FSM SUPREME COURT
TRIAL DIVISION
Cite as Richmond Wholesale Meat Co. v.
Kolonia Consumer Coop. Ass'n (II),
7 FSM Intrm. 407 (Pon. 1988)

[7 FSM Intrm. 407]
 
RICHMOND WHOLESALE MEAT CO.,
Plaintiff,

vs.

KOLONIA CONSUMER
COOPERATIVE ASSOCIATION,
Defendant.

CIVIL ACTION NO. 1995-010

ORDER

Martin Yinug
Associate Justice

Decided:  February 21, 1996

APPEARANCES:
For the Plaintiff:          Fredrick L. Ramp, Esq.
        P.O. Box 1480
                                     Kolonia, Pohnpei FM 96941

For the Defendant:     Delson Ehmes, Esq.
                                     P.O. Box 1018
                                     Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTE
Civil Procedure) Summary Judgment
     An order of partial summary adjudication, a finding that certain issues exist without controversy, is not an order granting partial summary judgment.  An interlocutory order summarily granting adjudication of a portion of a party's claim cannot be transformed into a final judgment because issues of fact remain to be resolved.  Richmond Wholesale Meat Co. v. Kolonia Consumer Coop. Ass'n (II), 7 FSM Intrm. 407, 408 (Pon. 1996).

*    *    *    *
 
COURT'S OPINION
MARTIN YINUG, Associate Justice:

I.  Introduction
     The plaintiff, Richmond Wholesale Meat Co., ("Richmond") requested entry of judgment against

[7 FSM Intrm. 408]

 the defendant, Kolonia Consumer Cooperative Association ("KCCA"), in the amount of $30,874.38, based on the Order Granting Partial Summary Adjudication, entered on February 9, 1996.  The Request is denied.  Summary adjudication is not the equivalent of a summary judgment.

II.  Law & Analysis
     Richmond's single cause of action is for collection on an open account.  In answering, KCCA admitted an indebtedness of $30,874.38, approximately one thousand dollars less than what Richmond claimed.  KCCA also raised three affirmative defenses, including that the interest Richmond charged on the account was usurious and unenforceable.  Richmond moved for summary judgment on the entire amount it demanded in its Amended Complaint.

     The Court entered an order of partial summary adjudication, done pursuant to FSM Rule of Civil Procedure 56(d).  The Court found that there is no controversy as to the amount that KCCA admitted it owed Richmond, that the admitted indebtedness barred KCCA from claiming the contract null for illegality, and that KCCA offered no evidence to create a fact issue as to the claimed accord and satisfaction.  But issues of fact do remain for trial, based on the affidavits submitted by the parties.  Each affidavit had a different figure for the amount of Invoice No. 571080, and, based on that Invoice, the amount of interest that Richmond claimed.  These issues of fact remain for trial.

     In requesting entry of judgment in the admitted amount, Richmond characterized the February 9 entry as an order granting partial summary judgment.  That is incorrect.  It was an order of partial summary adjudication, a finding that certain issues exist without controversy.  The Court has found no FSM cases interpreting this portion of Rule 56(d).  Accordingly, it is appropriate to look to authorities interpreting the Federal Rules of Civil Procedure in use in courts in the United States, from which our rules derive.  FSM v. Ponape Builder's Constr. Inc., 2 FSM Intrm. 48, 52 (Pon. 1985).

     A partial summary adjudication under Rule 56(d) is not the equivalent of a summary judgment.

[T]he term "partial summary judgment" is often a misnomer.  Where the court has rendered a summary adjudication that is less than final, it is more accurate to refer to that judicial action as an interlocutory adjudication.  Neither Rule 56 nor any other Rule authorizes the trial court to translate an interlocutory adjudication of a part of a single claim into a final judgment.

6 (pt. 2) James W. Moore et al., Moore's Federal Practice 56.20[1], at 1205 (1982).  An interlocutory order summarily granting adjudication of a portion of Richmond's claim cannot be transformed into a final judgment because issues of fact remain to be resolved.

     Richmond's waiver of the difference between the amount it claimed in moving for summary judgment and the amount that was summarily adjudicated does not change this conclusion.  If the defendant proves the demanded interest to be usurious, KCCA may claim as relief that Richmond be entitled to none of the demanded interest.  34 F.S.M.C. 207.  Part of KCCA's admitted indebtedness includes interest.  Waiver of the excess amount will not deprive KCCA of the chance to prove this affirmative defense.

III.  Order
     1.  Richmond's request for entry of judgment in the amount of $30,874.38 is denied.

     2.  Richmond's request for issuance of a writ of execution is denied as there is no judgment.
                                                                                                                                                                                                                                                                                                           
c3Ȱq9u9GEb|. مDϪbgD{Z5Ysc&")/đJ'X̌uQMU}Bk }Ugweu[P$,%C+ m M +~lvQ.Vr[HБA2Iڴ <3ﲙ#)euU$K<G}Mr>'9-NЋ_4=+1{ypՂS;bny' {]( lwݖ#OXgVX~uVS?ũL0 v=#P7A\Z\lEOnsk`vj5BEJ2 ^YkH+=HDlRm q^ca&͏Bnt ʍ^X/jHa3_RQ\(R|ym]CЍye+h 5r`尿Qnti4;tմvulZNhcv暮br̛3@}?I|3H!{