Cushnie v. Bank of Guam

Cushnie v. Bank of Guam, 4 N.M.I. 198 (1994) Douglas F. Cushnie, Plaintiff/Appellant, v. Bank of Guam, Defendant/Appellee. Appeal No. 94-003 Civil Action No. 93-0244 November 30, 1994 Subm itted on Briefs Septem ber 30, 1994 1 Counsel for appellant: Douglas F. Cushnie, Saipan. Counsel for appellee: Richard W . Pierce, Saipan (W hite, Pierce, M ailman & Nutting). BEFORE: DELA CRUZ, Chief Justice, and VILLAGOM EZ and ATALIG, Justices. ATALIG, Justice: The plaintiff/appellant Douglas F. Cushnie (“Cushnie”) appeals from an order granting defendant/appellee Bank of Guam’s (“bank”), cross-m otion for sum m ary judgm ent. Because Cushnie does not appeal the basis of the sum m ary judgm ent motion but, rather, raises an issue on appeal not addressed below with respect to that motion, we affirm the grant of sum m ary judgment. ISSUE PRESENTED AND STANDARD OF REVIEW The issue raised by Cushnie on appeal is whether the bank, in obtaining money due on a note secured by a m ortgage, exercised a non-judicial rem edy in a legitim ate manner.1 W e review a grant of a motion for sum m ary judgm ent de novo. Rios v. Marianas Pub. Land Corp., 3 N.M .I. 512, 518 (1993). W e exam ine whether there are genuine issues of material fact and, if not, whether the trial court correctly applied the substantive law. Id. FACTUAL AND PROCEDURAL BACKGROUND 1 The panel unanimously agrees that this case is appropriate for submission without oral argument. See Com. R. App. P. 34(a). 1 In contrast, the issue upon which the trial court granted summary judgment was whether the bank’s claim on a 1986 promissory note was barred due to the failure to raise the claim in previous federal court litigation. On appeal, Cushnie abandons the issue he initially raised in his appellate brief as to whether collection by the bank was barred, unenforceable and/or uncollectible. See and compare Appellant’s Brief at 1 with Appellant’s Reply Brief at 1 n.1.  On February 10, 1993, Cushnie filed a complaint against the bank alleging that it mistakenly received funds upon the sale of m ortgaged property, funds purportedly belonging to Cushnie. Alternatively, Cushnie alleged that prior litigation between the bank and Cushnie in the U.S. District Court for the Northern M ariana Islands rendered any claim of the bank as to the secured note barred, unenforceable and uncollectible. See Com plaint, Cushnie v. Bank of Guam, Civ. No. 93-0244 (N.M .I. Super. Ct. filed Feb. 10, 1993). In a motion for partial summ ary judgment, Cushnie contended that a promissory note for $25,000 was unenforceable because of the prior litigation and, alternatively, that the bank converted funds belonging to him.2 On Novem ber 17, 1993, the trial court granted from the bench the bank’s cross motion for sum m ary judgm ent. See Transcript of Proceedings at 17-18. On Decem ber 10, 1994, the bank moved for sanctions against Cushnie under Com . R. Civ. P. 11. The court’s bench ruling on the cross motions for sum m ary judgm ent was reduced to a written decision on Decem ber 13, 1994. The bank’s m otion for Com . R. Civ. P. 11 sanctions was heard on January 11, 1994. At the hearing Cushnie argued that the issue before the court was not “whether there was a claim in existence . . . [but] whether the method of collecting [the] money was proper in the instant situation.” Transcript of Proceedings at 10-11 (emphasis added). Cushnie appealed from the court’s summ ary judgment ruling on January 11, 1994. The trial court subsequently denied the bank’s m otion for sanctions on M ay 31, 1994. ANALYSIS Cushnie contends that the bank wrongfully executed a non-judicial rem edy to obtain funds purportedly due him from the sale of property mortgaged to the bank to secure the $25,000 prom issory note he gave to the bank. This issue is being raised for the first time on appeal; as such, we decline to entertain it. In his com plaint, Cushnie alleged that the bank im properly received the funds because of either a mistake or the bank’s failure to raise a com pulsory counterclaim as to the prom issory note in previous federal court litigation between Cushnie and the bank, rendering any claim of the bank barred, unenforceable and uncollectible. In his motion for sum m ary judgm ent, Cushnie sim ilarly argued that the bank’s claim s were unenforceable. Instead of arguing mistake, however, he argued conversion on the part of the bank. 3 The summ ary judgm ent issue determ ined by the trial court was whether previous federal court litigation in which compulsory counterclaim s were im plicated barred the exercise of non-judicial enforcement. It held that it did not. See Decision on M otion for Sum m ary Judgm ent (Dec. 19, 1993). Cushnie does not take issue with this ruling. Rather, on appeal he argues that the non-judicial rem edy exercised by the bank was som ehow wrongful. See supra note 1 and accom panying text. This issue was never before the trial court with respect to Cushnie’s claim s against the bank. 4 W here an issue is raised for the first tim e on appeal we m ay consider it only if: “(1) it is one of law not relying on any factual record; (2) a new theory or issue has arisen because of a change in law while the appeal is pending; or (3) plain error occurred and an injustice m ight otherwise result.” Hwang Jae Corp. v. Marianas Trading and Dev. Corp., 4 N.M .I. 142, 145 (1994) (citing Santos v. Matsunaga, 3 N.M .I. 221, 231 (1992)). W e are not convinced that any of these exceptions apply to this m atter. First, the m anner in which the bank exercised its non-judicial rem edy depends upon the factual record and is not purely a question of law. Second, Cushnie alleges no new theory or issue arising from a change in the law during the pendency of this appeal. Finally, we are not persuaded that the trial court com m itted plain error in granting sum m ary judgm ent in favor of the bank. 2 See Plaintiff’s Motion for Partial Summary Judgment, Cushnie v. Bank of Guam, Civ. No. 93-0244 (N.M.I. Super. Ct. filed Oct. 15, 1993). 3 In his complaint, Cushnie did not raise the issue of whether the bank’s non-judicial remedy constituted conversion, nor did he amend the complaint to include that issue, pursuant to Com. R. Civ. P. 15. 4 It was only in his response to the bank’s motion for Com. R. Civ. P. 11 sanctions that Cushnie raised the issue of the wrongfulness of the non-judicial remedy exercised by the bank. At the motion hearing on January 11, 1994, the bank noted that Cushnie raised that issue for the first time. See Transcript of Proceedings at 14-15.  Cushnie v. Bank of Guam, 4 N.M.I. 198 (1994) CONCLUSION Based on the foregoing, we hereby AFFIRM the trial court’s grant of sum m ary judgm ent in favor of the defendant/appellee, the Bank of Guam .