Deceased landowner prevails in land lease lawsuit

The deceased mother of brothers Capt. Aniceto T. Ogumoro and Ambrosio T. Ogumoro, has prevailed in her lawsuit over a land lease dispute with an investor.

Superior Court Associate Judge Juan T. Lizama ruled that the deceased Soledad Ogumoro had the right to terminate the lease of her property to defendant Ko Han Yoon on grounds for non-payment.

Lizama determined that Ko’s rights in the lease of Ogumoro’s property were terminated prior to the acquisition of the lease by Jung Young Boo.

Ko did not follow the procedure that would have entitled him to receive notice of termination of the lease at his own address, said the judge in granting cross motions for summary judgment filed by Jung and his sublessee DY Corp. The Ogumoro estate joined in the motions.

Court records show that in March 2001, about a month after winning a default judgment against Ko and other persons, and after two years of having received no rental payments from any party, Ogumoro leased the land to Jung.

Jung stated that prior to signing a 55-year lease for the property, he conducted a preliminary title report.

The PTR showed a possible problem. Jung stated that it was his understanding that his attorney requested Ogumoro’s counsel to take the actions necessary to resolve the problem.

Jung declared that a second title report showed that the land was free and clear for lease.

According to Jung, title of the land was cleared, and a second report showed that a prior lease and mortgage had been extinguished.

Ko, on the other hand, stated that he thought Jung would have known about Ko’s interest.

Jung and his subtenants began making substantial improvements to the property in mid-2001.

In March 2003, Ko brought a lawsuit to set aside the default judgment against him. Jung intervened to protect his rights as lessee.

In a separate action, Ko sued Jung and his sublessees, Pacific Blue Corp. and DY Corp., to quiet title.

DY counterclaimed against Ko. Both sublessees counterclaimed against Jung for indemnification. Jung included Ogumoro as a third-party defendant, and counterclaimed against Ogumoro for restitution and damages.

Jung has also counterclaimed against Ko for restitution. An Oct. 12, 2005 court order consolidated the two cases—the quiet title and the breach of contract case.

Jung and the sublessees are now third-party defendants in Ogumoro’s lawsuit against Ko.

In its Jan. 20, 2006 order denying Ko’s motion to dismiss, the Court determined that Ko had assumed the lease and was in privity with the original lessees.

As such, the court determined that Ko is liable for all of the lessee’s obligations under the lease.

The parties in the lawsuit filed motions for summary judgments.

Jung argued that Ko’s two-year delay in attacking the default estops him from asserting an interest in the property.

But Ko argued that Jung has not established any intent to deceive on the part of Ko, which is a necessary element of estoppel.

Estoppel refers to a “bar which precludes a person from denying the truth of fact which has, in contemplation of law, become settled by the facts and proceedings of judicial or legislative officers…”

In his ruling, Lizama said Ko is not stopped from asserting an interest in the lease, even if the court finds that his interest no longer exists.

Lizama said it is undisputed that Ko failed to pay rent after Feb. 1999.

The parties, however, disputed whether Ogumoro gave proper notice of termination.

Ko noted that under common law, a lessee does not necessarily forfeit rights in a lease for non-payment.

But Lizama said that the lease that provides for default and termination defeats Ko’s argument, that absent a provision expressly granting forfeiture, the landlord’s remedy is limited to an action for damages.

Lizama said Ko could have designated an address for personal delivery, but he did not exercise this right.

“Because the lease designates the manner for changing one’s address, the Court is not inclined to place upon the lessor the additional burden of locating the lessee for personal deliver,” the judge said.

He said Ogumoro complied with the notice provisions in the lease, and was under no obligation to make a diligent search for Ko before terminating the lease.

Once Ogumoro followed the procedure provided by the lease for termination, the lease ended, Lizama said.