Sin Ho Nam v. Quichocho (841 F. Supp. 2d 1152, 2011)

MEMORANDUM OPINION AND ORDER REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I.INTRODUCTION.........................................................1155

A. Factual Background........... 1155

1. The parties and the genesis of the Lease............................1155

2. Pertinent terms of the Lease.......................................1156

3. Nam’s attorney-client relationship with Quichocho ..................1159

4. Events leading to termination of the Lease..........................1159

B. Procedural Background...............................................1163

1. Nam’s Complaint.................................................1163

2. The defendants’ Answer And Counterclaim..........................1164

3. The cross-motions for summary judgment...........................1165

II.THE DEFENDANTS’ MOTION TO STRIKE DECLARATION................1165

III.THE CROSS-MOTIONS FOR SUMMARY JUDGMENT......................1166

A. Standards For Summary Judgment....................................1166

B. The Plaintiff’s Claims................................................1167

1. Breach of contract................................................1167

a. Arguments of the parties.......................................1167

i. Nam’s arguments........................................1167

ii. The defendants’ arguments ...............................1168

b. Analysis......................................................1169

i. Principles of contract law ................................1169

ii. Who breached? ..........................................1170

2. Restitution.......................................................1174

a. Arguments of the parties.......................................1174

b. Analysis......................................................1175

3. Nam’s breach-of-fíduciary-duty claim............. 1175

a. Arguments of the parties.......................................1175

i. Nam’s arguments........................................1175

ii. The defendants’arguments ...............................1176

b. Analysis......................................................1176

4. Summary........................................................1178

C. The Defendants’ Counterclaims........................................1178

1. Slander of title ...................................................1178

a. Arguments of the parties.......................................1178

b. Analysis......................................................1179

2. Breach of contract................................................1179

3. Breach of contractual duty to indemnify............................1180

a. Arguments of the parties.......................................1180

b. Analysis......................................................1180

4. Waste............................................................1180

a. Arguments of the parties.......................................1180

b. Analysis......................................................1180

5. Quiet title........................................................1181

a. Arguments of the parties.......................................1181

b. Analysis......................................................1181

6. Summary ........................................................1181

TV. CONCLUSION...........................................................1181

While contract law does not contain a “smell test,” the facts of this exotic island real estate contract dispute between a Saipan lawyer lessor (and another co-owner) and a Korean businessman lessee reek with the pungency of “a five-week-old, unrefrigerated dead [red-gilled emperor] fish.” Because the lessors attempted to terminate the lessee’s 55-year lease, on which the lessee had made full payment up front, after only two years, the lessee as-serfs a claim of breach of fiduciary duty against the attorney-lessor, with whom the lessee believed that he had an attorney-client relationship, and claims of breach of contract and restitution against both lessors. The lessors have denied the lessee’s claims and have asserted counterclaims for slander of title, breach of contract, express contractual indemnity, waste, and quiet title. This case is now before me on cross-motions for summary judgment and the lessors’ motion to strike one of the declarations offered'by the lessee in support of his motion for summary judgment. I find that the odor here is so profound that no reasonable jury could be in doubt about the outcome on many of the claims and counterclaims asserted, so that summary judgment is warranted on those claims.

I. INTRODUCTION

A. Factual Background

I will not attempt here an exhaustive dissertation on the undisputed and disputed facts in this case. Rather, I will set forth sufficient of the facts, both undisputed and disputed, to put in context the parties’ arguments concerning their cross-motions for summary judgment. Unless expressly indicated otherwise, the parties agree that the facts stated are undisputed.

1. The parties and the genesis of the Lease

Plaintiff Sin Ho Nam is a Korean national who avers that he first came to Saipan as a tourist in November 4, 2007, but, because he enjoyed Saipan and wished to spend more time there, he decided to try to lease real property on the island. De~ fendant Ramon K. Quichocho is an attorney in Saipan, licensed to practice law in the CNMI, and the part owner, with defendant Joaquin Q. Atalig, of the real property at issue in this litigation, near Ladder Beach in Saipan (the Premises), as well as some adjacent property. In November of 2007, Nam viewed the Premises and decided to try to lease it.

Nam asserts that he first met Quichocho on December 6, 2007, when Nam and his translator, Mr. Ha, came to Quichocho’s law office to execute the lease for the Premises. However, the defendants assert that Mr. Ha had made inquiries about the Premises prior to that. Indeed, they assert that on November 29, 2007, Mr. Ha made an earnest money deposit of $5,000.00, to hold the lease on the Premises and to pay the fee for a preliminary title report. The defendants also contend that Atalig and Mr. Ha negotiated the Ground Lease for the premises. The parties agree that Quichocho prepared the Ground Lease, in English, for Nam’s signature. Quichocho did not know if Nam was represented by an attorney in the transaction, does not recall asking if he was, and certainly did not speak to any attorney representing Nam prior to execution of the Ground Lease. The parties agree that Quichocho explained the terms of the Ground Lease to Nam, through the translator, Mr. Ha, then Nam and Mr. Ha took the draft Ground Lease and left Quiehocho’s office. Nam and Mr. Ha returned the same afternoon to execute the Ground Lease. Atalig also executed the Ground Lease in Saipan on December 7, 2007.

2. Pertinent terms of the Lease

Among other terms, the Ground Lease states that it is “for a term of fifty-five (55) years, commencing on the 6th day of December, 2007, and ending on the 5th day of December, 2062, unless sooner terminated as provided herein,” Complaint, Exhibit A (Ground Lease), ¶ 3 (underlining in the original), in exchange for a payment of $218,079.00, due upon execution of the Lease. Id. at ¶ 4. Nam also agreed to pay all real estate taxes, if any, levied on the Premises during the term of the Lease, id. at 8(a), and any utilities charges. Id. at 9. The Ground Lease permitted Nam to “use, improve, and develop the Premises or any part thereof for any lawful use or purpose, provided that Lessee shall not commit waste.” Id. at ¶ 2. The Lessors warranted quiet enjoyment of the property, as follows:

6. Lessor’s Warranty of Quiet Enjoyment. Lessor covenants and agrees that Lessor shall, upon the commencement date of the term of this Lease as hereinafter set forth, place Lessee in quiet possession of the Premises and that Lessee, upon paying the rent and other charges herein provided for and observing and keeping all the covenants, conditions, and terms of this Lease on Lessee’s part to be kept or performed, shall lawfully and quietly hold, occupy and enjoy the Premises during the term of this Lease without hindrance or molestation by Lessor or any other person claiming by, through or under Lessor.

Ground Lease at ¶ 6.

The parties’ claims revolve in large part around two “insurance” provisions of the Ground Lease, one pertaining to “liability insurance” and the other to “fire and casualty insurance.” Those provisions are the following:

10. Liability Insurance. Lessee shall save and keep harmless Lessor from any loss, cost, damage, or expense arising out of any accident or other occurrence, causing injury to any person or property, and due directly or indirectly to the use or occupancy of the demised premises by Lessee. In connection therewith, Lessee further shall and will, at its own expense[,] provide and keep in force for the benefit of the Lessor comprehensive general liability insurance in which the Lessor shall be named as an additional insured with minimum limits of liability in respect to bodily injury of $100,000.00 for each person and $300,000.00 for each occurrence and in respect of property damage of $300,000.00 for each occurrence. The policy shall contain a clause requiring that the Lessor be given thirty (30) days notice prior to any cancellation or termination of the policy. A copy of such policy or policies or an acceptable certificate shall be deposited with the Lessor within thirty (30) days of the same being obtained by the Lessee. The Lessee shall pay all premiums and other charges payable in connection with insurance carried by the Lessee.

11. Fire and Casualty Insurance. Lessee, at Lessee’s sole expense, shall keep all improvements created on the Premises insured against loss or damage by fire or other casualty. Any insurance proceeds payable with respect to any loss to any improvements on the Premises shall be apportioned, between Lessee and Lessor based upon the number of years remaining in the term of this Lease. If, for example, only one fourth of the term of the Lease period remains at the time the improvements are destroyed, Lessee shall only be entitled to one fourth of the insurance proceeds. Provided, that if both parties agree, the entire proceeds may be used to reconstruct the improvements destroyed. The policy shall contain a clause requiring that the Lessor be given thirty (30) days notice prior to any cancellation or termination of the policy. A copy of such policy or policies or an acceptable certificate shall be deposited with the Lessor within thirty (30) days of the same being obtained by the Lessee. The Lessee shall pay all premiums and other charges payable in connection with insurance carried by the Lessee.

Ground Lease at ¶¶ 10-11. The defendants contend that ¶¶ 10 and 11 of the Ground Lease required both comprehensive general liability insurance and fire and casualty insurance coverage, respectively, for the entire term of the lease and that these provisions were material considerations in Atalig and Quichoeho’s agreeing to enter into a lease with Nam and in agreeing to the amount of the lease price. They assert that they would not have entered into the Ground Lease without such provisions for insurance coverage. The defendants also contend that, because these terms are material, violation of them constitutes material breach of the contract under ¶ 21(e), quoted below.

The Ground Lease also includes a provision concerning “indemnity,” as follows:

12. Indemnify, Defend, and Hold Harmless. As a part of the consideration hereof, the Lessee hereby releases and forever discharges and agrees to indemnify and hold harmless the Lessor, Lessor’s successors, employees and assigns, from any and all injury or loss and all liability for injury or loss to persons or property which occur on the Premises or which arise out of or in connection with any activities under this Lease during the term of this Lease, any extension thereto, or during any holdover by Lessee.

As part of the consideration hereof, the Lessee also agrees to defend the Lessor, Lessor’s employees, successors, and assigns, from and against any claim, demand or lawsuit with respect to the subject of the indemnity contained herein, whether or not such claims, demands or actions are rightfully or wrongfully brought or filed and against all costs incurred by the Lessor, or Lessor’s employees, successors, and assigns therein. In case a claim should be brought or an action filed with respect to the subject of indemnity herein, Lessee agrees the Lessor, Lessor’s successors, employees and assigns may employ attorneys of their own selection to appear and defend the claim or action on their behalf, at the expense of the Lessee. The Lessor, Lessor’s successors, employees and assigns, at their own option, shall have the sole authority for the direction of their own defense, and shall be the sole judge of the acceptability of any compromise or settlement of any claims or actions against them.

Ground Lease at ¶ 12.

The pertinent portions of the “default” provisions of the Ground Lease are the following:

21. Default. Any one of the following shall constitute a breach of this Lease:

(c) Lessee shall abandon the leased Premises; or

Ground Lease at ¶ 21(a), (e). The Ground Lease provided remedies for the lessee’s breach, as follows:

22. Remedies of Lessor for Breach of Lessee. In the event Lessee breaches this Lease and fails to correct the breach within the time provided, Lessor may exercise any of the following remedies or any other remedy available to Lessor at law or in equity, and all such remedies shall be cumulative and nonexclusive of any one or more such remedies, and exercise of one remedy shall not be deemed to be an exclusive election of the remedy or remedies exercised or a waiver of the remedies not exercised: [specifying remedies including re-entry, termination of the lease upon 60 days notice, and reletting of the Premises.]

Ground Lease at ¶ 22.

The Ground Lease also provided for notices, such as notices of default, to be sent to specified addresses for each party, as follows:

26. Notice. Except as otherwise specified herein, all notices required or permitted under this Lease shall be in writing and shall be delivered in person or deposited in the United States mail in an envelope addressed to the proper party, certified mail, postage prepaid as follows:

LESSOR: P.O. Box 505621 Saipan, MP 96950

LESSEE: PMB 890 Box 10001 Saipan, MP 96950

or at such other address as the Lessor or Lessee may from time to time specify by written notice. All notices shall be deemed delivered (1) on the date personal delivery is made, or (2) on the date falling three days after the date of the post mark by the U.S. Post Office of any mail or notice properly addressed and containing sufficient postage.

Ground Lease at ¶ 26. The defendants also assert that the following “miscellaneous provisions” are relevant to the present dispute:

27. Miscellaneous Provisions.

(f) Time of the Essence. Time is of the essence of this Lease and of each provision.

(n) Proration and Refund of Prepaid Rental in Certain Situations. In the event that this Lease is terminated early by no fault of Lessee, the Lessee should be entitled to a prompt refund of all unearned, prepaid rental.

Ground Lease at ¶ 27.

The last provision of the Ground Lease identified by the parties as relevant to the present dispute is the following:

29. Intent of Parties and Legal Counsel. Lessor and [L]essee have carefully read and reviewed this Lease and each term and provision contained herein and, by execution of this Lease, show their informed and voluntary consent thereto, the parties hereby agree that, at the time this Lease is executed, the terms of this Lease are commercially reasonable and effectuate the intent and purpose of Lessor and Lessee with respect to the Premises. This Lease has been prepared for the Lessor and may be submitted by the Lessee to Lessee’s attorney for approval. No representation or recommendation is made by the Lessor as to the legal sufficiency, legal effect, or tax consequences of this Lease or the transaction relating thereto; the parties shall rely solely upon the advice of their own legal counsel as to the legal and tax consequences of this Lease.

Ground Lease at ¶ 29.

3. Nam’s attorney-client relationship with Quichocho

As mentioned above, Quichocho did not know if Nam was represented by an attorney in the transaction involving the Ground Lease of the Premises, does not recall asking if he was, and certainly did not speak to any attorney representing Nam prior to execution of the Ground Lease. Nam contends that Quichocho has admitted that, because Quichocho drafted the Ground Lease for Nam, Nam might have assumed an attorney-client relationship existed between them.

There is no dispute that, on December 8, 2007, two days after Nam executed the Ground Lease and the day after Atalig executed it, Nam paid Quichocho $1,500.00 for Quichocho’s professional services in drafting and filing Articles of Incorporation and By-Laws of Sin Ho Nam Corporation. Quichocho admits that there was an attorney-client relationship between him and Nam at that point, but asserts that the relationship began after the execution of the Ground Lease. On December 18, 2007, Nam paid Quichocho another $1,000.00 for representation of Nam on an immigration issue.

Eventually, on March 13, 2009, Quichocho sent Nam a “Privileged and Confidential Attorney-Client Communication,” which Nam characterizes as asking whether Nam wished to terminate Quichocho’s services. The body of the “Communication” states the following:

This is to request that you return the One Thousand Eight Hundred Dollars ($1,800.00), that we reimbursed you for office rent per our lease agreement, dated July 1, 2008, due to the fact that your girlfriend Jung Ja Kim misrepresented to us that she will be the one to pay since she occupied your office space with your consent.

As you know, she moved out of your office space without paying a dime. According to Jung Ja, you gave her a Power of Attorney, and she claims that you have requested the return of all your documents and that SIN HO Development, Inc., and you are no longer my Clients. Although, I respect any Client’s decision to terminate my services, I have to verify with you whether Jung Ja Kim’s statements are true, since she lied on many occasions to me and others. Especially that she has not provided to me any copy of the Power of Attorney she claims.

Please remit the payment to my office as soon as possible. I apologize for any inconvenience.

If you should have any questions, please feel free to contact me. Thank you.

Declaration of Nam’s Counsel (docket no. 30), Exhibits at 281 (Exhibit 10) (Bates Stamp 000038). Nam points out that this “Communication” shortly preceded the defendants’ attempts to terminate his Ground Lease.

4. Events leading to termination of the Lease

On March 20, 2009, the defendants sent Nam, at the address listed in the Ground Lease, a “Notice of Default and Violations,” stating the following:

A recent site inspection of our property in Obyan, Saipan (aka Ladder Beach Property), which you are leasing, revealed that you have defaulted on certain provisions of the Ground Lease with us (1) by abandoning the property in violation of Section 21(c) of the Ground Lease, (2) by failing to provide liability insurance in violation of Sections 10 and 21(e) of the Ground Lease, (3) by failing to provide fire and casualty insurance in violation of Sections 11 and 21(e) of the Ground Lease.

Therefore, you are hereby put on notice, pursuant to Sections 21, 22, and any other applicable provisions of the Ground Lease, that you have violated and defaulted on the Ground Lease. You are hereby given thirty (30) days from the date of this notice to cure the above-noted violations and default which may be cured. Failure to comply with this notice may result in the termination of the Ground Lease pursuant to Section 22(b), including the exercise of any and/or all remedies available to us. Moreover, pursuant to Section 22(b) of the Ground Lease, you are hereby given sixty (60) days notice of termination, which will commence after the thirty days as set forth above, in the event that you fail to cure the default and violations of the Ground Lease.

Thank you for your anticipated cooperation. If you should have questions, please feel free to contact any of us.

Answer and Counterclaim, Exhibit 2 (Notice of Default). This Notice of Default was signed by both Atalig and Quichocho. At the time that this Notice was sent, Nam was not on the island of Saipan, and he claims that he did not learn about it until April 27, 2009.

On April 19, 2009, thirty days after their first Notice, the defendants apparently determined that Nam had failed to cure any of the alleged defaults. However, on April 30, 2009, Nam, through counsel, did respond to the defendants. Answer and Counterclaim, Exhibit 3 (Nam’s April 30, 2009, Letter). In his response, counsel asserted that Nam had just received the Notice upon his return to Saipan; that he had delivered to counsel “proof of Public Liability Insurance Coverage,” but that he was “unable to acquire fire insurance because there are no improvements on the property at this time, [and] [he] was told by the insurance companies that a fire insurance policy will only be issued to insure a building.” Id. at 1. Nam also asserted “that he has not abandoned the Leased property [and] showed [counsel] a topographical map that he commissioned and t[old] [counsel] that he wants to develop the property.” Id. at 2. Counsel’s letter concluded as follows:

Based on the foregoing, Mr. Nam is compliant with the terms of the Lease. It would seem inappropriate for you to take any further action to terminate his leasehold interest. If you disagree and intend to continue efforts to terminate Mr. Nam’s Lease, please let me know the basis for such actions.

Finally, in the future, please include my office with a copy of any notice delivered to Mr. Nam under this Lease. Thank you for your attention to this matter. If you have any questions or concerns, please contact my office.

Nam’s April 30, 2009, Letter at 2. Nam contends that, effective April 30, 2009, he had liability insurance in place as required under ¶ 10 of the Ground Lease. The defendants dispute the sufficiency of the liability insurance.

On May 21, 2009, the defendants responded to Nam’s counsel’s April 30, 2009, Letter, by letter from Quichocho, which stated the following:

This is in response to your letter dated April 30, 2009. First, please direct all communications regarding this matter to me. I do represent Mr. Joaquin Q. Atalig.

Second, you did not attach a copy of the Public Liability Insurance Coverage, which is your Exhibit A. Please forward a copy to me as soon as possible.

Third, you mentioned a topographical map that Mr. Nam commissioned, but did not include that as an attachment. Please forward a copy of that to me, as well.

Fourth, you are mistaken that your client is “compliant with the terms of the Lease.” For your information, I do intend to continue efforts to terminate the Lease for failure to cure the default and violations stated in my previous letter, unless I receive the above-mentioned documents within 3 days, and Mr. Atalig and I are satisfied that the default and violations have been cured.

If you should have any questions, please feel free to contact me. Thank you.

Answer and Counterclaim, Exhibit 4 (Defendants’ May 21, 2009, Letter).

On May 25, 2009, Nam again responded, through counsel, to the defendants’ claims of default. Answer and Counterclaim, Exhibit 5 (Nam’s May 25, 2009, Letter). After summarizing portions of Defendants’ May 21, 2009, Letter, Nam’s counsel stated the following:

As expressed in my April 30, 2009, letter to you, Mr. Nam has obtained Public Liability Insurance. My office confirms delivery of the Public Liability Insurance with my letter, but another copy is attached for your convenience. Fire insurance will not be issued unless and until a building is erected. This means that obtaining Fire Insurance is either impracticable or impossible and may not serve as a basis for termination. Mr. Nam has not and does not intend to abandon the leased premises. You are welcome to inspect the topographical map at my office. Please contact me to arrange a time to view it if you wish. In sum, any default which may have existed was cured.

It is my understanding that Mr. Nam leased the premises for 55 years from you and Mr. Atalig for a sum of Two Hundred Eighteen Thousand Seventy Nine [Dollars] ($218,079.00) which was paid in full. The lease contains an implied duty of good faith and fair dealing. Your duties to Mr. Nam are amplified by the fact that he is or was your client. If after reading this letter you continue to believe that you have the right to terminate the Lease, please let me know the basis for your position. I am hopeful that you will honor Mr. Nam’s Leasehold rights.

Nam’s May 25, 2009, Letter. Attached to Nam’s May 25, 2009, Letter was a “POLICY DECLARATIONS” page for a “public liability” policy on the Premises. The “POLICY DECLARATIONS” page identifies the “Insured” as Sin Ho Nam. It describes the coverage as “[l]egal liability to third parties following an occurrence resulting in bodily injury and/or property damage,” with $100,000 per person for bodily injury, $300,000 per accident, and $300,000 per accident for property damages, with a $600,000 aggregate or single limit, subject to a $2,500 deductible for each and every loss. Id. As the defendants also point out, the “POLICY DECLARATIONS” page indicates that the policy was issued only for the period “4/29/09 to 4/29/10.” The “POLICY DECLARATIONS” page also lists various endorsements and exclusions, but with no indication of the details of those provisions.

Notwithstanding Nam’s assertions that he had cured any default, and a lapse of over two months, on August 9, 2009, the defendants, by letter from Quichocho, sent Nam’s counsel a “Notice of Termination” of the Ground Lease. Answer and Counterclaim, Exhibit 6 (Notice of Termination). The Notice of Termination was not sent to the Lessee’s address identified in the Ground Lease. This Notice of Termination disputed Nam’s contention that he had sent a copy of the Public Liability Insurance Policy with his May 25, 2009, Letter, because the defendants claimed to have received only a “POLICY DECLARATIONS” page. Id. at 1. It also asserted that Nam was still in violation of ¶ 10 of the Ground Lease, because “[t]he Policy Declaration only indicates that it is a “Public Liability,” rather than a “comprehensive general liability insurance” policy. Id. Further, it asserted that the “POLICY DECLARATIONS” page was deficient, because it did not indicate that the Lessor had been named as “additional insured,” it did not comply with the policy limits requirements of the Ground Lease, and it did not require that the Lessor be notified more than 30 days prior to any cancellation or termination of the policy. Id. at 2. The Notice of Termination also asserted that the Lessor’s attorney “had not received a copy of the policy or policies or an acceptable certificate, and it has been more than thirty (30) days from the date the Policy Declaration was issued”; complained that Nam had not provided a copy of the topographical map, but instead “threw the burden back at me to arrange a time to go to your office to ‘view’ it,” which defendants’ counsel asserted made “clear that Mr. Nam has abandoned the properties”; and disputed Nam’s contention that any default had been cured. Id. The Notice of Termination did not respond to Nam’s assertions that obtaining fire insurance was impracticable or impossible. The Notice of Termination concluded as follows:

For your information, we do intend to continue efforts to terminate the Lease for failure to cure the default and violations stated here and in my previous letters. As such, PLEASE TAKE NOTICE THAT THE GROUND LEASE, FILE NO. 07-2664, IS HEREBY TERMINATED EFFECTIVE SIXTY (60) DAYS FROM THE DATE OF THIS LETTER.

If you have any questions, please feel free to contact me. Thank you.

Notice of Termination at 2. The defendants assert that all the grounds for termination stated in the Notice of Termination were material and justified termination under the terms and conditions of the Ground Lease.

On August 11, 2009, Nam’s counsel responded to the Notice of Termination by asking “whether you intend to sue Mr. Nam for possession of the leased property or whether you and Mr. Atalig are willing to work out a resolution to your claims of breach with Mr. Nam” and requested “any proposals for resolving your claims short of litigation.” Answer and Counterclaim, Exhibit 7. The defendants responded on August 13, 2009, by letter from Quichocho, which stated, in pertinent part, the following:

Unfortunately, I am unable to give you a definitive response because Mr. Atalig is still off-island and I haven’t had a chance to sit down and discuss your question with him. Frankly, we had discussed an outright termination due to failure to cure, but, of course, we did not know whether Mr. Nam would be willing to make an offer of settlement.

Therefore, I would suggest that you let me know your idea or proposal of settlement, if any, so that when Mr. Atalig comes back, I will discuss it with him. Perhaps, we can all sit down and discuss this matter.

Answer and Counterclaim, Exhibit 8. On August 26, 2009, Nam’s counsel sent defendants a copy of the entire Public Liability Insurance Policy. Answer and Counterclaim, Exhibit 9. None of the parties asserts that there were further settlement negotiations or other discussions of whether or not Nam could cure the alleged defaults under the Ground Lease. Instead, on October 13, 2009, the defendants filed a Termination of Ground Lease, signed by Atalig and Quichocho, with the Commonwealth Recorder, dated September 29, 2009, asserting an effective date for the termination of October 10, 2009. Answer and Counterclaim, Exhibit 10.

Nam asserts that the defendants have never insured the Premises, nor other real property owned by Quichocho .on Saipan. The defendants assert that Nam abandoned the Premises and left them in a “total state of distress and waste for a prolonged period of time,” Defendants’ Memorandum In Support Of Motion For Summary Judgment (docket no. 32), Statement of Facts, ¶ 17, but do not detail the circumstances constituting “distress” or “waste.” The parties agree that the defendants have not refunded any part of the rent that Nam paid under the Ground Lease.

B. Procedural Background

1. Nam’s Complaint

Nam filed the present lawsuit on March 29, 2010, and a lis pendens on the Premises on April 15, 2010. In his Complaint, Nam’s First Claim For Relief is against defendant Quichocho for breach of fiduciary duty. It alleges that, as a result of Quichocho’s attorney-client relationship with Nam, a fiduciary relationship was created; that Quichocho breached that duty when he “committed the acts and omissions set forth above [in the Complaint],” which apparently include all of the actions detailed in the Factual Background, above; that Nam sustained damages as a result; and that Quichocho’s breaches were “willful and in utter disregard of their [sic] responsibilities to Mr. Nam’s rights at law,” thus entitling Nam to punitive damages. Nam’s Second Claim For Relief is against defendants Quichocho and Atalig for breach of the Lease. This cause of action asserts that Quichocho breached the express and implied terms of the Lease with Nam “through the conduct described above,” but does not identify what conduct of defendant Atalig allegedly breached the Lease. It alleges that “[a]s a result of the Defendants’ [sic] respective breaches of the Lease,” Nam was damaged and that both Quichocho and Atalig are liable for all reasonably foreseeable damages resulting from their respective breaches. Nam’s Third Claim For Relief is against both Quichocho and Atalig for restitution. It alleges that Nam paid the full rental price in exchange for the lease of the Premises for 55 years; that the defendants accepted the full payment of the rent; and that, under the circumstances, it would be unjust and inequitable to allow the defendants to terminate the Lease and “eliminate” all of Nam’s rights without returning the full payment of the rent. Thus, Nam asserts that he is entitled to “Restitution.” Nam seeks judgment in his favor on his claims; contract, compensatory, and punitive damages; restoration of his possessory interest in the Premises or rescission of the Lease and return of the entire rental payment; pre- and post-judgment interest, costs, and reasonable attorney’s fees; and such other relief as the court may deem just and proper under the circumstances.

2. The defendants ’ Answer And Counterclaim

The defendants filed an Answer And Counterclaim (docket no. 3) on June 1, 2010. In it, they deny Nam’s claims, assert various affirmative defenses, and a counterclaim alleging five causes of action. Their First Cause of Action is for slander of title. It alleges that Nam filed or caused to be filed lis pendens that are invalid and without merit; that he did so with malicious intent to injure and disparage the defendants’ title to the Premises and to interfere with their rights as owners of the Premises; that such action constitutes slander of title entitling the defendants to damages, punitive damages, and reasonable attorney’s fees and costs; and that, as a direct and proximate consequence of Nam’s conduct, the defendants have suffered damages and were forced to bring the present counterclaim to recover those damages and to declare their title, rights, and interests in the Premises, thereby incurring attorney’s fees and costs. Because the defendants allege that Nam acted intentionally, maliciously, and with an evil mind, the defendants assert that punitive damages are justified. The defendants’ Second Cause of Action is for breach of contract. It alleges that Nam breached the Ground Lease by failing to obtain and maintain comprehensive general liability insurance for the entire term of the Ground Lease as required by ¶ 10; by failing to obtain and maintain such insurance that complied fully with the requirements of ¶ 10; by failing to provide a copy of such insurance policy within thirty days of issuance of such policy as required by ¶ 10; by failing to obtain and maintain fire and casualty insurance for the entire term of the Ground Lease as required by ¶ 11; by abandoning the Premises; and by failing to maintain and by committing waste on the Premises. It alleges that such breaches have injured the defendants and entitle them to damages, attorney’s fees, and costs. The defendants’ Third Cause of Action is based on express contractual indemnity. It alleges that, pursuant to ¶ 12 of the Ground Lease, Nam agreed to indemnify and hold the defendants harmless and that, by way of this counterclaim, they are notifying him of his obligation to defend and indemnify them against any claims by any person, or any claims by government regulatory agencies, and any claims arising in the future regarding the property. The defendants’ Fourth Cause of Action is for “waste.” It alleges that, during his occupancy of the Premises, Nam committed waste upon the Premises by abandoning, neglecting, and allowing the Premises to be used as a dumping ground for garbage, directly and proximately causing the defendants damages, including, but not limited to, diminution in property values, loss of prospective economic advantages, and clean up costs. The defendants’ Fifth Cause of Action is to quiet title. It realleges that Nam’s filing of invalid and meritless lis pendens has injured and disparaged their title to the Premises, adding that, unless restrained by the court, such action will cause greater and further irreparable injury to their claims and interests in the Premises. They request an order requiring Nam to remove or withdraw his lis pendens, awarding them damages, and quieting title in their names as against Nam, and declaring that Nam has no interest in the Premises. Like Nam, the defendants seek general, punitive, and other damages, attorney’s fees, and costs, on their First through Fourth Causes of Action; attorney’s fees and costs on their Fifth Cause of Action; actual damages, attorney’s fees, and costs under a nonexistent Sixth Cause of Action; and an order directing Nam to remove or withdraw his lis pendens and awarding punitive damages, attorney’s fees, and costs under an equally nonexistent Seventh Cause of Action. They also ask the court to declare that title to the Premises be vested in them and for such other and further relief as the court deems just and proper under the circumstances. Nam filed a Reply to the Counterclaim on July 17, 2010, denying the defendants’ claims.

Pursuant to a Scheduling Order (docket no. 9), filed December 17, 2010, a jury trial in this action is set to begin on November 14, 2011.

3. The cross-motions for summary judgment

On July 25, 2011, Nam filed his Motion For Summary Judgment (docket no. 27), seeking summary judgment in his favor on his claims for breach of contract, restitution, and breach of fiduciary duty, and on the defendants’ counterclaims for slander of title, breach of contract, breach of express contractual indemnity, waste, and quiet title. Nam supported his Motion For Summary Judgment with three Declarations (docket nos. 28, 29, 30), one from Stephen J. Nutting (docket no. 29). The defendants filed their Opposition To Nam’s Motion For Summary Judgment And Motion To Strike The Declaration Of Stephen J. Nutting (docket no. 35) on August 11, 2011. On July 25, 2011, the defendants filed their own Motion For Summary Judgment (docket no. 32), seeking summary judgment in their favor on Nam’s claims of breach of fiduciary duty, breach of contract, and restitution. Nam filed his Opposition To Defendants’ Motion For Summary Judgment (docket no. 34) on August 11, 2011, and the defendants filed a Reply Brief In Support Of [Their] Motion For Summary Judgment (docket no. 39) on August 22, 2011.

I heard oral arguments on the cross-motions for summary judgment on August 25, 2011, during my third visit to Saipan as a visiting judge. At the oral arguments, plaintiff Nam was represented by Colin M. Thompson of the Thompson Law Office, L.L.C., in Saipan, and defendants Quichocho and Atalig were represented by Michael W. Dotts of O’Connor, Berman, Dotts & Banes in Saipan.

These motions are now fully submitted.

II. THE DEFENDANTS’ MOTION TO STRIKE DECLARATION

With—indeed, as part of—their Opposition (docket no. 35) to Nam’s Motion For Summary Judgment, the defendants moved to strike the Declaration of Stephen Nutting (docket no. 29), which Nam had offered in support of his Motion For Summary Judgment. That Declaration is devoted primarily to allegations concerning allegedly similar conduct of Quichocho and Atalig relating to other properties. The extent of any written argument in support of the defendants’ Motion To Strike is that Mr. Nutting’s Declaration is “improper opinion testimony of an unrelated case with different facts and parties” and that it is “scandalous, immaterial and impertinent.” The motion cites no authority for a motion to strike a declaration offered in support of a motion for summary judgment. Nam filed neither a reply in support of his own Motion For Summary Judgment addressing the Motion to Strike the Declaration of Stephen Nutting nor any separate resistance to that motion.

Under Rule 12(f) of the Federal Rules of Civil Procedure, a court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Under Rule 7(a) of the Federal Rules of Civil Procedure, the only “pleadings” allowed are the following: “(1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer.” Id. Here, defendants are not seeking to strike matter from a pleading, but, instead, are attempting to strike a declaration offered in support of Nam’s Motion for Summary Judgment. As a result, the defendants’ Motion to Strike is improper under Rule 12(f) of the Federal Rules of Civil Procedure, and, consequently, is denied. I need not consider whether it is necessary or appropriate to strike the Declaration of Stephen Nutting pursuant to some other authority, because no other authority has been cited and, just as importantly, I find that it is simply unnecessary to consult that Declaration with respect to any claim or counterclaim at issue in the cross-motions for summary judgment.

III. THE CROSS-MOTIONS FOR SUMMARY JUDGMENT

A. Standards For Summary Judgment

Motions for summary judgment essentially "define disputed facts and issues and... dispose of unmeritorious claims [or defenses]." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 585, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses...."). Summary judgment is only appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c) (emphasis added); see also Community House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 959 (9th Cir. 2010) (quoting Rule 56(c)). A fact is material when it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, "the substantive law will identify which facts are material." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Campbell v. Pricewaterhouse-Coopers, L.L.P., 642 F.3d 820, 824-25 (9th Cir.2011) ("[S]ummary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, there are no genuine questions of material fact and the district court correctly applied the underlying substantive law."). An issue of material fact is genuine if it has a real basis in the record, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), or when "a reasonable jury could return a verdict for the nonmoving party" on the question. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The Ninth Circuit Court of Appeals has described the burdens borne by each party on a motion for summary judgment, as follows:

We are mindful of the shifting burden of proof governing motions for summary judgment under Federal Rule of Civil Procedure 56. The moving party initially bears the burden of proving the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party’s case. Id. at 325, 106 S.Ct. 2548. Where the moving party meets that burden, the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial. Id. at 324, 106 S.Ct. 2548. This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party must do more than show there is some metaphysical doubt as to the material facts at issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In fact, the non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party’s favor. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. In determining whether a jury could reasonably render a verdict in the nonmoving party’s favor, all justifiable inferences are to be drawn in its favor. Id. at 255, 106 S.Ct. 2505.

In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.2010).

The Ninth Circuit Court of Appeals reviews de novo a district court’s decision on cross-motions for summary judgment. Campbell, 642 F.3d at 824.

I will apply these standards to the parties’ cross-motions for summary judgment on Nam’s claims, then to Nam’s motion for summary judgment on the defendants’ counterclaims.

B. The Plaintiff’s Claims

Nam asserts claims of breach of fiduciary duty, breach of contract, and restitution. The parties have filed cross-motions concerning all three of these claims. Because I find that the question of which party breached the Ground Lease is the central dispute in this litigation, I will begin my analysis with Nam’s breach-of-contract claim, resolving, in the process, Nam’s motion for summary judgment on the defendants’ breach-of-contract counterclaim.

1. Breach of contract

a. Arguments of the parties

i. Nam’s arguments. In support of his motion for summary judgment on his breach-of-contract claim, Nam argues that a breach occurs upon the nonperformance of a contractual duty of immediate performance. He contends that the defendants breached the express contractual duty to provide him with quiet enjoyment of the Premises in ¶ 6 of the Ground Lease when they wrongfully terminated the Ground Lease.

Nam also contends that any argument that the defendants’ termination of the Ground Lease was justified should fail. More specifically, he notes that the defendants’ March 20, 2009, Notice of Default listed three grounds for termination: (1) abandonment; (2) failure to obtain fire insurance; and (3) failure to obtain general liability insurance. .He denies that he abandoned the property, because he prepaid rent for the entire 55-year period and there is no “overt act” demonstrating discontinued use. He asserts that non-use alone does not constitute abandonment. He contends that he did not breach the clause concerning fire insurance, because the clause only gave rise to a duty to insure improvements erected on the Premises. He asserts that, because no improvements had been erected, no performance was due when the defendants asserted a default of this provision. He also argues that he was unable to obtain fire insurance on unimproved land, so that his performance was impracticable or impossible and, thus, excused, while such impracticability lasted. Finally, he argues that he did not breach the general liability insurance clause, either, because that provision states no time at or by which he was required to obtain such insurance. He contends that his performance was not due under this clause when the defendants notified him of the alleged default, because that clause should also be construed to require insurance only once improvements were constructed. He points out that the defendants never before insured the Premises. He argues that, even if his performance was immediately due under the general liability insurance clause, he performed or substantially performed that obligation, because he obtained liability insurance after learning that the defendants considered him in default. He contends that it would be unconscionable to terminate the Ground Lease on the basis of a slight delay in obtaining satisfactory insurance, when he was off-island at the time of the Notice of Default and during the entire cure period. He also argues that the defendants suffered no harm because of the delay.

Nam also argues that the defendants breached the contractual duty to reimburse him for prepaid rent under ¶ 27(n) of the Ground Lease, where they wrongfully terminated his lease. He argues that he is entitled to prorated reimbursement of $210,078.00. Nam also argues that the defendants breached the implied duty of good faith and fair dealing by wrongfully terminating the Ground Lease. He contends that this is so, because the defendants made no efforts to assist him in the cure of the purported default, refused to acknowledge his good faith effort to obtain insurance, and simply focused on terminating the Ground Lease. He contends that the defendants knew that they were not required to terminate the Ground Lease, took an unsupportable legal position on abandonment, and did not seek judicial termination of the Ground Lease.

For essentially the same reasons that Nam contends that the defendants’ termination of the Ground Lease was not justified, Nam argues that he is entitled to summary judgment on the defendants’ breach-of-contract counterclaim.

ii. The defendants’ arguments. In contrast, the defendants contend that Nam failed to perform the Ground Lease and that he has no excuse. They contend that Nam may have procured a form of liability insurance for the period April 29, 2009, to April 29, 2010, but he has never shown proof of such insurance for the period December 6, 2007, to April 28, 2009. They contend that Nam never procured fire insurance. They contend that Nam’s failure to cure these defaults, even when he was given a chance to do so, demonstrates that Nam breached the Ground Lease. They also argue that they “discovered” that Nam had abandoned the leased Premises, and after they gave proper notice to that effect, Nam further manifested his clear abandonment of the property when, through counsel, he refused and continued to refuse to provide the “topographical survey” that he had purportedly commissioned.

The defendants also argue that they did not breach the Ground Lease, because they followed the notice provisions of the Ground Lease before termination. They point out that Nam has never requested that the defendants perform any promise that they allegedly breached, and that he cannot assert a breach of quiet enjoyment, because he breached the express terms of the Ground Lease. They contend that Nam’s contractual right of quiet possession was contingent on his observing and keeping all covenants, conditions, and terms of the Ground Lease, but he failed to meet those conditions. They also contend that Nam’s “impracticability” defense as to the required fire insurance fails, because Nam provided no evidence from any insurance company that no insurance company is willing to sell him fire and casualty insurance for the leased Premises. They also assert that the purported liability insurance policy that Nam obtained was not just too late, but failed to comply with several specific requirements for such insurance: that the Lease includes a “time is of the essence” clause, so that Nam could not wait to get such insurance until a default was noticed; that Nam provided no insurance from December 6, 2007, to April 28, 2009; that Nam did not provide any copy of the policy until August 27, 2009; and that the policy eventually obtained did not conform to the contractual requirements. They also contend that Nam is not entitled to prorated return of prepaid rent, because the early termination of the Ground Lease was due to his breaches. They also argue that they did not violate the covenant of good faith and fair dealing, because they were not obligated to take Nam by the hand to help him cure his default, and judicial termination of the Ground Lease was not required. They contend that any damages that Nam has suffered arise from his own breach of the Ground Lease, not theirs.

b. Analysis

i. Principles of contract law. As noted above, summary judgment must be considered in the context of applicable substantive law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Campbell, 642 F.3d at 824-25. Breach of a contract occurs upon the nonperformance of a contractual duty of immediate performance. Del Rosario v. Camacho, 2001 MP 3 ¶ 96, 6 N.M.I. 213, 231. On the other hand, if the nonperformance of a contractual duty is justifiable, then there is no breach. Id. More specifically,

“[W]hen performance of a duty under a contract is due any non-performance is a breach. Reyes v. Ebeteur [Ebetuer], 2 N.M.I. 418, 429 (1992) (citing Restatement (Second) of Contracts § 235(2) (1981)). Once a party materially breaches a contract, that party cannot insist on the second party’s performance of the same contract. Windward Partners v. Lopes, [3 Haw.App. 30], 640 P.2d 872, 874 (Haw.Ct.App.1982). The material breach of an “entire” contract by one party justifies termination by the nonbreaching party. See 1 B. Witkin, Summary of California Law § 804 (9th ed. 1987).”

Triple J. Saipan, Inc. v. Agulto, 2002 WL 32983884, *2 (N.Mar.I. May 22, 2002). Under a lease contract, if a party defaults, and fails to cure, then the other party may properly terminate the lease. Cabrera v. Young, 6 N.M.I. 330, 334, 2001 WL 34883553, *4 (N.Mar.1.2001)

As the Commonwealth Supreme Court has explained,

The “interpretation of a contract and the determination as to its breach are a mixed question of fact and law.” L.K Comstock & Co. v. United Eng’rs & Constructors, Inc., 880 F.2d 219, 221 (9th Cir.1989) (quoting Libby, McNeill, and Libby v. City Nat’l Bank, 592 F.2d 504, 512 (9th Cir.1978)). “In general, factual findings as to what the parties said or did are reviewed under the ‘clearly erroneous’ standard while principles of contract interpretation applied to the facts are reviewed de novo.” Id.; Camacho v. L & T Int’l Corp., 4 N.M.I. 323, 326 (1996) (On appeal, NMI Supreme Court reviews “application of contract law under the de novo standard, and any finding based on extrinsic evidence under the clear error standard.”)

Manglona v. Government of the Commonwealth of the Northern Mariana Islands, 2005 WL 3771373, *3 (N.Mar.I. Oct. 4, 2005). As to the rules of interpretation, the Commonwealth Supreme Court has explained,

A written lease is a contract, subject to the same rules of construction as contracts. Camacho v. L & T Int’l Corp., 4 N.M.I. 323, 325-26 (1996). Where the language of a writing is plain and precise, the court can, as a matter of law, establish the parties’ intent from the writing. Ada v. K. Sadhwani’s Inc., 3 N.M.I. 303, 310 (1992); see also Sabían Enterprises v. New Century, Inc., 1997 MP 32, 5 N.M.I. 144.

Cabrera, 6 N.M.I. 330 at 333, 2001 WL 34883553 at *3. Also, “the preference in interpretation of contracts is that ‘specific terms and exact terms are given greater weight than general language.’ ” Id. at 334, 2001 WL 34883553 at *4 (quoting Restatement (Second) Of Contracts, § 203(c) (1981)).

ii. Who breached? Each side contends that the other breached the Ground Lease as a matter of law. Nam contends, first, that the defendants breached the contractual duty to provide him with quiet enjoyment of the Premises. Paragraph 6 of the Ground Lease, which is set out in full, above, did provide Nam with a right to quiet enjoyment, which would necessarily be breached by a wrongful early termination. However, according to the plain terms of that provision, Cabrera, 6 N.M.I. 330 at 333, 2001 WL 34883553 at *3 (noting that, “[wjhere the language of a writing is plain and precise, the court can, as a matter of law, establish the parties’ intent from the writing”), Nam’s right to quiet enjoyment was contingent “upon paying the rent and other charges herein provided for and observing and keeping all the covenants, conditions, and terms of this Lease on Lessee’s part.” Ground Lease at ¶ 6. Similarly, while ¶ 27(n), also set out in full above, plainly states that, “[i]n the event that this Lease is terminated early by no fault of Lessee, the Lessee should be entitled to a prompt refund of all unearned, prepaid rental,” Ground Lease at ¶ 27(n) (emphasis added), and the early termination of the Ground Lease without prompt refund of prorated rent could breach this provision, this provision is also expressly conditioned on the early termination being “by no fault of the Lessee.” The same is true of Nam’s claim that the defendants breached the covenant of good faith and fair dealing, which is implied in every contract. See, e.g., Restatement (Second) of Contracts § 205 & cmt. a (1981) (every contract imposes a duty of good faith and fair dealing on the parties, and when a party acts in bad faith they breach the covenant and become liable for that breach); Del Rosario, 2001 MP 3 at ¶ 96, 6 N.M.I. at 231. “[T]his implied covenant only requires that one party not injure another party’s right to receive the benefits of the agreement,” id., so if a party has forfeited the right to receive the benefits of the agreement by its own breach, it cannot rely on the other party’s supposed breach of the covenant of good faith and fair dealing. Moreover, if the termination of the Ground Lease was properly based on Nam’s breach of the contract and properly conducted according to the terms of the Ground Lease, then it was not in bad faith. Thus, each of Nam's claims that the defendants breached the Ground Lease turns on whether or not Nam first breached the Ground Lease, as the defendants claim. Del Rosario, 2001 MP 3 at ¶ 96, 6 N.M.I. at 231 (stating that, if the nonperformance of a contractual duty is justifiable, then there is no breach).

The defendants claim that Nam breached the Ground Lease by “abandoning” the Premises. Abandoning the Premises is a form of default expressly recognized in ¶ 21(c) of the Ground Lease. Comment i to § 12.1 the Restatement (Second) of Property (Landlord & Tenant) states, “Abandonment of the leased property by the tenant occurs when he vacates the leased property without justification and without any present intention of returning and he defaults in the payment of the rent.” As the movants for summary judgment on this claim, the defendants have failed to demonstrate that there is no genuine dispute that Nam “abandoned” the Premises, and as the non-movants resisting Nam’s motion for summary judgment on this claim, the defendants have failed to demonstrate that there are genuine issues of material fact that Nam “abandoned” the Premises. See In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (describing the parties’ burdens on summary judgment).

First, and foremost, the requirement to show that the lessee (Nam) has stopped paying rent to demonstrate abandonment is missing here, where it is undisputed that Nam prepaid the rent for the entirety of the 55-year lease term. See Restatement (Second) of Property (Landlord & Tenant), § 12.1. cmt. i (stating that abandonment requires that the tenant “default in the payment of the rent”). Moreover, the defendants have pointed to nothing demonstrating that Nam had “vacated” the leased property or that he had no present intention of returning. Id. The defendants assert that they “discovered” that Nam had abandoned the Premises, but identify no facts or circumstances from which they could have drawn the inference that he had done so. The Ground Lease did not require Nam to occupy, improve, build on, or do anything with the Premises during his tenancy. It simply permitted him to “use, improve, and develop the Premises or any part thereof for any lawful use or purpose, provided that Lessee shall not commit waste.” Ground Lease at ¶ 2. As a matter of law, Nam’s failure to provide the defendants with the topographical survey or map that he had commissioned did not constitute “abandonment,” because he was not required by the Ground Lease to prepare such a survey or map or to share it with the defendants, and his counsel’s offer to make the map available at his office for the defendants’ review, rather than providing them with a copy, was,