Berman v Rosario [2007] FMSC 67; 15 FSM Intrm. 429 (Pon. 2007) (4 December 2007)

FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2004-010

MARY BERMAN,
Plaintiff,

vs.

UKOLINO ROSARIO, MARTHA ROSARIO, and SESKO ROSARIO d/b/a Sei Sei Store and Martha Rosario Store,
Defendants.
__________________________________________

ORDER AND MEMORANDUM

Andon L. Amaraich
Chief Justice

Decided: December 4, 2007

APPEARANCES:

For the Plaintiff: Mary Berman, Esq., pro se
P.O. Box 163
Kolonia, Pohnpei FM 96941

For the Defendants: Matt Mix, Esq.
Directing Attorney
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure  Pleadings

A defendant who is not an attorney admitted to practice before the court, may not answer on anyone's behalf but his own, and his answer will be stricken to the extent that it purports to be on other defendants' behalf. Berman v. Rosario, [2007] FMSC 67; 15 FSM Intrm. 429, 431 (Pon. 2007).

Civil Procedure  Summary Judgment

A party responding to a summary judgment motion may not rely on a mere denial to stave off summary judgment in the movant's favor, but at the same time, the burden of showing a lack of issues of fact necessitating a trial lies with the moving party. Berman v. Rosario, [2007] FMSC 67; 15 FSM Intrm. 429, 431 (Pon. 2007).

Civil Procedure  Summary Judgment

Just as a non-movant may not rely on a mere denial to stave off summary judgment, so the movant may not rely on a mere allegation in the complaint to establish her prima facie case for purposes of a summary judgment motion since the court must look beyond the pleadings to the competent evidence presented to determine whether a genuine fact issue exists. Berman v. Rosario, [2007] FMSC 67; 15 FSM Intrm. 429, 431 (Pon. 2007).

Civil Procedure  Sanctions; Civil Procedure  Summary Judgment; Judgments

Since a previously-awarded $770 discovery sanction will be incorporated into the final judgment as a matter of course, summary judgment for this amount is redundant, and will accordingly be denied. Berman v. Rosario, [2007] FMSC 67; 15 FSM Intrm. 429, 431 (Pon. 2007).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

On October 22, 2007, plaintiff Mary Berman filed her motion for summary judgment pursuant to Rule 56 of the FSM Rules of Civil Procedure in which she seeks judgment against all three of the defendants, Ukolino Rosario, his wife Martha Rosario, and their daughter Sesko Rosario. The question of judgment against Ukolino is readily resolved, since on October 29, 2007, the defendants filed a submission entitled Partial Agreement to Summary Judgment in which Ukolino agrees to entry of summary judgment against himself. What remains is the question of summary judgment against the remaining two defendants, Martha Rosario, and Sesko Rosario.

Ukolino filed a pro se answer in this matter. However, that answer further recites that "Ukolino Rosario on his own behalf and on behalf of Martha and Sesko Rosario answers the complaint." Answer at 1. Ukolino is not an attorney admitted to practice before this court. Thus he may not answer on anyone's behalf but his own, and the answer is stricken to the extent that it purports to be on behalf of Martha and Sesko. Martha and Sesko Rosario did, however, later appear pro se in this case when they filed separate answers to discovery on June 13, 2007. Although the discovery answers carry MLSC's attorney block in the upper left corner of the caption page, the answers were not signed by an attorney as required by FSM Civil Rule 11, but only by Martha and Sesko personally. Subsequently, on October 31, 2006, Mat Mix from MLSC appeared for all defendants when he filed a motion to compel discovery on their behalf.

This suit is one for attorney's fees for professional services that Berman provided in relation to litigating and appealing a dispute involving land in Palikir where a certain store was located. In her motion for summary judgment, Berman characterizes this store as a new branch store that grew out of the Rosarios' other enterprises. Berman urges that all of the stores were operated as a partnership; that Ukolino was acting on behalf of the partnership when he entered into the contract for professional services which is the subject of this suit; and that all three defendants are therefore jointly and severally liable for the amount of the professional fees owed. In response to these contentions, the defendants make the single assertion in their response to the motion for summary judgment that "[d]efendants Martha Rosario and Sesko Rosario oppose having summary judgment entered against them because there was no partnership among them." Partial Agreement to Summ. J. at 2. This is a mere denial. A responding party may not rely on a mere denial to stave off summary judgment in the movant's favor. Urban v. Salvador, [1995] FMSC 8; 7 FSM Intrm. 29, 31 (Pon. 1995).

At the same time, however, the burden of showing a lack of issues of fact necessitating a trial lies with the moving party. Kihara Real Estate, Inc. v. Estate of Nanpei (I), 6 FSM Intrm. 48, 53 (Pon. 1993). No genuine issue of material fact exists on the question of the partnership. Berman has come forward with evidence to show that all three defendants at various times signed their FSM business gross revenue tax declarations as "owner" of their family stores. However, in order to obtain summary judgment against Martha and Sesko, Berman must also establish a prima facie case that Ukolino was acting on behalf of the partnership when he entered into the contract for professional services, which is a different but essential element of Berman's case. On this point, Berman relies only on the allegation to that effect in the complaint. At pages 1 and 2 of her motion for summary judgment, Berman cites to 5 of the complaint, which provides that "Ukolino Rosario, acting as agent for the family businesses known as Sei Sei Store and Martha Rosario Store, and acting on their behalf as co-owner and operator of the above named stores for his wife and daughter Martha and Sesko Rosario, respectively, contracted for attorney Mary Berman's employment." Just as a non-movant may not rely on a mere denial to stave off summary judgment, so the movant may not rely on a mere allegation in the complaint to establish her prima facie case for purposes of a summary judgment motion, since the court must look beyond the pleadings to the competent evidence presented to determine whether a genuine fact issue exists. College of Micronesia-FSM v. Rosario, [2001] FMSC 3; 10 FSM Intrm. 175, 186 (Pon. 2001). Thus Berman has not made out a prima facie case on that part of her claim which seeks judgment against Martha and Sesko on the basis that Ukolino was acting for the partnership when he contracted with her for professional services.

Accordingly, the motion for summary judgment is denied with respect to Martha and Sesko Rosario.

Ukolino has agreed to judgment in accordance with the relief requested in the complaint. In her motion for summary judgment, Berman states that the amount of $13,275.00 sought in the complaint was calculated incorrectly, and that she is actually owned $14,214.90. Ukolino does not contest this amount in his response to the motion for summary judgment. Summary judgment is awarded against Ukolino in the amount of $14,214.90.

Berman also seeks summary judgment for $770. However, this amount was already awarded as a discovery sanction against all three defendants. This amount will be incorporated into the final judgment as a matter of course. Summary judgment for this amount is redundant, and is accordingly denied.

The remaining claims against Martha and Sesko will be tried on March 12, 2008, at 10:00 a.m.

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