FSM SUPREME COURT TRIAL DIVISION
Cite as Fredrick v. Smith
12 FSM Intrm. 150 (Pon. 2003)

[12 FSM Intrm. 150]

IWAISER FREDRICK,
Plaintiff,
 
vs.
 
GLADWYN SMITH, ITS TAXI, and
ALFONSO ALFRED,
Defendants.
 
CIVIL ACTION NO. 2000-047
 
ORDER DENYING MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT
 
Andon L. Amaraich
Chief Justice
 
Decided: October 3, 2003

APPEARANCES:

For the Plaintiff:                       Salomon Saimon, Esq.
                                                 Law Offices of Saimon & Associates
                                                 P.O. Box 1450
                                                 Kolonia, Pohnpei FM 96941
 
For the Defendants:                Wesley Simina, Esq.
(Smith & ITS)                          P.O. Box 94
                                                 Weno, Chuuk FM 96942

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HEADNOTES
 
Civil Procedure ) Summary Judgment
     A summary judgment motion will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Once the party moving for summary judgment presents a prima facie case of entitlement to summary judgment, the burden shifts to the non-moving party to produce evidence showing that a genuine issue of material fact remains for resolution. Fredrick v. Smith, 12 FSM Intrm. 150, 151-52 (Pon. 2003).
 
Civil Procedure ) Summary Judgment
     Failure to file a response to a summary judgment motion constitutes a consent to that motion; but even when an opposing party consents to a motion, that motion may only be granted if it is well grounded in fact and in law. Fredrick v. Smith, 12 FSM Intrm. 150, 152 (Pon. 2003).

[12 FSM Intrm. 151]

Civil Procedure ) Pleadings
     When the defendants’ answer imprecisely attempts to incorporate by reference in its response to the complaint’s paragraphs 15-18 that incorporate all of the complaint’s preceding paragraphs by reference, given the answer’s denials of those preceding paragraphs, the facts alleged in the complaint’s paragraphs 15-18 will be deemed denied. Fredrick v. Smith, 12 FSM Intrm. 150, 152 (Pon. 2003).
 
Civil Procedure ) Summary Judgment
     When none of the exhibits that go towards proving defendants’ liability is authenticated and the only evidence of defendants’ alleged negligence, purportedly a police report is not authenticated and the report also contains hearsay statements that may not be admissible, even if authenticated, there are material issues of fact precluding entry of summary judgment in the plaintiff’s favor. Fredrick v. Smith, 12 FSM Intrm. 150, 152 (Pon. 2003).
 
Attorney, Trial Counselor and Client ) Disqualification of Counsel
     When a summary judgment motion is clearly on behalf of two defendants and makes them adverse to a third defendant, it is clear that the third defendant needs to attempt to retain other counsel. Fredrick v. Smith, 12 FSM Intrm. 150, 153 n.1 (Pon. 2003).
 
Civil Procedure ) Summary Judgment
     The party opposing a summary judgment motion may not rely on unsubstantiated denials of liability to carry its burden, but must present some competent evidence that would be admissible at trial which demonstrates that there is a genuine issue of material fact. Fredrick v. Smith, 12 FSM Intrm. 150, 153 (Pon. 2003).
 
Civil Procedure ) Summary Judgment
     Unauthenticated evidence is not competent, and cannot support a summary judgment motion. Fredrick v. Smith, 12 FSM Intrm. 150, 153 (Pon. 2003).

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COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

     This matter comes before the Court on plaintiff’s Motion for Summary Judgment and defendants Gladwyn Smith and ITS’ Cross-Motion for Summary Judgment. Plaintiff filed his motion on August 1, 2001. Defendants Smith and ITS filed an Opposition and Cross-Motion for Summary Judgment on August 23, 2001, and plaintiff filed an Opposition to defendants’ cross-motion on September 7, 2001. For the reasons set forth below, the Court denies both summary judgment motions, and schedules a status conference in this matter.

Analysis

     Under FSM Civil Rule 56, a motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FSM Civ. R. 56(c); Kyowa Shipping Co. v. Wade, 7 FSM Intrm. 93, 95 (Pon. 1995); Kihara Real Estate, Inc. v. Estate of Nanpei, 6 FSM Intrm. 48, 52 (Pon. 1993). Once the party moving for summary judgment presents a prima facie case of entitlement to summary judgment, the burden shifts to the non-moving party to produce evidence showing that a genuine issue of material

[12 FSM Intrm. 152]

fact remains for resolution. Urban v. Salvador, 7 FSM Intrm. 29, 31 (Pon. 1995); Kyowa Shipping Co., 7 FSM Intrm. at 95; FSM v. Ponape Builders Constr., Inc., 2 FSM Intrm. 48, 52 (Pon. 1985). Failure to file a response to a summary judgment motion constitutes a consent to that motion; but even when an opposing party consents to a motion, that motion may only be granted if it is well grounded in fact and in law. Kyowa Shipping Co., 7 FSM Intrm. at 95.

     Plaintiff’s complaint alleges that defendant Alfonso Alfred negligently operated a taxi while he was employed by defendants Smith and ITS, and that Mr. Alfred negligently collided with and damaged plaintiff’s vehicle. Plaintiff claims that Mr. Alfred is liable to him for negligence, and that Smith and ITS are liable for the wrongful acts of their employee.

     Plaintiff’s Motion for Summary Judgment is supported by the Affidavit of Iwaiser Fredrick ("Fredrick Aff.") and several other exhibits, including a police report (Ex. A), repair bills for his car (Exs. B, C, D and E), and an Affidavit of counsel supporting his request for an award of fees ("Saimon Aff.").

     Plaintiff argues for summary judgment in the first instance because he asserts that the Court should deem admitted several paragraphs of the Complaint which defendants’ failed to specifically deny. Specifically, plaintiff asserts that paragraphs 15 through 18 should be deemed admitted. Defendants’ Answer addresses these paragraphs as follows: "With respect to paragraph Nos. 15, 16, 17, and 18, of any allegations incorporated therein in the Complaint by the Plaintiff, Defendants repeat the same answers by admitting, and denying generally and specifically and required that [Plaintiff] shall prove every fact being denied by Defendants." Def. Ans. ¶ 12.

     Paragraphs 15 and 17 of the Complaint incorporate by reference all of the preceding paragraphs in the Complaint. Paragraph 16 asserts that plaintiff was damaged due to the wrongful acts of "the employee of defendant Smith and ITS as alleged above." Compl. ¶ 16. Paragraph 18 asserts that plaintiff was damaged as a result of "the wrongful act of defendant Alfonso as alleged above." Compl. ¶ 18. Thus, plaintiff’s Complaint paragraphs 15-18 only have legal significance when read with the preceding paragraphs of the Complaint that contain the specific factual allegations.

      In paragraph 12 of defendants’ Answer, it appears that defendants also are attempting to incorporate by reference their responses to the other allegations in the Complaint, although they do not state it very clearly. Defendants state in other paragraphs of their answer that they are without full information and knowledge of the allegations related to the accident, and therefore generally deny them, and defendants specifically deny that Mr. Alfred was an employee of Smith and ITS. Def. Ans. ¶ 6. Given that defendants have denied these allegations in paragraph 6 of their Answer, the Court will not deem paragraphs 15-18 of the Complaint admitted due to defendants’ imprecise pleading in paragraph 12 of their Answer. Accordingly, the facts alleged in paragraphs 15-18 are deemed denied.

     The Court finds that there are material issues of fact for trial in this case, and that plaintiff and defendants Smith and ITS’ motions for summary judgment must both be denied.

     Plaintiff submits several exhibits in support of his summary judgment motion in an attempt to demonstrate that there are no material factual disputes in this case. However, none of these exhibits that go towards proving defendants’ liability is authenticated. Plaintiff submits an affidavit executed by Iwaiser Fredrick, which authenticates receipts for repairs he made to his automobile and other assertions of damages that he suffered. However, the only evidence of defendants’ alleged negligence, purportedly a police report filed against Alfonso Alfred, is not authenticated. The report also contains hearsay statements that may not be admissible, even if authenticated. Accordingly, the Court finds that there are material issues of fact precluding entry of summary judgment in favor of plaintiff.

[12 FSM Intrm. 153]

     For the same reason, the Court denies defendant Smith and ITS’ motion for summary judgment.1 Defendants Smith and ITS move for summary judgment on the issue of their purported vicarious liability or indemnification for the acts of Mr. Alfred. Smith and ITS argue that the signed contract between the parties clearly sets out that Mr. Alfred is not an employee of Smith or ITS, and that therefore they cannot be held liable. However, this contract is not authenticated, and as such would not be admissible as submitted. Under FSM Civil Rule 56, the party opposing a summary judgment motion may not rely on unsubstantiated denials of liability to carry its burden, but must present some competent evidence that would be admissible at trial which demonstrates that there is a genuine issue of material fact. Federated Shipping Co. v. Ponape Transfer & Storage, 4 FSM Intrm. 3, 11 (Pon. 1989). Unauthenticated evidence is not competent, and cannot support a motion for summary judgment. Accordingly, defendants Smith’s and ITS’s motion for summary judgment also is denied.

     Because the Court has concerns about the status of defendant Alfonso Alfred and whether he is represented in this case, the Court will schedule a status conference.

     Accordingly, plaintiff’s motion for summary judgment is hereby denied, and defendant Smith’s and ITS’s motion for summary judgment also is hereby denied. A status conference is hereby scheduled for November 6, 2003, at 10:00 a.m. at the FSM Supreme Court in Palikir, Pohnpei. The Clerk of Courts is hereby ordered to insure that defendant Alfonso Alfred is personally served with a notice of this status conference and that he is requested to attend in person or to retain an attorney to represent him in advance of the date of the status conference.

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______________________________

Footnote:

1. The Court notes that there is some confusion as to who, if anyone, represents Mr. Alfred. Smith and ITS filed a pro se answer, and subsequently a Court order was issued that states that Mr. Simina appeared on behalf of "defendants." The Order did not specify that Mr. Simina was appearing only for defendants Smith and ITS. However, as the motion for summary judgment filed by Mr. Simina clearly is on behalf of Smith and ITS, and makes them adverse to Mr. Alfred, it is clear that Mr. Alfred needs to attempt to retain other counsel.