Welle v Walter [1998] FMCSC 10; 8 FSM Intrm. 572 (Chk. S. Ct. Tr. 1998) (17 April 1998)

CHUUK STATE SUPREME COURT
TRIAL DIVISION
Cite as Welle v Walter, [1998] FMCSC 10; 8 FSM Intrm. 572 (Chk. S. Ct. Tr. 1998)

KANGICHY WELLE,
Plaintiff,

vs.

ANSITO WALTER et al.,
Defendants.

CSSC CIVIL ACTION NO. 139-97

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Jerry L. Coe
Special Trial Justice

Hearing: April 16, 1998
Decided: April 17, 1998

APPEARANCES:

For the Plaintiff:
Wesley Simina, Esq.
P.O. Box 94
Weno, Chuuk FM 96942

For the Defendants:
Joses Gallen, Esq.
Assistant Attorney General
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure - Motions
Failure of the opposing party to file responsive papers shall be considered by the court as consent to the granting of the motion. Welle v. Walter, [1998] FMCSC 10; 8 FSM Intrm. 572, 573 (Chk. S. Ct. Tr. 1998).

Public Officers and Employees - Chuuk
The Governor of Chuuk has no constitutional or statutory power or authority to appoint an acting Executive Director of the Board of Education or head of the Education Department other than as provided for in section 4, article X, Chuuk Constitution and that any other appointment to that position is void. Welle v. Walter, [1998] FMCSC 10; 8 FSM Intrm. 572, 573-74 (Chk. S. Ct. Tr. 1998).

Public Officers and Employees - Chuuk
Only the lawful Director or Head of Education is entitled to all the rights, powers, privileges and emoluments thereof, including the benefits of office. Welle v. Walter, [1998] FMCSC 10; 8 FSM Intrm. 572, 574 (Chk. S. Ct. Tr. 1998).

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COURT'S OPINION

JERRY L. COE, Special Trial Justice:

This case comes before the Court on motion for summary judgment filed by Plaintiff, which was heard, after notice, on April 16, 1998. The Defendants asked for affirmative relief by way of counterclaims included in their answer to the complaint, but no further action has been taken by Defendants to assert these claims and they are deemed to be abandoned and subject to be dismissed.

The Defendants filed no motions or responses to Plaintiff's motion for summary judgment and during the hearing on April 16, 1998, offered no defense or opposition to the Plaintiff's motion or objections to the Court's announcement of findings of fact and conclusions of law to be included in this order.

The pre-trial order entered by the Court on March 9, 1998, provided that the failure to respond to motions filed by the opposing party, will be deemed an admission of, or concurrence with, such motion. In this regard, amended Rule 6(d), CSSC Rules of Civil Procedure provides: "Failure of the opposing party to file responsive papers shall be considered by the court as consent to the granting of the motion."

Based on the foregoing, for its findings of fact, the Court incorporates in this order, the allegations contained in Plaintiff's Motion for Summary Judgment and accompanying affidavits, with the exception of the amount of damages, if any, to which Plaintiff may be entitled for emotional distress, pain and suffering, injury to credit rating and reputation.

The parties have stipulated, in open court, that Plaintiff's proof and Defendants' opposition relative to such damages, will be submitted by written statements of the parties, to be filed no later than May 15, 1998. Responses to such statements shall be filed not later than May 22, 1998. All such statements shall be in the form of affidavits.

Thereafter, the issue of damages to which Plaintiff may be entitled shall be considered by the Court as submitted for decision. The haste and diligence with which the Defendants comply with the conclusions of the Court hereinafter set out, will be a factor in the determination of damages to which the Plaintiff may be entitled.

Conclusion

Based on the Plaintiff's motion for summary judgment, exhibits and affidavits of record in this case and the absence of response or opposition thereto, the Court finds that there is no genuine issue as to any material fact, except damages as set out above, and as a matter of law, Plaintiff is entitled to an order granting his motion for summary judgment in the following language contained in said motion:

1. Plaintiff was the executive director of the Board of Education and the head of the Education Department prior to the filing of this case and shall continue in such position until such time as he duly ceases to hold said office in accordance with applicable law.

2. The Defendant, Ansito Walter, in his official capacity as Governor of Chuuk State, or one acting for, or on his behalf has no constitutional or statutory power or authority to appoint an Acting Executive Director of the Board of Education or head of the Education Department other than as provided for in Section 4, Article X, Constitution of Chuuk State and that his appointment of defendant John Sound to that position is void.

3. The Plaintiff is entitled to receive, and Defendants shall compensate Plaintiff for all his salary and remuneration previously withheld from Plaintiff and Defendants shall regularly compensate Plaintiff hereafter until such time as he ceases to hold the office of Executive Director in accordance with applicable law.

4. The Plaintiff, and only the Plaintiff, has been the lawful Director or Head of Education throughout and Plaintiff was, and is, entitled to all the rights, powers, privileges and emoluments thereof, including the benefits of office, housing and vehicles as are provided for the use of the Director of Education until such time as he ceases to hold that office as provided for by law.

5. The Defendants, jointly and severally are hereby enjoined from unduly interfering with or frustrating the Plaintiff in his position of Director of Education and in the performance of his duties as prescribed by the Board of Education.

6. Upon receipt by the Court of the statements relative to damages, an order will be entered concerning any award. Thereafter, counsel for the Plaintiff is requested to submit to the Court a proposed final judgment consistent with all orders of the Court in this case. This final judgment shall be approved as to form by counsel for the Defendants.

It is so ordered.