Leong v Deng [2002] GUSC 2; 2002 Guam 02 (8 March 2002)

IN THE SUPREME COURT OF GUAM

FRANKLIN J.K. LEONG,

Plaintiff-Appellant

vs.

JUN HUA DENG AND UNITED CORPORATION, LTD.
Defendants-Appellees

OPINION

Supreme Court Case No.:CVA00-027
Superior Court Case No.:CV0837-99

Cite as: 2002 Guam 2

Filed: March 8, 2002

Appeal from the Superior Court of Guam
Argued and submitted on September 4, 2001
Hagåtña, Guam

Appearing for Plaintiff-Appellant: Peter F. Perez, Esq. Suite 216 Union Bank Bldg. Hagåtña, Guam 96910 194 Hernan Cortes Ave. Hagåtña, Guam 96910

Appearing for Defendants-Appellees: Jon A. Visosky, Esq. Dooley Lannen Roberts & Fowler LLP Suite 201, Orlean Pacific Plaza 865 South Marine Drive Tamuning, Guam 96911

BEFORE: PETER C. SIGUENZA, JR., Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; BENJAMIN J.F. CRUZ, Justice Pro Tempore.

CARBULLIDO, J.:

[1] This appeal originated from a breach of contract action brought by Plaintiff-Appellant Franklin J.K. Leong (hereinafter ALeong@) against Defendants-Appellees Pacific United Corp., Ltd. and its president, Jun Hua Deng (hereinafter collectively referred to as ADeng@). The trial court entered a judgment in favor of Deng and held that there was no enforceable agreement between Leong and Deng. Leong appeals the trial court=s holding and challenges the trial court=s finding of an agency relationship between him and Ernie Baldeviso (hereinafter ABaldeviso@), and the trial court=s admission of parol evidence regarding a condition precedent to the enforceability of the contract between Leong and Deng. We agree with the trial court=s finding of an agency relationship and the admission of the parol evidence. Accordingly, we affirm the trial court=s holding that there was no enforceable agreement between Leong and Deng.

I.

[2] Leong, a former resident of Guam and a resident of Hawaii, was the owner of real property described as Lot 2403, Mangilao, Guam (hereinafter AProperty@). Leong, an experienced real estate broker contacted a longtime friend on Guam, Jose Pegarido (hereinafter APegarido@), to help him market and sell the Property. To aid Pegarido in the promotion of the Property, Leong sent him the following materials: a vicinity map, a ARelocation Sketch,@ a proposed development study of the Property conducted years earlier by Duenas & Associates, an environmental impact statement also prepared by Duenas & Associates, and a ADeposit Receipt, Offer, and Acceptance@ form offering to sell the Property at $1.3 million.

[3] Pegarido then contacted Baldeviso, a distant relative and civil engineer familiar with potential buyers and developers, to market and sell the Property. Pegarido informed Leong that Baldeviso was trying to sell the Property and that Baldeviso now had the Property-related materials that Leong gave him. After Leong became aware of Baldeviso=s participation, he spoke to Baldeviso several times on the phone. Moreover, Baldeviso=s involvement with Leong extended beyond the Property and included two other Leong-owned properties that were also on the market.

[4] Baldeviso originally contemplated developing the Property with Pegarido. However, Baldeviso was unable to develop the Property with Pegarido, and instead approached and marketed the Property to Deng, with whom Baldeviso had previously shared a business relationship. Baldeviso created and provided Deng with a project analysis of the Property. The analysis assumed that the terrain on the Property was flat, and included an estimation of the costs of development based on that assumption.

[5] On July 18, 1998, Baldeviso presented a form entitled AFirm Counter Offer to Purchase Real Property@ (hereinafter ACounter Offer@) to Deng for his signature. In Baldeviso=s presence, Deng signed the Counter Offer and filled in the purchase price of $1,000,000.00, the down payment amount of $200,000.00, the balance amount of $800,000.00, and the closing and occupancy date of August 31, 1998. Notwithstanding an AAgreement to Buy@ clause[1] contained in the Counter Offer, Deng testified that he understood and that Baldeviso represented to him that the Counter Offer was only a letter of intent subject to his inspection and approval of the Property, since he had never seen the Property.

[6] Shortly thereafter, Baldeviso faxed the signed Counter Offer to Leong in Hawaii. Without discussing the terms of the Counter Offer with Deng, Leong signed the Counter Offer and faxed it back to Guam on July 20, 1998. When Deng finally inspected the Property on August 27, 1998, he discovered that contrary to Baldeviso=s project analysis, the terrain on the Property was not flat. To develop the Property according to Baldeviso=s analysis, significant grading and additional expenses would be necessary. On September 8, 1998, Deng sent a letter to Leong informing him that Pacific United was declining the purchase of the Property because of the unsuitability of the terrain.

[7] On April 26, 1999, Leong filed a First Amended Complaint alleging breach of contract and requesting specific performance for the purchase of the Property. Subsequently, Leong sold the Property to Yo Shin Corporation for $760,000.00 on January 11, 2000. On October 3, 2000, after a bench trial, the trial court issued its Findings of Fact and Conclusions of Law and a Judgment in favor of Deng. The trial court found that Baldeviso was acting as an agent on behalf of Leong and that the Aevidence of agency and the condition of viewing the property prior to the purchase are admissible to dispute the intent of the parties to enter into an enforceable agreement at the time of the execution of the agreement.@ Appellant=s Excerpts of Record, p. 16 (Findings of Fact and Conclusions of Law, Oct. 3, 2000). Leong filed a timely Notice of Appeal on October 26, 2000.

II.

[8] This court has jurisdiction over an appeal from a final judgment pursuant to Title 7 GCA '