FILED SUPERIOR COURT OF GUAM
1 lOll JUl .. 2 AM 9: 02 2 CLERK OF COURT 3 By:---- 4
5 IN THE SUPERIOR COURT OF GUAM • 6 KIKUKO R. NGlRAINGAS 7 ) CIVIL CASE NO. CV1980-11 ) 8 Plaintiff, ) ) 9 vs. ) DECISION AND ORDER ) (Motion to Dismiss) 10 ) ) 11 ) JOHN KENNEDY BURKE and ) 12 ) JOHN K. BURKE, Trustee OF THE JOHN ) 13 KENNEDY BURKE LIVING TRUST, ) ) 14 Defendants.
15 INTRODUCTION 16 This matter came before the Honorable Anita A. Sukola on May 9, 2012, for a motion 17
8 hearing on Defendant's Motion to Dismiss. Attorney F. Randall Cunliffe appeared on behalf of
19 Kikuko R. Ngiraingas ("Plaintiff'). Attorney Elyze McDonald Iriarte appeared on behalf of 20 John Kennedy Burke and John K. Burke, Trustee of the John Kennedy Burke Living Trust 21 ("Defendants"). The Court took the matter under advisement. Upon review of the evidence, 22
23 written and oral arguments, and legal authorities presented by both parties, the Court hereby
24 issues this Decision and Order. 25 BACKGROUND 26 Plaintiff filed a Complaint for Cancellation of Deed on December 29, 2011. Plaintiff 7 alleges that Defendants perpetrated a fraud upon Plaintiff, knowing that she could not read, 8
Kikuko R. Ngiraingas v. John Kennedy Burke and John K. Burke. Trustee of THE JOHN KENNEDY BURKE LIVING TRUST Decision and Order Motion to Dismiss Page 1 of6 write, speak or understand the English language, having her sign a Deed written in English 1
2 without any translation or explanation of what she was signing. Complaint (Dec. 29, 2011) at ~
3 26. Plaintiff contends of having no idea that Defendant had prepared documents to transfer 4 property from herself to the Trust for her to execute. ld. at ~ 25. Furthermore, Plaintiff alleges 5 that Defendant intended to perpetrate this fraud on Plaintiff in order to obtain a home for the 6 minimal price of $48,000.00, knowing that the home had a significantly higher value. ld. at ~ 7
8 27. In view of these allegations, Plaintiffs prayer for relief requests, inter alia, that "the
9 Warranty Deed recorded by Defendant Trust on or about April 30, 2002, under Document No. 10 656031 be delivered up and cancelled and it be declared null and void and of no legal effect." 11 ld. at 6. 12
13 Summons was issued on January 4, 2012, advising Defendants to answer to the
14 Complaint within thirty (30) days after service. Thereafter, Defendants filed the instant motion 15 on March 19, 2012, moving to dismiss the Complaint. Def s Motion to Dismiss (Mar. 19, 16 2012). Plaintiff filed an Opposition to Defendant's Motion to Dismiss on April 27, 2012. 17 Likewise, a Stipulation to Extend Time to File Plaintiffs Opposition and Defendant's Reply 18
19 was filed with the Court on May 4, 2012. On May 7, 2012, Defendants filed a Reply to
20 Plaintiffs Opposition to Motion to Dismiss. 21 The Court heard the matter on May 9, 2012, and now issues this Decision and Order. 22 DISCUSSION 23 Applicable Statute of Limitations for a Fraud Claim 24
25 Defendant moves the Court to dismiss Plaintiff s Complaint pursuant to Guam Rules of
26 Civil Procedure 9 and 12. More specifically, Defendant argues that Plaintiffs claims are barred 27 by the applicable statute of limitations and must be dismissed, considering the alleged fraud
Kikuko R. Ngiraingas v. John Kennedy Burke and John K. Burke, Trustee of THE JOHN KENNEDY BURKE LIVING TRUST Decision and Order ~ Motion to Dismiss Page 2 of6 occurred ten years ago. Defs Motion to Dismiss (Mar. 19, 2012). In addition, Defendant 1
2 argues that Plaintiff has failed to plead all elements of fraud with particularity and that Plaintiff
3 has failed to allege that she justifIably relied on Defendant's oral representation that he was 4 paying off her mortgage. [d 5 The Supreme Court of Guam set forth "[that] [t]hree statute of limitations may be 6 pertinent in determining whether [aJ fraud claim is time barred on its face." Taitano v. Calvo 7
8 Fin. Corp., 2008 Guam 12 ~ 30. "The first is 21 GCA §29146, which is nearly identical to 7
9 GCA § 11204 and states: 10 [n]o person shall commence any action at law or in equity for the recovery of 11 land, or assert any interest or right in or lien or demand upon the same, or make entry thereon adversely to the title of interest certified in the certificate of title 12 bringing the land under the operation of this Law after one (1) year following the 13 first registration, providing said first registration is not void for any of the reasons set forth in 21 GCA 29139. [d. 14 "Title 21 GCA § 29139 provides only two exceptions to this one year statute of 15
16 limitations, that is, '[i]f a deed or other instrument is registered, which is forged or executed by
17 a person under legal disability, such registration shall be void,' the only exception being against 18 a bona fide purchaser for value. 21 GCA § 29139 (2005)." [d. "The second relevant statute of 19 limitations is a three year limit on actions for fraud or mistake provided that '[t]he cause of 20 action in such case not to be deemed to have accrued until the discovery by the aggrieved party 21
22 of the facts constituting the fraud or mistake.' 7 GCA § 11305(4) (2005)." !d. "Finally, no
23 action can proceed for recovery or possession of real property 'unless it appear that the plaintiff, 24 his ancestor, predecessor, or grantor, was seized or possessed of the property in question, within 25 five years before the commencement of the action.' 7 GCA § 11205 (2005)." !d. 26 In review of the three statute of limitations enumerated by the Supreme Court of Guam,
8 the Court finds that Plaintiffs fraud claim is subject only to the statute of limitations for fraud
Kikuko R. Ngiraingas v. John Kennedy Burke and John K. Burke, Trustee of THE JOHN KENNEDY BURKE LIVING TRUST Decision and Order - Motion to Dismiss Page 30[6 found in 7 GCA § 11305(4). As articulated above, the statute of limitations does not begin to 1
2 accrue until the discovery by the aggrieved party of the facts constituting the fraud or mistake.
3 Plaintiff argues that she was only made aware of a recorded deed indicating that the property in 4 question had been transferred to Defendant on or about July 23, 2011. PI's Opp'n Mot. (Apr. 5 27, 2012). However, Defendant refutes that argument citing to Taitano, 2008 Guam 12 ~ 51, 6 wherein the high Court found that the plaintiffs did not plead why they were unable to discover 7
8 the 90 year-old deed, and that dismissal was appropriate. Defs. Mot. Dismiss (Mar. 19,2012).
9 Plaintiff responds arguing that she thought she signed some documents regarding a loan in 2002 10 and that she had quiet enjoyment of the home until the summer of2011. PI's Opp'n Mot. (Apr. 11 27,2012). 12 Plaintiff argues that she "was living in the house and had no reason to be looking for any 13
14 deeds or other documents in an attempt to discover the alleged fraud." Id. The Court concludes
15 that Plaintiff was not aware of any fraud until a time on or about July 23, 2011. Accordingly, 16 Plaintiff is still within the statute of limitations to bring a cause of action for fraud or mistake 17 pursuant to 7 GCA § 11305(4). 18
19 Fraud Pleading Requirement
20 Defendant also argues that Plaintiff has failed to plead all elements of fraud with 21 particularity. Defs. Mot. Dismiss (Mar. 19, 2012). Conversely, Plaintiff maintains that the 22 allegations of fraud are sufficient. Moreover, PlaintitT cites to ~~ 20 and 21 of the Complaint 23 th that the deed which she signed was recorded on the 30 day of April, 2002, and that the 24
25 document had been signed in April of 2002. Plaintiff concluded that "[i]f the [C]ourt
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FILED SUPERIOR COURT OF GUAM
1 lOll JUl .. 2 AM 9: 02 2 CLERK OF COURT 3 By:---- 4
5 IN THE SUPERIOR COURT OF GUAM • 6 KIKUKO R. NGlRAINGAS 7 ) CIVIL CASE NO. CV1980-11 ) 8 Plaintiff, ) ) 9 vs. ) DECISION AND ORDER ) (Motion to Dismiss) 10 ) ) 11 ) JOHN KENNEDY BURKE and ) 12 ) JOHN K. BURKE, Trustee OF THE JOHN ) 13 KENNEDY BURKE LIVING TRUST, ) ) 14 Defendants.
15 INTRODUCTION 16 This matter came before the Honorable Anita A. Sukola on May 9, 2012, for a motion 17
8 hearing on Defendant's Motion to Dismiss. Attorney F. Randall Cunliffe appeared on behalf of
19 Kikuko R. Ngiraingas ("Plaintiff'). Attorney Elyze McDonald Iriarte appeared on behalf of 20 John Kennedy Burke and John K. Burke, Trustee of the John Kennedy Burke Living Trust 21 ("Defendants"). The Court took the matter under advisement. Upon review of the evidence, 22
23 written and oral arguments, and legal authorities presented by both parties, the Court hereby
24 issues this Decision and Order. 25 BACKGROUND 26 Plaintiff filed a Complaint for Cancellation of Deed on December 29, 2011. Plaintiff 7 alleges that Defendants perpetrated a fraud upon Plaintiff, knowing that she could not read, 8
Kikuko R. Ngiraingas v. John Kennedy Burke and John K. Burke. Trustee of THE JOHN KENNEDY BURKE LIVING TRUST Decision and Order Motion to Dismiss Page 1 of6 write, speak or understand the English language, having her sign a Deed written in English 1
2 without any translation or explanation of what she was signing. Complaint (Dec. 29, 2011) at ~
3 26. Plaintiff contends of having no idea that Defendant had prepared documents to transfer 4 property from herself to the Trust for her to execute. ld. at ~ 25. Furthermore, Plaintiff alleges 5 that Defendant intended to perpetrate this fraud on Plaintiff in order to obtain a home for the 6 minimal price of $48,000.00, knowing that the home had a significantly higher value. ld. at ~ 7
8 27. In view of these allegations, Plaintiffs prayer for relief requests, inter alia, that "the
9 Warranty Deed recorded by Defendant Trust on or about April 30, 2002, under Document No. 10 656031 be delivered up and cancelled and it be declared null and void and of no legal effect." 11 ld. at 6. 12
13 Summons was issued on January 4, 2012, advising Defendants to answer to the
14 Complaint within thirty (30) days after service. Thereafter, Defendants filed the instant motion 15 on March 19, 2012, moving to dismiss the Complaint. Def s Motion to Dismiss (Mar. 19, 16 2012). Plaintiff filed an Opposition to Defendant's Motion to Dismiss on April 27, 2012. 17 Likewise, a Stipulation to Extend Time to File Plaintiffs Opposition and Defendant's Reply 18
19 was filed with the Court on May 4, 2012. On May 7, 2012, Defendants filed a Reply to
20 Plaintiffs Opposition to Motion to Dismiss. 21 The Court heard the matter on May 9, 2012, and now issues this Decision and Order. 22 DISCUSSION 23 Applicable Statute of Limitations for a Fraud Claim 24
25 Defendant moves the Court to dismiss Plaintiff s Complaint pursuant to Guam Rules of
26 Civil Procedure 9 and 12. More specifically, Defendant argues that Plaintiffs claims are barred 27 by the applicable statute of limitations and must be dismissed, considering the alleged fraud
Kikuko R. Ngiraingas v. John Kennedy Burke and John K. Burke, Trustee of THE JOHN KENNEDY BURKE LIVING TRUST Decision and Order ~ Motion to Dismiss Page 2 of6 occurred ten years ago. Defs Motion to Dismiss (Mar. 19, 2012). In addition, Defendant 1
2 argues that Plaintiff has failed to plead all elements of fraud with particularity and that Plaintiff
3 has failed to allege that she justifIably relied on Defendant's oral representation that he was 4 paying off her mortgage. [d 5 The Supreme Court of Guam set forth "[that] [t]hree statute of limitations may be 6 pertinent in determining whether [aJ fraud claim is time barred on its face." Taitano v. Calvo 7
8 Fin. Corp., 2008 Guam 12 ~ 30. "The first is 21 GCA §29146, which is nearly identical to 7
9 GCA § 11204 and states: 10 [n]o person shall commence any action at law or in equity for the recovery of 11 land, or assert any interest or right in or lien or demand upon the same, or make entry thereon adversely to the title of interest certified in the certificate of title 12 bringing the land under the operation of this Law after one (1) year following the 13 first registration, providing said first registration is not void for any of the reasons set forth in 21 GCA 29139. [d. 14 "Title 21 GCA § 29139 provides only two exceptions to this one year statute of 15
16 limitations, that is, '[i]f a deed or other instrument is registered, which is forged or executed by
17 a person under legal disability, such registration shall be void,' the only exception being against 18 a bona fide purchaser for value. 21 GCA § 29139 (2005)." [d. "The second relevant statute of 19 limitations is a three year limit on actions for fraud or mistake provided that '[t]he cause of 20 action in such case not to be deemed to have accrued until the discovery by the aggrieved party 21
22 of the facts constituting the fraud or mistake.' 7 GCA § 11305(4) (2005)." !d. "Finally, no
23 action can proceed for recovery or possession of real property 'unless it appear that the plaintiff, 24 his ancestor, predecessor, or grantor, was seized or possessed of the property in question, within 25 five years before the commencement of the action.' 7 GCA § 11205 (2005)." !d. 26 In review of the three statute of limitations enumerated by the Supreme Court of Guam,
8 the Court finds that Plaintiffs fraud claim is subject only to the statute of limitations for fraud
Kikuko R. Ngiraingas v. John Kennedy Burke and John K. Burke, Trustee of THE JOHN KENNEDY BURKE LIVING TRUST Decision and Order - Motion to Dismiss Page 30[6 found in 7 GCA § 11305(4). As articulated above, the statute of limitations does not begin to 1
2 accrue until the discovery by the aggrieved party of the facts constituting the fraud or mistake.
3 Plaintiff argues that she was only made aware of a recorded deed indicating that the property in 4 question had been transferred to Defendant on or about July 23, 2011. PI's Opp'n Mot. (Apr. 5 27, 2012). However, Defendant refutes that argument citing to Taitano, 2008 Guam 12 ~ 51, 6 wherein the high Court found that the plaintiffs did not plead why they were unable to discover 7
8 the 90 year-old deed, and that dismissal was appropriate. Defs. Mot. Dismiss (Mar. 19,2012).
9 Plaintiff responds arguing that she thought she signed some documents regarding a loan in 2002 10 and that she had quiet enjoyment of the home until the summer of2011. PI's Opp'n Mot. (Apr. 11 27,2012). 12 Plaintiff argues that she "was living in the house and had no reason to be looking for any 13
14 deeds or other documents in an attempt to discover the alleged fraud." Id. The Court concludes
15 that Plaintiff was not aware of any fraud until a time on or about July 23, 2011. Accordingly, 16 Plaintiff is still within the statute of limitations to bring a cause of action for fraud or mistake 17 pursuant to 7 GCA § 11305(4). 18
19 Fraud Pleading Requirement
20 Defendant also argues that Plaintiff has failed to plead all elements of fraud with 21 particularity. Defs. Mot. Dismiss (Mar. 19, 2012). Conversely, Plaintiff maintains that the 22 allegations of fraud are sufficient. Moreover, PlaintitT cites to ~~ 20 and 21 of the Complaint 23 th that the deed which she signed was recorded on the 30 day of April, 2002, and that the 24
25 document had been signed in April of 2002. Plaintiff concluded that "[i]f the [C]ourt
26 determines that Plaintiff has not properly pled these matters, then the [C]ourt should give leave 7 to Plaintiff to amend her [C]omplaint. Taitano, 2008 Guam 12 ~ 9. Defendant in reply to 28
Kikuko R. Ngiraingas v. John Kennedy Burke and John K. Burke, Trustee of THE JOI-IN KENNEDY BURKE LIVING TRUST Decision and Order Motion to Dismiss Page 4 of6 Plaintiffs opposition asserts that "[p]aragraphs 20 and 21 may be relevant as to when Plaintiff 1
gained actual knowledge of the alleged fraud, but have no relevance as to the element of when
3 the fraud occurred. 4 Guam Rules of Civil Procedure 9 provides: 5 (b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, 6 the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be 7 averred generally. 8 Guam R. Civ. P. 9(b). 9 The Supreme Court of Guam instructed in Taitano "that a plaintiff need not prove his 10
11 claim of fraud at the pleadings stage. Rather, what is required is that a plaintiff set forth his
12 claim with sufficient detail to provide notice to defendants as to what particular fraudulent 13 action is being alleged." Taitano v. Calvo Finance Co., 2008 Guam 12 ~ 16 (citing Ely-Magee 14 v. Cal., 236 F .3d 666, 10 19 (9 th Cir. 1989). With respect to fraud, the elements are: (1) a 15
16 misrepresentation; (2) knowledge of falsity (or scienter); (3) intent to defraud to induce reliance;
17 (4) justifiable reliance; and (5) resulting damages." Taitano, 2008 Guam 12 ~ 12. 18 In the Court's review of the instant case, Plaintiff alleges that "Defendants perpetrated a 19 fraud upon Plaintiff, knowing that she could not read, write, speak or understand the English 20 language, having her sing a Deed written in English without any translation or explanation of 21
22 what she was signing." PI's Complaint (Dec. 29, 2011). Additionally, Plaintiff alleges that
23 "Defendants intended to perpetrate this fraud on Plaintiff in order to obtain a home for the 24 minimal price of $48,000.00, knowing that the home had a significantly higher fair market 25 value. Id. Plaintiff sets forth her claim with sufficient detail to provide notice to Defendants as 26 to what particular fraudulent action is being alleged. Accordingly, the Court finds that Plaintiff 27
28 satisfies the legal standard for pleading fraud with particularity.
Kikuko R. Ngiraingas v. John Kennedy Burke and John K. Burke. Trustee of THE JOHN KENNEDY BURKE LIVING TRUST Decision and Order - Motion to Dismiss Page 5 of6 CONCLUSION 1
2 By a preponderance of the evidence and based on the foregoing reasons, the Court
3 DENIES Defendant's Motion to Dismiss. 4
5 SO ORDERED this _2_ day _-----,~~:¥_, 2012. 6
7 A Further Proceedings is set for July 25,2012, 8
12 Judge, Superior Court of Guam 13
Kikuko R. Ngiraingas v. John Kennedy Burke and John K. Burke, Trustee of THE JOHN KENNEDY BURKE LIVING TRUST Decision and Order ~ Motion to Dismiss 60f6