Apana v Rosario [2000] GUSC 4; 2000 Guam 07 (18 January 2000)

IN THE SUPREME COURT OF GUAM

JAMES K. APANA, JR., dba APANA CONSTRUCTION,
Plaintiff-Appellant

vs.

DANIEL B. ROSARIO, dba DAN ROSARIO & ASSOCIATES,
CONTINENTAL INSURANCE COMPANY, JOHN Y. SALAS
AND ANTONIA SALAS
Defendants-Appellees

OPINION

Supreme Court Case No. CVA97-046
Superior Court Case No. CV1827-92

Filed: January 18, 2000

Cite as: 2000 Guam 7

Appeal from the Superior Court of Guam
Submitted on the briefs August 15, 1999
Hagåtña, Guam

Appearing for Plaintiff-Appellant: Appearing for Defendants-Appellees:

Thomas M. Tarpley, Jr., Esq. Raymond T. Johnson, II, Esq.

Law Offices of Thomas M. Tarpley, Jr. Law Offices of Raymond T. Johnson, II

Suite 201, American Life Building 388 South Marine Dr., Suite 202

137 Murray Blvd. Tamuning, Guam 96911

Hagåtña, Guam 96910

BEFORE: RICHARD H. BENSON, Chief Justice (Acting)[1], JOAQUIN C. ARRIOLA, SR., and ANDREW M. GAYLE, Justices Pro Tempore.

PER CURIAM:

[1] Plaintiff-Appellant Apana appeals the trial court's decision which ruled that Plaintiff-Appellant filed an untimely mechanic's lien and precluded Plaintiff-Appellant's claim upon a payment bond. We reverse in part and affirm in part the trial court's decision and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

[2] In October 1991, Guam Housing Corporation approved the application for a mortgage home loan for John and Antonia Salas (collectively hereinafter as ASalas@). On March 4, 1992, Salas executed a contract with Defendant, Daniel B. Rosario dba Dan Rosario & Associates (ARosario@), to construct a residential home on the Salas property. The contract price for the construction of the home was $75,000, with periodic draws of $15,000. The periodic draws were to be paid in accordance with a schedule of completion for the various stages of the construction.

[3] On March 7, 1992, Rosario subcontracted with Plaintiff-Appellant James K. Apana, Jr. (AApana@) to do the actual construction for $60,000. Rosario signed the contract as the Aowner@ and Apana as the Acontractor.@ On March 17, 1992, Guam Housing paid $13,500 to Rosario, retaining $1,500 of the first draw. On March 18, 1992, Rosario paid Apana $10,000 of the total $12,000 owed to him. The next payment from Rosario to Apana was due on April 9, 1992, after inspection of the last increment of work performed. Rosario failed to make payment to Apana.

[4] Four (4) days after the scheduled inspection, on April 13, 1992, Apana stopped construction of the home because it learned that Guam Housing would not release further draws until Rosario was bonded. At that time, Rosario owed Apana $15,000 C $2,000 from the first draw, $12,000 for completion of the second draw, and $1,000 from the third draw.

[5]