Taitano v. Calvo Finance Corp.

Opinion

IN THE SUPERIOR COURT

2 OF GUAM

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5 JOSEPH SANTIAGO TAITANO, Attorney ) Civil Case No. CV0365-03 In Fact for the Heirs of DELORES )

6 TORRES FLORES, the Heirs of MANUEL )

TORRES FLORES, and the Heirs of LUIS ) DECISION AND ORDER 7 TORRES FLORES, ) 8 Plaintiffs, )

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vs.

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10 CALVO FINANCE CORPORATION, )

11 REMEDIOS TORRES FLORES, WILLIE )

TORRES FLORES and DAVID TORRES )

12 CRUZ, )

Defendants, )

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15 INTRODUCTION

16 This matter came before the Honorable Judge Michael J. Bordallo on May 22, 2013, on 17 Plaintiffs' motion to reopen time for filing an appeal. Plaintiffs appeared pro se. Defendant 18

19 Willie Flores was represented by attorney Jon A. Visosky. Defendant Calvo Finance Corp. was

20 represented by attorney Genevieve P. Rapadas. After having considered the arguments and 21 reviewed the file and papers herein the Court hereby issues an order Denying Plaintiffs' request 22 for their failure to comply with the requirements of Rule 4(a)(6).

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24 BACKGROUND

25 On November 12, 2012, pursuant to Rule 4, of the Guam Rules of Appellate Procedure, 26 Plaintiffs filed a paper entitled, Motion to Reopen Time for Filing an Appeal with 27 Memorandum of Points and Authorities. In their paper Plaintiffs request that the Court enter an 28 order reopening the time for filing an appeal of its August 2, 2012 Decision and Order and

August 27, 201 Judgment. In support of this request Plaintiffs assert that they were not 2 served with the Court's Decision and Order and its Judgment, until October 15, 2012 and 3 November 8, 2012, respectively. They further argue and assert that their request is supported 4 by the Court's failure to comply with Rule 58(a)(1). This rule requires that a judgment be set 5

6 forth on a separate document. 7 On March 28, 2013, Defendant Willie Torres Flores filed a paper in opposition to 8 Plaintiffs' request and joining Defendant Calvo Finance Corp.'s opposition. In his opposition 9 paper Defendant refutes the Plaintiffs' assertion that they were not given sufficient notice of the 10

II Court's decision and judgment. In support of this assertion the Defendant cites to the Court's

12 file showing service by mail upon Plaintiffs on August 3, 2012 and August 28, 2013, one day l3 following the entry of its August 2, 2012, Decision and Order and its August 27, 2012 14 Judgment, respectively. Defendant also argues that Plaintiffs' Rule 58 argument is nonsensical 15 because the Court's judgment was entered by a separate paper.

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17 Defendant Calvo Finance Corp. also filed a paper opposing Plaintiffs' request to reopen

18 on March 28, 2012. In its paper Defendant Calvo argues and asserts that the elements for 19 granting a Rule 4(a)(6) motion to reopen cannot be factually supported. It also argues that 20 Plaintiffs' dilatory and negligent conduct throughout the pendency of this matter does not merit 21 an application of the Court's discretion in their favor.

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23 Plaintiffs filed no paper in reply to Defendants' opposition papers.

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DISCUSSION

2 Rule 4(a)(6) ofthe Guam Rules of Appellate procedure regulates the Court's entry of an 3 order to reopen the time for appeal. Guam R. App. P. 4(a)(6). It provides, 4 The Superior Court may reopen the time to file an appeal for a period of 14 days 5 after the date when its order to reopen is entered, but only if all the following 6 conditions are satisfied:

(A) The motion is filed within 180 days after the judgment or order is entered or 7 within 7 days after the moving party receives notice of the entry, whichever is 8 earlier. (B) The court finds that the moving party was entitled to notice of the entry of 9 the judgment or order sought to be appealed but did not receive the notice from the Superior Court or any party within 21 days after entry; and 10 (C) The court finds that no party would be prejudiced. 11 ld. On its face rule 4(a)(6)(A) first requires that a motion to reopen be filed within 180 days of 12 entry of the judgment or 7 days after the party receives notice. In this case, pursuant to Rule 13

14 77(d) of the Guam Rules of Civil Procedure, Plaintiffs received legal and sufficient notice of

15 the Court's entry of its August 27, 2012 Judgment on August 28, 2012. McGhee v. McGhee, 16 2008 Guam 17 ~ 6. This notice was, by rule, mailed to the address provided by Plaintiffs for 17 this purpose. In their papers Plaintiffs fail to provide the Court with any facts or argument 18 which might enable it to find that it was legally or equitably entitled to some other form of 19

20 notice. GRCP at 4(a)(6)(B). 1 Absent this or further facts and argument allowing the Court to

21 find Plaintiffs have met the requirements of Rule 4(a)(6) the Court is unable to grant Plaintiffs' 22 request.

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28 1 Additionally Plaintiffs moving paper was filed out of the 7 day requirement from the Novembe 8, 2012 date they assert that they were served with a copy of the Court's Judgment.

CONCLUSION

2 For the reasons set forth above the Plaintiffs' November 16, 2012 motion to reopen time 3 for appeal is denied.

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7 SO ORDERED, this ___j__ _ _ day of ~ 2013. 8

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