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United States of America Small Business Administration v Trans Atoll Service Corporation [1986] MHSC 15; 1 MILR (Rev) 57 (12 November 1986)

1 MILR (Rev.) 57

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 86-11
(High Ct. Civil No. 1984-072)

UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION, Plaintiff-Appellee,

-v-

TRANS ATOLL SERVICE CORPORATION, et al.,
Defendant-Appellant.

ORDER DISMISSING APPEAL

NOVEMBER 12, 1986

BURNETT, C.J.

SUMMARY:

An appeal from an order granting summary judgment was dismissed for failure of counsel to designate, as part of the record on appeal, the motion and supporting and opposing affidavits.

DIGEST:

1. CIVIL PROCEDURE – Motions – Summary Judgments: Summary judgment is determined on the basis of the record, including affidavits. Unsworn statements of counsel will not be considered.

This appeal is taken from Summary Judgment entered September 22, 1986, pursuant to Rule 45, Marshall Islands Rules of Civil Procedure. That rule requires that a motion for summary judgment be supported by affidavit(s) showing that there is no material fact in issue, and that the moving party is entitled to judgment as a matter of law.

An opposing party may file countervailing affidavits, setting out specific facts to show that summary judgment is not appropriate. Should he be unable, within the time set for hearing, to present facts so showing, the court may order a continuance to "permit affidavits to be obtained or depositions to be taken or discovery to be had ...." Rule 45(f).

The notice of appeal does not show that opposing affidavits were filed, and affirmatively represents that neither Appellant nor his counsel appeared at hearing.

Counsel demonstrates woeful ignorance of the Rules. He first suggests that he should be granted relief under Rule 48(a)(1), for "mistake, inadvertence, surprise, or excusable neglect." First, this is a trial court rule, and an appropriate motion should have been filed in that court. Then, the way being open for counsel to have moved for a continuance under Rule 45(f), counsel elected not to do so, and did not even appear for hearing.

He then suggests that the court was "hasty," and ignored counsel's previous objections, and that a financial statement could have been presented in court, had Appellant not been ill. None of these objections were supported by affidavit as the rule requires.

[1] Summary Judgment is determined on the basis of the record. Unsworn statements of counsel are not sufficient, and are not to be considered.

Appellant's designation of the record includes only a transcript of the September 22, 1986, and June 19, 1986, hearings. Neither could conceivably contribute to appellate consideration, particularly in the absence of a full record, including the motion and supporting affidavits.

Accordingly, there being nothing presented for appellate review, this appeal is Dismissed.