F1LE Tertl orial Law Library 3
4 IN THE SUPERIOR COURT OF GUAM" ~,\~U~~ ,J GU;~vl
6 ) 7 THOMAS M. TARPLEY, JR. AND ) CIVIL CASE NO. CVI657-09 ANNAROSE E. TARPLEY, ) 8 )
~ DECISION AND ORDER ON PLAINTIFF'S Plaintiffs, 9
v. ) RESPONSE TO DEFENDANT'S MOTION 10 TO-ENFORCE SETILEMENT 11 NORTH EAST ENTERPRISES, LLC dba ~ AGREEMENT OR TO AMEND ANSWER NORTH EAST CONSTRUCTION AND ) 12 CHUNG KUO INSURANCE COMPNAY, ) 13 LTD. ) ) 14 Defendants. ) 15 --------------------------- 16 INTRODUCTION 17 This matter came before the Court on August 22, 2011 on Defendant North
18 Enterprises, LLC's Motion to Enforce Settlement Agreement or Amend Answer. Attorne
19 Helkei S. Hemminger represented Defendant North East Enterprises, LLC. Attorney Thomas M 20 Tarpley, Jr. represented himself and Plaintiff Anarose E. Tarpley. After considering the parties 21 written and oral arguments the Court now issues its Decision and Order. 22 FACTUAL BACKGROUND 23 This case involves a breach of contract claim stemming from the construction of 24 residential building in Piti, Guam. The parties ultimately reached an agreement to settle the 25 26 and signed a Settlement Agreement ("Agreement"). Under the Agreement plaintiffs agreed
27 pay $32,599.05 to the defendant in exchange for the parties' mutual release of all related leg
28 claims. The parties could not initially agree on the mode of payment: plaintiffs indicated tha
-1- they preferred to pay with a credit card while defendant requested a lump sum cash payment 2 Defendants argued that the funds could be paid from the "retainage" account under which mone 3 was withheld by plaintiffs as security for completion ofthe project. However, plaintiffs informe 4 the defendant that the money had been withdrawn. After some discussion, defendant finall 5 agreed to facilitate a credit card transaction. Defendant coordinated with Olie's Tave 6 ("Olie's"), which agreed to accept credit card payment on defendant's behalf. On March 22 7 2011, Olie's ran plaintiffs' credit card. It appeared to the parties that the transaction had gon 8
9 through and both defendant and plaintiffs acknowledged the Settlement Agreement. However
to the following day Bank of Hawaii informed Olie's that the credit card transaction had bee
II suspended and that no funds would be released until Olie's produced documentation verifying 12 sale in the amount of $32,599.05. Olie's could not produce documentation of a "sale" and rathe 13 than attempt to provide supporting documentation, Defendant and Olie's decided to cancel th 14 transaction. As a result, seven days after the original transaction plaintiffs received a $32,599.05 15 refund on the credit card. The parties were apparently unable to reach an agreement regardin 16 future payment of the settlement funds and defendant felt compelled to file the instant Motion t 17 Enforce the Settlement Agreement or to Amend Answer. 18 DISCUSSION 19
20 I. Jurisdiction·
21 Generally, in a case that has been dismissed, enforcement of a settlement agreemen
22 requires an independent basis for jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am. 23 511 U.S. 375, 378, 114 S. Ct. 1673, 1675-76, 128 L. Ed. 2d 391 (1994). However, in the presen 24 action this Court has not issued an order dismissing the claims or closing the case following th 25 entry of the Settlement Agreement. As such, this Court find that it continues to exercis 26 jurisdiction over this matter, including the ancillary settlement agreement, pursuant to title 7 27 section 3105 of the Guam Code. 28
-2- II. The Motion to Enforce 2 Defendant filed the present motion arguing that it has not been paid any money owed to i 3 under the Agreement. Defendant therefore requests that this court order plaintiffs to pa 4 $32,599.05 to defendant. Alternatively, defendant requests leave of the court to allow defendan 5 to amend its answer to include a counterclaim relating to the lack of money in the retaine 6 account. Plaintiffs oppose the motion to enforce arguing that under Guam law they have fulfille 7 their payment obligation. Plaintiffs further assert that the defendant's motion essentially amount 8
9 to a motion for summary judgment and that plaintiffs should be allowed to conduct furthe
to discovery to inquire as to the cause of the failed credit card transaction.
II a. Standard of Review: 12 On a motion to enforce a settlement agreement, the issue is typically whether there is an I3 dispute of material fact regarding the terms of the agreement and thus courts treat such motion 14 under the same standard as a motion for summary judgment. See Washington v. Klem, 388 F 15 App'x 84, 85 (3d Cir. 2010) (citing Tieman v. Devoe, 923 F.2d 1024, 1031 (3d Cir.1991)) 16 Summary judgment is proper when the pleadings, discovery materials, and affidavits "show tha 17 there is no genuine issue as to any material fact and that the moving party is entitled to 18 judgment as a matter of law." Guam Rule Civil Procedure 56(c). The Court will draw inference 19
20 in favor of the non-moving party and view the evidence in a light most favorable to the non
21 moving party. Edwards Corp. v. Kawasho Int'l, Inc., 2000 Guam 27 , 7.
22 h. Analysis 23
24 The only material fact regarding this settlement dispute is whether plaintiffs paid th
25 defendant. Plaintiffs do not dispute the fact that the funds intended to be paid to Olie's wer
26 refunded to plaintiff. Instead, plaintiffs assert that despite the fact that they were refunded th 27 amount, they have nevertheless fulfilled their payment obligation as a matter of law. In suppo 28
-3- of this contention plaintiffs offer a credit card statement showing a charge of $32,599.05. I 2 addition, plaintiffs cite various laws contained in title 18, chapter 22 of the Guam Code: 3 § 8214. Effect of direction by creditor. If a creditor, or anyone of two or more 4 joint creditors, at any time directs the debtor to perform his obligation in a particular manner, the obligation is extinguished by performance in that manner, 5 even though the creditor does not receive the benefit of such performance. 6 § 8216. What is payment. Performance of an obligation for the delivery of 7 money only is called payment.
8 § 82216. Extinction of pecuniary obligation. An obligation for the payment of 9 Iponey is extinguished by a due offer of payment, if the amount is immediately deposited in the name of the creditor, with any bank licensed to do business in IO Guam and notice thereof is given to the creditor. II § 82217. Objection to mode. All objections to the mode of an offer of 12 performance, which the creditor has an opportunity to state at the time to the person making the offer, and which could have been obviated by him are waived I3 by the creditor, if not then stated. 14 § 82220. Affect on offer of accessories of obligation. An offer of payment or 15 other performance, duly made, though the title to the thing offered be not transferred to the creditor, stops the running of interest on the obligation, and has 16 the same effect upon all its incidents as a performance thereof. 17 Plaintiffs argue that they paid according to the terms of the Agreement, which resulted in 18 withdrawal of funds from their bank account and thus, under the above statutes, they hav 19 fulfilled their payment obligations. 20 Contrary to plaintiffs' arguments, the above statutes, combined with plaintiffs' affidavi 21 support a finding, as a matter of law, that plaintiffs did not effect proper payment. Collectively 22
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F1LE Tertl orial Law Library 3
4 IN THE SUPERIOR COURT OF GUAM" ~,\~U~~ ,J GU;~vl
6 ) 7 THOMAS M. TARPLEY, JR. AND ) CIVIL CASE NO. CVI657-09 ANNAROSE E. TARPLEY, ) 8 )
~ DECISION AND ORDER ON PLAINTIFF'S Plaintiffs, 9
v. ) RESPONSE TO DEFENDANT'S MOTION 10 TO-ENFORCE SETILEMENT 11 NORTH EAST ENTERPRISES, LLC dba ~ AGREEMENT OR TO AMEND ANSWER NORTH EAST CONSTRUCTION AND ) 12 CHUNG KUO INSURANCE COMPNAY, ) 13 LTD. ) ) 14 Defendants. ) 15 --------------------------- 16 INTRODUCTION 17 This matter came before the Court on August 22, 2011 on Defendant North
18 Enterprises, LLC's Motion to Enforce Settlement Agreement or Amend Answer. Attorne
19 Helkei S. Hemminger represented Defendant North East Enterprises, LLC. Attorney Thomas M 20 Tarpley, Jr. represented himself and Plaintiff Anarose E. Tarpley. After considering the parties 21 written and oral arguments the Court now issues its Decision and Order. 22 FACTUAL BACKGROUND 23 This case involves a breach of contract claim stemming from the construction of 24 residential building in Piti, Guam. The parties ultimately reached an agreement to settle the 25 26 and signed a Settlement Agreement ("Agreement"). Under the Agreement plaintiffs agreed
27 pay $32,599.05 to the defendant in exchange for the parties' mutual release of all related leg
28 claims. The parties could not initially agree on the mode of payment: plaintiffs indicated tha
-1- they preferred to pay with a credit card while defendant requested a lump sum cash payment 2 Defendants argued that the funds could be paid from the "retainage" account under which mone 3 was withheld by plaintiffs as security for completion ofthe project. However, plaintiffs informe 4 the defendant that the money had been withdrawn. After some discussion, defendant finall 5 agreed to facilitate a credit card transaction. Defendant coordinated with Olie's Tave 6 ("Olie's"), which agreed to accept credit card payment on defendant's behalf. On March 22 7 2011, Olie's ran plaintiffs' credit card. It appeared to the parties that the transaction had gon 8
9 through and both defendant and plaintiffs acknowledged the Settlement Agreement. However
to the following day Bank of Hawaii informed Olie's that the credit card transaction had bee
II suspended and that no funds would be released until Olie's produced documentation verifying 12 sale in the amount of $32,599.05. Olie's could not produce documentation of a "sale" and rathe 13 than attempt to provide supporting documentation, Defendant and Olie's decided to cancel th 14 transaction. As a result, seven days after the original transaction plaintiffs received a $32,599.05 15 refund on the credit card. The parties were apparently unable to reach an agreement regardin 16 future payment of the settlement funds and defendant felt compelled to file the instant Motion t 17 Enforce the Settlement Agreement or to Amend Answer. 18 DISCUSSION 19
20 I. Jurisdiction·
21 Generally, in a case that has been dismissed, enforcement of a settlement agreemen
22 requires an independent basis for jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am. 23 511 U.S. 375, 378, 114 S. Ct. 1673, 1675-76, 128 L. Ed. 2d 391 (1994). However, in the presen 24 action this Court has not issued an order dismissing the claims or closing the case following th 25 entry of the Settlement Agreement. As such, this Court find that it continues to exercis 26 jurisdiction over this matter, including the ancillary settlement agreement, pursuant to title 7 27 section 3105 of the Guam Code. 28
-2- II. The Motion to Enforce 2 Defendant filed the present motion arguing that it has not been paid any money owed to i 3 under the Agreement. Defendant therefore requests that this court order plaintiffs to pa 4 $32,599.05 to defendant. Alternatively, defendant requests leave of the court to allow defendan 5 to amend its answer to include a counterclaim relating to the lack of money in the retaine 6 account. Plaintiffs oppose the motion to enforce arguing that under Guam law they have fulfille 7 their payment obligation. Plaintiffs further assert that the defendant's motion essentially amount 8
9 to a motion for summary judgment and that plaintiffs should be allowed to conduct furthe
to discovery to inquire as to the cause of the failed credit card transaction.
II a. Standard of Review: 12 On a motion to enforce a settlement agreement, the issue is typically whether there is an I3 dispute of material fact regarding the terms of the agreement and thus courts treat such motion 14 under the same standard as a motion for summary judgment. See Washington v. Klem, 388 F 15 App'x 84, 85 (3d Cir. 2010) (citing Tieman v. Devoe, 923 F.2d 1024, 1031 (3d Cir.1991)) 16 Summary judgment is proper when the pleadings, discovery materials, and affidavits "show tha 17 there is no genuine issue as to any material fact and that the moving party is entitled to 18 judgment as a matter of law." Guam Rule Civil Procedure 56(c). The Court will draw inference 19
20 in favor of the non-moving party and view the evidence in a light most favorable to the non
21 moving party. Edwards Corp. v. Kawasho Int'l, Inc., 2000 Guam 27 , 7.
22 h. Analysis 23
24 The only material fact regarding this settlement dispute is whether plaintiffs paid th
25 defendant. Plaintiffs do not dispute the fact that the funds intended to be paid to Olie's wer
26 refunded to plaintiff. Instead, plaintiffs assert that despite the fact that they were refunded th 27 amount, they have nevertheless fulfilled their payment obligation as a matter of law. In suppo 28
-3- of this contention plaintiffs offer a credit card statement showing a charge of $32,599.05. I 2 addition, plaintiffs cite various laws contained in title 18, chapter 22 of the Guam Code: 3 § 8214. Effect of direction by creditor. If a creditor, or anyone of two or more 4 joint creditors, at any time directs the debtor to perform his obligation in a particular manner, the obligation is extinguished by performance in that manner, 5 even though the creditor does not receive the benefit of such performance. 6 § 8216. What is payment. Performance of an obligation for the delivery of 7 money only is called payment.
8 § 82216. Extinction of pecuniary obligation. An obligation for the payment of 9 Iponey is extinguished by a due offer of payment, if the amount is immediately deposited in the name of the creditor, with any bank licensed to do business in IO Guam and notice thereof is given to the creditor. II § 82217. Objection to mode. All objections to the mode of an offer of 12 performance, which the creditor has an opportunity to state at the time to the person making the offer, and which could have been obviated by him are waived I3 by the creditor, if not then stated. 14 § 82220. Affect on offer of accessories of obligation. An offer of payment or 15 other performance, duly made, though the title to the thing offered be not transferred to the creditor, stops the running of interest on the obligation, and has 16 the same effect upon all its incidents as a performance thereof. 17 Plaintiffs argue that they paid according to the terms of the Agreement, which resulted in 18 withdrawal of funds from their bank account and thus, under the above statutes, they hav 19 fulfilled their payment obligations. 20 Contrary to plaintiffs' arguments, the above statutes, combined with plaintiffs' affidavi 21 support a finding, as a matter of law, that plaintiffs did not effect proper payment. Collectively 22
23 the cited statutes state that a debtor who submits payment as directed by a creditor will
24 deemed to have fulfilled any payment obligation. In this case, plaintiffs were directed to pa
25 $32,599.05 to Olie's by credit card. Plaintiffs attempted payment, but due to intervening acts b 26 the Bank of Hawaii Olie's did not receive payment. The final destination of the funds was no 27 Olie's account, as the parties intended. The funds were instead credited back to plaintiffs' credi 28 card. (Decl. of Thomas M. Tarpley Jr., in Supp. of Opp. to De£'s Mot. to Enforce Settlement
-4- Exh. 7; Affidavit of Helkei S. Hemminger in Supp. of Mot. to Enforce Settlement Agreement 2 Exh.J.) Though defendant likely could have better anticipated and planned for the facilitation 0 3 the credit card transaction, there is no indication that defendant acted maliciously or in bad fait 4 regarding its decision to cancel the already suspended transaction. And this Court acknowledge 5 that plaintiffs are certainly not to blame for the failed payment. Nevertheless, based on th 6 undisputed fact that plaintiffs received a full refund of the attempted payment this Cou 7 concludes that the failed credit card transaction did not, as a matter of law, constitute payment i 8
9 full of plaintiffs' obligation.
10 Plaintiffs owe $32,599.05 under the Agreement. Because the Agreement was signed onl
II after the parties agreed that a credit card transaction would serve as the mode of payment, thes
12 payment terms form part of the settlement contract. Defendant must make every lawful attemp I3 to facilitate a credit card transaction unless the parties consent to an alternative mode of payment. 14 CONCLUSION 15 Based on the foregoing, defendant's Motion to Enforce Settlement Agreement 16 GRANTED. A Scheduling Conference is set for March 5, 2012 at 2:00 p.m. 17
18 It is SO ORDERED this 9th day of January, 2012. 19 JAN 0 9 2012 20
22 C. LAMORENA III ourt of Guam 23
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7 CUTS 8
11 that argues that it complied with Defendants payment requests and that it is legaU
12 released of all liability, despite Plaintiff's apparent acknowledgement that Plaintiff, no 13 Defendant, is currently in possession of the $32,599.05 of settlement funds. See Plaintiff's Exh 14 7 showing a refund. 15
16 The parties in this case dispute whether Plaintiffs fulfilled their payment obligation under 17 the terms of the Settlement Agreement. Plaintiff argues that its offer of credit card payment in 18 the amount agreed upon in the Settlement Agreement relieved Plaintiff of all obligations owed 19 under that agreement, despite the fact that Plaintiffs continue to possess the allegedly paid funds. 20
22 "The construction and enforcement of settlement agreements are governed by principles of local law which apply to interpretation of contracts generally." Jeff D. v. Andrus, 899 F.2d 23 753. 759 (9th Cir.1989). 24
26 The acknowledgement of payment in a written instrument is prima facie evidence of payment. 27 Schaffer v. Volbe, 117 Ga. App. 118, 159 S.E.2d 924 (1968). However, by definition prima facie 28 evidence may be rebutted by introduction of contradictory evidence. See Black's Law
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