Moving Services Inc v Sanko Bussan (Guam) Co. Ltd [1998] GUSC 18; 1998 Guam 19 (14 September 1998)

IN THE SUPREME COURT OF GUAM

J. J. MOVING SERVICES, INC., ) Supreme Court Case No. CVA96-013

) Superior Court Case No. CV2012-93

Plaintiff-Appellee, )

)

vs. ) OPINION

)

SANKO BUSSAN (GUAM) CO., LTD. )

)

Defendant-Appellant. )

__________________________________________)

Filed: September 14, 1998

Cite as: 1998 Guam 19

Appeal from the Superior Court of Guam
Argued and Submitted on August 19, 1997
Hagåtña, Guam

Appearing for the Plaintiff-Appellee:
David J. Highsmith, Esquire
Highsmith & O=Mallan, P.C.
134 Chalan Santo Papa, Suite 204
Hagåtña, Guam 96910

Appearing for Defendant-Appellant:
Sandra D. Lynch, Esquire
Carbullido, Bordallo & Brooks
Suite 101, C & A Building
251 Martyr Street
Hagåtña, Guam 96910

BEFORE: PETER C. SIGUENZA, Chief Justice, JANET HEALY WEEKS, and EDUARDO A. CALVO, Associate Justices.

SIGUENZA, C.J.:

[1] Sanko Bussan Co. Ltd. (ASanko@) appeals the trial court=s ruling denying its motion for a new trial. As part of the appeal, Sanko also challenges the unfavorable jury verdict awarding $90,547.00 to J. J. Moving Services, Inc. (AJJ Moving@). Based on the record and the applicable law, this court denies the relief sought and hereby affirms both the verdict and the subsequent order denying the motion for a new trial.

FACTUAL AND PROCEDURAL HISTORY

[2] JJ Moving initiated a suit against Sanko for breach of contract and an account stated. This suit was based on a written contract between the parties in which JJ Moving was to unload fish from incoming tuna boats. Afterwards, JJ Moving was to sort, grade, count, and box the incoming fish. Finally, JJ Moving would then transport the tuna from dockside to the airport. The tuna eventually was flown to various destinations in Japan. JJ Moving, in its complaint, asserted that Sanko wrongfully terminated this contract. Sanko responded to the complaint by asserting, as an affirmative defense, the agreement was a bailment contract. In particular, Sanko defended its termination of the contract by arguing JJ Moving had not been able to account for all the goods entrusted to it. Thus, Sanko maintained it properly and legitimately terminated the agreement as result of JJ Moving=s contractual breach.

[3] This case eventually went to trial and concluded on July 8, 1996 when the jury returned a verdict of approximately $90,547.00 in favor of JJ Moving. Sanko later moved for a new trial basing its motion on several grounds. First, Sanko charged that irregularities occurred at the jury view when John Mesa, the owner and president of JJ Moving, talked to the jury during a jury view. This conversation was allegedly not known to Sanko=s counsel until after the verdict was rendered. Sanko also asserted a new trial was warranted because improper hearsay was admitted into evidence and resulted in prejudice to its case. Finally, Sanko maintained both the facts and the law supported a bailment situation. When the jury did not make such a finding, the verdict was not in accordance with the law or evidence.

[4] The trial court rejected these arguments and denied the motion. During the time period after the verdict and before this appeal, Sanko posted a bond of $30,000.00 in order to stay the proceedings. The trial court heard argument and, consequently, released the posted bond as partial payment and stayed the balance of the judgment pending this appeal.

[5] Sanko filed a timely Notice of Appeal. After submission of Sanko=s brief, JJ Moving moved to dismiss the appeal for an insufficient record. The court declined ruling on the motion at that time and left resolution to this panel because the adequacy of the record was so intertwined with the legal issues at hand.

ANALYSIS

I.

[6] Several threshold issues concerning the record must be addressed before the merits of this appeal can be considered. The court must initially decide whether the language of the Notice of Appeal limits our review only to the denial of Sanko=s Motion for a New Trial and consequently, precludes consideration of the issues surrounding the trial itself. Similarly, we must also determine if Sanko has placed a record before this court that would allow adequate review of the issues. In particular, we refer to the evidentiary issues surrounding both the bailment contract and the admission of alleged hearsay. We must also examine the effect of Sanko=s failure to designate as part of the record the actual Motion for a New Trial and the accompanying authorities. Thus, whether the transcripts submitted into the record will allows us to properly review this matter is properly questioned by JJ Moving.

[7] Generally, an order denying a motion for a new trial is not an appealable order. Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 701 (2nd Cir. 1972). The appeal instead should be taken from a final judgment and the motion reviewed as part of such appeal. Id. However, when irregularities in the form of the notice of appeal are present, appellate courts have the discretion to disregard the errors and construe the notice in a manner allowing review. Rabin v. Cohen, 570 F.2d 864, 866 (9th Cir. 1978). A defect will not be fatal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the other party is not misled or prejudiced. Taylor v. U.S., 848 F.2d 715, 717-718 (6th Cir. 1988).

[8] We conclude Sanko=s notice of appeal, although inept, can be construed as an appeal from the final judgment. The intent to appeal from the final judgment can be inferred from the timely-filed notice. In addition, Sanko=s opening brief addresses issues raised at the hearing on the motion for a new trial and necessarily includes an examination of the trial itself. Finally, we find no showing that JJ Moving was either misled by the notice or suffered actual prejudice from it.

[9] As to the adequacy of the record, Rule 7 of the Rules of Appellate Procedure for the Supreme Court of Guam states, in relevant part, the following:

Within ten (10) days after filing the notice of appeal, the Appellant shall order in writing from the Clerk of the Superior Court a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record. . . .

If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion. If errors of law are raised by appellant, all relevant sections of the record shall be transcribed. . . .