Bank of Hawaii v Chan [2003] GUSC 7; 2003 Guam 07 (4 April 2003)

IN THE SUPREME COURT OF GUAM

BANK OF HAWAII
Plaintiff-Appellee,

vs.

ALEXANDER CHAN and MICHELLE CHAN
and Doe Occupants 1-10
Defendants-Appellants.

OPINION

Supreme Court Case No.: CVA02-011
Superior Court Case No.: CV0433-01

Filed: April 4, 2003

Cite as: 2003 Guam 7

Argued and submitted on February 7, 2003
Appeal from the Superior Court of Guam
Hagåtña, Guam

For Defendants-Appellants: Wilson A. Quinley, Esq. Law Office of Wilson Quinley Ste. 500 I, GCIC Bldg 414 W. Soledad Ave. Hagåtña, Guam 96910

For Plaintiff-Appellee: David P. Ledger, Esq. Elyze J. McDonald, Esq. Carlsmith Ball LLP 134 W. Soledad Ave. Bank of Hawaii Bldg, Ste. 401 P.O. Box BF Hagåtña, Guam 96932-5207

BEFORE: F. PHILIP CARBULLIDO, Chief Justice, PETER C. SIGUENZA, JR., Justice Pro Tempore, RICHARD H. BENSON, Justice Pro Tempore

BENSON, J.:

[1] Defendants-Appellants Alexander and Michelle Chan (AChans@) appeal a Superior Court judgment that amended the complaint of Plaintiff-Appellee Bank of Hawaii (ABank@) from unlawful detainer to forcible detainer and found the Chans guilty of forcible detainer. Because the Bank did not submit any evidence that the Chans unlawfully kept possession of property through threatened or actual force, as required for a finding of forcible detainer, we reverse the trial court=s judgment. We further hold that the trial court erred in amending the complaint to forcible detainer because the Bank failed to produce evidence supporting forcible detainer.

I.

[2] This case resulted from the Chans= default on a mortgage held by the Bank. The Bank foreclosed on the property by private power of sale on February 6, 2001 and purchased the property at the foreclosure sale. On February 23, 2001, the Bank served the Chans with a five-day notice to vacate. The Chans did not respond to the demand letter and remained on the property. No one from the Bank had any direct contact with the Chans, and no further communication took place.

[3] On March 7, 2001, the Bank filed a complaint against the Chans for unlawful detainer. The Chans moved to dismiss the complaint on the basis that the unlawful detainer statute is inapplicable to a non-judicial foreclosure. The trial court denied the Chan=s motion after a hearing on May 5, 2001 and held a bench trial on May 16, 2001. On March 21, 2002, the trial court issued a Finding of Facts and Conclusions of Law in which the trial court sua sponte amended the Bank=s unlawful detainer action to forcible detainer and ruled that the Chans were guilty of forcible detainer. The court issued its Judgment in favor of the Bank on April 30, 2002. The Chans filed a timely notice of appeal on May 22, 2002.

II.

[4] This court has jurisdiction over this appeal from a final judgment. Title 7 GCA ' 3107 (1994).

III.

[5] The Bank originally brought its complaint in unlawful, rather than forcible, detainer. Guam=s unlawful detainer statute provides:

In either of the following cases, a person who holds over and continues in the possession of real property, after a three (3) day written notice to quit the same shall have been served upon him Y may be removed therefrom as prescribed in this Chapter.