Ditto v. McCurdy
| Decision Date | 30 October 2003 |
| Docket Number | No. 23587.,23587. |
| Citation | 102 Haw. 518,78 P.3d 331 |
| Parties | Janie DITTO, Plaintiff-Appellee, v. John A. McCURDY, Jr., M.D., Defendant-Appellant, and Karla Scarpiova, Defendant. |
| Court | Hawaii Supreme Court |
Richard H. Grover, Honolulu, on the briefs, for defendant-appellant.
David C. Schutter and Christopher A. Dias, Honolulu, (of Schutter Dias Smith & Wong), on the briefs, for plaintiff-appellee.
This appeal arises out of plaintiff-appellee Janie Ditto's attempts to collect on judgments obtained in a medical malpractice action against defendant-appellant John A. McCurdy, Jr., M.D. (McCurdy). On November 19, 1999, the first circuit court, the Honorable Gary W.B. Chang presiding, issued a writ of execution in connection with the judgments. McCurdy appeals from the circuit court's June 19, 2000 orders: (1) denying in part and granting in part his motion to quash the writ of execution, arguing that the execution is void for failing to specify whose property was to be levied upon; and (2) denying his motion to quash levy on personal property, arguing that the levy was invalid insofar as it was made after the expiration of the return day of the execution. For reasons discussed infra, Section III.A, we agree with McCurdy's second point of error and reverse the circuit court's June 19, 2000 order denying his motion to quash levy on personal property.
947 P.2d 952 (1997). Briefly stated, Ditto was disfigured as a result of breast augmentation surgery performed by McCurdy. In June 1992, a jury awarded Ditto $1,003,500 in general and special damages for negligence, $400,000 in damages for fraud, and $600,000 in punitive damages. Judgment was entered in July 1992 [hereinafter, the July 1992 Judgment].
In Ditto I, this court affirmed the July 1992 judgment as to the negligence claim but held that Ditto's fraud claim failed as a matter of law. 86 Hawai'i at 91-93, 947 P.2d at 959-61. Consequently, the jury's finding of liability with respect to fraud and the corresponding $400,000 in damages were reversed. Id. at 86, 947 P.2d at 954. Unable to ascertain how much of the punitive damages award was attributable to McCurdy's alleged fraud, we vacated the punitive damages award. Id. However, we affirmed McCurdy's liability for punitive damages on the ground that the jury most certainly had found McCurdy to be grossly negligent notwithstanding the erroneous fraud instructions. Id. at 91-92, 947 P.2d at 959-60. Accordingly, this court remanded the case for retrial solely on the issue of the amount of punitive damages to be awarded. Id. at 93, 947 P.2d at 961. On January 7, 1998, this court entered a notice and judgment on appeal stating in pertinent part that interest at ten percent per year, pursuant to Hawaii Revised Statutes (HRS) § 478-3 (1993), should be applied to the affirmed $1,045,606.30 (i.e., $1,003,500 in general and special damages for negligence and $42,106.39 in costs not appealed) [hereinafter, the Amended Judgment] from the date of the July 1992 judgment.
Upon remand, a jury returned a verdict of $676,700 in punitive damages. In July 1999, the trial court entered judgment in the aforementioned amount [hereinafter, the July 1999 Judgment].
In October 1992, McCurdy filed a voluntary petition for bankruptcy in the United States Bankruptcy Court for the District of Hawai'i. As a result, Ditto's judgments against McCurdy were automatically stayed.
On August 19, 1999, the bankruptcy court issued an order granting Ditto relief from the automatic stay. In relevant part, the order allowed "Ditto to seize and auction any non-exempt items of personal property found in [McCurdy]'s residence." On November 22, 1999, Ditto, relying on the bankruptcy court's order, moved for issuance of a writ of execution pursuant to HRS § 651-32 (Supp.1998). Although McCurdy had appealed the July 1999 Judgment, Ditto argued she should not be precluded from executing on it inasmuch as McCurdy had failed to post a supersedeas bond thereon. Moreover, McCurdy's appeal did not have any effect on the Amended Judgment.
That same day, the circuit court granted Ditto's motion, issuing a writ of execution that provided in part as follows:
TO: THE SHERIFF OF THE STATE OF HAWAII ... MAKING SERVICE OF THIS EXECUTION:
YOU ARE COMMANDED to levy upon: (1) the stock certificates of JOHN A. McCURDY, JR., M.D., F.A.C.S., INC. at 1063 Lower Main Street, Suite 225, Wailuku, Maui, Hawaii 96793; and (2) any and all personal property found at Harbor Court, Apartment # 3502, 66 Queen Street, Honolulu, Hawaii 96813, and, giving thirty (30) days previous notice as required by law, to sell the same or so much thereof as may be found necessary, at a public sale to the highest bidder, in order to satisfy judgments entered in said action against Defendant JOHN A. McCURDY, JR. in favor of Plaintiff JANIE DITTO on January 7, 1998, and July 14, 1999 as follows:
(Emphases added.)
The record evinces that State of Hawai'i Sheriff John Kling (Sheriff Kling) tried numerous times to serve McCurdy with the writ of execution at his office in Wailuku in December 1999. Sheriff Kling was finally able to serve McCurdy on February 7, 2000.
On February 8, 2000, Sheriff Kling went to the apartment at Harbor Court in Honolulu to levy the execution. However, McCurdy advised Sheriff Kling that none of the property in the residence could be seized because it was "joint property." On February 9, 2000, Sheriff Kling returned to the Harbor Court apartment, whereupon a woman, identifying herself as McCurdy's wife, answered the door and stated that some of the property in the residence was "joint property" and some of it was owned solely by her. Nevertheless, Sheriff Kling proceeded to levy the execution, seizing 188 items.
On March 6, 2000, McCurdy filed a motion to quash the writ of execution [hereinafter, motion to quash execution] on the ground that the execution failed to specify whose property at the Harbor Court apartment could be seized. On May 8, 2000, McCurdy filed a motion to quash the levy on personal property [hereinafter, motion to quash levy], asserting that the levy should be quashed insofar as it was made after the return day under the execution. The circuit court heard arguments on the motion to quash execution and the motion to quash levy on April 18, 2000, and June 1, 2000, respectively.
On June 19, 2000, the circuit court denied the motion to quash execution "as to the 168 items identified in the sheriff's inventory ... which [Mrs. McCurdy] claims no ownership interest in[,]" and granted the motion "as to the 20 items in [Sheriff Kling]'s inventory which Mrs. McCurdy claims an ownership interest in." The circuit court ordered also that the 20 items belonging to Mrs. McCurdy be returned to her immediately.
On the same day, the circuit court denied McCurdy's motion to quash levy. This timely appeal followed.
The decision whether to grant or deny a motion to quash execution or a motion to quash levy involves a question of law. "Questions of law are reviewable de novo under the right/wrong standard of review." Best Place, Inc. v. Penn Am. Ins. Co., 82 Hawai'i 120, 123, 920 P.2d 334, 337 (1996) (citing State v. Baranco, 77 Hawai'i 351, 355, 884 P.2d 729, 733 (1994)).
"We interpret statutes de novo." Keliipuleole v. Wilson, 85 Hawai'i 217, 221, 941 P.2d 300, 304 (1997) (citing Shimabuku v. Montgomery Elevator Co., 79 Hawai'i 352, 357, 903 P.2d 48, 52 (1995)).
McCurdy asserts that the circuit court erred in denying his motion to quash levy inasmuch as the levy was made after the expiration of the return day stated in the execution.
HRS § 651-34 (1993) provides that:
Time within which execution shall be returnable. All executions and alias executions issued by or from any court shall be made returnable within sixty days from the date thereof.
(Emphasis added.) The writ of execution in this case directed the authorized officer to "make return of this writ of execution within sixty (60) days[.]" The execution was issued on November 22, 1999 and was therefore returnable prior to January 21, 2000. As noted previously, Sheriff Kling levied the execution on February 9, 2000.
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