Dereas v Eas [2004] FMCSC 5; 12 FSM Intrm. 629 (Chk. S. Ct. Tr. 2004) (7 September 2004)

CHUUK STATE SUPREME COURT TRIAL DIVISION
Cite as Dereas v Eas, [2004] FMCSC 5; 12 FSM Intrm 629 (Chk. S. Ct. Tr. 2004)

KEICHI DEREAS and ISAUO KUENA
Plaintiffs

vs.

AKUO EAS also known as AKUO MOKUK
individually and in his capacity as representative for any claimants to the land known as
Lots No.029-A-22 and 029-A-23
Defendants

vs.

NAHOY SELIFIS,
Intervenor

CSSC CIVIL CASE NO. 109-2003

ORDER AND MEMORANDUM

Dennis K. Yamase
Special Trial Division Justice

Hearing: August 16, 2004
Decided: September 7, 2004

APPEARANCES:

For the Plaintiffs:
Stephen V. Finnen, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendants:
Hans Wiliander
P.O. Box 389
Weno, Chuuk FM 96942

For the Intervenor:
Nahoy Selfis, pro se
P.O. Box D
Weno, Chuuk FM 96942

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HEADNOTES

Attorney, Trial Counselor and Client - Withdrawal of Counsel
Model Rule of Professional Conduct 1.16(d) requires that when withdrawing from representation counsel must take steps to the extent reason-ably practicable to protect a client’s inter-ests, such as giving reasonable notice to the client, allowing time for employment of oth-er counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. Such steps usually include assisting the clients in obtaining substitute counsel. Dereas v. Eas, [2004] FMCSC 5; 12 FSM Intrm. 629, 631 (Chk. S. Ct. Tr. 2004).

Attorney, Trial Counselor and Client - Withdrawal of Counsel
When ordered to do so by a tribunal, a lawyer must continue representation not-withstanding good cause for terminating the representation. Dereas v. Eas, [2004] FMCSC 5; 12 FSM Intrm. 629, 631 (Chk. S. Ct. Tr. 2004).

Civil Procedure - Summary Judgment
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. The court must view the facts presented and inferences made in the light most favorable to the nonmoving party. The burden of showing a lack of triable issues of fact belongs to the moving party. If a genuine issue of material fact is present then the trial court has to deny the summary judgment motion. Dereas v. Eas, [2004] FMCSC 5; 12 FSM Intrm. 629, 632 (Chk. S. Ct. Tr. 2004).

Civil Procedure - Summary Judgment
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. The non-moving party may not rely on unsubstantiated denials of liability to carry its burden, but must present some competent evidence that would be admissible at trial to demonstrate that there is a genuine issue of fact, and that there is enough evidence supporting its position to justify a decision upholding its claim by a reasonable trier of fact. Dereas v. Eas, [2004] FMCSC 5; 12 FSM Intrm. 629, 632 (Chk. S. Ct. Tr. 2004).

Civil Procedure - Summary Judgment
Unsupported factual assertions are insufficient to oppose a motion for summary judgment. Dereas v. Eas, [2004] FMCSC 5; 12 FSM Intrm. 629, 632 (Chk. S. Ct. Tr. 2004).

Civil Procedure - Summary Judgment
When, viewing the facts presented and inferences made in the light most favorable to the nonmoving parties, a party has met his burden of showing a lack of triable issues of fact, when his motion and supporting evidence have made out a prima facie case of entitlement to summary judgment, and when the opposing parties have not presented any competent evidence to demonstrate that there is a genuine issue of fact, his summary judgment motion will be granted. Dereas v. Eas, [2004] FMCSC 5; 12 FSM Intrm. 629, 632-33 (Chk. S. Ct. Tr. 2004).

Judgments; Property - Registered Land
A quiet title court judgment is only good against the parties to the case and those in privity with them, while a certificate of title to registered land is presumptively valid against the world. Dereas v. Eas, [2004] FMCSC 5; 12 FSM Intrm. 629, 633 (Chk. S. Ct. Tr. 2004).

Judgments
A final judgment will issue when the court expressly determines that there is no just cause for delay and hereby directs that judgment be entered. Dereas v. Eas, [2004] FMCSC 5; 12 FSM Intrm. 629, 633 (Chk. S. Ct. Tr. 2004).

* * * *

COURT’S OPINION

DENNIS K. YAMASE, Special Trial Division Justice:

This came before the court on August 16, 2004, for hearing on Isauo Kuena’s Motion for Summary Judgment, filed November 19, 2003 (with a supporting affidavit and exhibits), and on Keichi Dereas’s Motion for Partial Summary Judgment, filed February 13, 2004 (with a supporting affidavit and exhibits). This order disposes of Isauo Kuena’s motion. Keichi Dereas’s motion will be the subject of a later order. The intervenor’s Opposition to Motion for Summary Judgment, filed December 17, 2003; Reply in Support of Motion for Summary Judgment by Isauo Kuena with supporting affidavit and exhibit, filed January 12, 2004; Defendants’ Opposition to Isauo Kuena’s Motion for Summary Judgment with exhibits, filed January 15, 2004; Supplement to Summary Judgment Motion by Keichi Dereas, and Supplemental Reply by Isauo Kuena with supporting affidavit, filed February 11, 2004 were also before the court for consideration on Kuena’s motion.

Plaintiffs appeared through counsel, Stephen V. Finnen of Saimon & Associates. Defendants appeared in person and through counsel, Hans Wiliander. No appearance was made on the intervenor’s behalf. After the hearing, the intervenor filed the following: Motion Requesting the Court to Consider the Pleadings on File, filed August 18, 2004; and Begging Leave of Court to File Supplemental Pleading Opposition, Response to Supplemental Reply in Support of Summary Judgment by Keichi Dereas, Supplemental Response to Reply to the Motion for Summary Judgment by Keichi Dereas, all filed August 23, 2004. These are considered as well to the extent they apply to Kuena’s motion.

A preliminary matter before the court was counsel Hans Wiliander’s Notice of Withdrawal as Counsel for Defendants, filed April 12, 2004; the plaintiffs’ Opposition to Motion to Withdraw, filed May 20, 2004; and counsel Wiliander’s Report to the Justice, filed June 17, 2004.

I. Motion to Withdraw

Counsel Wiliander asks to withdraw as defendants’ counsel on the ground that his employment as the Chuuk Legislature’s Assistant Legal Counsel since February prohibits him from accepting or continuing in outside employment. Model Rule of Professional Conduct 1.16(d) requires that when withdrawing from representation counsel must "take steps to the extent reason-ably practicable to protect a client’s inter-ests, such as giving reasonable notice to the client, allowing time for employment of oth-er counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned." Chk. MRPC R. 1.16(d). Such steps usually include assisting the clients in obtaining substitute counsel. See, e.g., Hartman v. Chuuk, [2004] FMCSC 2; 12 FSM Intrm. 388, 396 (Chk. S. Ct. Tr. 2004).

The plaintiffs oppose withdrawal if it would cause further delay and thereby prejudice them by the delay and from the expenses for their counsel’s travel and time in Chuuk. In his report to the court and at the hearing, counsel Wiliander outlined his attempts to comply with Rule 1.16(d) and to obtain substitute counsel for the defendants. He also noted that he had obtained his employer’s permission to appear at the hearing and expressed his willingness to continue to represent the defendants pro bono until substitute counsel can be obtained if the court should order him to do so.

With that on the record, the court asked that he continue to represent the defendants during the hearing. When ordered to do so by a tribunal, a lawyer must continue representation not-withstanding good cause for terminating the representation. Chk. MRPC R. 1.16(c); see also FSM v. Jano, [2000] FMSC 43; 9 FSM Intrm. 470a, 470b (Pon. 2000) (when ordered to by a tribunal, counsel is ethically obligated to continue the representation even if good cause to withdraw is present).

The court appreciates counsel Wiliander’s candor and his efforts to protect his clients’ interests and will grant his motion to withdraw as soon as adequate substitute counsel has filed and served a notice of appearance.

II. Isauo Kuena’s Motion

Isauo Kuena’s motion asks that he be granted summary judgment that he holds title to and is the owner of Lot No. 029-A-022, known as Uonou #4. To support his motion, Kuena provides his affidavit, a copy of the deed of sale transferring title to him, and a copy of the certificate of title issued to him, showing him as the sole "owner of an estate in fee simple" of Lot No. 029-A-022. He asks that the court quiet title and that he be issued a declaratory judgment that he is Lot No. 029-A-022’s owner.

In opposition, the intervenor asserts that he does not oppose Kuena’s purchase of the lot, but contends that the boundaries are disputed. He contends that the Chuuk State Supreme Court, in Civil Action No. 43-96, remanded that action to the Land Commission for determination of the boundaries of Lot 029-A-23, and he asserts that the boundaries of both Lot No. 029-A-022 and Lot No. 029-A-23 are in dispute. No affidavits or exhibits accompany this opposition, only facts asserted and argument made.

The defendants’ opposition to Kuena’s motion asserts that there are genuine issues of material fact in dispute and attaches two Chuuk State Supreme Court orders from Civil Action No. 43-96, one of which refers to Lot No. 029-A-09 and Lot No. 029-A-023. Lot No. 029-A-022 is not mentioned in either order. Neither Isauo Kuena nor Keichi Dereas were a party to Civil Action No. 43-96. At the hearing, the defendants conceded on the record that they do not dispute the ownership of Lot No. 029-A-022, they only dispute Lot No. 029-A-09^[1] and Lot No. 029-A-023.

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Sauder v. Chuuk State Legislature, [1995] FMCSC 20; 7 FSM Intrm. 358, 360, 363 (Chk. S. Ct. Tr. 1995); Chk. Civ. R. 56(c). The court must view the facts presented and inferences made in the light most favorable to the nonmoving party. The burden of showing a lack of triable issues of fact belongs to the moving party. Adams v. Etscheit, [1994] FMSC 52; 6 FSM Intrm. 580, 582 (App. 1994). If a genuine issue of material fact is present then the trial court has to deny the summary judgment motion. Bualuay v. Rano, [2002] FMSC 30; 11 FSM Intrm. 139, 149 (App. 2002). 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. The non-moving party may not rely on unsubstantiated denials of liability to carry its burden, but must present some competent evidence that would be admissible at trial to demonstrate that there is a genuine issue of fact, and that there is enough evidence supporting its position to justify a decision upholding its claim by a reasonable trier of fact. FSM Dev. Bank v. Ifraim, [2001] FMSC 26; 10 FSM Intrm. 342, 345 (Chk. 2001); Marar v. Chuuk, [2000] FMSC 27; 9 FSM Intrm. 313, 314-15 (Chk. 2000); Chuuk v. Secretary of Finance, [1998] FMSC 19; 8 FSM Intrm. 353, 362 (Pon. 1998). In opposing a summary judgment motion, an adverse party may not rest upon the mere allegations or denials of his pleading, but must respond by affidavits setting forth specific facts showing that there is a genuine issue for trial. Ueda v. Stephen, [1999] FMCSC 11; 9 FSM Intrm. 195, 197 (Chk. S. Ct. Tr. 1999). Unsupported factual assertions are insufficient to oppose a motion for summary judgment. Suldan v. Mobil Oil Micronesia, Inc., [2002] FMSC 11; 10 FSM Intrm. 574, 579 (Pon. 2002).

Viewing the facts presented and inferences made in the light most favorable to the nonmoving parties, Kuena has met his burden of showing a lack of triable issues of fact. Kuena’s motion and supporting evidence have made out a prima facie case of entitlement to summary judgment, and the opposing parties have not presented any competent evidence to demonstrate that there is a genuine issue of fact. Kuena’s summary judgment motion is therefore granted.

Kuena asks for a declaratory judgment that he is the owner of Lot No. 029-A-022. The court doubts the need for such a judgment since a quiet title court judgment is only good against the parties to the case and those in privity with them, Phillip v. Moses, [2002] FMCSC 3; 10 FSM Intrm. 540, 546 (Chk. S. Ct. App. 2002) (final judgments, as a rule, generally bind only the parties to the case and all those in privity with them), while a certificate of title to registered land is presumptively valid against the world, 67 TTC 117; Stephen v. Chuuk, 11 FSM Intrm. 36, 41 (Chk. S. Ct. Tr. 2002); see also Luzama v. Ponape Enterprises Co., [1995] FMSC 11; 7 FSM Intrm. 40, 50-51 (App. 1995). Nevertheless, Kuena asked for a declaratory judgment and by prevailing on his summary judgment motion, he is entitled to it. A judgment will therefore issue. Furthermore, the court expressly determines that there is no just cause for delay and hereby directs that judgment be entered. Chk. Civ. R. 54(b). Accordingly, a final judgment in Isauo Kuena’s favor is entered herewith.

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^[1] Lot No. 029-A-09 is not part of this case.