Puranchand D. Hemlani Radhi P. Hemlani v. Jesus S. Leon Guerrero Concepcion C. Leon Guerrero

902 F.2d 1412, 1990 U.S. App. LEXIS 7269, 1990 WL 57674

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 8, 1990
• Docket: 88-15305
• Status: Published

Opinions

DAVID R. THOMPSON, Circuit Judge:

The plaintiffs-appellants (“Hemlanis”) sued the defendants-appellees (“Guerre-ros”) for specific performance of a contract for the sale of real property. The Guerre-ros, who are husband and wife, owned the property as tenants in common. Only the husband, Mr. Guerrero, signed the contract. The Superior Court of Guam ordered specific performance. The District Court of Guam, Appellate Division,¹ reversed. The Appellate Division held that because both Mr. and Mrs. Guerrero had not signed the contract it could not be specifically enforced. We have jurisdiction pursuant to 48 U.S.C. § 1424-3(c) and we affirm the Appellate Division.

FACTS

In July 1968, Mrs. Guerrero acquired, by inheritance, a parcel of real property on Guam. The property was her separate property. In October 1968, Mrs. Guerrero conveyed a one-half interest in the property to her husband, Mr. Guerrero; since then the property has been owned by Mr. and Mrs. Guerrero as tenants in common, as to undivided one-half interests each.

In 1980, the Guam Legislature amended Guam Civil Code § 160. The 1980 amendment required both spouses to join in any conveyance, or contract to convey, community real property or real property owned by the spouses as co-tenants.

In 1985, Mr. Guerrero and the plaintiff-appellee Puranchand D. Hemlani (“Mr. Hemlani”) entered into a written contract for the sale and purchase of the subject property. Mrs. Guerrero was fully aware of the negotiations and the sale transaction. She did not object to the sale, but she did not sign the sale contract and she did not give her husband, Mr. Guerrero, written authority to sell the property. A partial down payment was made, but when the Hemlanis demanded that the Guerreros complete the contract, the Guerreros refused. The Hemlanis then sued for specific performance,

ANALYSIS

Guam Civil Code § 1624² requires that a contract for the sale of real property be in writing. Because Mrs. Guerrero did not sign the contract, it is unenforceable as to her interest in the subject property. The Hemlanis argue that Mrs. Guerrero knew about the sale, had no objection to it, and as a result she should be bound by the contract Mr. Hemlani signed. We reject this contention. A wife’s oral assent to a written contract is insufficient to satisfy the statute of frauds. O’Banion v. Paradiso, 61 Cal.2d 559, 563, 39 Cal.Rptr. 370, 373, 393 P.2d 682, 685 (1964).³

The Hemlanis argue that if they cannot get specific performance of the entire property, at least they should be able to get specific performance as to Mr. Guerrero’s half interest. Guam Civil Code § 160, however, prevents this result. Section 160 provides in pertinent part:

(a) Except as otherwise provided in this Subsection and Section 163, either spouse has the management and control of the community real property, whether acquired prior to or after July 1, 1980, but both spouses must join in all transfer, conveyances or encumbrances or contracts to transfer, convey or encumber any interest in community real property and separate real property owned by the spouses as co-tenants in joint tenancy or tenancy in common, [emphasis added]

Any transfer, conveyance, encumbrance or lease or contract to transfer, convey, encumber or lease any interest in the community property or in separate real property owned by the spouses as co-tenants in joint tenancy or tenancy in common, attempted to be made by either spouse alone in violation of the provisions of this Section shall be void and of no effect, except that either spouse may transfer, convey, encumber or lease directly to the other without the other joining in. [emphasis added]

Guam.Civ.Code § 160(a) (1980).

With Guam Civil Code § 160 standing in their way, the Hemlanis argue that the 1980 amendment (which added the language included above and which defeats the Hemlanis’ claim) is unconstitutional as to Mr. Guerrero. The Hemlanis contend that if we were to apply the 1980 amendment retroactively we would deprive Mr. Guerrero of a vested right he has enjoyed from the time he acquired his interest in the property in 1968: namely, the right to dispose of his half interest unfettered by any need to have his wife join in the contract of sale or in the conveyance.

The problem with this argument is that it is not the Hemlanis’ argument to make. It is Mr. Guerrero’s argument, if he chooses to assert it and he does not. Mr. Guerrero is delighted with retrospective application of the amendment. Such an application prevents the Hemlanis from getting his half of the property, which is the position he takes in this litigation. In sum, Mr. Guerrero does not want to assert the constitutional right the Hemlanis say he has, and the Hemlanis cannot assert it for him. See Capital Cities Cable, Inc. v. Crisp, Director, Oklahoma Alcoholic Beverage Control Bd., 467 U.S. 691, 700 n. 6, 104 S.Ct. 2694, 2701 n. 6, 81 L.Ed.2d 580 (1983) (“... [Respondent plainly lacks standing to raise a claim concerning his adversaries’ constitutional rights in a case in which those adversaries have never advanced such a claim.”).

The dissent argues that we should remand this case “for a determination whether section 160(a) strips Mr. Guerrero of any interest in the property that he alone could alienate.” Dissent at 1416. The dissent suggests that the Hemlanis may at least be entitled to specific performance to acquire whatever rights Mr. Guerrero possessed, including a veto power over Mrs. Guerrero’s power to convey the property. Dissent at 1416.

This argument is answered by Guam Civ. Code § 160(a), which provides that except for interspousal transfers, “[a]ny ... contract to ... convey ... any interest in the community property or in separate real property owned by the spouses as co-tenants in joint tenancy or tenancy in common, attempted to be made by either spouse alone ... shall be void and of no effect.” (emphasis added). This statute could not be plainer. Mr. Guerrero’s attempted contract to convey any interest in the property is void and of no effect. The interpretation of this statute is purely a question of law, the issue has been fully briefed, and we are in as good a position as the Guam court to decide if the statute means what it says. We hold that it does.⁴ See Mesa Petroleum Co. v. Cities Serv. Co., 715 F.2d 1425, 1433 (10th Cir.1983) (“Since our ruling on the constitutionality of the statute turns completely on our interpretation of the Oklahoma Act on its face, we presumably are in as good a position to do so as the district court. After all, an appellate court is supposed to be able to read a statute.”).

We conclude that Guam Civil Code § 160 precludes the conveyance of Mr. Guerrero’s half interest in the property without Mrs. Guerrero’s joinder in the transaction as required by section 160. She has not joined in the contract to convey the property, nor has she joined in any conveyance of the property. Accordingly, the decision by the District Court of Guam, Appellate Division, denying specific performance is AFFIRMED.

1 . The Guam Legislature has not yet established a local territorial appellate court as authorized by Congress. See 48 U.S.C. § 1424-l(a). Until such an appellate court is established, Congress has provided that an appellate division of the District Court of Guam shall have jurisdiction over appeals from the local territorial trial courts. 48 U.S.C. § 1424-3(a). The appellate division consists of three judges: the local district judge, who is the presiding judge, and two other judges who sit by designation of the presiding judge. 48 U.S.C. § 1424-3(b).

2 . Guam Civil Code § 1624 provides in pertinent part:

What Contracts Must Be Written. The following contracts are invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged, or by his agent: ...

5. An agreement for the leasing for a longer period than one (1) year, or for the sale of real property, or an interest therein, and such agreement, if made by an agent of the parties sought to be charged, is invalid, unless the authority of the agency is in writing, subscribed by the party sought to be charged.

3 . There is no Guam law on the question whether a wife’s oral assent to a written contract is sufficient to satisfy the statute of frauds. When Guam law is unclear, we regard California law as persuasive. See People of Territory of Guam v. Ojeda, 758 F.2d 403, 406 (9th Cir.1985).

4 . It might be argued that the "right” to exercise a veto power over Mrs. Guerrero's power to convey the property, or some other "right" such as the right to negotiate with her to seek her consent to the sale, is not an "interest in the property” and thus is not covered by the statute. See Guam Civ.Code § 160(a). But if these "rights” are not interests in the property, and therefore not covered by the statute, neither are they covered by the parties’ contract. Mr. Guerrero and Mr. Hemlani did not contract for the sale and purchase of a veto power or a right to negotiate. They contracted for the sale and purchase of the property. It is one thing to adjust a property interest downward from the totality of the interests contracted to be sold, along with a proportionate downward adjustment in the purchase price. See Collins v. Marvel Land Co., 13 Cal.App.3d 34, 41, 91 Cal.Rptr. 291, 294 (1970). It is quite another to order parties to convey and purchase something they never contracted for.