Erum v. Llego. ( 2020 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
18-JUN-2020
11:38 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
THEODORICO ERUM, JR.,
Petitioner/Plaintiff-Appellant,
vs.
JOSUE BUMATAY LLEGO,
Respondent/Defendant-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CIV. NO. 14-1-0199)
JUNE 18, 2020
McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY POLLACK, J.
This appeal challenges the granting by the circuit
court of a defendant’s ex parte oral motion to dismiss a case
with prejudice. The case involves a personal injury claim
brought by a pro se litigant, who did not attend the pretrial
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conference at which the oral motion to dismiss was made and
granted.
For the reasons discussed, we hold that the circuit
court abused its discretion in granting the defendant’s oral
motion to dismiss with prejudice because the record does not
provide a valid basis for the dismissal order, and the court
failed to make the requisite findings of fact that would be
required to support such an order in any event. We also
reaffirm that motions must generally be made in writing with
notice provided as required by our procedural rules unless the
motion is made during a hearing or trial. And, we again note
that Hawai‘i courts should liberally construe the filings of pro
se litigants. Finally, because the Intermediate Court of
Appeals relied upon monetary sanctions imposed by the circuit
court upon the plaintiff in affirming the dismissal order, we
review the sanction orders in light of applicable law.
I. BACKGROUND
A. Trial Court Proceedings
On July 10, 2013, Theodorico Erum, Jr., filed a
Statement of Claim against Josue Bumatay Llego in the Small
Claims Court of the Fifth Circuit (small claims court) in the
amount of $2,650.00 for property damage to his vehicle from a
July 12, 2012 automobile collision in Kapaʻa, Hawaiʻi. In his
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Statement of Claim, Erum stated that, on the day of the
accident, he was stopped at a traffic sign when the rear end of
his Toyota pickup truck was struck by a Dodge taxi van driven by
Llego. The small claims court entered final judgment in Erum’s
favor on August 6, 2013, and he was awarded $236.69 in damages,
plus fees and mileage for a total amount of $311.69 (small
claims court judgment).
On July 11, 2014, Erum, proceeding pro se, filed a
complaint against Llego in the District Court of the Fifth
Circuit (district court) alleging personal injuries and property
damage arising out of the July 12, 2012 automobile accident.1
Llego, through an attorney, filed an answer on September 15,
2014, disputing liability and damages and making a demand for a
jury trial, which resulted in the commitment of the case from
the district court to the Circuit Court of the Fifth Circuit
(circuit court).2
On June 10, 2015, Erum moved for an extension of time
to file his pretrial statement, which Erum indicated had been
1
Erum studied law via a correspondence course and became licensed
to practice law in California in 1968. He has never received a law degree.
He practiced law as a sole practitioner in Los Angeles for approximately
three and a half years until about 1972-1973, when he returned to Hawai‘i to
care for his parents. Erum did not obtain a license to practice law in
Hawai‘i after returning and has never practiced law in this state.
2
All circuit court proceedings were presided over by the Honorable
Randal G.B. Valenciano.
3
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due on June 6, 2015. The court granted the motion, and the due
date for Erum’s pretrial statement was continued to December 6,
2015. Erum neglected to file a pretrial statement by that date,
and on March 7, 2016, Llego filed a motion to dismiss the case
for failure to prosecute. Erum filed his pretrial statement on
March 16, 2016, and an opposition to Llego’s motion to dismiss
on March 21, 2016. In a declaration attached to his memorandum
in opposition, Erum averred that his failure to submit his
pretrial statement was due to his mistakenly placing the wrong
date in his personal calendar as the due date, and that the
error was brought to his attention by Llego’s March 7 motion to
dismiss.
In an order entered on May 13, 2016, the circuit court
found that although Erum did not timely submit his pretrial
statement, dismissal was “too harsh a sanction.” However, the
court stated that Erum’s failure to timely file his pretrial
statement “compelled Defendant to file the Motion.”3 On that
basis, the court ordered Erum to pay all attorneys’ fees and
costs related to the motion, including the fees and costs
related to drafting the order denying Llego’s motion to dismiss
3
There is no indication in the record that Llego communicated to
Erum that a motion to dismiss would be filed if a pretrial statement was not
filed by a specific date.
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and reducing the order to a judgment. The court did not cite
the authority pursuant to which the sanction was awarded, nor
did the court find that Erum had acted in bad faith by failing
to file his pretrial statement. Based on a declaration filed by
defense counsel, the court awarded Llego $3,007.79 in attorneys’
fees and $272.40 in costs.4
On May 16, 2016, Erum filed a motion requesting that
the circuit court schedule a status conference for the purpose
of setting a trial date. The court entered an order granting
Erum’s motion and scheduled a trial setting status conference
for June 21, 2016. At the status conference, Erum and Llego
agreed to a jury trial with a duration of three to four days.
On July 5, 2016, the court filed an order setting a pretrial
conference on December 22, 2016, and scheduling trial for the
week of January 17, 2017.
On July 11, 2016, Llego moved to dismiss with
prejudice Erum’s property damage claim, arguing that the
judgment of the small claims court barred his property damage
claim under the doctrine of res judicata. Llego also sought an
award of attorneys’ fees and costs, alleging that Erum knew that
4
The order that specified the amount of the award also did not
contain any other findings or conclusions. This is similarly true of the
other orders in this case in which the court specified the amount of monetary
sanctions awarded.
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his claim was frivolous and barred by res judicata, that defense
counsel had informed Erum that it would seek sanctions if Erum
refused to voluntarily dismiss his claim with prejudice, and
that Erum had not so dismissed his claim.
Erum did not file an opposition to Llego’s motion and
instead, on July 27, 2016, Erum filed a Cross-Motion for
Continuance of Hearing on Defendant’s Motion to Dismiss with
Prejudice Plaintiff’s Property Damage Claim (cross-motion),
stating that he was seeking vacatur of the small claims court
judgment via writ of mandamus to this court, and that his claim
would not be barred if the requested writ was issued. Erum
filed a petition for writ of mandamus on August 5, 2016, and
this court issued an order denying his petition on August 18,
2016. Erum v. Kobayashi, No. SCPW-XX-XXXXXXX, 2016 WL 4398441
(Aug. 18, 2016). On December 2, 2016, the circuit court entered
a written order granting Llego’s motion to dismiss the property
damage claim and awarded Llego $2,801.54 in fees and $288.00 in
costs associated with the motion to dismiss. In the order, the
court found that Erum’s cross-motion was untimely filed and that
Llego had afforded Erum an opportunity to withdraw his claim
with prejudice and Erum had not done so. The order did not
include findings that Erum’s cross-motion or mandamus petition
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were frivolous or made in bad faith, nor did it cite the
authority pursuant to which the sanctions were granted.
On December 8, 2016, Llego filed a motion to enforce
settlement, or in the alternative, continue the trial (motion to
enforce settlement). Llego also requested that the court award
fees and costs incurred by defense counsel in conducting
settlement negotiations and in making the motion to enforce
settlement. In a declaration attached to his motion, Llego
contended that the parties had reached a final settlement on
November 9, 2016, but Erum had intentionally delayed execution
of the settlement documents in bad faith. Llego maintained that
the parties had agreed that Llego would pay Erum $16,000.00 in
general damages, Llego would not pursue collection of any
sanctions against Erum, Erum would sign a standard release and
indemnity agreement and stipulation for dismissal with
prejudice, and Erum would be responsible for any and all medical
bills related to the automobile accident.
In the motion to enforce settlement, Llego stated that
on November 9, 2016, defense counsel wrote a confirmatory letter
to Erum setting forth the material terms of the settlement as
outlined above, and a week later, he mailed settlement agreement
documents to Erum. Llego further stated that Erum contacted
defense counsel on November 29, 2016, to advise Llego that he
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would not execute the documents as drafted because the agreement
document released a party designated as “J’s Taxi” whom Erum did
not agree to release. According to Llego, Erum said that he
would not release J’s Taxi unless Erum received additional money
in the settlement. Llego indicated that he obtained authority
from the insurance carrier to remove J’s Taxi from the agreement
and so informed Erum, but Erum advised defense counsel that he
would be visiting the doctor and might require future treatment,
in which case Erum would want an additional amount to settle his
case against Llego. Defense counsel stated that he continued to
contact Erum to resolve the matter but that as of December 5,
2016, the parties had not reached agreement in the case.
On December 12, 2016, Erum filed an opposition to
Llego’s motion to enforce settlement in which he disputed
Llego’s contention that a final settlement had been reached and
stated that the terms of the agreement as drafted by Llego’s
counsel were not, and had never been, acceptable to him. In his
opposition, Erum maintained that during settlement negotiations
he had informed defense counsel that he would not settle unless
Llego agreed to pay for future medical treatment of his injuries
arising from the automobile accident and to vacate the order and
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final judgment awarding Llego attorneys’ fees and costs.5 Erum
further asserted that he had contacted defense counsel on
November 29, 2016, to inform counsel that the documents as
drafted were not acceptable because he had not agreed to release
J’s Taxi, the agreement did not provide for the vacatur of the
sanction award, and the agreement did not provide for the
payment of Erum’s future medical expenses by Llego.
At a hearing held on December 13, 2016, the circuit
court denied Llego’s motion to enforce the settlement and
granted the alternative motion to continue trial. A written
order granting Llego’s motion to continue was entered on January
27, 2017, in which the court stated that “[Defense counsel]’s
actions in the settlement negotiations with Plaintiff were made
in good faith. The Court further finds that Plaintiff’s actions
in the settlement negotiations were not made in good faith.” On
that basis, the court awarded sanctions against Erum for Llego’s
attorneys’ fees and costs associated with the unsuccessful
settlement negotiations. The court did not conduct an
evidentiary hearing regarding the settlement negotiations or
make any findings of fact in the order that set forth the basis
5
The confirmatory letter sent to Erum by defense counsel did not
refer to the release of J’s Taxi or to vacating the awards of sanctions to
Llego. Instead, the letter stated Llego would not pursue collection of the
sanctions.
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for its determination that Erum negotiated in bad faith or that
supported the granting of monetary sanctions. The court also
did not cite the authority pursuant to which the sanction was
awarded. Erum filed an opposition to the proposed award of
attorneys’ fees, maintaining that he had not negotiated in bad
faith. On February 15, 2017, the court entered an order
awarding Llego $4,577.04 in sanctions against Erum for the fees
and costs incurred by Llego’s counsel related to the
unsuccessful settlement negotiation.
The court on January 6, 2017, filed an amended order
setting the trial date for April 3, 2017, and providing dates
for the submission of pretrial documents. Erum did not submit
the pretrial documents by the applicable deadlines and instead,
on February 27, 2017, filed a motion for continuance of trial.
In a declaration attached to his motion, Erum stated that Llego
had extended a settlement offer to him on February 15, 2017,
that he had responded with a counteroffer on February 25, 2017,
and that a settlement conference with the court was scheduled
for March 24, 2017. In the event a settlement was reached, Erum
stated, trial would no longer be required. Additionally, Erum
stated that if the settlement negotiations failed, he intended
to retain a personal injury attorney to represent him at trial.
The requested continuance, Erum stated, would enable such
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counsel to prepare for trial and submit the requisite pretrial
documents in compliance with the various deadlines.
On March 3, 2017, Llego filed a motion to dismiss or
in the alternative to exclude all of Erum’s pretrial documents
that were not filed by the deadlines set out in the amended
order. In his motion, Llego argued that the fact that the
parties were engaged in settlement negotiations did not excuse
Erum from submitting his pretrial documents by the applicable
deadlines. Two weeks later, Llego filed an opposition to Erum’s
motion to continue, in which he incorporated by reference his
motion to dismiss or in the alternative to exclude Erum’s
pretrial documents. Erum filed an opposition to Llego’s motion
to dismiss on March 22, 2017, stating that he expected that the
continuance of trial would also extend the due date for pretrial
documents and further that dismissal with prejudice was
unwarranted because there was no showing of deliberate delay,
contumacious conduct, or prejudice to Llego.6
At the hearing on Llego’s motion to dismiss, held on
April 18, 2017, at 1:00 p.m., the court denied Llego’s motion to
dismiss or in the alternative to exclude Erum’s pretrial
6
At a hearing on March 23, 2017, the court took the trial off
calendar and continued the motion to dismiss in order for the court to
determine how the case would proceed in light of Erum’s filing of a
bankruptcy petition on March 16, 2017.
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documents. The court continued the trial to September 18, 2017,
and orally informed the parties that the pretrial conference
would take place on August 24, 2017. In a written order entered
on May 19, 2017, the court stated that it had reviewed the
pleadings and heard oral argument and was denying Llego’s motion
on that basis. The court nevertheless awarded Llego fees and
costs related to his motion to dismiss.
A settlement conference was scheduled on the same day
as the hearing on Llego’s motion to dismiss, April 18, 2017, at
4:00 p.m. Although Erum appeared at the hearing held at 1:00
p.m., when he did not appear at the settlement conference later
that afternoon, Llego orally moved to dismiss the case for
failure to prosecute. The court stated that it would not grant
an oral motion but would allow Llego to file a written motion.
On May 11, 2017, Llego filed a motion to dismiss the
case with prejudice, asserting that Erum’s failure to appear at
the settlement conference was a deliberate, contumacious delay
that prejudiced him because it cost him and his counsel
significant time and resources. Erum filed a memorandum in
opposition to the motion on May 24, 2017. In a declaration
attached to his memorandum in opposition, Erum averred that on
April 18, 2017, at about 3:00 p.m., shortly before the
settlement conference was to be held, he suffered an onset of
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atrial fibrillation. Erum stated in his declaration that he is
84 years old and suffers from multiple illnesses, one of which
is sporadic atrial fibrillation. Sporadic atrial fibrillation,
Erum stated, can lead to a stroke, heart attack, or heart
failure unless treated. Because his attention was solely
directed to treating his illness, he inadvertently failed to
attend the settlement conference on April 18, 2017, Erum
explained.7
A hearing was held on June 1, 2017, in which the court
denied Llego’s motion to dismiss but again awarded Llego fees
and costs incurred in making the motion. In total, Llego
received five awards of sanctions throughout the course of
litigation (collectively, monetary sanction orders). The record
7
Erum’s declaration states as follows:
I am 84 years old. My illnesses include sporadic atrial
fibrillation (fibrillation of the atrium chamber of the
heart), which could lead to a stroke, heart attack or heart
failure unless attended to by the restoration of a normal
heartbeat by medication or electro-cardio conversion.
At about 3 p.m. on April 18, 2017, shortly before a
settlement conference was to [be] held by the Court, as
earlier announced by the Court during a 1 p.m. hearing on
the same day, I suffered an onset of atrial fibrillation,
which is one of my illnesses. Because this illness
required immediate attention, I immediately drove home to
obtain my medication (Amiodarone 200 mg.) for its
treatment. Because my immediate attention was solely
directed to treating this illness to avoid any life
threatening consequences for not doing so, I inadvertently
overlooked and failed to comply with the Court’s
requirement that I attend the subject settlement
conference.
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contains judgments for the first three awards, the respective
amounts of which were $3,280.19, $3,089.54, and $4,577.04 for a
total of $10,946.77.8
In imposing the sanctions with regard to the May 11,
2017 motion to dismiss, the court again did not cite the
authority under which the sanction was made, nor did it find
that Erum had acted in bad faith by failing to attend the
settlement conference. At the hearing, Llego asked the court to
order Erum to file his pretrial documents by a date certain to
avoid prejudicing Llego, but Erum indicated that he did not
intend to file any pretrial documents for strategic reasons.
The court apparently did not consider Erum’s decision not to
file pretrial documents problematic or a rule violation.9
8
The monetary sanction orders include the following: (i) Order Re:
Defendant Josue Bumatay Llego’s Motion For Dismissal With Prejudice For
Failure To Prosecute Case, entered on May 13, 2016; (ii) Order 1) Granting
Defendant Josue Bumatay Llego’s Motion To Dismiss With Prejudice Plaintiff’s
Property Damage Claim; And 2) Order Denying Plaintiff Theodorico Erum’s Cross
Motion To Continue Hearing on Defendant Josue Bumatay Llego’s Motion To
Dismiss with Prejudice Plaintiff’s Property Damage Claim, entered on December
2, 2016; (iii) Order Granting In Part And Denying In Part Defendant Josue
Bumatay Llego’s Motion to Enforce Settlement Or In The Alternative For
Continuation Of Trial, entered on January 27, 2017; (iv) Order Denying Josue
Bumatay Llego’s Motion To Dismiss Case With Prejudice Or In The Alternative
To Exclude All Of Plaintiff’s Pre-trial Documents That Were Due Under The
January 6, 2017 Amended Order Filed On March 3, 2017, entered on May 19,
2017; (v) and Order Denying Defendant Josue Bumatay Llego’s Motion For
Dismissal With Prejudice Filed on May 11, 2017, entered on July 18, 2017.
9
The court responded to Erum’s statement that he did not intend to
file pretrial documents by asking Llego’s counsel to include Erum’s statement
in the order denying Llego’s motion to dismiss.
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On August 24, 2017, the day of the calendared pretrial
conference, Erum did not appear. Llego made an oral motion to
dismiss the case, although there was no in-court proceeding
scheduled and Erum was not present. The court nonetheless
granted Llego’s oral motion to dismiss with prejudice, and trial
in the case was taken off calendar. At the time the court
dismissed the case, seven months and one week had elapsed from
the original trial date. The trial date had been continued
twice: once at the request of Llego because settlement
negotiations had broken down; and the second time at the request
of Erum because the parties had re-entered settlement
negotiations and a settlement conference was scheduled with the
court. On September 13, 2017, Erum, apparently unaware that the
court had already granted Llego’s oral motion to dismiss,
submitted an “Emergency Ex Parte Motion to Reschedule Trial”
(emergency motion) and moved for the trial to be continued and
rescheduled
so as to allow sufficient time for the Court to consider
the Defendant’s apparent request for dismissal of this
action, which should be made by the Defendant by written
motion, as well as to allow sufficient time for Plaintiff
to respond to such motion.
On September 15, 2017, the court issued an Order
Granting Llego’s Oral Motion for Dismissal with Prejudice
(Dismissal Order). The Dismissal Order indicated that Erum was
not present at the pretrial conference on August 24, 2017, which
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he had been orally instructed to attend by the court at the
hearing on April 18, 2017.10 The Dismissal Order also noted that
the motion to dismiss was brought pursuant to Hawai‘i Rules of
Civil Procedure (HRCP) Rules 16 and 37, but it did not state the
rule(s) on which the oral motion to dismiss was granted. The
Dismissal Order instead stated that the court’s decision was
made after “review[ing] the pleadings, consider[ing] the entire
case record, and hear[ing] oral argument.” The same day, the
court summarily stamped “Denied” on Erum’s emergency motion.
On September 27, 2017, a Judgment Re: Order Granting
Defendant Josue Bumatay Llego’s Oral Motion for Dismissal with
Prejudice (circuit court judgment) was filed, dismissing the
case with prejudice pursuant to the oral motion to dismiss
“heard on August 24, 2017.” On October 10, 2017, Erum filed a
Motion to Set Aside Judgment of Dismissal and to Reschedule
Trial Without Further Pretrial Conferences (motion to set
aside). In a declaration attached to his motion to set aside,
Erum averred that he inadvertently did not attend the August 24,
10
The Dismissal Order states that “On April 18, 2017, the Court
orally ordered the parties to appear for the August 24, 2017 pre-trial
conference.” Other than the court’s oral instruction to Erum at the hearing
on April 18, 2017, which was the same day he suffered a debilitating medical
episode that prevented him from attending an afternoon settlement conference,
there is no indication in the record that Erum was given any other
instruction regarding the August 24, 2017 pretrial conference.
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2017 pretrial conference due to memory lapses and mental
confusion associated with his age of 85 and the side effects of
medications taken for his illnesses.11 Erum contended that there
was “no evidence in the record or offered by Llego in his oral
motion which shows that Erum’s failure to attend that pretrial
conference was contumacious conduct (willful resistance to
authority) or was deliberately made by Erum to delay the
prosecution of this case.” Erum further stated that “it was
erroneous for the trial court to enter such judgment of
dismissal with prejudice without notice to Erum and without a
written motion and a hearing.” On October 27, 2017, Llego filed
an opposition to Erum’s motion. Also on October 27, 2017, Erum
filed a Notice of Appeal, appealing from the circuit court
judgment and the Dismissal Order. On December 5, 2017, the
court denied Erum’s motion to set aside, concluding that it
11
The declaration states in full as follows:
I, the undersigned, am the plaintiff in this case. I am 85
years old and suffer from memory lapses and mental
confusion associated with my elderly age and which are also
the side effects of medications which I take for my
illnesses, which include, sporadic atrial fibrillation
(i.e. irregular heartbeat of the atrial chamber of the
heart), hypertension (i.e. high blood pressure), abdominal
hernia (i.e. protrusion of the abdominal wall), and gout
(i.e., inflammation of the joint. As a result of these
medical conditions, I mistakenly failed to calendar and
thus mistakenly failed to remember and attend the pretrial
conference held by the Court in this case on August 24,
2017.
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lacked jurisdiction over the matter since Erum had filed a
Notice of Appeal.12
B. ICA Proceedings
In a Summary Disposition Order (SDO), the Intermediate
Court of Appeals (ICA) concluded that the circuit court did not
abuse its discretion in granting Llego’s oral motion to
dismiss.13 The ICA stated that, throughout the case, Erum
“missed deadlines, refused to voluntarily dismiss the property
damage claim . . . was found not to have conducted settlement
negotiations in good faith, failed and refused to submit
pretrial documents . . . and failed to attend court-ordered
12
After filing his Notice of Appeal, Erum filed a declaration in
support of his request to proceed in forma pauperis. Erum stated that he was
unable to pay the costs for proceedings or give security because of his
poverty. Specifically, Erum related that he received $453.00 monthly in
social security payments and had less than $10.00 in his checking and savings
accounts. Erum also stated that he was receiving monthly rental payments
from properties, but that those properties were in foreclosure. Erum’s
request to proceed in forma pauperis was approved.
The dissent concludes Erum made his declaration in bad faith and
that it demonstrates his willingness to “make false statements to the court
for financial gain.” Dissent at 23 n.14. This breathtaking accusation is
inferred from a statement in Erum’s declaration that his last employer was
the United States Air Force. During his deposition, Erum had stated that he
served six years in the Air Force after attending college, spent another year
and a half in school, and then between 1958 and 1960 spent about a year and a
half working for a bank and the federal government. He was subsequently
self-employed for the rest of his career. Erum’s statement that the Air
Force was his last employer rather than the federal government, which related
to employment 55 years earlier, does not warrant the accusation leveled by
the dissent. Moreover, the dissent does not explain how this “false
statement” could have benefitted Erum’s application to proceed in forma
pauperis. The dissent’s attack on Erum’s character is unjustified.
13
The ICA’s SDO can be found at Erum v. Llego, No. CAAP-XX-XXXXXXX,
2019 WL 1923002 (App. Apr. 30, 2019) (SDO).
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conferences.” (Footnote omitted.) The ICA further noted that
the circuit court had awarded monetary sanctions against Erum
five times prior to dismissing the case and that Erum had
offered no reason for his failure to attend the final pretrial
conference on August 24, 2017. The ICA, citing Webb v. Harvey,
103 Hawai‘i 63, 79 P.3d 681 (App. 2003), concluded that the
circuit court did not abuse its discretion in dismissing Erum’s
case based on the record.
II. STANDARDS OF REVIEW
Sanctions imposed under statute, court rule, or the
trial court’s inherent powers are reviewed for an abuse of
discretion. Gap v. Puna Geothermal Venture, 106 Hawai‘i 325,
331, 104 P.3d 912, 918 (2004). The trial court abuses its
discretion if it bases its ruling on an erroneous view of the
law or on a clearly erroneous assessment of the evidence. Id.
When interpreting rules promulgated by the court,
principles of statutory construction apply. Bank of Am., N.A.
v. Reyes-Toledo, 143 Hawai‘i 249, 257, 428 P.3d 761, 769 (2018)
(quoting Ranger Ins. Co. v. Hinshaw, 103 Hawai‘i 26, 30, 79 P.3d
119, 123 (2003)). Interpretation of a statute is a question of
law which we review de novo. Id.
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III. DISCUSSION
A. HRCP Rule 7(b)(1) Requires that All Motions Be Made in Writing
Properly Served on the Opposing Party Unless the Motion Is
Made During a Hearing or Trial.
HRCP Rule 7(b) (2000)14 governs the manner in which
motions must be made before the trial court. HRCP Rule 7(b)(1)
requires that all motions be made in writing unless the motion
is made during a hearing or trial. See also Cooke Tr. Co. v.
Chinn Ho, 43 Haw. 243, 245 (Haw. Terr. 1959) (per curiam)
(granting a motion to dismiss an appeal for non-compliance with
HRCP Rule 7(b)(1) because the oral motion seeking allowance of
an interlocutory appeal was not made during a hearing or trial).
Llego made an oral motion to dismiss the complaint
during a pretrial conference where he was the only party
present. HRCP Rule 16(c) (2000) sets out the subjects for
consideration at a pretrial conference. Of the sixteen
enumerated subjects, the only one concerning motions is HRCP
Rule 16(c)(11), which states that “consideration may be
14
HRCP Rule 7(b) states in relevant part as follows:
(1) An application to the court for an order shall be by
motion which, unless made during a hearing or trial, shall
be made in writing, shall state with particularity the
grounds therefor, and shall set forth the relief or order
sought. The requirement of writing is fulfilled if the
motion is stated in a written notice of the hearing of the
motion.
(Emphasis added.)
20
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given . . . [to] the disposition of pending motions[.]”
(Emphasis added.) No motions were pending in this case when the
pretrial conference began. As such, the pretrial conference was
not a “hearing” for the purposes of satisfying HRCP Rule
7(b)(1)’s requirement that motions be made in writing unless
made during a hearing or trial.
The writing requirement of HRCP Rule 7(b)(1)15 was
addressed in Benezet v. Nowell, 42 Haw. 581 (Haw. Terr. 1958).
In that case, the plaintiff made an oral motion, in open court,
to reopen a case for the introduction of additional evidence.
Id. at 582. After hearing arguments from both parties, the
trial court granted the motion. Id. On appeal, the Benezet
court affirmed the trial court’s granting of the motion, stating
that although the motion was not made in writing, it was made in
open court at a hearing at which opposing counsel was present.
Id. at 584. Since the defendant received notice of the hearing,
appeared at the hearing, and made oral argument on the motion,
15
The court in Benezet quotes HRCP Rule 7(b)(1) as follows:
This rule provides “An application to the court for an
order shall be by motion which, unless made during a
hearing or trial, shall be made in writing, shall state
with particularity the grounds therefor, and shall set
forth the relief or order sought. The requirement of
writing is fulfilled if the motion is stated in a written
notice of the hearing of the motion.”
42 Haw. at 584. This language is identical to HRCP Rule 7(b)(1) (2000).
21
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the court stated, the purposes of the writing requirement were
satisfied. Id.
Unlike the defendant in Benezet, Erum was not present
at the August 24, 2017 pretrial conference when Llego moved to
dismiss Erum’s case. And because he was not present at the
pretrial conference and no written motion was filed, Erum did
not receive a pleading that “state[d] with particularity the
grounds therefor, and . . . set forth the relief or order
sought” as required by HRCP Rule 7(b)(1).
Erum was also not given notice of the motion as
specified by HRCP Rule 5(a) (2000),16 which requires service of
motions. Instead, the court heard argument from Llego’s counsel
on the ex parte motion at the pretrial conference and summarily
granted the motion with prejudice, contrary to the requirement
that notice of the motion and its grounds be given to Erum
16
HRCP Rule 5(a) states in relevant part as follows:
Every order required by its terms to be served, every
pleading subsequent to the original complaint unless the
court otherwise orders because of numerous defendants,
every paper relating to discovery required to be served
upon a party unless the court otherwise orders, every
written motion other than one which may be heard ex parte,
and every written notice, appearance, demand, brief or
memorandum of law, offer of judgment, bill of costs,
designation of record on appeal, and similar paper shall be
served upon each of the parties[.]
(Emphases added.)
22
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before consideration of the motion. Erum argued to the circuit
court that Llego’s motion to dismiss should have been made in
writing and in a manner that allowed Erum an opportunity to
respond, which is precisely what is required by HRCP Rule
7(b)(1).
We note, however, that Erum’s application for
certiorari, which is only one page in length, does not include
as a question presented the court’s failure to comply with HRCP
Rule 7(b)(1) and, in fact, does not contain a section setting
forth questions presented; thus the application contravenes
Hawaii Rules of Appellate Procedure (HRAP) Rule 40.1(d) (2017).17
A strict application of HRAP Rule 40.1(d) would require that
Erum’s application for writ of certiorari be disregarded unless
plain error was to be invoked. But such an application of the
rule would contravene a fundamental tenet of our law: “pleadings
17
HRAP Rule 40(d)(1) provides as follows:
(d) Contents. The application for a writ of certiorari
shall not exceed 12 pages and shall contain in the
following order:
(1) A short and concise statement of the questions
presented for decision, set forth in the most general
terms possible. The statement of a question presented
will be deemed to include every subsidiary question
fairly comprised therein. Questions not presented
according to this paragraph will be disregarded. The
supreme court, at its option, may notice a plain error
not presented.
(Emphasis added.)
23
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prepared by pro se litigants should be interpreted liberally.”
Waltrip v. TS Enters., Inc., 140 Hawai‘i 226, 239, 398 P.3d 815,
828 (2016) (brackets omitted) (quoting Dupree v. Hiraga, 121
Hawai‘i 297, 314, 219 P.3d 1084, 1101 (2009)). Underlying this
principle of law is “the promotion of equal access to justice--a
pro se litigant should not be prevented from proceeding on a
pleading or letter to an agency if a reasonable, liberal
construction of the document would permit him or her to do so.”
Id. (citing, inter alia, Eldridge v. Block, 832 F.2d 1132, 1137
(9th Cir. 1987) (“The Supreme Court has instructed the federal
courts to liberally construe the ‘inartful pleading’ of pro se
litigants”) (citing Boag v. MacDougall, 454 U.S. 364, (1982)
(per curiam))).
Liberal interpretation of a pro se litigant’s
application for writ of certiorari is consistent with this
court’s and the ICA’s holdings that a pro se litigant’s failure
to state the alleged errors of the lower court in precise
compliance with HRAP Rule 28(b) (2016)18 will not foreclose
18
HRAP Rule 28(b) provides in relevant part as follows:
Within 40 days after the filing of the record on appeal,
the appellant shall file an opening brief, containing the
following sections in the order here indicated:
. . . .
(continued. . .)
24
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consideration of the appeal, so long as the litigant’s argument
can reasonably be discerned. Housing Fin. & Dev. Corp. v.
Ferguson, 91 Hawai‘i 81, 85-86, 979 P.2d 1107, 1111-12 (1999)
(addressing an appeal on the merits despite the fact that the
opening brief fell “woefully short” of the requirements of HRAP
Rule 28(b) and did not state the points of error alleged or
where in the record the errors occurred and contained a one-
sentence statement of the case); In re Estate of Damon, 119
Hawai‘i 500, 503-04, 199 P.3d 89, 92-93 (2008) (addressing the
merits of one of appellants arguments despite the fact that the
citation for the relevant point of error was located in the
statement of the case); Wagner v. World Botanical Gardens, Inc.,
126 Hawai‘i 190, 193, 268 P.3d 443, 446 (App. 2011) (addressing
arguments raised on appeal by a pro se litigant “to the extent
(. . .continued)
(4) A concise statement of the points of error set forth
in separately numbered paragraphs. Each point shall
state: (i) the alleged error committed by the court or
agency; (ii) where in the record the alleged error
occurred; and (iii) where in the record the alleged
error was objected to or the manner in which the alleged
error was brought to the attention of the court or
agency. . . .
. . . .
Points not presented in accordance with this section
will be disregarded, except that the appellate court,
at its option, may notice a plain error not
presented. . . .
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they can reasonably be discerned” although finding that the
opening brief did not meet the requirements of HRAP Rule 28(b)
in a variety of ways); see also Tautua v. BCI Coca-Cola Bottling
Co., No. 30291, 2012 WL 2308162 (App. June 18, 2012) (SDO)
(addressing points of error “to the extent that they can be
discerned” because appellant had not included points of error in
the opening brief). This approach is particularly appropriate
when, despite failing to articulate points of error on appeal,
“the remaining sections of the brief provide the necessary
information to identify the party’s argument” and “petitioner
had raised the same argument before the trial court.” Marvin v.
Pflueger, 127 Hawai‘i 490, 496, 280 P.3d 88, 94 (2012).
This court additionally has long adhered to the policy
of affording litigants the opportunity to be heard on the merits
whenever possible. Morgan v. Planning Dep’t, 104 Hawai‘i 173,
180-81, 86 P.3d 982, 989-90 (2004) (quoting O’Connor v. Diocese
of Honolulu, 77 Hawai‘i 383, 386, 885 P.2d 361, 364 (1994)). In
view of this longstanding policy, we believe that pro se
litigants should not automatically have their access to
appellate review in this court foreclosed because of failure to
conform to requirements of the procedural rules. See id.
Indeed, we have instructed the lower courts to liberally
interpret the filings of pro se litigants if possible, and this
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court is equally obligated to interpret applications for
certiorari liberally in order to facilitate access to justice.
Waltrip, 140 Hawai‘i at 240, 398 P.3d at 829.
In the statement of the case of his application, Erum
contends that when he mistakenly failed to attend a pretrial
conference, “the circuit court granted an oral motion by Llego
to dismiss the case with prejudice without a hearing which the
circuit court granted.” The argument paragraph is only four
sentences and states that the dismissal was inconsistent with
our holding in In re Blaisdell, 125 Hawai‘i 44, 252 P.3d 63
(2011), and this court’s policy of having cases heard on the
merits when possible. In addition to the statements in the
application, Erum argued in his emergency motion that continuing
the trial would allow the circuit court sufficient time to
consider Llego’s apparent request to dismiss the action, “which
should be made by the Defendant by written motion, as well as to
allow sufficient time for Plaintiff to respond to such motion.”
In his motion to set aside, Erum contended that there was “no
evidence in the record or offered by Llego in his oral motion
which shows that Erum’s failure to attend that pretrial
conference was contumacious conduct (willful resistance to
authority) or was deliberately made by Erum to delay the
prosecution of this case.” Erum further stated that “it was
27
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erroneous for the trial court to enter such judgment of
dismissal with prejudice without notice to Erum and without a
written motion and a hearing.” In his opening brief before the
ICA, Erum simply identifies the court’s granting of Llego’s oral
motion to dismiss with prejudice as the point of error on
appeal.
Thus, liberally construing Erum’s application for
certiorari, we discern from it, as informed by the arguments
Erum made before the trial court, that the following questions
are presented (1) whether the granting of an oral motion to
dismiss with prejudice, without a hearing, was a proper exercise
of the court’s discretion; and (2) whether the circuit court
abused its discretion in dismissing the case with prejudice
under our holding in Blaisdell.
Because of our disposition of the other issue Erum
raises, it is unnecessary to further address the violation of
HRCP Rule 7(b) in this case.19 Nevertheless, because of the
19
The dissent argues that our consideration of the court’s
noncompliance with HRCP Rule 7(b) is an improper exercise of plain error
review because the rule was not specifically referred to in the application.
Dissent at 24 (citing HRAP Rule 28(b)(4) (2016)). The contention is
inapposite because we do not consider this issue under the plain error
doctrine. The dissent further contends that our consideration of the issue
disregards the “principle of party presentation.” Dissent at 32. As
explained, under fundamental principles of this jurisdiction, pro se
pleadings are to be read liberally, and we conclude that under our precedent
this issue was adequately raised. The inapt application of the “principle of
party presentation” to this case is demonstrated by the case relied upon by
(continued. . .)
28
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importance of the requirements of HRCP Rule 7(b), we reaffirm
that a motion must be made in writing and in compliance with
other provisions of HRCP Rule 7(b) and relevant court rules,
unless the motion is made at a hearing or trial.20
B. The Circuit Court Abused Its Discretion in Entering the
Dismissal Order Without Making Any Findings of Deliberate Delay
or Contumacious Conduct and Actual Prejudice and by Failing to
Explain Why Lesser Sanctions Were Inadequate.
It is well established that the involuntary dismissal
of a complaint with prejudice is such a severe sanction that it
“should be ordered only in extreme circumstances.” Blaisdell,
125 Hawai‘i at 49, 252 P.3d at 68 (emphasis added); see also
Shasteen, Inc. v. Hilton Hawaiian Vill. Joint Venture, 79 Hawai‘i
(. . .continued)
the dissent. Dissent at 29 (quoting United States v. Sineneng-Smith, 140
S. Ct. 1575, 1579 (2020) (holding that the Ninth Circuit violated the party
presentation principle by sua sponte naming and inviting three amici to brief
and argue issues framed by the appeals panel after oral argument had been
concluded). Further, the party presentation doctrine is generally not
controlling in circumstances of a pro se litigant. Castro v. Melchor, 142
Hawai‘i 1, 19, 414 P.3d 53, 71 (2018) (Nakayama, J., concurring) (stating that
under the “principle of party presentation” courts hesitate to consider
issues not raised by the parties “because our system assumes and depends upon
the assistance of counsel.” (emphasis added) (quoting United States v. Pryce,
938 F.2d 1343, 1353 (D.C. Cir. 1991) (Silberman, J., dissenting))).
20
We also observe that the circuit court’s consideration and
granting of Llego’s oral motion to dismiss without notice to Erum raises
serious constitutional due process considerations. The fundamental
requirements of procedural due process are notice and an opportunity to be
heard at a meaningful time and in a meaningful manner. Minton v. Quintal,
131 Hawai‘i 167, 189, 317 P.3d 1, 23 (2013); see also In re Application of
Maui Elec. Co., 141 Hawai‘i 249, 269, 408 P.3d 1, 21 (2017). Constitutionally
adequate notice must inform affected parties of the action about to be taken
against them as well as of procedures available for challenging that action.
Brown v. Thompson, 91 Hawai‘i 1, 10, 979 P.2d 586, 595 (1999).
29
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103, 107, 899 P.2d 386, 390 (1995) (“[D]ismissal of a complaint
is such a severe sanction, that it should be used only in
extreme circumstances where there is clear record of delay or
contumacious conduct . . . .” (quoting Lim v. Harvis Constr.,
Inc., 65 Haw. 71, 73, 647 P.2d 290, 292 (1982))). As this court
stated in Blaisdell, there are only two circumstances in which a
trial court may, in its sound discretion, dismiss a claim with
prejudice. 125 Hawai‘i at 49-50, 252 P.3d at 68-69. Dismissal
with prejudice is not an abuse of discretion when a plaintiff’s
deliberate delay or contumacious conduct causes actual
prejudice.21 Chen v. Mah, 146 Hawai‘i 157, 179–80, 457 P.3d 796,
818–19 (2020). Additionally, because the sanction of dismissal
with prejudice is one of last resort, it may be invoked only
21
The dissent argues that we are “expand[ing] upon Blaisdell’s
standard for involuntary dismissals pursuant to HRCP Rule 41(b), and
creat[ing] an even higher standard.” Dissent at 39. Specifically, the
dissent contends that under Blaisdell the court could dismiss a case if the
record merely showed that the defendant suffered actual prejudice, without
any need to consider deliberate delay or contumacious conduct. Dissent at
40. First, the dissent appears to overlook Chen, wherein this court recently
considered Blaisdell as well as other relevant precedent that reached the
conclusions we reiterate today. 146 Hawai‘i at 179–80, 457 P.3d at 818–19.
Moreover, the dissent would allow dismissal with prejudice solely based on a
showing that the defendant suffered actual prejudice, without any causal
connection to the plaintiff’s conduct. Dissent at 40-41. But “[p]roof of
[prejudice] in the air, so to speak, will not do.” Martin v. Herzog, 126
N.E. 814, 816 (N.Y. 1920). There must be a causal connection between the
plaintiff’s conduct and the defendant’s actual prejudice in order for
dismissal with prejudice to be warranted. Blaisdell, 125 Hawai‘i at 49-50,
252 P.3d at 68-69 (“A dismissal with prejudice would not constitute an abuse
of discretion where a plaintiff’s deliberate delay causes actual prejudice to
a defendant.”).
30
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when the actual prejudice cannot be addressed through lesser
sanctions. Id. Therefore, we have stated that before
dismissing a case with prejudice the trial court is to consider
less severe sanctions and state why a lesser sanction “is
insufficient to serve the interests of justice.” Id. at 180
n.29, 457 P.3d at 819 n.29 (citing Blaisdell, 125 Hawai‘i at 50-
51, 252 P.3d at 69-70).
Llego contends that the foregoing precedents do not
apply to this case because the circuit court dismissed Erum’s
claim as a sanction under HRCP Rules 16(f) (2000) and
37(b)(2)(C) (2015),22 and Blaisdell involved a dismissal pursuant
to HRCP Rule 41(b) (2012).23 First, we note that the circuit
22
HRCP Rule 16(f) (2000) states as follows:
If a party or party’s attorney fails to obey a scheduling
or pretrial order, or if no appearance is made on behalf of
a party at a scheduling or pretrial conference, or if a
party or party’s attorney is substantially unprepared to
participate in the conference, or if a party or party’s
attorney fails to participate in good faith, the judge,
upon motion or the judge’s own initiative, may make such
orders with regard thereto as are just, and among others
any of the orders provided in Rule 37(b)(2)(B), (C), (D).
In lieu of or in addition to any other sanction, the judge
shall require the party or the attorney representing the
party or both to pay the reasonable expenses incurred
because of any noncompliance with this rule, including
attorney’s fees, unless the judge finds that the
noncompliance was substantially justified or that other
circumstances make an award of expenses unjust.
HRCP Rule 37(b)(2)(C) (2015), in turn, permits an order dismissing the action
or proceeding or any part thereof.
23
HRCP Rule 41(b) states in relevant part as follows:
(continued. . .)
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court did not cite any rule as authority in its Dismissal Order.
But even if it had referenced HRCP Rule 16(f), the preconditions
for a valid dismissal set forth in Blaisdell result from the
severity of the sanction of dismissal itself, not from the
dismissal in that case being based on HRCP Rule 41(b). See
Blaisdell, 125 Hawai‘i at 49, 252 P.3d at 68 (“[T]he sanction of
dismissal of a complaint with prejudice is one of last resort
where lesser sanctions would not serve the interest of justice.
. . . [And] an order of dismissal cannot be affirmed absent
deliberate delay, contumacious conduct, or actual prejudice.”
(citation and brackets omitted)). The Blaisdell court did not
limit the standard it articulated to dismissals pursuant to HRCP
Rule 41(b); in fact this court has previously applied the
Blaisdell standard to cases dismissed with prejudice pursuant to
Rule 12 of the Rules of the Circuit Courts of the State of
Hawai‘i (RCCH). See Bagalay v. Lahaina Restoration Found., 60
Haw. 125, 132, 588 P.2d 416, 421 (1978) (concluding that caselaw
analyzing dismissals pursuant to HRCP Rule 41(b) is applicable
(. . .continued)
(b) Involuntary dismissal: Effect thereof. (1) For failure
of the plaintiff to prosecute or to comply with these rules
or any order of the court, a defendant may move for
dismissal of an action or of any claim against it.
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to a dismissal pursuant to RCCH Rule 12(f));24 Phillips v.
Brisebois, 72 Haw. 146, 148, 808 P.2d 370, 371 (1991) (per
curiam) (“[RCCH] Rule 12(b)(6) dismissal is subject to the same
analysis as in Bagalay.”).25 Additionally, by its own language,
HRCP Rule 41(b)(1) authorizes a motion for involuntary dismissal
based on failure to comply with any of the rules of civil
procedure or a court order. See HRCP Rule 41(b)(1) (“For
24
At the time of this court’s decision in Bagalay, RCCH Rule 12(f)
provided as follows:
Where no statement of readiness had been filed within one
year after a complaint has been filed or within any
extension granted by the court, the clerk shall notify in
writing all parties affected thereby that the case will be
dismissed for want of prosecution unless objections are
filed within 10 days after receipt of such notice. If
objections are not filed within said 10-day period or any
extension granted by the court, the case shall stand
dismissed with prejudice without the necessity of an order
of dismissal being entered therein. Where objections are
filed within said 10-day period or any extension granted by
the court, the court shall hear said objections upon notice
and determine whether the case should be dismissed.
Bagalay, 60 Haw. at 128 n.1, 588 P.2d at 419 n.1.
25
RCCH Rule 12(b)(6) provided at the time in relevant part as
follows:
Dismissal for Want of Prosecution. Where no statement of
readiness has been filed within one year after a complaint
has been filed . . ., the clerk shall notify in writing all
parties affected thereby that the case will be dismissed
for want of prosecution unless objections thereto showing
good cause (specific reasons) are filed within 10 days
after receipt of such notice. . . . Where objections are
filed within said 10-day period or any extension granted by
the court, the court shall hear said objections upon notice
and determine whether the case should be dismissed.
Phillips, 72 Haw. at 147, 808 P.2d at 371 (alterations in original) (emphasis
omitted).
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failure of the plaintiff to prosecute or to comply with these
rules or any order of the court, a defendant may move for
dismissal of an action or of any claim against it.” (emphasis
added)). The general authorization to dismiss a case under HRCP
Rules 16(f) and 37(b)(2)(C) for a violation of provisions
relating to pretrial conferences does not allow a court to
bypass the requirements integrated into HRCP Rule 41(b) by
Blaisdell and other precedent of this court, which are expressly
applicable to a failure “to comply with these [HRCP] rules or
any order of the court.”
Further, limiting the application of the Blaisdell
factors only to those dismissal orders entered under HRCP Rule
41(b) would produce an inconsistent application of our court
rules. See Ryan v. Palmer, 130 Hawai‘i 321, 323, 310 P.3d 1022,
1024 (App. 2013) (finding that it was abuse of discretion to
dismiss under RCCH Rule 12(q) absent deliberate delay,
contumacious conduct, or actual prejudice because allowing such
dismissal would put RCCH Rule 12(q) and HRCP Rule 41(b) into
conflict “by expanding the circuit court’s authority beyond that
which it possesses under HRCP Rule 41(b)”); see also Bagalay, 60
Haw. at 132, 588 P.2d at 421. Significantly, there are numerous
other rules or statutes under which a circuit court may impose
the sanction of dismissal with prejudice. See, e.g., Hawai‘i
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Revised Statutes (HRS) § 635-3 (2016);26 HRCP Rule 16(f), Rule
37(b)(2)(C), Rule 41(b); RCCH Rule 12(q) (2007),27 Rule
12.1(a)(6) (2000),28 Rule 28 (2007),29 Rule 29 (2007).30 The
26
HRS § 635-3 provides in relevant part as follows: “The court may
dismiss any action for want of prosecution after due notice to the claimants
whenever claimants have failed to bring such action to trial within a period
established by rule of court.”
27
RCCH Rule 12(q) states as follows:
An action may be dismissed sua sponte with written notice
to the parties if a pretrial statement has not been filed
within 8 months after a complaint has been filed (or within
any further period of extension granted by the court) or if
a trial setting status conference has not been scheduled as
required by Rule 12(c). Such dismissal may be set aside
and the action reinstated by order of the court for good
cause shown upon motion duly filed not later than ten (10)
days from the date of the order of dismissal.
28
RCCH Rule 12.1(a)(6) provides in relevant part as follows:
The failure of a party or his attorney to appear at a
scheduled settlement conference, the neglect of a party or
his attorney to discuss or attempt to negotiate a
settlement prior to the conference, or the failure of a
party to have a person authorized to settle the case
present at the conference shall, unless a good cause for
such failure or neglect is shown, be deemed an undue
interference with orderly procedures. As sanctions, the
court may, in its discretion:
(i) Dismiss the action on its own motion, or on the motion
of any party or hold a party in default, as the case may
be[.]
29
RCCH Rule 28 provides as follows:
A diligent effort to effect service shall be made in all
actions. An action or claim may be dismissed sua sponte
with written notice to the parties if no service is made
within 6 months after the action or claim has been filed.
Such dismissal may be set aside and the action or claim
reinstated by order of the court for good cause shown upon
motion duly filed not later than ten (10) days from the
date of the order of dismissal.
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District Court Rules of Civil Procedure and the Hawai‘i Family
Court Rules contain similar provisions. Applying different
legal standards to similar conduct--based on different rules--
when the rules impose the same sanction of dismissal with
prejudice undermines the equitable application of the law,
complicates appellate review, and produces outcomes that turn
not on the merits but on the litigants’ skill in procedural
navigation.31 Thus, our decisions interpreting HRCP Rule 41 and
(. . .continued)
30
RCCH Rule 29 provides as follows:
An action may be dismissed with prejudice sua sponte with
written notice to the parties for want of prosecution where
all defendants are in default and if the plaintiff fails to
obtain entry of default and fails to apply for default
judgment within six months after all defendants are in
default. Such dismissal may be set aside and the action
reinstated by order of the court for good cause shown upon
motion duly filed not later than ten (10) days from the
date of the order of dismissal.
31
In its SDO, the ICA did not address Erum’s contention that the
circuit court was required to apply the Blaisdell factors and instead cited
Webb v. Harvey, 103 Hawai‘i 63, 79 P.3d 681 (App. 2003), to support its
holding that the circuit court did not abuse its discretion in dismissing
Erum’s case with prejudice. Insofar as Webb stands for the proposition that
a dismissal with prejudice may be affirmed absent deliberate delay or
contumacious conduct causing actual prejudice, it was implicitly overruled by
Blaisdell.
The dissent maintains that HRCP Rule 16(f) is excepted from the
preconditions for a valid dismissal set forth in Blaisdell, but HRCP Rule 16
does not state that it is excepted from HRCP Rule 41(b)(1). Dissent at 38-
39. Rather, HRCP Rule 41(b) specifically provides that its provisions apply
to all the rules of civil procedure and court orders. HRCP Rule 41(b)(1)
(“For failure of the plaintiff to prosecute or to comply with these rules or
any order of the court, a defendant may move for dismissal.” (emphases
added)). As stated, the general ability to dismiss under HRCP Rules 16(f)
and 37(b)(2)(C), which relates solely to pretrial conferences, does not allow
the court to bypass the requirements integrated into HRCP Rule 41(b) by
(continued. . .)
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discussing involuntary dismissal pursuant to that rule are
applicable to the involuntary dismissal in this case.32
1. Deliberate Delay
Dismissal with prejudice does not constitute an abuse
of discretion when a plaintiff’s deliberate delay causes actual
prejudice to a defendant that cannot be addressed through a
(. . .continued)
Blaisdell and other precedent of this court. HRCP Rule 41(b) applies to any
dismissal for failure to comply with court rules or orders of the court. The
dissent provides no adequate justification for distinguishing dismissals
based on the specific underlying rule violation, particularly when that rule
violation is expressly subject to the general rule governing involuntary
dismissals.
32
The dissent asserts that we are improperly “import[ing] the
standard for an involuntary dismissal pursuant to HRCP Rule 41(b), as set
forth in Blaisdell.” Dissent at 38. As stated, our caselaw has clearly
established for over forty years that the standard we apply today is not
limited to involuntary dismissals entered under HRCP Rule 41(b). Bagalay, 60
Haw. at 132, 588 P.2d at 421; Phillips, 72 Haw. at 147, 808 P.2d at 371.
Indeed, the dismissal in Blaisdell was not specifically entered under HRCP
Rule 41(b), the circuit court in that case failed to cite the authority for
its dismissal of Blaisdell’s claims with prejudice. 125 Hawai‘i at 47, 252
P.3d at 66. On appeal, this court concluded that Blaisdell had violated HRCP
Rule 4, which governs service of process, and therefore the court had
authority to dismiss the case pursuant to HRCP Rule 41(b)(2). Id. at 48-49,
252 P.3d at 67-68. We further note that the ICA has commonly applied the
Blaisdell standard in a wide variety of circumstances involving violations of
court rules or court orders. See Middleton v. Dep’t of Human Servs., No.
CAAP-XX-XXXXXXX, 2017 WL 663538 (App. Feb. 17, 2017) (mem.) (applying the
Blaisdell standard to a dismissal entered pursuant to HRCP Rule 72); Durda v.
Ion Genius, Inc., No. CAAP-XX-XXXXXXX, 2017 WL 621277 (App. Feb. 15, 2017)
(mem.) (applying the Blaisdell standard to dismissal where trial court did
not identify authority pursuant to which dismissal was entered); Rapoza v.
Soares, No. CAAP-XX-XXXXXXX, 2020 WL 354759 (App. Jan. 21, 2020) (SDO)
(same); Poe v. City & Cty. of Honolulu, No. CAAP-XX-XXXXXXX, 2019 WL 762590
(App. Jan. 30, 2019) (SDO) (applying the Blaisdell standard to a dismissal
entered pursuant to Rules of the Tax Appeal Court Rule 29 and HRCP Rule
41(b)); Nakamoto v. Hilton Waikoloa Vill., No. CAAP-XX-XXXXXXX, 2019 WL
1747015 (App. Apr. 18, 2019) (SDO) (applying the Blaisdell standard to a
dismissal entered pursuant to RCCH Rule 12(q)).
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lesser sanction. Chen, 146 Hawai‘i at 179–80, 457 P.3d at 818–
19. The ICA considered the issue of a plaintiff’s deliberate
delay in Ryan v. Palmer. 130 Hawai‘i 321, 310 P.3d 1022 (App.
2013). In Ryan, the circuit court, pursuant to RCCH 12(q), sua
sponte dismissed the plaintiff’s tort claim with prejudice on
the basis that the plaintiff had not filed a pretrial statement
within 8 months after the complaint was filed. Id. at 322, 310
P.3d at 1023. The plaintiff moved to set aside the order of
dismissal, arguing that the failure to submit a pretrial
statement within the allotted time was an inadvertent error.
Id. The circuit court denied the plaintiff’s motion, and the
plaintiff appealed to the ICA. Id. On appeal, the ICA vacated
the order of dismissal and the order denying the plaintiff’s
motion to set aside, holding that the circuit court had abused
its discretion in dismissing the case with prejudice because the
record did not show a deliberate attempt by the plaintiff to
delay prosecution of the case or actions that constituted
contumacious conduct, and the circuit court did not make
findings to that effect. Id. at 324, 310 P.3d at 1025.
Although the plaintiff had violated RCCH Rule 12(q) by failing
to file a pretrial statement, the ICA noted that the plaintiff
had prosecuted the case by actively engaging in discovery and
had provided a declaration explaining that the failure to submit
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the pretrial statement was the result of an inadvertent
miscommunication between plaintiff’s counsel and co-counsel.
Id.
Like the plaintiff in Ryan, Erum did not timely file a
pretrial statement, and he was not present at a pretrial
conference and a settlement conference that he was supposed to
attend. Also like the plaintiff in Ryan, Erum filed
declarations explaining that his conduct was not deliberate but
inadvertent. Erum explained that his failure to timely submit
his pretrial statement was the result of his mistakenly placing
the wrong date in his personal calendar. In regard to his
absence at the settlement conference held on April 18, 2017,
Erum stated that he suffered an onset of atrial fibrillation
that required him to drive home for treatment. It was on that
same day that the court orally informed the parties that the
pretrial conference would be held on August 24, 2017. Erum was
not present on that date and the court granted Llego’s oral
motion to dismiss on that basis. In the declaration attached to
his motion to set aside, Erum averred that his failure to attend
the pretrial conference was not intentional, but instead it was
due to his advanced age and memory loss caused by his
medication. The veracity of Erum’s declarations has not been
challenged at any stage of these proceedings, and the only other
39
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procedural violation of ostensible significance on Erum’s part
was his strategic decision not to submit pretrial documents,
which the court apparently did not consider to be a violation.33
In sum, the record does not show that Erum deliberately delayed
the prosecution of his case, and the circuit court did not make
any such finding.34
33
The dissent concludes that Erum was deploying creative tactics in
order to delay proceedings, but it misapprehends the record in making this
assertion. First, the dissent concludes that Erum’s refusal to sign the
settlement agreement documents because it released J’s Taxi was a bad faith
effort to delay the proceedings as the confirmatory letter actually did
inform Erum the agreement would release J’s Taxi by stating Erum would “sign
a standard Release and Indemnity Agreement and Stipulation For Dismissal With
Prejudice Of All Claims And All Parties.” Dissent at 9 n.5. Respectfully,
J’s Taxi is not, and has never been, a party to this litigation, and the
dissent does not address Erum’s contention that the drafted agreement was
also deficient because it did not provide for the vacatur of the sanctions
awards. Additionally, the dissent accuses Erum of filing his March 16, 2017
bankruptcy petition, which sought the reinstatement of a bankruptcy
proceeding from 2013, in bad faith with the deliberate and sole purpose of
delaying these proceedings, but there is no indication in the record of such
an intent. Dissent at 16 n.8. Finally, despite the absence of any finding
that Erum deliberately delayed providing an explanation for his absence at
the April 18, 2017 settlement conference and the record indicating Erum
immediately explained his nonattendance because of the sudden onset of the
life-threatening atrial fibrillation condition as soon as it was brought to
his attention by the motion to dismiss, the dissent accuses Erum of
misconduct for not sooner explaining his absence. Dissent at 43.
34
The dissent contends that our decision “gives license” to
untimely filings, not appearing as required, or other delay “tactics.”
Dissent at 44. This is plainly incorrect. Regarding the issue of deliberate
delay, we hold only that the record before us does not contain findings or
demonstrate that Erum’s procedural violations were deliberate, which our
caselaw requires if the violations underlie an order of dismissal with
prejudice. Chen, 146 Hawai‘i at 179–80, 457 P.3d at 818–19. The dissent
selectively identifies particular events that may have delayed proceedings
and declares that, taken together, they establish that Erum was deliberately
delaying the prosecution of his case. Dissent at 42-43. But the dissent
ignores the reasons for these events and the relevant contexts in which they
occurred, which is a necessary consideration. Here, the record contains
Erum’s uncontested declarations establishing that his violations were
inadvertent, and the circuit court never made any findings of deliberateness
(continued. . .)
40
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Additionally, the record reflects that, other than his
inadvertent procedural violations, Erum has prosecuted his case
with reasonable diligence. Erum participated in discovery,
filed motions and responded to motions filed by Llego, engaged
in settlement negotiations, attended numerous hearings, moved to
schedule trial, filed a pretrial statement, and monitored the
court docket.35
Therefore, upon “review[ing] the pleadings [and]
consider[ing] the entire case record,” which was the stated
(. . .continued)
on Erum’s part. All the delays the dissent identifies were either
inadvertent or not caused by Erum, and the dissent’s assertion that Erum
engaged in “creative dilatory tactics” is unsupported by the record. See
supra note 33.
The delays in this case were not so unreasonable or numerous that
deliberateness can be conclusively inferred from their length and number
alone. Erum requested and duly received an extension to file his pretrial
statement, both parties sought and received one continuance of trial because
of ongoing settlement negotiations, and the case was ultimately dismissed
only seven months after the initial trial setting. As such, the length of
delay was clearly not so inordinate that a deliberate intent to delay may be
inferred. Cf. Ellis v. Harland Bartholomew and Assocs., 1 Haw. App. 420,
428, 620 P.2d 744, 749 (1980) (dismissal upheld where, although there was no
finding of deliberate delay, the record was voluminous with motions to delay
and postpone trial and affidavit upon affidavit reciting plaintiff-
appellant’s unavailability for various proceedings). We note that the
dissent analogizes the length and number of delays in this case to those in
Ryan, but the comparison is inapposite because Ryan does not define the
parameters for inferring a deliberate intent to delay. Dissent at 42. There
was no dispute in Ryan that the violation in that case was inadvertent; the
challenge was to the initial application of the Blaisdell standard to the
dismissal of the plaintiff’s claim. Ryan, 130 Hawai‘i at 324, 310 P.3d at
1025.
35
The ICA incorrectly stated that Erum refused to voluntarily
dismiss his property damage claim. Erum did not oppose Llego’s motion to
dismiss his property damage claim and instead sought to continue the hearing
on the motion to dismiss until this court ruled on his writ of mandamus,
which this court promptly did.
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basis for both the circuit court’s Dismissal Order and the ICA’s
SDO, the record does not demonstrate that Erum deliberately
delayed prosecution of his case. The record thus does not
support the circuit court’s dismissal of Erum’s case with
prejudice on this basis or the ICA’s affirmance.
2. Contumacious Conduct
In addition to deliberate delay, when a plaintiff’s
contumacious conduct results in actual prejudice that cannot be
addressed by a lesser sanction, dismissal of an action with
prejudice may be justified. Chen, 146 Hawai‘i at 179–80, 457
P.3d at 818–19. This court has defined contumacious conduct as
“willfully stubborn and disobedient conduct.” Blaisdell, 125
Hawai‘i at 50, 252 P.3d at 69 (brackets omitted) (quoting
Shasteen, 79 Hawai‘i at 108, 899 P.2d at 391). Here, the only
conceivable disobedience by Erum was his strategic decision not
to submit pretrial documents, which the circuit court did not
consider to be a rule violation. The other instances of
noncompliance with court orders or rules of procedure were, as
discussed above, the inadvertent product of Erum’s advanced age,
lapses in memory, and medical condition. Significantly, there
are no findings of fact from the circuit court that Erum engaged
in contumacious conduct and that the motion to dismiss was
granted on that basis. See Blaisdell, 125 Hawai‘i at 50, 252
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P.3d at 69 (“Without evidence that Blaisdell conducted himself
in a willfully defiant manner, his actions did not amount to
what this court considers ‘contumacious conduct.’”); Ryan, 130
Hawai‘i at 324, 310 P.3d at 1025 (finding it was an abuse of
discretion to dismiss the plaintiff’s case with prejudice when
the record did not show a deliberate attempt to delay or actions
rising to the level of contumacious conduct, and the circuit
court did not make any such finding). Rather, Erum’s
uncontested declarations show that he was making good faith
efforts to participate in the proceedings, and the record does
not show that he was willfully stubborn and disobedient such
that his actions constituted contumacious conduct. Shasteen, 79
Hawai‘i at 108, 899 P.2d at 391 (“[T]here is no indication in the
record that the Shasteen corporation’s failure to secure
substitute counsel, to attend the settlement conference with
counsel, or to reschedule the conference constituted
contumacious conduct . . . .”). Thus, the circuit court’s
dismissal with prejudice of Erum’s case cannot be supported on
this basis as well.
3. Actual Prejudice
As stated, actual prejudice that cannot be addressed
through a lesser sanction is also a necessary precondition to
the sound dismissal of a complaint with prejudice. Chen, 146
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Hawai‘i at 179-80, 457 P.3d at 818-19; see also Blaisdell, 125
Hawai‘i at 49, 252 P.3d at 68. If the party seeking dismissal
demonstrates that the plaintiff has deliberately delayed
prosecution of the case, that party is entitled to a presumption
of prejudice that is rebuttable upon a showing that actual
prejudice did not occur. Blaisdell, 125 Hawai‘i at 49, 252 P.3d
at 68. Although it is unnecessary to consider whether Llego
suffered actual prejudice in light of our conclusion that there
was no deliberate delay or contumacious conduct in this case, we
nevertheless address the instances of actual prejudice Llego
asserted that he suffered in order to provide guidance as to the
proper consideration of this component of the standard for
involuntary dismissal of a complaint.
Actual prejudice in this context does not mean mere
inconvenience, hardship, or expenditure imposed upon the
defendant. Actual prejudice is “[d]amage or detriment to one’s
legal rights or claims.” Prejudice, Black’s Law Dictionary 1428
(11th ed. 2019). In Anderson v. Air West, Inc., discussed by
this court in Blaisdell, the Ninth Circuit affirmed the federal
district court’s dismissal with prejudice of a plaintiff’s claim
for failure to prosecute pursuant to Federal Rules of Civil
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Procedure (FRCP) Rule 41(b) (1968).36 542 F.2d 522, 523-34 (9th
Cir. 1976). The district court in Anderson found that the
plaintiff’s failure to serve several of the named defendants
until approximately one year after the complaint had been filed
caused actual prejudice because the death of two of the
defendants six months after process was served prevented them
from contributing to the preparation of the defense. Id. at
525. “Prejudice is clear” the court stated, “because if service
had been made promptly they would have been able to participate
in the first 18 months of defense planning.” Id.
This court discussed the actual prejudice necessary to
support a dismissal with prejudice in Bagalay v. Lahaina
Restoration Foundation, 60 Haw. 125, 138, 588 P.2d 416, 425
(1978). In Bagalay, the circuit court, pursuant to RCCH Rule
12(f), dismissed the plaintiff’s claim with prejudice because of
the plaintiff’s repeated failures to submit a proper statement
of readiness. Id. at 137-38, 588 P.2d at 424-25. On appeal we
36
FRCP Rule 41(b) (2007), which has not been amended since
Anderson, states as follows:
Involuntary Dismissal; Effect. If the plaintiff fails to
prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim
against it. Unless the dismissal order states otherwise, a
dismissal under this subdivision (b) and any dismissal not
under this rule--except one for lack of jurisdiction,
improper venue, or failure to join a party under Rule 19--
operates as an adjudication on the merits.
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reversed the court’s dismissal, in part because the record did
not indicate that the delay caused the defendants to suffer
actual prejudice. Id. at 142, 588 P.2d at 427. Our decision
explained that although delay generally has a detrimental effect
on the preservation of evidence and the maintenance of
communication with witnesses, all parties in the case were able
to participate fully in the discovery proceedings and take
depositions of potential witnesses. Id. at 138, 588 P.2d at
425. We further observed that there was no indication in the
record that “circumstances have changed which have impaired
appellees’ ability to adequately present their defense.” Id.
Accordingly, our precedent establishes that the actual prejudice
a defendant must suffer is actual damage or detriment to the
presentation of the defense.
In his motions to dismiss before the circuit court,
Llego asserted that he suffered actual prejudice because the
delays in this case caused both him and his counsel to expend
additional time and resources. However, there were no findings
or other evidence in the record indicating that any of the
asserted additional costs imposed on Llego by the delays in this
case affected Llego’s ability to present his defense. The
incurring of additional fees and costs that have no effect on
the defendant’s ability to present a defense is not legal
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prejudice and cannot alone support a finding of actual prejudice
under Blaisdell. Thus, the record does not show that any of the
delays in this case caused Llego to suffer actual prejudice, and
there were no findings to that effect.
4. Inadequacy of Lesser Sanctions
In cases where a plaintiff’s deliberate delay or
contumacious conduct causes actual prejudice, the circuit court
is also required to consider and explain why a lesser sanction
than dismissal with prejudice could not adequately address the
actual prejudice caused by the plaintiff’s conduct. Chen, 146
Hawai‘i at 179-80, 457 P.3d at 818-19. In its Dismissal Order,
the circuit court did not address the possibility of less severe
sanctions or state any reasons why lesser sanctions could not
address any prejudice Llego may have suffered. As an
explanation for its ruling, the Dismissal Order only states that
the court reviewed the pleadings, considered the entire case
record, and heard oral argument.37 As stated, “[i]nvoluntary
dismissals of a complaint with prejudice are not favored, and
should be ordered only in extreme circumstances[.]” Blaisdell,
at 49, 252 P.3d at 68. The circuit court in this case should
37
The “argument” was held at an ex parte hearing at which only
defense counsel was present.
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have expressly considered the lesser sanctions available to it
and explained why the circumstances were so extreme that a
lesser sanction could not adequately address any actual
prejudice Llego suffered.38 Id. at 50-51, 252 P.3d at 69-70.
Accordingly, the circuit court abused its discretion in granting
Llego’s oral motion to dismiss without a determination that Erum
had engaged in deliberate delay or contumacious conduct that
caused Llego actual prejudice, and the court erred by failing to
explain the inadequacy of lesser sanctions.39 Consequently, the
ICA erroneously affirmed the circuit court’s Dismissal Order.
5. The Necessity of Making Relevant Findings
We next consider whether it is appropriate for the
38
In order to address any actual prejudice caused by a plaintiff’s
delay, the lesser sanction should be designed to encourage diligent
prosecution of the case and, as necessary, compliance with the court’s
orders. Here, because Erum’s medical condition and advanced age led to delay
in the prosecution of the case, the court could have considered, for example,
permitting Erum to appear at the pretrial conference by phone or video,
requiring Erum to have a relative or a friend to assist him in attending
court proceedings, providing Erum with information as to entities that
possibly could provide him the assistance of legal counsel, or utilizing
other means to provide reminder notices to Erum as to court dates.
39
The dissent concludes that dismissal was obviously the only
sanction available to the court because Erum had been sanctioned five times
with judgments entered in the amount of $10,946.77, and he had not satisfied
these obligations prior to Llego’s oral motion to dismiss. Dissent at 19
n.10, 44-45. Although the dissent asserts that Erum was willfully refusing
to pay the sanctions, there is nothing in the record to indicate that he even
had the ability to pay the sanctions. Erum’s request to proceed in forma
pauperis and self-representation indicate that an inability to pay is the
more likely explanation. See supra note 12. Additionally, as discussed
infra, in imposing monetary sanctions “Hawai‘i courts should consider the
effect of sanctions upon a party’s resources in conjunction with a decision
to levy sanctions.” Kaina v. Gellman, 119 Hawai‘i 324, 332–33, 197 P.3d 776,
784–85 (App. 2008).
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circuit court, as it did in this case, to dismiss a case with
prejudice without making any underlying findings of fact as to
deliberate delay or contumacious conduct, actual prejudice, and
the inadequacy of lesser sanctions. While this court has stated
that the record must clearly support an order of dismissal, we
have not expressly required the making of relevant findings.
See Blaisdell, 125 Hawai‘i at 49, 252 P.3d at 68 (“If the record
does not show the requisite facts, an order of dismissal cannot
be affirmed . . . .” (emphasis added)); see also Shasteen, 79
Hawai‘i at 107, 899 P.2d at 390 (“[D]ismissal of a complaint is
such a severe sanction, that it should be used only in extreme
circumstances where there is clear record of delay or
contumacious conduct[.]”).
However, with regard to a court’s consideration of
lesser sanctions prior to the dismissal of a case, this court
has made the rendering of findings a near-requirement. In
Blaisdell, we stated that, “the careful exercise of judicial
discretion requires that a [trial] court consider less severe
sanctions and explain, where not obvious, their inadequacy for
promoting the interests of justice.” 125 Hawai‘i at 49, 252 P.3d
at 68 (emphasis added and omitted) (alteration in original)
(quoting Schilling v. Walworth Cty. Park & Planning Comm’n, 805
F.2d 272, 275 (7th Cir. 1986)). Requiring a court to consider
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and explain the inadequacy of lesser sanctions underscores this
court’s frequent admonition that dismissal with prejudice “is
such a severe sanction that it should seldom be used.” Id.
And, in the rare situation when a dismissal may be appropriate,
a trial court must first carefully consider lesser sanctions and
explain why they are inadequate to address the circumstances of
that case. See Enos v. Pac. Transfer & Warehouse, Inc., 79
Hawai‘i 452, 458, 903 P.2d 1273, 1279 (1995) (“[S]anctions are
not to be assessed without full and fair consideration by the
court.” (quoting Simmerman v. Corino, 27 F.3d 58, 64 (3d Cir.
1994))). This is because “a dismissal with prejudice is
inconsistent with this court’s ‘policy of affording litigants
the opportunity to have their cases heard on the merits, where
possible.’” Blaisdell, 125 Hawai‘i at 51, 252 P.3d at 70.
It is noteworthy that when a court explains why lesser
sanctions will be insufficient to address the plaintiff’s errant
conduct, it will necessarily entail describing the underlying
conduct, the measures that were previously taken by the court to
address the conduct, and the measures’ lack of success in
remedying the situation. In other words, the required
explanation is nearly the functional equivalent of requiring a
court to make findings.
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Additionally, this court has recommended that orders
imposing sanctions in other contexts “set forth findings that
describe, with reasonable specificity, the perceived misconduct
(such as harassment or bad faith conduct), as well as the
appropriate sanctioning authority (e.g., HRCP Rule 11 or the
court’s inherent power).” Bank of Hawaii v. Kunimoto, 91 Hawai‘i
372, 390, 984 P.2d 1198, 1216 (1999). When an order imposing
sanctions does not follow this recommendation, the appellate
court is compelled to review the entire record for an abuse of
discretion. Fujimoto v. Au, 95 Hawai‘i 116, 153, 19 P.3d 699,
736 (2001). However, we have stated that specific findings must
be made in cases when it is warranted. See, e.g., Tagupa v.
VIPdesk, 135 Hawai‘i 468, 479, 353 P.3d 1010, 1021 (2015)
(stating that prior to a statutory award of attorneys’ fees for
a frivolous claim, the court must make a specific finding that
all or a portion of the claims made by a party are frivolous);
Fujimoto, 95 Hawai‘i at 153, 19 P.3d at 736 (“Absent a
particularized finding of bad faith, the circuit court abused
its discretion in sanctioning the plaintiffs.”); Kunimoto, 91
Hawai‘i at 389, 984 P.2d at 1215 (“It is well settled that a
court may not invoke its inherent powers to sanction an attorney
without a specific finding of bad faith.”); Kawamata Farms, Inc.
v. United Agri Prods., 86 Hawai‘i 214, 258, 948 P.2d 1055, 1099
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(1997) (affirming the circuit court’s award of attorneys’ fees
because the court issued findings describing defendant’s
discovery violations in detail).
We have also stated that specific findings that
describe the perceived misconduct serve multiple important
purposes. Enos, 79 Hawai‘i at 459, 903 P.2d at 1280. First,
findings permit a more meaningful and efficient appellate review
as to whether “the trial court exercised its discretion in a
reasoned and principled fashion.” Id. Second, findings assure
the litigants, as well as the court, “that the decision was the
product of thoughtful deliberation.” Id. Finally, findings
clearly identify and explain to the sanctioned person the
conduct underlying the sanction.
The importance of these purposes is heightened in the
context of a dismissal with prejudice because the sanction is so
severe. It is thus particularly critical that the trial court’s
decision reflects informed and reasoned discretion, and that
appellate review of such a dismissal be efficacious and
meaningful. Fujimoto, 95 Hawai‘i at 153, 19 P.3d at 736 (“The
circuit court’s finding of a bad faith filing--as expressed in
its oral ruling from the bench . . . lacks specificity and,
based on our review, lacks support in the record.”). Further,
we note that the current standard requiring the appellate court,
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in the absence of specific findings, to review the entire record
for abuse of discretion and only requiring an explanation of the
inadequacy of lesser sanctions when the inadequacy is “not
obvious” impairs the efficacy of appellate review and is subject
to varied application by the trial courts.
These considerations lead us to conclude that whenever
a case is involuntarily dismissed with prejudice, the trial
court must state essential findings on the record or make
written findings as to deliberate delay or contumacious conduct
and actual prejudice and explain why a lesser sanction than
dismissal with prejudice is insufficient to serve the interests
of justice.40
40
Minimal oral or written findings will suffice when the cited rule
provides the precise conduct in question that warrants dismissal and the
order of dismissal or rule specifically provides the party with the ability
to seek reinstatement of the case. For example, RCCH Rule 12(q) allows the
court to dismiss an action sua sponte with written notice to the parties if a
pretrial statement has not been filed within 8 months after the complaint has
been filed or if a trial setting status conference has not been scheduled as
required by RCCH Rule 12(c). “Such dismissal may be set aside and the action
reinstated by order of the court for good cause shown upon motion duly filed
not later than ten (10) days from the date of the order of dismissal.” RCCH
Rule 12(q). If, after the entry of dismissal, the sanctioned party seeks
reinstatement “for good cause shown,” it will be necessary for the court to
more explicitly consider whether there was deliberate delay or contumacious
conduct, and whether there is actual prejudice that cannot be addressed
through lesser sanctions. See RCCH Rule 12(q); Ryan, 130 Hawai‘i at 324, 310
P.3d at 1025 (vacating the circuit court’s denial of a motion to set aside a
dismissal entered under RCCH 12(q) because there was no evidence that
plaintiff’s failure to submit a pretrial statement was deliberate or
contumacious, and nothing in the record showed prejudice to defendant); Chen,
146 Hawai‘i at 179-80, 457 P.3d at 818-19 (holding that an HRCP Rule 55(c)
motion to set aside entry of default is to be evaluated based on whether
there has been a showing of good cause, and good cause exists if there was no
deliberate delay or contumacious conduct causing actual prejudice that cannot
(continued. . .)
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Accordingly, we hold that after the filing date of the
judgment on appeal in this case, the circuit courts must enter
findings setting forth the requisite facts underlying an
involuntary dismissal of a case with prejudice based on
procedural violations of court rules. Cf. State v. Hussein, 122
Hawai‘i 495, 510, 229 P.3d 313, 328 (2010) (holding that, after
the filing date of the judgment, circuit courts must state on
the record at the time of sentencing the reasons for imposing a
consecutive sentence).
C. The Circuit Court Should Have Considered Erum’s Emergency
Motion to Reschedule Trial.
The Hawai‘i Rules of Civil Procedure “do not require
technical exactness or draw refined inferences against the
pleader; rather, they require a determined effort to understand
what the pleader is attempting to set forth and to construe the
pleading in his favor.” Giuliani v. Chuck, 1 Haw. App. 379,
385-86, 620 P.2d 733, 737-38 (1980); see also Dupree v. Hiraga,
(. . .continued)
be addressed through lesser sanctions); see also Blaisdell, 125 Hawai‘i at 49,
252 P.3d at 68 (noting that “the circuit court had authority to dismiss
Blaisdell’s complaint, subject to the ten day reinstatement motion and a
finding of good cause” under HRCP Rule 41(b)(2)). The dissent asserts this
distinction for rules and orders of dismissal that provide an ability to seek
reinstatement is confusing, Dissent at 46, but this is merely an application
of the practice this court and the ICA have followed when resolving the
appeal of a dismissal with prejudice under a rule that permits reinstatement.
See Chen, 146 Hawai‘i at 179-80, 457 P.3d at 818-19; Ryan, 130 Hawai‘i at 324,
310 P.3d at 1025.
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121 Hawai‘i 297, 314, 219 P.3d 1084, 1101 (2009) (“[P]leadings
. . . are to be construed liberally rather than technically.”).
This is particularly true when the court is dealing with pro se
litigants, and it is well established that the pleadings of pro
se litigants should be liberally interpreted in order to promote
access to justice. Waltrip v. TS Enters., Inc., 140 Hawai‘i 226,
239-41, 398 P.3d 815, 828-30 (2016) (stating that courts and
agencies have discretion to liberally construe and
recharacterize the filings of pro se litigants in order to
promote access to justice).
In furtherance of promoting access to justice, we have
stated that “pro se filings, even when ‘misbranded,’ should be
reasonably construed in a manner that ‘results in identifying a
route to relief, not in rendering relief impossible.’”41 Id. at
241, 398 P.3d at 830 (quoting Mata v. Lynch, 576 U.S. 143, 151
(2015)). Thus, a court abuses its discretion if it construes a
filing by a pro se litigant in a manner that prevents the
41
Although Erum has been pro se throughout these proceedings, the
dissent argues that Erum has no right to have his filings liberally construed
because he is “a litigation-savvy retired attorney.” Dissent at 53. The
record indicates that Erum became licensed to practice law in California in
1968 after passing the bar, but that he never attended law school and does
not possess a law degree. Erum practiced law as a sole practitioner for
three and a half years before returning to Hawai‘i to care for his parents.
After returning in 1972, there is no indication he has practiced law at any
time in the past forty-eight years. The dissent’s characterization of Erum
as a “litigation-savvy retired attorney” does not present an accurate
reflection of his background.
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litigant from proceeding when a reasonable, liberal construction
of the document would permit the litigant to do so.42 See id. at
239, 398 P.3d at 828.
In this case, after the court had granted Llego’s oral
motion to dismiss and taken the trial off calendar, Erum filed
an emergency motion requesting a continuance so that the court
would have time to consider Llego’s motion to dismiss and Erum
would have time to respond. In his emergency motion, which Erum
apparently prepared after he became aware that Llego had
“presented to the Court for its approval and signature a
proposed order to dismiss this action,” Erum contended that
Llego’s motion to dismiss should have been made in writing and
that he should be allowed sufficient time to respond. Although
the motion was framed as a motion to continue, the court should
have made a determined effort to understand what Erum was
attempting to set forth and to liberally construe the pleading
42
The dissent contends that we are broadening this court’s holding
in Waltrip. Dissent at 51-52. A close reading of the case indicates
otherwise. In Waltrip, this court concluded that Hawai‘i courts and agencies
have discretion to reasonably construe the filings of pro se litigants in
order to promote access to justice. Waltrip, 140 Hawai‘i at 239-41, 398 P.3d
at 828-30. We determined that the agency in that case had construed a filing
by the pro se litigant in a manner that prevented the litigant from
proceeding, even though a reasonable, liberal construction of the filing
would have permitted the litigant to do so. Id. at 241, 398 P.3d at 830. We
then held that the agency’s failure to recharacterize the filing required
remanding the case to the agency so that it could properly dispose of the pro
se litigant’s filing in a way that facilitated the litigant’s access to
relief. Id.
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in a manner that did not foreclose the possibility of relief.43
Waltrip, 140 Hawai‘i at 241, 398 P.3d at 830. This obligation
was underscored by the fact that the court’s denial of Erum’s
emergency motion extinguished the possibility of recovery on
Erum’s claim. See Villaver v. Sylva, 145 Hawai‘i 29, 36, 445
P.3d 701, 708 (2019) (finding that a pro se litigant’s request
for an interpreter should have been interpreted liberally as a
request to withdraw his admissions and file a late response,
particularly since a more restrictive interpretation would have
extinguished his only opportunity to recover on his negligence
claim). Had the circuit court done so in this case, the court
might have considered the merits of the emergency motion, which
pointed to both procedural and substantive deficiencies
underlying the granting of the dismissal motion. Instead, the
court denied Erum’s motion without a hearing and failed to
construe Erum’s emergency motion in a reasonable, liberal
43
The dissent posits that the circuit court in fact did consider
Erum’s emergency motion, and there was no reasonable construction of the
motion that would permit Erum to proceed. Dissent at 50. Under this
hypothesis, the circuit court recognized the writing requirement of HRCP Rule
7(b)(1), the due process implications of granting Llego’s motion ex parte,
see supra note 20, and its failure to comply with applicable law, and yet
still denied Erum’s emergency motion and upheld the granting of Llego’s oral
motion to dismiss. Manifestly, such a ruling would have been an abuse of
discretion because it would have been based on an incorrect application of
the law. Gap v. Puna Geothermal Venture, 106 Hawai‘i 325, 331, 104 P.3d 912,
918 (2004) (“The trial court abuses its discretion if it bases its ruling on
an erroneous view of the law[.]”).
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manner, which would have allowed reinstatement of the case and
permitted Erum to proceed on his claim.44 Waltrip, 140 Hawai‘i at
241, 398 P.3d at 830.
D. The Circuit Court Awarded Monetary Sanctions Without Citing
the Authority Underlying the Sanctions or Making Findings of Bad
Faith.45
In affirming the Order of Dismissal in this case, the
ICA pointed to the fact that the circuit court had “awarded
monetary sanctions against Erum five times” prior to dismissing
the case. By citing the monetary sanction orders, the ICA
indicated that the Dismissal Order was justified at least in
part because of the previous sanctions the circuit court had
imposed on Erum. In light of the ICA’s reliance on the monetary
sanction orders as support for its affirmance, and the
possibility of their future consideration on remand, it is
appropriate to review our precedent in this area.
It is settled law that the trial courts of this state
are empowered in appropriate circumstances to impose monetary
sanctions on a party during the course of litigation. Kunimoto,
44
In view of our disposition of other issues in this case, we do
not address whether the court’s failure to construe Erum’s Emergency Motion
liberally would also warrant vacating the Dismissal Order.
45
Because this case is being remanded to the circuit court for
further proceedings, we provide guidance to the court with regard to the
monetary sanctions that have been imposed.
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91 Hawai‘i at 387, 984 P.2d at 1213. Such sanctions may be
imposed under the authority of either a statute, a rule, or the
court’s own inherent power. Id. The sanctioning order should
set forth findings that describe the perceived misconduct with
reasonable specificity, and it must state the sanctioning
authority. Trs. of Estate of Bishop v. Au, No. SCWC-XX-XXXXXXX,
2020 WL 1150157 (Haw. March 10, 2020); Kaina v. Gellman, 119
Hawai‘i 324, 331, 197 P.3d 776, 783 (App. 2008) (“[T]he court’s
order must inform the party of the authority pursuant to which
he or she is to be sanctioned.” (citing Fujimoto, 95 Hawai‘i at
153, 19 P.3d at 736)). When the sanction order does not state
the authority pursuant to which the sanction is imposed, the
appellate court’s ability to review the sanction is hindered.
This is because the appellate court is forced to speculate as to
the authority for the monetary sanction and consider whether the
sanction’s imposition was proper under any potentially
applicable rules or statutes, or even inherent authority, to
determine whether the sanction should be affirmed. See Enos, 79
Hawai‘i at 457-60, 903 P.2d at 1278-81 (considering whether the
circuit court’s imposition of a sanction should be affirmed
under its inherent authority after finding it was not proper
under HRCP Rule 11, which was the stated basis); Wong v. Frank,
9 Haw. App. 249, 261, 833 P.2d 85, 93 (1992) (vacating and
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remanding sanction order where circuit court did not specify the
authority for sanction after determining that regardless of
whether the sanction was imposed under the circuit court rules
or the court’s inherent power, the sanction violated appellant’s
rights to notice and hearing).
In this case, the circuit court imposed five monetary
sanctions against Erum for the costs and attorneys’ fees
incurred by Llego at various points during the course of
litigation. None of the sanction orders recited the legal
authority for the imposition of the sanction. While a trial
court has the inherent power to curb abuses and promote a fair
process, including the power to impose sanctions in the form of
attorneys’ fees for abusive litigation practices, the court must
exercise its inherent power to impose sanctions “with restraint
and discretion.” Kunimoto, 91 Hawai‘i at 387, 984 P.2d at 1213.
In recognition of the need for such restraint, this court
requires a particularized showing of bad faith as a necessary
condition precedent to any sanction of attorneys’ fees under the
court’s inherent powers. Id. at 389, 984 P.2d at 1215; Enos, 79
Hawai‘i at 458–59, 903 P.2d at 1279–80. Additionally, the
finding of bad faith must be supported by clear and convincing
evidence. Kunimoto, 91 Hawai‘i at 390-93, 984 P.2d at 1216-19
(applying clear and convincing evidence standard to imposition
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of sanctions based on finding of bad faith); LaPeter v. LaPeter,
144 Hawai‘i 295, 309, 439 P.3d 247, 261 (App. 2019) (“[T]he
court’s finding of bad faith must be based on clear and
convincing evidence.”).
Here, none of the sanction orders contain a finding
that Erum acted in bad faith. The only reference to Erum’s good
or bad faith was the court’s finding that Erum’s “actions in the
settlement negotiations were not made in good faith.” Our
cases, however, have consistently held that the circuit court
must find bad faith before imposing an award of attorneys’ fees
pursuant to the court’s inherent authority. See, e.g., Gap v.
Puna Geothermal Venture, 106 Hawai‘i 325, 334, 104 P.3d 912, 921
(2004). A lack of good faith is not tantamount to acting in bad
faith, and the court’s conclusory statement in this case is
unsupported by any findings as to the basis of its conclusion.
Cf. Kunimoto, 91 Hawai‘i at 390, 984 P.2d at 1216 (“[T]hese
findings are sufficient to enable this court to infer a specific
finding of bad faith by the circuit court.”). In addition,
there is no basis to conclude that this sanction is supported by
clear and convincing evidence.
Further, none of the sanction orders make any findings
related to the reasonableness of Llego’s fees and costs. The
record does not disclose whether the fees and costs awarded were
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reasonable under the circumstances.46 Manifestly, it would be
inappropriate for the circuit court to award attorneys’ fees and
costs that were unreasonably incurred under its inherent
authority. Cf. HRCP Rule 16(f) (allowing the court to sanction
a party for “the reasonable expenses incurred because of any
noncompliance with this rule, including attorney’s fees, unless
the judge finds that the noncompliance was substantially
justified or that other circumstances make an award of expenses
unjust” (emphasis added)); RCCH Rule 12.1(a)(6)(ii) (permitting
the court to order a party to pay the opposing party’s
reasonable expenses and attorneys’ fees).
In determining reasonableness as to the assessment of
fees, “Hawai‘i courts should consider the effect of sanctions
upon a party’s resources in conjunction with a decision to levy
46
For example, the record does not show that, before filing his
first motion to dismiss, Llego made an effort to informally resolve Erum’s
failure to timely file a pretrial statement, as the Guidelines of
Professional Courtesy and Civility for Hawai‘i Lawyers recommend. See
Guidelines of Professional Courtesy and Civility for Hawai‘i Lawyers Rule 8(a)
(2018) (“Motions should be filed sparingly, only in good faith and when the
issue cannot be otherwise resolved. Specifically, a lawyer who manifests
professional courtesy and civility . . . [e]ngages in more than a mere pro
forma effort to resolve the issue before filing a motion[.]” (emphases
added)). Erum promptly filed his pretrial statement just nine days after
Llego’s motion to dismiss was filed, and he stated in a declaration attached
to his opposition to Llego’s motion that he only became aware of his error
after Llego’s motion to dismiss was filed. From the record, it appears that
the costs and fees incurred in making the first motion to dismiss, which
defense counsel averred to be in the total amount of $3,280.19, may have been
avoided if an effort had been made to resolve the issue without resorting to
the filing of a motion to dismiss.
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sanctions[.]” Kaina, 119 Hawai‘i at 332–33, 197 P.3d at 784–85.
In Kaina, a wrongful death case, the trial court sanctioned the
plaintiff for the defendants’ attorneys’ fees and costs incurred
in defending a renewed motion for consolidation.47 Id. at 327-
28, 197 P.3d at 779-80. As in this case, the sanction order did
not state the authority under which the sanction was imposed.
Id. at 328-29, 197 P.3d at 780-81. On appeal, the ICA reversed
the sanction order after concluding that the record did not show
that Kaina acted in bad faith in making the motion and that an
imposition of sanctions against Kaina under HRCP Rule 11 would
have been improper. Id. at 330-33, 197 P.3d at 782-85.
Additionally, the ICA noted that the circuit court had given no
consideration to the effect of the sanction on Kaina’s
resources. Id. at 332, 197 P.3d at 784. Kaina’s uncontested
declaration indicated that she was totally disabled, the sole
provider for her own financial support, and lived on social
security disability and a small pension. Id. The ICA stated
that although a party’s resources, or lack thereof, is not a
complete bar to the award of sanctions when sanctions are
warranted, the court should take into account the effect of
47
The circuit court had previously bifurcated Kaina’s claims
against the defendants into two separate trials. Kaina, 119 Hawai‘i at 326,
197 P.3d at 778.
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sanctions upon a party’s resources when considering the
imposition of sanctions. Id. at 332-34, 197 P.3d at 784-85.
In this case, the record does not provide any
indication that the circuit court considered Erum’s resources or
what effect the imposition of sanctions would have upon him if
monetary sanctions were awarded. Although it is unclear from
the record what facts were before the court as to Erum’s
resources at the time any of the sanctions were imposed, Erum
was pro se throughout the proceedings, and at minimum the court
was aware that Erum was involved in bankruptcy proceedings by
March of 2017. In any event, at this time there is “other
evidence pertinent to the issue” in the record,48 and the circuit
court may properly consider Erum’s resources on remand. Kaina,
119 Hawai‘i at 333, 197 P.3d at 776.
In light of our disposition vacating the Dismissal
Order and remanding this case to the circuit court, and because
the deficiencies in the record seriously impede our ability to
review the sanctions awarded in this case, we vacate the
monetary sanctions awarded against Erum.49 See Fuqua Homes, Inc.
48
See supra note 12.
49
Although this court has in the past considered potentially
applicable authority for a sanction imposed by a trial court and then
determined whether the authority could support the sanction’s affirmance, we
conclude that it is unnecessary to engage in conjectural analysis because the
(continued. . .)
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v. Beattie, 388 F.3d 618, 623 (8th Cir. 2004) (vacating and
remanding the district court’s sanctioning order because the
court’s failure to identify the sanctioning authority made it
“impossible to review the district court’s order”). On remand
the circuit court may reconsider the sanctions awarded and, if
warranted, enter appropriate sanction orders that comply with
the requirements outlined in this opinion.
IV. CONCLUSION
Accordingly, we vacate the ICA’s Judgment on Appeal
entered on June 28, 2019, the circuit court judgment, the
Dismissal Order, and the monetary sanction orders. The case is
(. . .continued)
Dismissal Order is being vacated and the case is being remanded to the
circuit court. Cf. Enos, 79 Hawai‘i at 457-60, 903 P.2d at 1278-81.
Additionally, we note that some federal appellate courts, when presented with
the appeal of sanctioning orders that do not state the authority pursuant to
which the sanction was imposed, have rejected conjectural analysis and
instead automatically vacate the sanction and remand the case to the district
court “for specification of the authority on which the [district] court
relied for imposing sanction and the particular conduct meriting such
sanctions.” Coltrade Int’l, Inc. v. United States, 973 F.2d 128, 132 (2d
Cir. 1992) (vacating and remanding a district court’s order imposing
sanctions because although the record made it “abundantly clear” sanctions
were justified, the district court failed to identify the sanctioning
authority); see also Beattie, 388 F.3d at 623.
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remanded to the circuit court for proceedings consistent with
this opinion.
Theodorico Erum, Jr., /s/ Sabrina S. McKenna
petitioner, pro se
/s/ Richard W. Pollack
Lisa Strandtman, Jason M. Tani,
Shawn M. Nakoa, /s/ Michael D. Wilson
for respondent
66