Ellis v. Harland Bartholomew and Associates, 6574

Citation1 Haw.App. 420,620 P.2d 744
Decision Date04 December 1980
Docket NumberNo. 6574,6574
CourtCourt of Appeals of Hawai'i
PartiesWilliam S. ELLIS, Jr., Trustee in Dissolution for Kula Development Corporation, William S. Ellis, Jr., individually, Plaintiff-Appellant, and Masaru Sumida, Stanley Unten, and Charley T. Shiraishi, Plaintiffs, v. HARLAND BARTHOLOMEW AND ASSOCIATES, a Hawaii co-partnership, and Donald H. Wolbrink, former co-partner, Defendants-Appellees.

Syllabus by the Court

1. Where there has been a dismissal granted under Rule 41(b), the sole question on appeal is whether the trial court abused its discretion in granting the motion.

2. What constitutes a failure to prosecute depends on the facts of each case and the court must consider all pertinent facts before granting the motion.

3. A dismissal with prejudice is a harsh sanction which should not be invoked lightly in view of sound public policy of deciding cases on their merits; against such policy, a trial court must balance considerations of sound judicial administration, applying four criteria: (1) the degree of personal responsibility on the part of the plaintiff; (2) the amount of prejudice to the defendant caused by the delay; (3) the presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion, and (4) the effectiveness of sanctions less drastic than dismissal.

4. Action which had been pending for approximately twelve (12) years which was still bogged down with various motions, a large number of which were interposed by plaintiffs, was properly dismissed for failure to prosecute, in view of record which indicated that plaintiffs had impeded progress of litigation by every obstacle and maneuver possible.

William S. Ellis, Jr., pro se.

John Francis Perkin, Anthony, Hoddick, Reinwald & O'Connor, Honolulu, for defendants-appellees.

Before HAYASHI, C. J., BURNS, J., and GREIG, Circuit Judge, in place of PADGETT, J., disqualified.

HAYASHI, Chief Judge.

This is an appeal from the order of the trial court below dismissing the complaint for failure to prosecute. The only issue before us is whether the court abused its discretion in dismissing the action. We find no abuse and affirm the judgment of dismissal.

This action was first filed on January 11, 1965. The order of dismissal from which the appeal is taken was entered on March 29, 1977, some twelve years later. We feel that a chronicling of some of the events in the intervening years is necessary in this case because they graphically illustrate the correctness of the trial court's dismissal of the action from which appeal has been taken.

On January 11, 1965, this action began when Kula Development Corporation, a Hawaii corporation, and Kula Gardens Associates, a limited partnership (plaintiffs-partners were Florence A. Ellis, Masaru Sumida, Stanley Unten and Charley T. Shiraishi), brought suit against Harland Bartholomew and Associates and Donald H. Wolbrink. The action sought special, general and punitive damages for "disparagement of property".

The answer was not filed until August 9, 1965, seven months later. In the interim the parties stipulated to four extensions of time to answer and argued two related motions before the court. On October 6, 1965, the defendants-appellees filed the first of several motions to dismiss. From the time of the filing of the motion to dismiss on October 6, 1965 until February 10, 1969, no attempt was made by either side to advance the case to trial. On February 11, 1969, the court archivist filed a Notice of Proposed Dismissal for failure of plaintiffs to file a statement of readiness.

On February 20, 1969, the plaintiffs filed their objections to the Notice of Proposed Dismissal.

On June 26, 1969, an order was entered by the court directing that the case be brought to issue and Statement of Readiness be filed by June 30, 1969. On June 26, 1969, the plaintiffs filed a Statement of Readiness and the case was placed upon the calendar call before Judge Yasutaka Fukushima for August 28, 1969.

On the 27th of August, one day prior to the case being called, the plaintiffs filed the first in a series of objections to the advancement of trial. As the case was continued on plaintiffs' motion the objection was withdrawn and the matter continued to January 16, 1970. Two days before the case was due to be set for trial, the plaintiffs filed a renewed objection to the advancement of trial and a subsequent motion to postpone-the second of the series. At the plaintiffs' behest, the matter was continued for the second time to February 11, 1970, at which time the court agreed to hear the defendants-appellees' original motion to dismiss of October 1965 and other motions filed by the plaintiffs. On February 11, 1970, the plaintiffs withdrew their motion to postpone trial without prejudice, upon obtaining another continuance in the matter to November 9, 1970. The defendants-appellees' motion to dismiss was denied.

During the pendency of the above proceedings, a number of events took place which had ultimately devastating effects upon the progress of the litigation. Having succeeded to the interest of Florence Ellis, one of the original plaintiffs, the Appellant William S. Ellis, Jr. had appeared pro se in behalf of the interest held by her in the partnership. The other partners (other plaintiffs) were represented by counsel. When Kula Development Corporation was involuntarily dissolved, the Appellant William S. Ellis, Jr. was appointed sole successor trustee and was substituted, pro se, as sole trustee on behalf of the dissolved corporation. It is this pro se appearance that began the next long series of delay.

In October 1969, a suit was filed to enjoin the Appellant William S. Ellis, Jr. from representing the dissolved corporation as sole trustee, such action constituting the unauthorized practice of law. (See In Re Ellis, 53 Haw. 23, 487 P.2d 286 (1971) referred to as Supreme Court No. 5044.) By October 1970, a month before trial had been set, no decision had been reached in that action. Statedly to avoid a prolonged pro se trial and to provide sufficient time for the disposition of that action, the parties stipulated to continue the matter to June of 1971. The matter was still pending in the supreme court in June and the parties, having entered into settlement talks in the interim, stipulated to further continue the matter "to a date sixty (60) days after the ultimate determination of said Case No. 5044, in the event that this action should not be settled out of court by said date."

Appellant agreed to keep the court apprised of the progress of the proceedings in that action. The appellant and appellees disagree as to which order constituted the "ultimate determination" of the case, but we are of the opinion that by any standards imposed the case was ultimately determined when appellant, having exhausted every appellate remedy available to him, was denied a Petition for Rehearing in the U.S. Supreme Court on May 22, 1972 on the question of whether the pro se appearance of a non-attorney trustee of a dissolved corporation was the unauthorized practice of law. Our supreme court had issued an order permanently enjoining Appellant William S. Ellis, Jr. from any continued unauthorized practice of law.

Two years passed before any other action was taken in this case when on June 24, 1974, the defendants-appellees again filed a motion to dismiss the matter for lack of prosecution. As had been his practice when other such motions were made, the appellant opposed the motion, this time on the theory that the ultimate determination in Supreme Court No. 5044 had not been reached. Appellant's concept of the ultimate determination of No. 5044 erroneously included appellate exhaustion of the contempt order entered against him in In Re Ellis, 55 Haw. 458, 522 P.2d 460 (1974), for appellant's refusal to obey a court order requiring him to submit evidence of the assets of the dissolved corporation at a hearing to determine whether his pro se appearance as trustee for the corporation could continue, and his subsequent representations in the U.S. District Court for the State of Hawaii on behalf of the corporation in violation of the court's decision. By appellant's standards, trial in this matter was delayed six years pending the "ultimate determination" of corollary issues. Appellant prepared and submitted five supplemental affidavits through February 1975, reciting his inability to proceed pending "the ultimate determination" of Supreme Court No. 5044 in reliance on the agreement of June 1971. Hearing on defendants-appellees' motion to dismiss of June 27, 1974 was continued three times-to August 21, 1974-to September 4, 1974 and-to September 18, 1974. To further stave off hearing on the motion to dismiss, appellant then filed his second of five affidavits pertaining to the status of the appeal in No. 5044. The appeal, at this point, however, did not concern the merits of the original action-rehearing had been denied two years earlier-at this point No. 5044 was a contempt citation against the appellant for failure to comply with the supreme court's order permanently enjoining him from any further unauthorized practice of law. This order stemmed from the occurrence of two events related to the original holding in In Re Ellis, supra : 1) appellant's failure to comply with the court's order requiring appellant's presence at a hearing to determine whether there were sufficient assets in the dissolved corporation to hire counsel and 2) appellant's subsequent pro se appearance on behalf of the corporation in the U.S. District Court for the State of Hawaii after the entry of the supreme court's order enjoining him from such representation. Apparently on the basis of the misleading affidavits of the appellant, the court denied the motion for dismissal. Appellant, apparently realizing the tactical value of these affidavits, filed...

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