Wasson v Berg [2007] GUSC 16; 2007 Guam 16 (3 December 2007)

IN THE SUPREME COURT OF GUAM

EUGENE C. WASSON, III
and WASSON III, INC., f.k.a.
GUAM RADIOLOGY CONSULTANTS, INC.,
Plaintiffs-Appellees,

v.

NATHANIEL BERG, MD,
Defendant-Appellant.

OPINION

Filed: December 3, 2007
Cite as: 2007 Guam 16

Supreme Court Case No.: CVA06-012
Superior Court Case No.: CV0246-05

Appeal from the Superior Court of Guam
Argued and submitted on June 1, 2007
Hagåtña, Guam

Appearing for Defendant-Appellant: William L. Gavras, Esq. Law Offices of William L. Gavras, P.C. A Professional Corp. 2nd floor, J7R Bldg., 208 Route 4 Hagåtña, Guam 96910

Appearing for Plaintiffs-Appellees: Elyze J. McDonald, Esq. Carlsmith Ball LLP Bank of Hawaii Bldg., Suite 104 134 West Soledad Ave., P.O. Box BF Hagåtña, Guam 96932-5027

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; RICHARD H. BENSON, Justice Pro Tempore; ROBERT G.P. CRUZ, Justice Pro Tempore.

CARBULLIDO, C.J.:
[1] This appeal concerns an Asset Purchase Agreement (“Agreement”) entered into between Plaintiffs-Appellees Eugene C. Wasson, III, and Wasson III, Inc. (collectively “Wasson”) and Defendant-Appellant Nathaniel Berg, MD (“Berg”) for the purchase of a diagnostic imaging service. A dispute arose between the parties regarding a price reduction clause contained in the Agreement. Wasson sued Berg in the Superior Court of Guam for breach of contract and breach of promissory note. Wasson thereafter filed a motion for summary judgment, which was eventually granted by the lower court. Berg appeals from this grant of summary judgment, arguing that the lower court erred in its interpretation of the terms and conditions of the price reduction clause. For the reasons stated herein, we reverse.

I.

[2] The parties entered into an Agreement wherein Berg, the buyer, agreed to purchase from Wasson, the seller, certain assets of Wasson pertaining to the operation of a diagnostic imaging service, including the name “Guam Radiology Consultants” as well as an outpatient CAT scan machine (also interchangeably referred to as a CT scan machine). Excerpts of Record (“ER”), pp. 8-31 (Agreement); ER, p. 175 (Aff. of Nathaniel Berg). The total purchase price under the Agreement was $1,448,661.85, which was to be paid over time. Payment was secured by a promissory note executed by Berg. The due date on the note was on or before November 30, 2004. ER, p. 12 (Agreement).

[3]