Deleon Guerrero v. Nabors

Deleon Guerrero v. Nabors, 4 N.M.I. 31 (1993) Regina Deleon Guerrero, Plaintiff/Appellee, v. William B. Nabors, Defendant/Appellant. Appeal No. 92-030 Civil Action No. 90-0560 August 17, 1993 Argued and Subm itted July 16, 1993 Counsel for appellant: V.K. Saw hney, Saipan (Hill & Saw hney). Counsel for appellee: F. Randall Cunliffe, Guam . BEFORE: VILLAGOM EZ, Justice, and CRUZ and M ACK, Special Judges. VILLAGOM EZ, Justice: FACTUAL AND PROCEDURAL BACKGROUND The plaintiff/appellee, Regina Deleon Guerrero, (“Regina”) is a person of Northern M arianas descent who m aintains a com m on-law marital relationship with Douglas H. Cushnie, a person not of Northern M arianas descent. The defendant/appellant, W illiam B. Nabors (“Nabors”), is an attorney who used to practice law in the CNM I but has discontinued his law practice. He is not a person of Northern M arianas descent. The defendant Gilbert Nabors (“Gilbert”) is Nabors’s adopted son who resides in Hawaii. He is a person of Northern M arianas descent. On January 29, 1987, Nabors, on behalf of and as attorney-in-fact for Gilbert, executed an “agreem ent of sale” agreeing to sell Gilbert’s land to Regina. The agreem ent was negotiated between Nabors and Cushnie. The agreem ent states that Gilbert was of the age of majority at that tim e. Following the execution of the agreem ent of sale, Gilbert signed a warranty deed transferring Lot 006 D 59, containing 697 square m eters, to Regina for $40,000. After executing the warranty deed, Regina paid the $40,000 to Nabors and Gilbert. On M ay 19, 1989, Gilbert executed a “Notice of Disaffirm ance and Non-approval of W arranty Deed” stating that at the tim e he executed the warranty deed he was under the age of majority. The notice of dis- affirmance also stated that the $40,000 had been returned to Regina, although it had not. Nabors offered to return the $40,000 to Cushnie, which Cushnie declined to accept. Nabors has received and kept for him self rent paym ents for the property for a period com m encing January 29, 1987, and ending December 31, 1993, in the sum of $56,600. On June 14, 1990, Regina filed suit against Nabors and Gilbert alleging breach of contract and fraud on the part of both Nabors and Gilbert. The com plaint sought specific perform ance of the contract, dam ages for breach of contract, general and punitive damages for fraud and other relief.1 At the same tim e, Regina demanded a jury trial, but did not pay the $300 fee. On December 24, 1990, Nabors executed and delivered a quitclaim deed to Rosa Shai Lazaro transferring the same land. He executed the deed on behalf of and as an attorney-in-fact for Gilbert. Then, on July 19, 1991, Nabors caused Gilbert to execute a warranty deed in favor of Rosa Shai Lazaro for the land. Later that year, on October 1, 1991, Gilbert executed a confirm ation deed reaffirm ing the warranty deed which he had executed on February 6, 1987, when he was a minor, in favor of Regina. In return, Regina paid him an additional $25,000. This transaction settled the case between Gilbert and Regina so that he is not a party to the appeal. On July 8, 1992, the trial court issued an order stating, in part: “All proposed jury instructions are to be filed and served by Septem ber 14, 1992.” On Septem ber 14, 1992, Regina filed “Plaintiff’s Proposed Jury Instructions” stating, in part: “At this time, Plaintiff is prepared to proceed at a bench trial and, therefore, we will not be subm itting any jury instructions.” Regina did not obtain Nabors’s consent to withdraw her dem and for a jury trial. Prior to trial, Nabors’s attorney, Robert L. Keogh, moved to withdraw as counsel. At the hearing on that m otion Keogh failed to appear, and the court denied the m otion. On the day of trial, Septem ber 28, 1992, Keogh renewed his motion to withdraw, which the court granted. Nabors then m oved for a continuance in order to retain new counsel. The court denied the m otion. He then objected to proceeding to trial without a jury since Regina had requested a jury trial. The court overruled the objection because Regina did not pay the required jury fee, hence failed to perfect her request for jury trial and was not entitled to one. After trial, the court found and concluded that: (1) the warranty deed Gilbert executed on February 5, 1987, when he was a minor, was voidable; (2) the notice of disaffirm ance and non-approval of the warranty deed executed on M ay 19, 1989, was invalid because the $40,000 was not tendered back to Regina; (3) Gilbert’s subsequent execution of the confirm ation deed and a new warranty deed on October 1, 1991, confirm ed title to the property in Regina; (4) Nabors’s action constituted fraud against Regina; (5) there was no violation of N.M .I. Const. art. XII; (6) the rent, received by Nabors, in the sum of $54,600, belonged to Regina; (7) the $25,000 paid by Regina to settle the case with Gilbert should be returned by Nabors to Regina, and, finally, Regina was entitled to punitive damages in the amount of $100,000. Nabors tim ely appealed. ISSUES AND STANDARD OF REVIEW The issues raised by Nabors are: 1. W hether the trial court erred in denying Nabors a jury trial. This issue raises a question of law which we review de novo. 2. W hether the trial court abused its discretion in denying Nabors’s m otion for continuance to retain new counsel. W e review this issue under the abuse-of-discretion standard. 3. W hether the trial court erred in holding that the $40,000 was not “tendered” back to Regina. This issue raises a question of law which we review de novo. 4. W hether the trial court erred in concluding that N.M .I. Const. art. XII was not violated. This raises a question of law which we review de novo. ANALYSIS Based on the facts of this case, Nabors was entitled to rely on Regina’s dem and for a jury trial, and the trial court erred when it overruled Nabors’s objection to proceeding to trial without a jury. Because we will 1 Initially during the court proceedings, Nabors acted for himself and his son Gilbert by answering the complaint and sending interrogatories for Gilbert, etc., but later Gilbert retained his own attorney and acted for himself, which led to a settlement of the case against him.  Deleon Guerrero v. Nabors, 4 N.M.I. 31 (1993) reverse on this issue alone, we will not discuss the three other issues.2 Nabors contends that under Com . R. Civ. P. 38(d), he was entitled to rely on Regina’s dem and for a jury trial, was not required to make an independent dem and of his own, and Regina could not withdraw her dem and without his consent. Regina counters that before her dem and for a jury trial could be effective, she had to pay the jury fee of $300, and unless her dem and was effective, Nabors could not rely upon her dem and. The crux of the dispute thus is narrowed down to whether Regina had to pay the $300 jury fee before Nabors could rely upon Regina’s jury dem and pursuant to Com . R. Civ. P. 38(d). This is an issue of first im pression in the Com m onwealth. Com . R. Civ. P. 38(a) preserves the right to trial by jury “as given by a statute of the NM I.” Seven CM C § 3101(a) gives the right to jury trial in specified cases, and the instant case falls within the categories of cases in which there is a right to trial by jury. Seven CM C § 3101(b) conditions that right on paym ent of a fee as set by the court.3 Thus, in order to effectuate a jury dem and pursuant to Com . R. Civ. P. 38, a litigant must satisfy both subsections of 7 CM C § 3101 by raising factual issues that fall within the designated statutory categories and by paying the required fee. Com . R. Civ. P. 38(d) states, in relevant part: “A dem and for trial by jury made as herein provided may not be withdrawn without the consent of the parties.” (Em phasis added.) Because Regina did not pay the jury dem and fee, the court could have stricken the dem and for a jury, but did not. Instead, it ordered the parties to file and serve jury instructions by Septem ber 14, 1992, over two years and three months after Regina dem anded a jury trial but failed to pay the fee. The court in essence designated the action upon the docket as a jury action and im plied that jury trial had been dem anded as provided in Com . R. Civ. P. 38. See Com . R. Civ. P. 39(a). By such order, the court itself relied upon the defective jury dem and, and would have probably sum m oned a jury had Regina not inform ed the court on Septem ber 14, 1992, fourteen days before the trial date, that “[p]laintiff is prepared to proceed at a bench trial and, therefore, we will not be subm itting any jury instructions.” Because the court itself relied upon the dem and, without the fee having been paid, it would be inequitable to disallow Nabors from making the same reliance.4 Regina should have obtained Nabors’s consent when withdrawing her dem and for a jury trial. CONCLUSION For the above reasons, we REVERSE the judgm ent and REMAND this case for Nabors to be given a jury trial.5 2 At oral argument, Nabors did not pursue his appeal regarding the third and fourth issues. W e have considered the second issue and are of the opinion that the trial court did not abuse its discretion because Nabors did not exercise due diligence in preparing for trial and retaining new counsel. See Guerrero v. Guerrero, 2 N.M.I. 61 (1991). 3 The judicial fee schedule establishes the amount of the jury deposit at $300 and requires payment upon making the demand for jury. If the clerk has accepted the demand without payment of the deposit, the clerk reminds the person demanding the jury trial to either pay the fee or face having the demand stricken by the court. 4 Had the court notified the parties that the jury fee had not been paid, either plaintiff could have paid it, or, when either plaintiff no longer wished a jury trial, the defendant could have paid it if she wished to proceed with a jury trial. 5 Nabors shall be required to pay the jury fee as if he had demanded the jury trial.