BM Co v Avery [2002] GUSC 19; 2002 Guam 19 (23 October 2002)

IN THE SUPREME COURT OF GUAM

B.M. Co.,
A Guam Partnership
Plaintiff-Appellant/Cross-Appellee

vs.

JIMMY K. AVERY AND MARIA F. AVERY
Defendants-Appellees/Cross-Appellants

Supreme Court Case No.: CVA00-026
Superior Court Case No.: CV0422-95

SUPPLEMENTAL OPINION

Filed: October 23, 2002

Cite as: 2002 Guam 19

Appeal from the Superior Court of Guam
Argued and submitted on September 21, 2001
Hagåtña, Guam

Appearing for Plaintiff-Appellant/ Cross-Appellee: Ron Moroni, Esq. Law Office Thomas M. Tarpley, Jr. A Professional Corp. Suite 201, American Life Bldg. 137 Murray Blvd. Hagåtña, Guam 96910

Appearing for Defendants-Appellees/ Cross-Appellants: Maria T. Cenzon-Duenas, Esq. Mair, Mair, Spade, & Thompson A Professional Corp. Suite 807, GCIC Bldg. 414 W. Soledad Ave. Hagåtña, Guam 96910

BEFORE: F. PHILIP CARBULLIDO, Chief Justice (Acting)[1], JOHN A. MANGLONA, Designated Justice, and RICHARD H. BENSON, Justice Pro Tempore

CARBULLIDO, J.:

[1] On December 27, 2001, this court issued an Opinion in this case, cited as 2001 Guam 27. Thereafter, the court granted rehearing for the purpose of addressing one issue on appeal: whether the lower court erred in denying the Plaintiff-Appellant/Cross-Appellee B.M. Co.=s (hereinafter, ABM Co.@) post-trial motions as to the jury=s findings on BM Co.=s affirmative claims for damages in the underlying breach of contract action. We find that the lower court erred in denying BM Co.=s motion for a new trial and in rejecting BM Co.=s proposed jury instruction as it related to BM Co.=s affirmative claims for additional work. We therefore reverse the trial court=s decision with regard to those issues, and supplement the original Opinion with the instant Opinion accordingly.

I.

[2] This appeal arises out of a breach of contract action between BM Co. and the Defendants-Appellees/Cross-Appellants Jimmy and Maria Avery (hereinafter AAverys@). The facts of this case are set forth fully in our December 27, 2001 Opinion. See BM Co. v. Avery, 2001 Guam 27, && 2-6. The additional facts relevant to this Supplemental Opinion are as follows. In the lower court, BM Co. claimed that it was entitled to $42,027.00 for worked performed and amounts retained under the contract with the Averys. The jury denied these affirmative claims. BM Co. thereafter filed a motion to alter or amend judgment and for a new trial as to this amount, which the trial court denied. BM Co. appealed the judgment and the trial court=s post-judgment rulings.

[3] On appeal, BM Co. presented numerous issues, including a challenge to the trial court=s denial of BM Co.=s post-trial motions as to its affirmative claims for damages. On December 27, 2001, this court issued an Opinion, addressing all issues with the exception of BM Co.=