Robert S. Unpingco v. Antolin Derry

2021 Guam 1

• Court: Supreme Court of Guam
• Decided: January 22, 2021
• Docket: CVA19-016
• Status: Published

Opinion

IN THE SUPREME COURT OF GUAM

ROBERT S. UNPINGCO, Plaintiff-Appellant,

v.

ANTOLIN DERRY, Defendant-Appellee.

Supreme Court Case No.: CVA19-016 Superior Court Case No.: CV1189-18

OPINION

Appeal from the Superior Court of Guam Argued and submitted on March 9, 2020 Hagåtña, Guam

Appearing for Plaintiff-Appellant: Appearing for Defendant-Appellee: James M. Maher, Esq. Louie J. Yanza, Esq. Law Office of James M. Maher Law Office of Louie J. Yanza, P.C. DNA Bldg. One Agana Bay 238 Archbishop Flores St., Ste. 300 446 E. Marine Corps Dr., Ste. 202 Hagåtña, GU 96910 Hagåtña, GU 96910 Unpingco v. Derry, 2021 Guam 1, Opinion Page 2 of 9

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.

TORRES, J.:

[1] This appeal arises from a trespass action between neighbors over an encroaching fence and

wall built by Defendant-Appellee Antolin Derry on Plaintiff-Appellant Robert S. Unpingco’s

Torrens registered property. As established in the proceedings below, Derry completed

construction of the encroaching structures in 1994. Unpingco learned of the encroachment in

2017. In 2018, the Department of Public Works issued a notice of violation to Derry regarding

the encroachment. Unpingco sued for an injunction and damages. Unpingco moved for partial

summary judgment as no material facts were in dispute; Derry then cross-moved for summary

judgment, arguing the claim was time-barred by the three-year statute of limitations for trespass.

The trial court denied Unpingco’s motion for partial summary judgment and granted Derry’s cross-

motion for summary judgment, finding the trespass to be time-barred. Unpingco appeals, arguing

the trial court misinterpreted the nature of the trespass and the applicability of the statute of

limitations in 7 GCA § 11305(b). We reverse the summary judgment and hold that Unpingco may

maintain his suit for injunctive relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

[2] Unpingco came into possession of his property, identified as Lot 1072-2-A-2 in Barrigada,

Guam, as a properly registered landowner in 1978 under Guam’s Land Title Registration System.

He moved away from the property in 1980. He received the property via a Deed of Gift from his

parents and holds a certificate of title from the Guam Department of Land Management that does

not list any estates, liens, charges, or encumbrances on the land described in the certificate of title.

The land was first registered on February 1, 1929, and the certificate of title identifies Robert S.

Unpingco as the certified owner of the property. Unpingco v. Derry, 2021 Guam 1, Opinion Page 3 of 9

[3] Two years after obtaining the certificate of title in 1978, Unpingco left the property and

did not return to the property until 2016. In 1994, Derry, an adjacent landowner, built a wall and

fence encroaching on Unpingco’s property. The encroaching structures were completed in

November 1994. The encroachment covers approximately 33 square feet of Unpingco’s property.

[4] A neighbor informed Unpingco of the encroachment in 2017, over 22 years after the

erection of the wall. Unpingco then sent a letter to Derry informing him of the encroachment and

asking Derry to take down the portions of the wall encroaching onto the property. Subsequently,

in 2018, the Department of Public Works issued a “Notice of Violation” to Derry regarding the

encroachment.

[5] On December 5, 2018, Unpingco filed suit against Derry before the Superior Court,

alleging trespass and seeking injunctive relief—specifically, removal of the encroachment and

damages. This action was commenced on December 5, 2018, over 24 years after the completion

of the wall.

[6] Unpingco moved for partial summary judgment, alleging there were no material facts in

dispute regarding the encroachment on his property as neither Unpingco nor Derry contested the

encroachment’s existence on Unpingco’s property. Derry, however, cross-moved for summary

judgment, asserting the suit was time-barred under 7 GCA § 11305(b), which sets a three-year

statute of limitations on actions for trespass upon real property.

[7] The trial court denied Unpingco’s motion and granted Derry’s cross-motion for summary

judgement, finding that no genuine issues of material fact remained regarding the statute of

limitations. In doing so, the trial court held that Unpingco failed to bring a timely action under 7

GCA § 11305(b), and thus the three-year statute of limitations had run for Unpingco to bring an

action for permanent trespass on his property. The trial court entered a final judgment, which

Unpingco timely appealed. Unpingco v. Derry, 2021 Guam 1, Opinion Page 4 of 9

II. JURISDICTION

[8] This court has jurisdiction over appeals from a final judgment of the Superior Court. 48

U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 116-259 (2020)); 7 GCA §§ 3107(b), 3108(a)

(2005).

III. STANDARD OF REVIEW

[9] “We review a trial court’s decision granting a motion for summary judgment de novo.”

Hawaiian Rock Prods. Corp. v. Ocean Hous., Inc., 2016 Guam 4 ¶ 13 (citing Zahnen v. Limtiaco,

2008 Guam 5 ¶ 8). Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” Guam R. Civ. P. 56(c).

IV. ANALYSIS

[10] Though multiple issues are raised on appeal, we limit our review to whether the trial court

improperly granted summary judgment to Derry on the basis that Unpingco’s complaint is barred

by the three-year statute of limitations set forth in 7 GCA § 11305(b). Unpingco argues the trial

court mistakenly relied on California case law when assessing the applicability of the statute of

limitations for trespass actions. Appellant’s Br. at 12-13 (Dec. 13, 2019). Unpingco argues 7

GCA § 11305(b) does not apply to trespass actions on real property registered under the Land Title

Registration Act. Id. We agree.

[11] Guam’s Land Title Registration Act uses a form of registration known as the Torrens

system, a system for registering real property titles by “the use of certificates which conclusively

show the state of the title at all times.” Pelowski v. Taitano, 2000 Guam 34 ¶ 30 (quoting Pioneer

Abstract & Title Guar. Co. v. Feraud, 267 P. 134, 137 (Cal. Dist. Ct. App. 1928)); see also 21

GCA § 29101 et seq. (2005). The system’s creator, Sir Robert Torrens, made the system to Unpingco v. Derry, 2021 Guam 1, Opinion Page 5 of 9

simplify transfers of real estate and to render titles safe and indefeasible. See Pioneer Abstract,

267 P. at 137.

[12] To initially register land under Guam’s Torrens system, one must petition the Superior

Court of Guam. 21 GCA § 29105. After notice and hearing to determine the owner of the property,

21 GCA § 29115, the owner may order registration of their title by filing a court-issued decree

pursuant to 21 GCA § 29116. Upon the first proper registration of the parcel of land, the title “is

final and conclusive as against ‘the rights of all persons, known and unknown, to assert any estate,

interest, claim, lien, or demand of any kind or nature whatsoever, against the land so ordered

registered or any part thereof, except only as in [the Registration Law] provides.’” Pelowski, 2000

Guam 34 ¶ 30 (alteration in original) (quoting 21 GCA § 29117 (1994)). Proper registration should

function to make the title indefeasible. See Taitano v. Calvo Fin. Corp., 2008 Guam 12 ¶ 60.

[13] Generally, “[e]very registered owner of land which is brought under the Torrens system

holds the land free from any and all adverse claims, rights and encumbrances not noted on the

certificate of title[.]” 14 Michael Allen Wolf, Powell on Real Property § 83.03[8] (2020)

(LexisNexis Matthew Bender). This indefeasibility and simplicity is fundamental to the Torrens

system. Id.; see also Lujan v. Quinata, 2016 Guam 39 ¶ 11 (explaining Guam’s Land Registration

System is intended to ensure titles are safe and indefeasible). Once the initial registering

landowner completes the first registration process, one cannot “assert any interest or right in or

lien or demand upon the same, or make entry thereon adversely to the title of interest” after one

year, 21 GCA § 29146 (2005); 7 GCA § 11204 (2005),1 unless the initial instrument was forged

1 Title 7 GCA § 11204, titled “Limitation of Actions Relating to Registered Land,” states: No person shall commence any action at law or in equity for the recovery of land, or assert any interest in 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 bringing the land under the operation of the Land Title Registration Act after one (1) year following the first registration . . . . 7 GCA § 11204; see also 21 GCA § 29146. Unpingco v. Derry, 2021 Guam 1, Opinion Page 6 of 9

or “executed by a person under legal disability,” 21 GCA § 29139 (2005). One cannot, for

example, adversely possess Torrens registered land. See 21 GCA § 29136 (2005); 7 GCA § 11204;

Burkhart v. Miranda, 2013 Guam 2 ¶ 18 (“The law is well established that one cannot adversely

possess registered land.”); see also Peters v. Archambault, 278 N.E. 2d 729, 731 (Mass. 1972)

(recognizing encroachment would defeat purpose of land registration act because registered land

is protected more than other land from unrecorded and unregistered liens, prescriptive rights,

encumbrances, and other burdens); Ass’n of Apartment Owners of Wailea Elua v. Wailea Resort

Co., 58 P.3d 608, 633 n.2 (Haw. 2002) (Ramil, J., concurring) (recognizing express easement over

registered land requires compliance with land registration statute which is premised on preserving

integrity of titles).

[14] The Torrens land registration system “ensure[s] [the real property’s] marketability, to

protect the transferee of a registered title, and to simplify conveyancing by allowing prospective

purchasers to rely on the certificate of title as reflecting all interests in the land.” 66 Am. Jur. 2d

Registration of Land Titles § 1 (2020) (footnotes omitted); see also Pelowski, 2000 Guam 34 ¶ 30;

Calvo Fin. Corp., 2008 Guam 12 ¶ 60. The system is intended to create “an absolute presumption

that the register of titles speaks the last word about the title to land, eliminating all ‘secret liens

and hidden equities,’ and making the language in the register of titles absolute proof of indefeasible

title excepting only those encumbrances and claims noted therein.” Kincaid v. Yount, 459 N.E.2d

235, 238 (Ohio Ct. App. 1983); see also 7 GCA § 11204; 21 GCA § 29137 (2005). As a result of

this indefeasibility and reliance on the register of titles, “no unregistered estate, interest, power,

right, claim, contract or trust’ may prevail against the title of a registered owner taking bona fide

for valuable consideration or any person bona fide claiming under him.” Pelowski, 2000 Guam

34 ¶ 33 (quoting 21 GCA § 29140 (1994)). The indefeasible title free from all rights or claims not Unpingco v. Derry, 2021 Guam 1, Opinion Page 7 of 9

registered provides assurance to those that may deal with the property that the only rights or claims

they need to take notice of are those registered.

[15] As a result of this indefeasibility, a landowner may bring an ejectment action on Torrens-

registered property regardless of a statute of limitations. See, e.g., Burkhart, 2013 Guam 2 ¶ 18

(holding that landowner may bring ejectment action in part because 7 GCA § 11205, the statute of

limitations to recover real property, does not apply to Torrens-registered land); Hebert v. City of

Fifty Lakes, No. A13-0311, 2014 WL 103327, at *4 (Minn. Ct. App. Jan. 13, 2014). Even the

obviousness of an encroachment is not enough to overcome the rights of a registered landowner.

See Kincaid, 459 N.E.2d at 239-40.

[16] Some jurisdictions have held Torrens-registered land may be defeasible in a very narrow,

limited number of circumstances. For example, Massachusetts provides restitution for claims

against registration decrees made in bad faith or procured by fraud. See, e.g., Tetrault v. Bruscoe,

497 N.E.2d 275, 278 n.6 (Mass. 1986); Keller v. O’Brien, 683 N.E.2d 1026, 1030 (Mass. 1997);

State St. Bank & Tr. Co. v. Beale, 227 N.E.2d 924, 927 (Mass. 1967). Minnesota courts allow the

doctrine of laches as an equitable defense to an ejection action. See Hebert, 2014 WL 103327, at

*4; cf. Burkhalter v. Mays, 877 N.W.2d 788, 793-94 (Minn. Ct. App. 2016) (holding a party must

prove actual, not merely constructive, knowledge to prevail on claim of interest not memorialized

on certificate of title).

[17] Minnesota has established an exception for “boundary by practical location” through which

adjoining landowners may change their boundary line, even for Torrens-registered land, through

acquiescence, agreement, or estoppel. See In re Wells Fargo Bank, N.A., No. A15-1557, 2016 WL

3582593 (Minn. Ct. App. July 5, 2016); see also Romanchuk v. Plotkin, 9 N.W.2d 421, 427 (Minn.

1943). To achieve a change in boundary lines by acquiescence or agreement, the owner of the

property being claimed must do something beyond mere passive conduct. Britney v. Swan Lake Unpingco v. Derry, 2021 Guam 1, Opinion Page 8 of 9

Cabin Corp., 795 N.W.2d 867, 872 (Minn. Ct. App. 2011). There must be some active conduct

from which one could reasonably infer the landowner’s assent to a change in the boundary line.

Id.

[18] These circumstances are not present here—and Derry’s encroachment would not defease

Unpingco of title, were these tests to apply.

[19] Derry argues the protections against title defeasance in Guam’s Land Title Registration

Act is irrelevant to assessing this claim as there is no attempt by Derry to claim or defease

Unpingco’s land title. Appellee’s Br. at 15-16 (Jan. 13, 2020). Even if Derry, however, is not

claiming title to a portion of Unpingco’s property, his encroachment is an unauthorized intrusion

and encumbrance upon the property. As we have held, no one may claim “any estate, interest,

claim, lien, or demand of any kind or nature whatsoever, against the land so ordered registered or

any part thereof.” Pelowski, 2000 Guam 34 ¶ 30 (quoting 21 GCA § 29117). Even if Derry’s

encroachment is found unintentional or negligent, Unpingco holds title free from all encumbrances

except those noted on his certificate of title. At present, there are no encumbrances on Unpingco’s

certificate of title. Unpingco, under our Land Title Registration Act, is entitled to maintain only

the encumbrances currently listed on his certificate of title, i.e., a property free of encumbrances.

The present record discloses no circumstances that would justify denying Unpingco equitable

relief to compel removal of the encroachment.

[20] Since lands registered under the Land Title Registration Act are indefeasible, absent

potential aforementioned exceptions, the three-year statute of limitations for trespass actions set

forth in 7 GCA § 11305(b) is inapplicable to trespass actions on Torrens-registered land. We hold

that the trial court erred in granting summary judgment as Unpingco’s complaint of trespass is not

time-barred. Unpingco may proceed with his complaint for injunctive relief and damages against

Derry. Unpingco v. Derry, 2021 Guam 1, Opinion Page 9 of 9

[21] Unpingco also argues his complaint is not time-barred as there are genuine issues of

material fact needing resolution by a fact-finder, in particular: whether the excess water drainage

from Derry’s property created an ongoing trespass; whether the discovery rule tolled Unpingco’s

claims; and whether there was evidence of fraud. Appellant’s Br. at 5-8; Appellant’s Reply Br. at

5-7 (Jan. 24, 2020). “As a general appellate principle, a court will not address issues unnecessary

to the resolution of the case before it.” Hemlani v. Hemlani, 2015 Guam 16 ¶ 33. Since we

determine this case on other grounds and remand to the trial court for further proceedings, we need

not reach the merits of those issues.

V. CONCLUSION

[22] We REVERSE the grant of summary judgment and REMAND to the trial court for further

proceedings not inconsistent with this opinion.

/s/ /s/ ROBERT J. TORRES KATHERINE A. MARAMAN Associate Justice Associate Justice

/s/ F. PHILIP CARBULLIDO Chief Justice