Yokeno v. Cotton

Opinion

IN THE SUPERIOR COURT OF GUAM ','''1: l'"~i. 13 pM'i L, .a., ...

2: ('6

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3 EDDIE YOKENO, aka MATAO YOKENO,)

as Trustee and Secretary-Treasurer of Able )

4 Industries of the Pacific; and ABLE )

5 INDUSTRIES OF THE PACIFIC, ) DECISION AND ORDER ) ON DEFENDANTS' MOTION TO 6 Plaintiffs, ) RELEASE FUNDS HELD IN THE ) COURT REGISTRY ACCOUNT 7 vs. )

8 )

ELMORE COTTON, JOAQUIN LEON )

9 GUERRERO, JENNIFER DUFFIE, )

10 PATRICIA MAE COTTON, and ) FRANCISCO FLORIG, )

II )

Defendants. )

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14 This matter came before the HONORABLE VERNON P. PEREZ on January 13,2011

15 Defendant Joaquin Leon Guerrero was present Pro Se. Attorney Joseph C. Razzano represen

16 Plaintiff who was present. The Court took Defendant Cotton's oral motion under advisement

17 After having heard the Parties' arguments and considering the record, the Court now issues th

18 following Decision and Order.

19 BACKGROUND

20 The Court currently has Defendants' Motion to Dismiss, Defendants' Motion to Rele

21 Funds Held in the Court Registry Account (hereinafter "Motion to Release") and FHB' s Motio 22 to Intervene under advisement. This Decision and Order will only address the Defendants

23 Motion to Release. This is the second request for the release of Court funds and the first reques

24 was resolved by this Court's November 17, 2011 Decision and Order. Any remaining motio

25 shall be addressed by the Court subsequent to this Decision and Order.

26 DISCUSSION

27 Defendants have requested the release of Court held funds previously and the Court h

28 granted that request with the assurance that Defendants should not have to make additio requests in the future. Now, Defendant returns to this Court without attorney or under an

Yokeno v. Cotton, et a/., Decision and Order Civil Case No. CVl163-09 Page 1 of4

fonnal request through motion filing and again asks for this Court to release all remaining fund 2 held in the Court registry. Plaintiff has made strong arguments in his objection on the recor 3 against the Defendants' request and he cites violations of motion practice rules put forth in 4 Guam Ru1es of Civil Procedure such as lack of notice, no formal written request and no evidenc

5 presented to support the motion. 1 Yet, the Court has heard statements made by Defendan 6 Cotton under the penalty of perj~ that Able Industries will continue to function with th 7 release of these funds. The Court sees genuine hardship occurring to the non-profit business .

8 paying employees and that by the final release of all funds in the Court Registry Account, Abl 9 will sustain viability. 10 As to evidence concerns put forth by Plaintiff, the Court heard statements by Counsel fo 11 FHB that verified the claims by Defendant Leon Guerrero that FHB froze Ables' bank accoun 12 and that those accounts wou1d be released upon full payment to FHB. Defendant simply as 13 that this Court release the funds to FHB that is rightfully owed to FHB so that their accounts c 14 be unfrozen and normal business operations continue such as payment of employees. Defendan 15 also asks that the remaining Court funds be released to ASC Trust so that Able can avoid fall' 16 out of compliance with the Department of Defense and its related contracts. 17 understands Plaintiffs concerns and arguments as to the lack of notice and failure to make 18 formal motion, yet, the Court desires to avoid payless paydays for Able's employees. Th 19 money released by this Court in this Decision and Order will only go to FHB and ASC Trust fo 20 the sole purpose of allowing Able to save its federal contracts by staying in compliance and t 21 pay its employees.

22 As to notice, we have heard arguments on identical issue only a short time ago, and base 23 on the same rational in the previous decision, this Court will grant Defendant's request. Th 24 Court wou1d like to incorporate by reference the entire rational of the November 17, 2011

25 Decision and Order into this decision. The previous Motion to Release was originally for th 26

27 1 Plaintiffhas voiced his objection to this ruling and this Court finds that upon this filing, Plaintiff retains his right to 28 appeals as this order is deemed an appealable judgment under Rule 54 of the GRCP.

2 If any of the statements made by Defendant Cotton are revealed as an intentional deceit on this Court, the remedy is contempt.

Youno v. Cotton, et ai., Decision and Order Civil Case No. CYl163-09 Page 2 of4

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total release of all funds, yet, this Court considered Plaintiff's arguments and withheld abou 2 $534,000 to remain in the account due to concerns over mismanagement. Due to desire 0 3 leniency for Pro Se parties in many jurisdictions including Guam, this Court will treat the ne 4 Motion to Release as a continued motion for the total release of Court held funds which thi 5 Court previously denied in part. Although the concerns over mismanagement are still present 6 the Court believes that the need for these funds is sincere and that the effect of not releasing th 7 funds could be disastrous to both Able and to Plaintiff s interest in any successful outcome 0 8 this matter at trial. It is in the best interest of both Parties that Able continue to be sustainabl 9 and its employees remain paid. 10

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Yokeno v. Cotton, et aI., Decision and Order

•

CONCLUSION 2 Defendants' Motion to Release is GRANTED. The Court understands tha

3 approximately $534,000.00 is in the Court Registry Account. $299,000 will be released to Firs 4 Hawaiian Bank. The remaining funds in the Court Registry Account will be released to AS 5 Trust. After this, there should be a zero balance in the Court Registry Account relating t 6 CVl163-09. The Court additionally orders that the released funds be tracked with an accountin 7 that will be reported back to this Court after funds are dispersed such that payroll is met. 8 document tracking the payment of payroll with the funds will be prepared by the Defendants 9 they requested the release of the funds. The Court orders that the first check, in the amount 0 10 $299,000.00, be made before Friday January 13, 2012 5:00p.m. to First Hawaiian Bank. Th 11 Court additionally orders that, by Friday January 13,2012, the second check in the amount ofth 12 remaining funds held by this Court relating to CV1163-09 be made out to: 13 ASC Trust Corporation 120 Father Duenas Avenue 14 Suite 110 15 Agana, GU 96910

16 The "Memo Line" of the second check should also include "Able Industries Employee Saving 17 Plan # 001". A status hearing for this case will be held on January 25, 2012 at 3:00p.m .. 18

19 JAN 132012 So ORDERED this _ day of January, 2012.

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22 HONORABLE VERNON P. PEREZ JUDGE, SUPERIOR COURT OF GUAM 23

24 I do bereby (~ttlfy tlral tbe lorellOllli Is 2 full Itu~ and correct copy of Ih~ urigill<ll Gil file ill the office 01 the clerk of the SIIpt"riOt COlin of GIIIlIll 25

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Yokeno v. Cotton, et ai., Decision and Order Civil Case No. CV1163-09 Page 4 of4