Right of way lawsuit against IPI to continue

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SUPERIOR Court Associate Judge Teresa Kim Tenorio on Wednesday denied the Imperial Pacific International motion to dismiss the right of way lawsuit filed by American Herbal Essence Group, American Create Beauty Corp., and American Dongsheng Corp.

The three business establishments accused IPI of blocking their way and affecting the operation of their business. They are located directly across from the casino resort construction site in Garapan.

Their lawsuit alleges private nuisance and tortious interference with prospective business advantage.

Represented by attorney Robert T. Torres, the plaintiffs asked the court to issue an order finding IPI liable to pay them damages and court cost to be determined at trial.

In its motion to dismiss, IPI, which is represented by attorney Michael W. Dotts, asserted that the court lacked subject matter jurisdiction because the plaintiffs failed to exhaust available administrative remedy.

IPI said the plaintiffs have failed to plead all the elements of a nuisance claim, and a claim of tortious interference with prospective business advantage.

Moreover, IPI stated that the plaintiffs failed to enjoin the Division of Coastal Resources Management as a necessary defendant in the lawsuit.

IPI asked the court to rule in its favor and deny the plaintiffs’ request for punitive damages.

But in her order, Judge Kim-Tenorio said the court has subject matter jurisdiction because DCRM lacks the means to address the plaintiffs’ claims.

“The time in which [the] plaintiffs could have appealed the decision to grant defendant a DCRM permit has elapsed,” he added.

She said the plaintiffs have “presented a cognizable legal theory in its nuisances per accidens claims and have alleged facts that establish [that the] defendant tortiously interfered with [the] plaintiffs’ business prospects.”

Judge Kim-Tenorio also did not agree with IPI’s other arguments and denied its motion to dismiss in its entirety.

The plaintiffs, according to the lawsuit, leased commercial spaces on Coral Tree Avenue across the IPI casino resort construction site.

On Dec. 20, 2018, IPI began an extensive excavation of a large portion of Coral Tree Avenue, which extended within close proximity to the plaintiffs’ leased premises. IPI dug a 2-foot-deep trench and posted detour signs redirecting foot and vehicular traffic away from the entrance of the plaintiffs’ leased premises.

Later, the lawsuit stated, IPI and its contractors redirected construction to the main entrance of its casino and hotel and left behind the open trench.

The plaintiffs complained to the Division of Coastal Resource Management, the Department of Public Works, the Division of Environmental Quality, and the Commonwealth Casino Commission about the road construction.

According to the lawsuit, the DCRM director responded in an email stating that IPI had been granted a major siting permit for the roadside construction.

The DCRM director stated that upon inspection of the construction site, it was determined that no permit violations had occurred.

But DCRM also said that it would continue to monitor the work being performed by IPI.

On March 21, 2019, IPI finally completed its pavement repair work on Coral Tree Avenue and backfilled the trench. But IPI continues to obstruct the area by maintaining its detour signs, which prevent access to the area, the lawsuit stated.

It added that the plaintiffs had spent a lot of time and money to renovate the leased premises in preparation for the Western and Chinese New Year in anticipation of increased business during these holidays, but failed to attract customers and its patrons due to IPI’s acts.

This has frustrated and impacted plaintiffs’ contractual relationship with its landlord as the companies’ use of its leased commercial spaces and operation of business remained affected, the lawsuit stated.

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