Bank of Guam v Priore [2007] GUSC 7; 2007 Guam 07 (28 August 2007)

IN THE SUPREME COURT OF GUAM

BANK OF GUAM,
Plaintiff-Appellee,

vs.

DANIEL R. DEL PRIORE,
Defendant-Appellant.

Supreme Court Case No.: CVA05-007
Superior Court Case No.: CV1022-98

OPINION

Filed: August 28, 2007

Cite as: 2007 Guam 7

Appeal from the Superior Court of Guam
Argued and submitted on July 24, 2006
Hagåtña, Guam

Appearing for the Defendant-Appellant: Daniel R. Del Priore, Pro Se Ste. A12-115, GCIC Bldg. 414 W Soledad Ave. Hagåtña, GU 96910	Appearing for the Plaintiff-Appellee: Daniel J. Berman, Esq. Berman O’Connor Mann & Shklov Ste. 503, Bank of Guam Bldg. 111 Chalan Santo Papa Hagåtña, GU 96910

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; FRANCES M. TYDINGCO-GATEWOOD[1], Associate Justice; and ROBERT J. TORRES, JR., Associate Justice.

TORRES, J.:

[1] Plaintiff-Appellee Bank of Guam (“BOG”) filed a Complaint to Foreclose Security Interest and for Damages against Defendant-Appellant Daniel R. Del Priore alleging that Del Priore had breached a mortgage agreement for the purchase of a vessel called the “Sunflower.” After a trial on the merits, the Superior Court awarded BOG a deficiency judgment. Del Priore appealed that decision, and in Bank of Guam v. Del Priore, 2001 Guam 10, we held that BOG’s failure to plead and prove the notice requirement of 13 GCA § 9504(3) barred recovery of a deficiency. The matter was remanded for proceedings consistent with our holding.

[2] Subsequently, BOG, with leave of the Superior Court, filed an Amended Complaint for Damages. BOG and Del Priore then each filed motions for summary judgment. The Superior Court denied Del Priore’s motion for summary judgment, but granted BOG’s motion with respect to its claim for damages. The court then entered judgment in favor of BOG for a deficiency, attorney’s fees, and interest. Del Priore appeals the judgment, asserting the Superior Court was without jurisdiction over the matter; misinterpreted this court’s remand following the previous appeal; misapplied the facts to the law to grant BOG’s motion for summary judgment; and improperly relied upon its previous findings of fact to enter summary judgment against Del Priore. We find the Superior Court had jurisdiction over BOG’s claim for damages; however, the grant of BOG’s motion for summary judgment was improper because BOG failed to fulfill the notice requirements in the Preferred Ship Mortgage agreed to by the parties. Accordingly, we reverse and vacate the judgment entered by the trial court, including the award of attorney’s fees and interest.

I.

[3] Daniel R. Del Priore and Maritza R. Yarbrough, fka Maritza R. Del Priore, purchased the “Sunflower” and to secure the payment of a promissory note, they granted a Preferred Ship Mortgage over the vessel to the Bank of the Orient, which later assigned the note and mortgage to BOG. Years later, Del Priore and Yarbrough failed to renew the insurance policy on the vessel that was required under the provisions of the promissory note and failed to make the installment payments that were due.

[4] BOG filed a Complaint to Foreclose Security Interest and for Damages in the Superior Court. The complaint contained two counts, alleging that Del Priore was liable for breach of contract and that BOG was entitled to immediate possession of the Sunflower. Del Priore and Yarbrough filed an answer and counterclaim asking that the complaint be dismissed and that they be awarded their costs and attorney’s fees.

[5] While the foreclosure action was pending in the Superior Court, BOG repossessed the Sunflower and sold it at a public foreclosure sale for $75,000.00,[2] which was not sufficient to satisfy the outstanding debts. BOG therefore sought a deficiency judgment of $61,170.54, including insurance costs, security services, moving costs and appraisal costs.

[6] After a trial on the merits, the Superior Court issued judgment in favor of BOG for the amount of the deficiency and Del Priore appealed the decision to this court. In Bank of Guam v. Del Priore, 2001 Guam 10, we vacated the judgment and remanded, holding that BOG’s failure to plead and prove the notice requirement of 13 GCA 9504(3) barred recovery of a deficiency.

[7] On remand, the Superior Court allowed BOG to amend its complaint over the objection of Del Priore. Shortly thereafter, BOG and Del Priore each filed motions for summary judgment. The Superior Court granted BOG’s motion for summary judgment and denied Del Priore’s motion. A final judgment was entered and Del Priore filed a timely appeal.

II.

[8] This court has jurisdiction over this appeal from a final judgment pursuant to 7 GCA §§ 3107(a) and 3108(a) (2005).

III.

[9] Issues of subject matter jurisdiction are reviewed de novo. See Taitano v. Lujan, 2005 Guam 26 ¶ 15; see also People v. Aguirre, 2004 Guam 21 ¶ 26; People v. Quichocho, 1997 Guam 13 ¶ 3. A trial court’s interpretation of a mandate from an appellate court decision involves a question of law and therefore is reviewed de novo. See Town House Dep’t Stores, Inc. v. Ahn, 2003 Guam 6 ¶¶ 16-17; Clemons v. Mech. Devices Co., 781 N.E.2d 1072, 1078 (Ill. 2002). “‘A trial court’s decision granting a motion for summary judgment is reviewed de novo.’” http://web2.westlaw.com/find/default.wl?DB=4602&SerialNum=2005863490&FindType=Y&AP=&fn=_top&rs=WLW6.06&mt=Westlaw&vr=2.0&sv=Split Arashi & Co., Inc. v. Nakashima Ent., Inc., 2005 Guam 21 ¶ 10 (quoting Bank of Guam v. Flores, 2004 Guam 25 ¶ 7).

IV.

[10]