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Salvador v Angel [2018] PWSC 14 (10 August 2018)
IN THE
SUPREME COURT OF THE REPUBLIC OF PALAU
APPELLATE DIVISION
| MASAO SALVADOR,
Appellant,
v.
EMILIANO ANGEL,
Appellee. |
Cite as: 2018 Palau 14
Civil Appeal No. 18-003
Appeal from Civil Action No. 16-075
Decided: August 10, 2018
Counsel for Appellant Salvador Remoket
Counsel for Appellee ............... Pro Se
BEFORE: ARTHUR NGIRAKLSONG, Chief Justice
JOHN K. RECHUCHER, Associate Justice
R. BARRIE MICHELSEN, Associate Justice
Appeal from the Trial Division, the Honorable Lourdes F. Materne, Associate Justice, presiding.
OPINION
MICHELSEN, Justice:
[ 1] his appeal we are calledalled upon to consider Rules 7 and 56 of the Palau Rules of Civil Procedure. In the trial court Plaintiff
Emiliano Angel filed a motion for summary judgment. Because Dent Masao Salvador failed toed to file a timely opposition, the court
deemed the motion confessed and granted the requested relief. We hold that the trial court must always require that a party moving
for summary judgment meet the standards for summary judgment set forth in ROP R.Civ.P. 56. Here, the trial court abused its discretion
in granting the requested relief, given the failure of the plaintiff to adhere to the requirements of either Rule 7 or Rule 56.
FACTS
[ 2] The pert facts are not inot in dispute. On August 23, 2016, Angel filed suit against Salvador for failure to pay for land conveyed
to him for the amount of $17,000. He sted judgment in that amount plus interest. Salvador filed iled an answer, denying Angel was
entitled to any relief and asserted that Angel already admitted in writing receipt of the $17,000. Both parties were representing
themselves.
[ 3] In Ap017, Attorney RemokRemoket entered an appearance on behalf of Salvador. Subsequently Angel filed a motion for summary
judgment wwas served upon Attorney Remoket, who then missed the deadline for filing an opposition to n to the motion. His subsequent
motion to enlarge time for filing was denied on the basis that he failed to meet the standard of "excusable neglect" for such a motion
to be granted.
[ 4]ovember 27, 2017, the coue court held that the "[f]ailure of the [defendant] to timely file an opposing brief authorizes the
court to deem the matter confessed and the requested relief is granted."
STANDARD OF REVIEW
[ 5] We revie trial court's gt's grant of summary judgment de novo. “Therefore, this court must reach the same conclusion of
law as the trial court did to uphold a sumjudgment ruling, and no deference is appropriate.” Akiwo v. ROP, 6 ROP Intrm. 105, 106 (1997). “It includes both a review of the determination that there is no genuine issue of material fact,
and whether the substantive law was correctly applied.” ROP v. S.S. Enters., Inc., 9 ROP 48, 51 (2002) (using standard adopted from Anderson v. Liberty Lobby, Inc., [1986] USSC 144; 106 S. Ct. 2505, 2510 (1986)).
[ 6] Al court's decision to d to deem a motion confessed by the non-moving party and to grant the requested relief is a matter of
discretion for the trial court. ROP R.Civ.P. 7(c)(1).
Eller v. ROP, 10 ROP 122, 128-29 (2003) (quoting United States v. Kramer, [1987] USCA8 764; 827 F.2d 1174, 1179 (8th Cir. 1987)).
ANALYSIS
[ 7] Salvadorrst issue on appn appeal is that the court should not have granted Angel's motion for summary judgment because the plaintiff
failed to comply with ROP R.Civ.P. en he failed to submit affidavits to support his assertionstions of facts. Because Salvador prevails
on this argument, we need not reach his second issue concerning the denial of his request for an enlargement of time.
[ 8] As a preliminary matte f we first examine Rule 7. If the court is going to hold a defendant to the requirements of Rule 7 and
to the consequences formeeting those requirements (as well it should), the same standard must apply to the plaintiaintiff. With respect
to plaintiff's obligations, ROP R.Civ.P. 7(b)(2) provides
If a motion requires consideration of matters not established by the pleadings, the moving party, at the time of filing the motion,
shall also file such evidentiary materials, including affidavits, as are being relied upon. Documents must be identified and authenticated
by affidavit. Each affidavit must be made on personal knowledge, must set forth such facts as would be admissible in evidence, must
show affirmatively that the affiant is competent to testify to the matters stated therein, and must identify the motion in connection
with which the affidavit is filed. If the motion requires consideration of discovery materials, the motion shall refer to the specific
pages and lines being relied upon.
[ 9] tain summary judgment thnt the requirements are similar.
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissib evidence,
and shall show ahow affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies
of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits
to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment
is made and supported as provided in this rule an adverse party may not rest upon the mere allegations or denials of the adverse
party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate,
shall be entered against the adverse party.
ROP R.Civ.P. 56(e).
[ 10]his case plaintiff filedfiled no affidavits, and provided no documents identified and authenticated by affidavit. He merely
reasserted his claim in an unsworn statement that he had not receivement for the transferred pred property, and submitted documents
purporting to be a lease by Salvador of the subject land and Salvador's mortgage of the property to the Development Bank.
[ 11] As a matter of law, tti motion for summary judgment should have been denied. The trial court abused its discretion in granting
the motion solely on the basis that defendant failed te a timely response. The defendant's failure to respond is d is insufficient
to override the plaintiff's initial and mandatory obligation to provide admissible evidence to support a summary judgment motion.
[ 12] Tdgment is VACATED, and REMANDED with instructions to deny the plaintiff's summary judgment motion.
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