Paco v. Myers ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-DEC-2022
08:19 AM
Dkt. 82 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
NATHAN PACO, Pro Se, Plaintiff-Appellant, v.
MARY K. MYERS, doing business as MARY K. MYERS, PH.D.,
doing business as MARY MYERS, PH.D., INC.,
also known as MARY K. MYERS TRUST;
ROMAN CATHOLIC CHURCH IN THE STATE OF HAWAI‘I,
a domestic non-profit corporation, Defendants-Appellees,
and DOES 1-10, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC14-1-000108)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Wadsworth and McCullen, JJ.)
Plaintiff-Appellant Nathan Paco (Paco), appeals from
the Circuit Court of the First Circuit's December 22, 2017 Final
Judgment granting summary judgment in favor of Defendant-
Appellee Mary K. Myers, Ph.D. (Dr. Myers). 1 On appeal, Paco
raises as his sole point of error that "[t]he [c]ircuit [c]ourt
1 The Honorable Dean E. Ochiai presided.
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should have granted only a partial summary judgment on [his] 1st
Cause of Action and should have had a trial on [his] 2nd Cause
of Action and on those other valid defenses that have genuine
issues as to material facts." (Emphasis omitted and format
altered.)
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issue raised and the arguments advanced, we resolve Paco's
point of error as discussed below, and affirm.
As an initial matter, we note that it was difficult to
identify in Paco's complaint a first and second cause of action,
but he appeared to challenge architectural barriers and altered
portions of Dr. Myers' office. 2 He claimed nine aspects of
Dr. Myers' facilities did not comply with the Americans with
Disabilities Act (ADA), and cited generally to "28 CFR part 36"
and "42 ADA U.S.C. Section 1210 et seq." 3 He then requested an
2 In accordance with the policy of affording self-represented litigants
the opportunity to have their cases heard on the merits, we address Paco's
arguments to the extent they are discernible. O'Connor v. Diocese of
Honolulu, 77 Hawai‘i 383, 386, 885 P.2d 361, 364 (1994) (explaining that the
Hawai‘i Supreme Court has established a general policy of affording self-
represented litigants the opportunity to have their cases heard on the merits
where it is possible to do so).
3 In particular, Paco asserts the following violations:
(1) "the door knob of the front entry door is not ADA
compliant";
(2) "the pressure of the front entry door is too high";
(3) "the width of the passage way from the front entrance
through the reception area is too narrow";
(continued . . .)
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"injunction ordering the defendants to fully comply with ADA
requirements within ninety (90) days[,]" monetary damages, and
expert and attorney fees.
After answering Paco's complaint, Dr. Myers moved for
summary judgment asserting that the lawsuit is barred by the
two-year statute of limitations because Paco first observed her
office on September 6, 2011 and regularly visited her for
consults, but did not file his complaint until January 15, 2014. 4
Dr. Myers also asserted that it was unlikely Paco would again
use her services, and attached, among other things, a letter
from Paco directing her to cancel all future appointments and
declaring his love for her. Dr. Myers explained that Paco's
(. . . continued.)
(4) "the doorway to the back office is too narrow";
(5) "the height of the threshold to the back office is too
high" (Back-office Threshold);
(6) "the items that are stored in the bathroom make it
inaccessible to a disabled person";
(7) "the door to the bathroom is too narrow";
(8) "the bathroom does not have any grab bars"; and
(9) "the door knob of the bathroom and the handles of the
water faucets are not ADA compliant."
(Emphasis added.)
4 Dr. Myers also moved to have Paco declared a vexatious litigant,
which the circuit court granted, as this was one of four lawsuits he filed
against her.
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communications first annoyed then worried her, and she never
responded to these communications.
In his opposition to Dr. Myers' motion for summary
judgment, Paco argued that one of the nine violations he
presented in his complaint was not barred by the statute of
limitations. He stated that "[t]he padded carpets that had
covered her offices' floors where [sic] replaced by hardwood
floors on or about December, 2013 [sic] or January, 2013." Paco
explained that he "got stuck with his wheelchair on the raised
threshold sometime in January 2013" and filed his lawsuit "about
only a year later - January 15, 2014."
Paco stated that "[w]hen [he] finally was allowed to
inspect [Dr. Myers'] office, he found that the threshold was
brought into conformance . . . ." 5 Also, Paco attested in his
declaration, "[w]hen I finally was allowed to inspect [Dr.
Myers'] office, I found that the threshold was lowered." Paco
did not address the other eight alleged violations he listed in
his complaint and, instead, stated that Dr. Myers' "allegation
that my causes of action are barred by the statute of
limitations is based upon [her] intentional lies to this Court."
In her reply, Dr. Myers explained that she "testified
(without contradiction) that a number of her other wheelchair
5 In this statement, Paco also asserted that "the sliding door, the
entry door and the bathroom were not" brought into conformance. Paco,
however, made no claim in his complaint as to the sliding door, and the
issues regarding the entry door and the bathroom were among the issues Paco
acknowledged as time-barred.
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patients have had no problems at all with the threshold." She
also pointed out that Paco failed "to state the (in effect)
starting height, or the ending height, of the threshold."
The circuit court granted Dr. Myers' motion for
summary judgment with prejudice.
As stated earlier, Paco contends on appeal that "[t]he
[c]ircuit [c]ourt should have granted only partial summary
judgment on [his] 1st Cause of Action and should have had a
trial on [his] 2nd Cause of Action and on those other valid
defenses that have genuine issues as to material facts"
(emphasis omitted and format altered). Paco identifies the
first cause of action as relating to existing barriers and the
second cause of action as relating to alterations. Paco, thus,
acknowledges that the circuit court did not err in granting
summary judgment as to the existing barriers (first cause of
action), and the matter Paco presents to this court is limited
to the alteration (second cause of action), and more
specifically, to the Back-office Threshold.
As to the Back-office Threshold, Paco cites for the
first time on appeal "42 U.S. Code § 12183(a)(2)" 6 and "28 CFR
6 42 U.S.C. § 12183(a)(2), which is within Title III of the ADA,
provides in relevant part:
Except as provided in subsection (b), as applied to public
accommodations and commercial facilities, discrimination for
purposes of section 12182(a) of this title includes—
. . . .
(continued . . .)
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36.403," and argues that because he filed his lawsuit within a
year of discovering this violation, summary judgment based on
the statute of limitations was improper. Paco further argues
that regardless of how unlikely it is that he would face similar
harm in the future, he is entitled to an injunction compelling
Dr. Myers to bring the office space she rents into compliance
with the ADA.
"On appeal, the grant or denial of summary judgment is
reviewed de novo." Villaver v. Sylva, 145 Hawai‘i 29, 34, 445
P.3d 701, 706 (2019) (quoting Nuuanu Valley Ass'n v. City &
Cnty. of Honolulu, 119 Hawai‘i 90, 96, 194 P.3d 531, 537 (2008)).
When reviewing a grant or denial of summary judgment, an
appellate court's consideration of the record is "limited to
those materials that were considered by the trial court in
(. . . continued)
(2) with respect to a facility or part thereof that is
altered by, on behalf of, or for the use of an
establishment in a manner that affects or could affect the
usability of the facility or part thereof, a failure to
make alterations in such a manner that, to the maximum
extent feasible, the altered portions of the facility are
readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs.
Where the entity is undertaking an alteration that affects
or could affect usability of or access to an area of the
facility containing a primary function, the entity shall
also make the alterations in such a manner that, to the
maximum extent feasible, the path of travel to the altered
area and the bathrooms, telephones, and drinking fountains
serving the altered area, are readily accessible to and
usable by individuals with disabilities where such
alterations to the path of travel or the bathrooms,
telephones, and drinking fountains serving the altered area
are not disproportionate to the overall alterations in
terms of cost and scope (as determined under criteria
established by the Attorney General).
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ruling on the motion." Assoc. of Apartment Owners of Wailea
Elua v. Wailea Resort Co., Ltd., 100 Hawai‘i 97, 108, 58 P.3d
608, 619 (2002).
The Hawai‘i Supreme Court explained the burdens of the
moving and non-moving parties with respect to a motion for
summary judgment as follows:
The burden is on the party moving for summary judgment
(moving party) to show the absence of any genuine issue as
to all material facts, which, under applicable principles
of substantive law, entitles the moving party to judgment
as a matter of law. This burden has two components.
First, the moving party has the burden of producing support
for its claim that: (1) no genuine issue of material fact
exists with respect to the essential elements of the claim
or defense which the motion seeks to establish or which the
motion questions; and (2) based on the undisputed facts, it
is entitled to summary judgment as a matter of law. Only
when the moving party satisfies its initial burden of
production does the burden shift to the non-moving party to
respond to the motion for summary judgment and demonstrate
specific facts, as opposed to general allegations, that
present a genuine issue worthy of trial.
Second, the moving party bears the ultimate burden of
persuasion. This burden always remains with the moving
party and requires the moving party to convince the court
that no genuine issue of material fact exists and that the
moving [party] is entitled to summary judgment as a matter
of law.
French v. Hawaii Pizza Hut, Inc., 105 Hawai‘i 462, 470, 99
P.3d 1046, 1054 (2004) (quoting GECC Fin. Corp. v.
Jaffarian, 79 Hawai‘i 516, 521, 904 P.2d 530, 535 (App.
1995)) (emphasis omitted).
To the extent Paco argues that his cause of action
arising from the floor change "is not barred by the statute of
limitations," Paco is correct. Dr. Myers admitted that the
owners of the unit had the new floors "installed in December
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2012 or January 2013" and, thus, Paco could not have discovered
an ADA violation arising from this alteration to Suite 3206
until his visit in January 2013. Thus, Dr. Myers failed to
demonstrate that the Back-office Threshold issue was barred by
the statute of limitations, and that she was entitled to a
judgment as a matter of law on that basis.
Because the issue was not time-barred, there was a
question of whether the altered threshold of the back office
complied with the ADA. But, in his declaration attached to his
memo in opposition to the motion for summary judgment, Paco
attested that:
10. The alterations that my complaint refers to are
the [M]ovant's replacement of her padded carpet flooring
with bamboo hardwood flooring which lowered the level of
her floors. As a result, the height of the threshold to
the Movant's consultation room was raised.
11. When I finally was allowed to inspect the
Movant's office, I found that the threshold was lowered.
Indeed, Paco's memo in opposition conceded that the threshold
had been "brought into conformance[.]" This admission settled
the remaining factual question before the circuit court of
whether the Back-office Threshold violated the ADA.
And without the transcript from the October 19, 2016
hearing on the motion for summary judgment, which Paco failed to
provide to this court, we will not infer or assume error. See
State v. Hoang, 93 Hawai‘i 333, 334, 3 P.3d 499, 500 (2000)
(explaining that "appellant[s] bear[] the burden to show error
by reference to matters in the record, and . . . has the
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responsibility of providing the relevant transcript" and the
appellate court "cannot presume error in the absence of the
record").
Given Paco's admission that the Back-office Threshold
was brought into compliance, Paco's request for injunctive
relief is moot. 7
For the above reasons, we affirm the First Circuit
Court's December 22, 2017 Final Judgment.
DATED: Honolulu, Hawai‘i, December 12, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Nathan Paco,
Plaintiff-Appellant, pro se. /s/ Clyde J. Wadsworth
Associate Judge
Fred Paul Benco,
for Defendant-Appellee. /s/ Sonja M.P. McCullen
Associate Judge
7 Paco's complaint alleges entitlement to monetary damages under Hawaii
Revised Statutes § 347-13.5 (2015), but he makes no discernible argument on
appeal related to his claim for monetary damages.
And even if he did, "[m]onetary relief . . . is not available to
private individuals under Title III of the ADA" and "[a] private individual
may only obtain injunctive relief for violations of a right granted under
Title III; he cannot recover damages." Powell v. Nat'l Bd. of Med. Exam'rs,
364 F.3d 79, 86 (2d Cir. 2004).
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