Merchant v Nanyo Realty Inc [1998] GUSC 24; 1998 Guam 26 (2 December 1998)

IN THE SUPREME COURT OF GUAM

BOB MERCHANT, ) Supreme Court No. CVA98-005

) Superior Court No. CV1577-93

Plaintiff-Appellant, )

)

vs. ) OPINION

)

NANYO REALTY, INC. and AQUA )

WORLD MARINA, INC. )

)

Defendants-Appellees. )

____________________________________)

Filed: December 2, 1998

Cite as: 1998 Guam 26

Appeal from the Superior Court of Guam
Argued and Submitted on 9 October 1998
Hagåtña, Guam

Appearing for the Appellant: Appearing for the Appellees:

John R. White, Esq. Philip D. Isaac, Esq.

Attorney At Law Carlsmith Ball Wichman Case & Ichiki

Suite 302, Guam Memorial Park Building 134 West Soledad Avenue

230 West Soledad Avenue Bank of Hawaii Bldg., Suite 401

P.O. Box 2110 P.O. Box BF

Hagåtña, Guam 96910 Hagåtña, Guam 96932-5027

BEFORE: PETER C. SIGUENZA, Chief Justice; JANET HEALY WEEKS and JOAQUIN C. ARRIOLA, SR., Associate Justices.

WEEKS, J:

[1] Appellant Bob Merchant appeals from a judgment of dismissal upon Appellee=s motion for reconsideration after the presentation of Merchant=s case in chief. This case was originally filed before this court as CVA96-005, and was dismissed without prejudice in Merchant v. Nanyo Realty Inc. and Aqua World Marina, Inc., 1997 Guam 16, for lack of jurisdiction, due to the absence of a separate document indicating a final judgment. Thereafter, judgment was entered from the trial court and a timely Amended Notice of Appeal was filed. Upon review, we express concern and dismay over the procedural and technical irregularities that occurred at the trial court level, but find that they were not so substantial as to overcome Merchant=s failure to carry his burden in his case in chief. We thereby affirm the decision of the trial court.

I.

[2] Plaintiff-Appellant Bob Merchant (Merchant) owned a sailboat called the Islero which was moored in Apra Harbor, on property leased through Defendant-Appellee Aqua World Marina, Inc. Sometime in 1991, Merchant removed three masts from his sailboat and stored them in a Ahaul-out@ area outside the boundaries of the property that Merchant leased from Appellees. The masts were stored for approximately four to five months in an area where sword grass grew. Sometime before July 1991, the management notified all tenants to clean up the area in compliance with Environmental Protection Agency regulations. The notice requested the tenants to remove their debris and personal belongings from the land at and around mooring spaces. It gave the tenants two weeks from the date of the notice to comply; thereafter, the management would have the items removed and either stored or disposed of at the owner=s expense.

[3] On or about 12 July 1991, Merchant discovered that his masts were not where he had stored them. They were later found in the haul out area, broken up and lying in dirt and water. Merchant found out later that the management had removed the masts with a front-end loader. Merchant subsequently sued Defendants-Appellees Nanyo Realty, Inc. and Aqua World Marina, Inc. for actual damages of $50,000 (the purported value of the masts) and punitive damages. Trial commenced on 20 May 1996. At the close of Merchant=s case in chief, Appellees moved for judgment on the pleadings, and for failure to state a claim upon which relief could be granted. The trial court then allowed Appellees two hours to prepare a written memorandum, and the motion was heard on that same day, 21 May 1996. After oral argument, the trial court denied Appellees