Erum v. Llego

• Decision Date: 18 June 2020
• Docket Number: SCWC-17-0000762
• Citation: 465 P.3d 815
• Parties: Theodorico ERUM, Jr., Petitioner/Plaintiff-Appellant, v. Josue Bumatay LLEGO, Respondent/Defendant-Appellee.
• Court: Hawaii Supreme Court

465 P.3d 815

Theodorico ERUM, Jr., Petitioner/Plaintiff-Appellant,

v.Josue Bumatay LLEGO, Respondent/Defendant-Appellee.

SCWC-17-0000762

Supreme Court of Hawai‘i.

JUNE 18, 2020

Theodorico Erum, Jr., petitioner, pro se

Lisa Strandtman, Jason M. Tani, Shawn M. Nakoa, Honolulu, for respondent

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 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 Kapa‘a, Hawai‘i. In his 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 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 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 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-16-0000550, 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 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 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 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...