to the Sweglers' Motion on February 2, 2018. The Sweglers filed their Reply to 8 MSC's Opposition on February 20, 2018. 9 On January 23, 2018, this matter was heard during a hearing on a similar motion filed by 10 the Swegler's against MSC requesting that the Court order MSC to order additional transcripts 11 for the appeal in Supreme Court Case No. CVA17-024. At the hearing, B&K's counsel asserted 12 that B&K's opposition would be identical to the opposition filed by MSC. Therefore, based on 13 B&K's representation, the Swegler's and B&K submitted on their briefs and agreed to cancel 14 any further proceedings on the instant matter. Accordingly, the Court then took this matter 15 under advisement. 16 DISCUSSION 17 The Guam Rules of Appellate Procedures provides that "[u]nless the entire transcript is 18 ordered ... if the Appellee considers it necessary to have a transcript or other parts of the 19 proceedings, the Appellee must, within ten (10) days after the service of the order or certificate 20 and the statement of issues, file and serve on the Appellant a designation of additional parts to 21 be ordered." See GRAP 7(b)(3)(B). Further, the rule provides that if the Appellant does not 22 order the additional transcripts requested by the Appellee within ten (10) days, the Appellee 23 may within the following ten (10) days either "order the parts or move in the Superior Court for 24 an order requiring the Appellant to do so." See GRAP 7(b)(3)(C). In their Motion for Order 25 Requiring Appellant to Order Additional Transcripts, the Sweglers argue that the additional 26 transcripts are necessary for the Sweglers to defend against B&K' s appeal and to assert other 27 grounds upon which the Court's October 4, 2017, Decision and Order may be upheld. See 28 Motion, January 9, 2018 at 4-5. B&K, on the other hand, asserts in its opposition that the
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2018 30 PH 3: .s 2 COURT 3
5 IN THE SUPERIOR COURT OF GUAM 6
7 DELLE SWEGLER NADLER, MOANA Superior Court Case No. CV0452-16 SWEGLER LUKA, and MARK SWEGLER, (Supreme Court Case No. CVA17-025) 8 derivatively on behalf ofFAD IAN 9 DEVELOPMENT INC.
10 Plaintiffs-Appellees, 11 v. 12 MYUNG MOK BAE, B&K 13 DEVELOPMENT, LLC., KEIZA RYU BAE, 14 AND DOES 1-10
15 Defendants-Appellees, DECISION AND ORDER ON 16 and PLAINTIFFS-APPELLEES MOTION 17 FOR ORDER REQUIRING FADIAN DEVELOPMENT, INC. APPELLANT, B&K DEVELOPMENT, 18 LLC, TO ORDER ADDITIONAL TRANSCRIPTS 19
20 MARIANA STONES CORPORATION,
21 Plaintiff-Intervenor Appellant, 22 v. 23 FADIAN DEVELOPMENT, INC., B&K 24 DEVELOPMENT, LLC, and MYUNG MOK 25 BAE,
26 Defendants-Appellees.
ORIGINAL Decision and Order CV0452-16 Delle Swegler Nadler, et al. v. Myung Mok Bae, et al.
INTRODUCTION 2 This matter came before the Honorable Arthur R. Barcinas on January 23, 2018, upon 3 Plaintiffs-Appellees' Motion for Order Requiring Appellant to Order Additional Transcripts 4 filed on January 9, 2018 ("Motion"). Plaintiffs-Appellees Delle Swegler Nadler, Moana 5 Swegler Luka, and the Estate of Swegler (collectively known as "the Sweglers"), are 6 represented by Attorneys Joyce C.H. Tang and Leslie Travis. Attorney Georgette B. Conception
7 represents Defendant-Appellee B&K Development, Inc. ("B&K"). Plaintiff-Intervenor 8 Appellant Mariana Stones Corporation ("MSC") is represented by Attorney Leevin T. 9 Camacho. Defendant-Appellee Fadian Development, Inc. ("Fadian") is represented by Attorney 10 Anthony Perez. Having reviewed the pleadings and oral arguments in this matter, the Court 11 GRANTS Plaintiffs-Appellees' Motion for Order Requiring Appellant to Order Additional 12 Transcripts.
13 BACKGROUND 14 This dispute arises from a shareholder derivative action filed by the Sweglers against 15 Fadian for the execution of a quitclaim deed transferring and conveying thirty-three parcels of
16 real property to B&K. Prior to executing the quitclaim deed, Fadian entered into a five-year 17 contract with MSC for the clearing, leveling, and grading of land owned by Fadian. Thereafter,
18 Fadian assigned the contract with MSC, and all of its rights and obligations, to B&K.
19 On September 15, 2017, the Court issued a Decision and Order on MSC's Motion for
20 Clarification of Preliminary Injunction and Alternatively, Opposition to Preliminary Injunction 21 Against Mariana Stones Corporation and Request for Modification. In its Decision and Order,
22 the Court found that the terms and conditions set by the Stipulation and Order Granting 23 Preliminary Injunction ("SPI") signed by the Sweglers and B&K applies to and binds MSC,
24 denied MSC' s Request for Modification, and ordered MSC to stop all leveling, grading, and
25 clearing activities on Tract 157 of the Fadian property purportedly conveyed to B&K by Fadian.
26 On October 4, 2017, the Court issued a Decision and Order on B&K' s Motion for Order
27 Vacating or Modifying Preliminary Injunction. In its Decision and Order, the Court found that
28 as a signatory to the SPI, B&K bound itself to the terms of the preliminary injunction and thus,
Page 2 of6 Decision and Order CV0452-16 Delle Swegler Nadler, eta!. v. Myung Mok Bae, eta!.
prohibited B&K from removing any real property on Tract 157 or any parcels subject to the SPI. 2 Further, reiterating its order from the June 22, 2017, hearing on the Swegler's Order to Show 3 Cause regarding B&K' s violation of the preliminary injunction, and the Court's previous 4 Decision and Order issued on September 15, 2017, the Court denied B&K's Motion for Order 5 Vacating or Modifying the Preliminary Injunction. 6 On October 26, 2017, B&K filed a Notice of Appeal in Supreme Court Case No. 7 CVA17-025, giving notice of its appeal of the Court's Decision and Order issued on October 4, 8 2017. On November 3, 2017, B&K filed a Request for Transcripts requesting the transcripts of 9 the August 1, 2017, hearing on B&K' s Motion for Order Vacating or Modifying Preliminary 10 Injunction. However, on November 15, 2017, B&K filed a Cancellation of Request for 11 Transcripts and Certificate of No Transcript, canceling its Request for Transcripts filed on 12 November 3, 2017. Thereafter, on November 16, 2017, B&K filed its Statement of Issues in 13 CVA 17-025, requesting the Supreme Court review the following: 14 1. Did the trial court err in finding that B&K and Plaintiff-Intervenor Mariana Stones
15 Corporation are bound by contractual privity? 16 2. Did the trial court err in denying B&K's motion for order vacating or modifying the 17 stipulated preliminary injunction? 18 See Declaration in Support of Motion for Order Requiring Appellant to Order Additional 19 Transcripts, January 9, 2018.
20 On November 30, 2017, the Sweglers filed a Designation of Additional Transcripts to be 21 ordered by Appellant ("Designation of Additional Transcripts"), designating B&K to order the 22 following additional transcripts: 23 1. TRO Hearing, June 1, 2016;
24 2. Order to Show Cause Hearing, April 4, 2017; 25 3. Order to Show Cause Hearing, April 25, 2017; 26 4. Order to Show Cause Hearing, May 19, 2017; 27 5. Order to Show Cause Hearing, June 22, 2017; 28
Page 3 of6 Decision and Order CV0452-16 Delle Swegler Nadler, et al. v. Myung Mok Bae, et al.
6. Hearing on B&K's Motion for Order Vacating or Modifying Preliminary Injunction, 2 August 4, 2017. 3 See Designation of Additional Transcripts to be Ordered by Appellant, November 30, 2017. 4 On January 9, 2017, having not received notice that B&K ordered the additional 5 transcripts, the Sweglers filed the instant motion, requesting that the Court order B&K to order 6 the additional transcripts requested in their Designation of Additional Transcripts. B&K filed its 7 Opposition to the Sweglers' Motion on February 2, 2018. The Sweglers filed their Reply to 8 MSC's Opposition on February 20, 2018. 9 On January 23, 2018, this matter was heard during a hearing on a similar motion filed by 10 the Swegler's against MSC requesting that the Court order MSC to order additional transcripts 11 for the appeal in Supreme Court Case No. CVA17-024. At the hearing, B&K's counsel asserted 12 that B&K's opposition would be identical to the opposition filed by MSC. Therefore, based on 13 B&K's representation, the Swegler's and B&K submitted on their briefs and agreed to cancel 14 any further proceedings on the instant matter. Accordingly, the Court then took this matter 15 under advisement. 16 DISCUSSION 17 The Guam Rules of Appellate Procedures provides that "[u]nless the entire transcript is 18 ordered ... if the Appellee considers it necessary to have a transcript or other parts of the 19 proceedings, the Appellee must, within ten (10) days after the service of the order or certificate 20 and the statement of issues, file and serve on the Appellant a designation of additional parts to 21 be ordered." See GRAP 7(b)(3)(B). Further, the rule provides that if the Appellant does not 22 order the additional transcripts requested by the Appellee within ten (10) days, the Appellee 23 may within the following ten (10) days either "order the parts or move in the Superior Court for 24 an order requiring the Appellant to do so." See GRAP 7(b)(3)(C). In their Motion for Order 25 Requiring Appellant to Order Additional Transcripts, the Sweglers argue that the additional 26 transcripts are necessary for the Sweglers to defend against B&K' s appeal and to assert other 27 grounds upon which the Court's October 4, 2017, Decision and Order may be upheld. See 28 Motion, January 9, 2018 at 4-5. B&K, on the other hand, asserts in its opposition that the
Page 4 of6 Decision and Order CV0452-16 Delle Swegler Nadler, et at. v. Myung Mok Bae, et at.
additional transcripts are not necessary and that the Sweglers' Motion was nevertheless, 2 untimely. See Opposition, February 2, 2018 at 2-3. 3 Here, Defendant-Appellant B&K filed its Request for Transcripts on November 3, 2017, 4 requesting only the transcript of the August 1, 2017, hearing on B&K' s Motion for Order 5 Vacating or Modifying Preliminary Injunction. On November 15, 2017, B&K filed a 6 Cancellation of Request for Transcripts and Certificate of No Transcript. The following day, 7 B&K filed its Statement of Issues in the Supreme Court of Guam. In reviewing the issues raised 8 by B&K regarding this Court's Decision and Order issued on October 4, 2017, it is imperative 9 that the Supreme Court have a full record of all the relevant hearings the Superior court has held 10 on such issues and be given all the necessary evidence that this Court relied on in making its 11 decision. See J.J. Moving Serv., Inc. v. Sanko Bussan (Guam) Co., Ltd., 1998 Guam 19 <][ 10 12 ("the appellant must place into the record all evidence, good and bad, material to the point he 13 wishes to raise and necessary for the determination of the issues presented on appeal."). 14 Therefore, on December 1, 2017, based on B&K' s Cancellation of Request for Transcripts and 15 Certificate of No Transcript, and upon receiving B&K's Statement of Issues, the Sweglers filed 16 and served their Designation of Additional Transcripts. 17 Pursuant to GRAP 7(b)(3)(C), B&K had until December 18, 2017, to order the 18 additional transcripts listed in the Swegler's Designation of Additional Transcripts. Therefore, 19 having not received notice that B&K ordered the requested transcripts or that B&K intended to 20 do so by December 18, 2017, the Swegler's had until January 3, 2018, to file their Motion for 21 Order Requiring Appellant to Order Additional Transcripts. See GRAP 7(b)(3)(C). The 22 Sweglers, however, did not file their Motion until January 9, 2018. 23 In their Reply, the Sweglers maintain that during a hearing on a similar motion filed by 24 the Sweglers against MSC, the parties agreed to submit the instant motion on their briefs and 25 agreed to cancel any further proceedings based on B&K's representation that its opposition 26 would be identical to the opposition filed by MSC. In MSC' s opposition, no issues related to the 27 timeliness of the Swegler' s motion were asserted nor did B&K raise the issue of timeliness at 28 the hearing. Thus, the Sweglers argue that since B&K did not reserve the right to submit further
Page 5 of6 Decision and Order CV0452-16 Delle Swegler Nadler, et al. v. Myung Mok Bae, et al.
briefing, and because the instant motion went under advisement before the opposition was 2 actually filed, B&K waived any new or additional briefing on the motion and therefore, should 3 not be allowed to offer new arguments. See Reply, February 20, 2018 at 2. 4 Assuming arguendo that B&K waived its right to additional briefing or rmse new 5 arguments, the Court nevertheless would have reached the conclusion, pursuant to GRAP 6 7(b)(3)(C), that the Swegler's Motion was untimely. Therefore, because the Sweglers filed their 7 Motion for Order Requiring Appellant to Order Additional Transcripts on January 9, 2018, six 8 days past the January 3, 2018, deadline, the Swegler's Motion is untimely. Accordingly, 9 because the Swegler's Motion was untimely, the Court DENIES Plaintiffs-Appellees', the 10 Sweglers', Motion for Order Requiring Appellant to Order Additional Transcripts. 11 CONCLUSION 12 For the reasons set forth above, the Court DENIES Plaintiffs-Appellees' Motion for 13 Order Requiring Appellant to Order Additional Transcripts. 14 MA_R_3_0_20_lB_ __ IT IS SO ORDERED _ _ _ 15
HONORABLE ARTHUR R. BARCINAS 18 Judge, Superior Court of Guam 19
25 SERVICE VIA COURT uOv
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