[24 FSM R.023]

For purposes of entertaining a party's motion for summary judgment, and as this Court has previously explained, a “trial court may grant summary judgment, viewing facts and inferences drawn from them in the light most favorable to the nonmoving party, only if the moving party shows that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law." Adams Bros. Corp. v. SS Thorfinn, 19 FSM R. 1, 8 (Pon. 2013). In this case, in his pending motion for summary judgment, Mr. Saimon argues that at the time that Mr. San Nicolas approached him about representation in the case of Sohs v. Pohnpei, Civil Action No. 2019-006-A, there was no longer any existing attorney-client relationship between Messrs. Phillip and San Nicolas, and, as such, there was no contract for Mr. Saimon to interfere in. According to Mr. Saimon, under the 1983 version of the American Bar Association's Rules of Professional Conduct that were adopted by the Court – and still applicable to attorneys in this jurisdiction – when a client terminates an attorney's representation, the termination is effective immediately. Included as an exhibit in his motion for summary judgment is a letter dated February 14, 2022, from Mr. San Nicolas to Mr. Phillip which purports to terminate Mr. Phillip's legal representation. Mr. Saimon concludes that there are no triable issues of material fact for the Court to address, and, as such, he is entitled to a judgment as a matter of law dismissing Mr. Phillip's claims at issue in this case.

Mr. Saimon, however, fails to address a key assertion of material fact alleged by Mr. Phillip, and that is that Mr. Saimon was apparently taking some action prior to Mr. San Nicolas's issuance of the February 14, 2022 letter at issue here, for the purpose of undercutting Mr. Phillip's role as Mr. San Nicolas's legal counsel. Pacific Int'l, Inc. v. FSM, 21 FSM R. 283, 286 (Pon. 2017) (in considering a summary judgment motion, the court must view the facts and inferences in a light most favorable to the party opposing the motion). Indeed, there is no dispute that Mr. Phillip was representing Messrs. San Nicolas, San Nicolas and Sohs as early as 2019 when the complaint in the case of Sohs v. Pohnpei, Civil Action No. 2019-006-A, was filed. This relationship has been recognized clearly contractual in nature. Aggregate Sys., Inc. v. FSM Dev. Bank, 10 FSM R. 493, 497 (Chk. 2002) (when the attorney-client contract is at an end without liability for breach on either side, the attorney remains entitled to compensation according to the contract terms for the services performed to date) (emphasis added); Damarlane v. Damarlane, 19 FSM R. 519, 523 (Pon. 2014) (whether the term "costs" in a verbal contract between a client and his attorney included attorney's fees is a question of contract interpretation that must be resolved by the court as a matter of law) (emphasis added). There is also no dispute that Mr. Phillip was apparently terminated in February 2022, when he received written notice from Mr. San Nicolas that his services were no longer required. This leaves a genuine issue of material fact that the Court must resolve, and that is what transpired during this three-year period of time with regard to the allegation that Mr. Saimon took action to cause Mr. San Nicolas to terminate Mr. Phillip's services. Mr. Saimon's motion for summary judgment does not resolve this issue. Tosie v. Healy-Tibbets Builders, Inc., 5 FSM R. 358, 360 (Kos. 1992) (a motion for summary judgment must be denied unless the court finds there is no genuine dispute as to material facts, viewing the facts in the light most favorable to the nonmoving party, and that the moving party is entitled to judgment as a matter of law).

In light of this triable issues of fact, the cases relied upon by Mr. Saimon in his motion for summary judgment, including the cases of Foods Pacific, Ltd., v. H.J. Heinz Co., Australia, 10 FSM R. 200, 203 (Pon. 2001); Jano v. Fujita, 16 FSM R. 502, 504 (Pon. 2009); and FSM v. Kuo Rong 113, 20 FSM R. 27, 33 (Yap 2015), are misplaced as those cases concern the elements needed to show that a contract exists. Similarly, the analysis offered by Mr. Saimon of exactly when an attorney is terminated by a client under Rule 1.16 of the Court's existing 1983 version of the American Bar Association's Model Rules of Professional Conduct misses the mark in this matter. Indeed, while even Mr. Phillip may acknowledge that he was terminated in February 2022, that leaves the entire period of time leading up to his termination, including the actions that Mr. Saimon allegedly engaged in that caused that termination, to be addressed at trial. Bank of Hawaii v. Helgenberger, 19 FSM R. 584, 585 (Pon. 2014) (the withdrawal of counsel from the legal representation of a client is governed by FSM MRPC Rule 1.16). Moreover, the case law from this Court clearly shows that an attorney, even after being terminated by his or her client, may be required to continue representing the client if ordered to do so by the Court. Lee v. FSM, 18 FSM R. 558, 562 (Pon. 2013) (the court does not have to permit counsel's withdrawal if the client will be left in a position where the client's interests are impaired or where there is a material adverse effect on him); FSM Dev. Bank v. Tropical Waters Kosrae, Inc., 18 FSM R. 569, 572 (Kos. 2013) (although the financial burden on counsel's law firm may constitute good cause, a court may order that he continue the representation and that he will not be permitted to withdraw because, given the statutorily-required expedited nature of the proceedings, counsel's withdrawal cannot be accomplished without material adverse effect on the defendants, but with this in mind, counsel may renew his motion to withdraw at a later date if the situation warrants).

Under these circumstances, and for the reasons discussed above, the Defendant's motion for summary judgment is hereby denied. This matter shall proceed to adjudication at trial. In the event that Mr. Saimon believes that he can address the issues that the Court has identified in this Order which appear to be a genuine issue of material fact that need to be resolved, he may renew his motion for summary judgment. FSM Civ. R. 56.

B. Appointment of Special Master & Scheduling Order

With regard to the appointment of a special master in this case, the Court hereby declines to consider such an appoint at this time. The record here shows that the factual issues that are ripe for resolution, while complex, are isolated to specific actions that allegedly occurred by Mr. Saimon over a confined period of time. In addition, the alleged actions in question here appear to only involve a limited number of individuals, who may or may not be called to testify at trial. This situation appears to be more conducive to an efficient resolution through the judicial process, rather than the employment of a special master, the latter of which is usually reserved for situations that involve the detailed review of factual matters that require resolution in preparation for trial.

Instead, with there being no special master in this case, the parties shall follow the schedule below with regard to the adjudication of this matter:

1. all discovery shall be complete by May 31, 2023;

2. all dispositive pretrial motions shall be filed by August 1, 2023; and

3. responsive pleadings shall be filed as permitted by Rule 6 of the Court's Rules of Civil Procedure. FSM Civ. R. 6.

If a hearing is needed on any dispositive motions filed by the parties, the Court will schedule such a proceeding. FSM Civ. R. 16. Otherwise, if no dispositive motions are filed, then the Court will issue an Order that provides for further proceedings, including the scheduling of trial as well as the submission of pretrial statements and the marking of exhibits which the parties intend to proffer as evidence at trial. This order may also provide for a pretrial conference. Id.

C. Conclusion

In conclusion, and for the reasons stated above, the Court denies the Defendant's motion for summary judgment. In addition, and as explained above, the Court hereby declines to appoint a special master in this case. Instead, the parties shall proceed with the adjudication of this case subject to the scheduling order set forth in this Order.