Gutierrez v Guam Power Authority [2013] GUSC 1; 2013 Guam 01 (18 January 2013)

IN THE SUPREME COURT OF GUAM

CARL T.C. GUTIERREZ,
Plaintiff-Appellant,

v.

GUAM POWER AUTHORITY, GOVERNMENT OF GUAM,
Defendant-Appellee.

Supreme Court Case No. CVA11-010
Superior Court Case No. CV0544-05

OPINION

Filed: January 18, 2013

Cite as: 2013 Guam 1

Appeal from the Superior Court of Guam
Argued and submitted on December 2, 2011
Hagåtña, Guam

Appearing for Plaintiff-Appellant: F. Randall Cunliffe, Esq. Cunliffe & Cook, P.C. 210 Archbishop Flores St. Hagåtña, GU 96910

Appearing for Defendant-Appellee: D. Graham Botha, Esq. 1911 Route 16, Ste. 227 Harmon, GU 96913

BEFORE: ROBERT J. TORRES, Presiding Justice[1]; KATHERINE A. MARAMAN, Associate Justice; JOHN A. MANGLONA, Justice Pro Tempore.

TORRES, J.:

[1] Plaintiff-Appellant Carl T.C. Gutierrez appeals from a final judgment of the trial court which held that the placement of power poles and transmission lines by Defendant-Appellee Guam Power Authority on Gutierrez's property, Lot 1-2-2, did not amount to a government taking of his private property.  In so holding, the trial court found there was a valid license to construct and maintain power poles on the property before it was transferred to Gutierrez, that the transfer to Gutierrez was subject to the license, and that such license was irrevocable through the operation of estoppel. The court also held that the occupation was not substantial enough to interfere with Gutierrez's rights so as to constitute a taking, and even if there had been a taking, the court could not render an award of compensation because the governor, who was not a party in the case, was an indispensable party. Furthermore, the trial court held that even if there had been a taking, Gutierrez was not entitled to compensation because he failed to provide any evidence of fair rental value of the property for the period of the taking.

[2]