Gilliam v. Elliot

Decision Date17 June 2022
Docket NumberCAAP-19-0000767
PartiesWILLIAM H. GILLIAM, Plaintiff-Appellant, v. DANIEL J. ELLIOT, Defendant-Appellee
CourtCourt of Appeals of Hawai'i

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CIVIL NO 19-1-00045)

On the briefs:

William H. Gilliam, Self-Represented Plaintiff-Appellant.

Cathy S. Juhn, (Ortiz & Associates) for Defendant-Appellee.

Lisa M. Ginoza, Chief Judge, Clyde J. Wadsworth, Associate Judge Karen T. Nakasone, Associate Judge.

SUMMARY DISPOSITION ORDER

Plaintiff-Appellant William H. Gilliam (Gilliam), self-represented, appeals from the April 19, 2022 Judgment entered by the Circuit Court of the Fifth Circuit (Circuit Court).[1]

On appeal, Gilliam challenges the Circuit Court's granting of Defendant-Appellee Dan Elliott's (Elliott) "Motion for Summary Judgment to Dismiss Complaint Filed on 03/22/2019 Which Are Time-Barred by § 657-7[2] and § 657-4[3] of the Hawaii Revised Statutes" (MSJ) (footnotes added).

Gilliam's Amended Opening Brief (Amended OB) does not comply with Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b) .[4] Elliott argues that the Amended OB should be stricken for failure to again comply with the rule even after Gilliam's first Opening Brief was stricken for similar non-compliance.[5]

While noncompliance with HRAP Rule 28(b) (4) can alone be sufficient to affirm the lower court's judgment, we endeavor to afford "litigants the opportunity to have their cases heard on the merits, where possible." Marvin v. Pflueger, 127 Hawai'i 490, 496, 280 P.3d 88, 94 (2012) (citation and internal quotation marks omitted). Despite the omission of a Point of Error section, Gilliam's Argument section sets forth his assertions of error, and we will address them to the extent we can discern them. See id. ("[N]oncompliance with Rule 28 does not always result in dismissal of the claims, and this court has consistently adhered to the policy of affording litigants the opportunity to have their cases heard on the merits, where possible. This is particularly so where the remaining sections of the brief provide the necessary information to identify the party's argument.") (brackets, ellipses, internal citations omitted); Erum v. Llego, 147 Hawai'i 368, 380-81, 465 P.3d 815, 827-28 (2020) (stating that, to promote access to justice, pleadings prepared by self-represented litigants should be interpreted liberally, and self-represented litigants should not be automatically foreclosed from appellate review because they fail to comply with court rules).

Gilliam contends the Circuit Court erred by (1) denying him the opportunity to "resist" the MSJ by conducting discovery prior to ruling on the MSJ; (2) treating the MSJ as a motion for judgment on the pleadings under Rule 12 of the Hawaii Rules of Civil Procedure (HRCP) but then considering matters outside of the pleadings; and (3) applying a two-year statute of limitations to all causes of action in his Complaint.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we resolve Gilliam's points of error as follows, and vacate in part and affirm in part.

(1) The record does not support Gilliam's contention that the Circuit Court erred by denying him the opportunity to conduct discovery prior to ruling on the MSJ. Gilliam argues that he was denied an "opportunity to develop material facts in opposition" to the motion, and he had "no opportunity to develop facts supporting tolling, or broadening [sic] from allegations of the complaint."[6] Gilliam asserts that his "Motion per HRCP 56(f)" was "summarily denied" even despite "renewing orally [sic] before the bench at each opportunity[.]"

HRCP Rule 56(f) states:

(f) When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Here, Gilliam's "Motion for Relief Pursuant to HRCP 56(f)" was essentially a one-page document, in which Gilliam "incorporates" a "Declaration last filed ... in support of [Gilliam's] Motion to Shorten and for Protective Order"; states that Elliott "continuously denied [Gilliam]'s request to depose [Elliott]"; and concludes that "the Court should deny such Motion for Summary Judgment herewith or continue the same indefinitely to permit [Gilliam]'s discovery of [Elliott] by deposition or discovery to be had." No other argument or reasoning is provided, explaining how the "discovery" or "deposition" of Elliott was necessary to enable Gilliam to demonstrate a genuine issue of material fact. See Org, of Police Officers v. City and Cty. of Honolulu, 149 Hawai'i 492, 519, 494 P.3d 1225, 1252 (2021) ("In civil cases, the [HRCP] set forth procedures for discovery and summary judgment; pursuant to HRCP Rule 56(f), the circuit court may deny a motion for summary judgment if the opposing party establishes that additional discovery is necessary.").

Gilliam provides no record references that establish his claim that the HRCP Rule 56(f) motion was "summarily denied." Gilliam did not provide any transcript to support his account of what occurred at the hearing. "The burden is upon appellant in an appeal to show error by reference to matters in the record, and he [or she] has the responsibility of providing an adequate transcript." Bettencourt v. Bettencourt, 80 Hawai'i 225, 230, 909 P.2d 553, 558 (1995) (quoting Union Building Materials Corp. v. The Kakaako Corp., 5 Haw.App. 146, 151, 682 P.2d 82, 87 (1984)). The court will not presume error from a silent record. Matter of the Estate of Camacho, 140 Hawai'i 404, 413, 400 P.3d 605, 614 (App. 2017) (citing State v. Hoang, 93 Hawai'i 333, 336, 3 P.3d 499, 502 (2000)). Gilliam's contention is without merit.

(2) The record does not support Gilliam's claim that the Circuit Court treated the MSJ as a motion for judgment on the pleadings pursuant to HRCP Rule 12.[7] The MSJ specifically stated it was made pursuant to HRCP Rule 56 and requested that the Circuit Court consider the attached exhibits as evidence as to when Gilliam learned of facts that triggered the statute of limitations on his claims. No transcript of the MSJ hearing is provided. See Bettencourt, 80 Hawai'i at 230, 909 P.2d at 558. Gilliam does not point to anything in the record reflecting that the Circuit Court treated the MSJ as a motion pursuant to HRCP Rule 12. This contention is without merit.

(3) Gilliam's contention that a two-year statute of limitations was erroneously applied to all causes of action has merit. Gilliam argues that a four-year statute of limitations applied to his "Unfair and Deceptive Trade Practice (UDAP)" claim, and a six-year statute of limitations applied to his "[c]ontract and fraud" claims. We conclude the Circuit Court erred in part by granting summary judgment on all of Gilliam's claims, because Elliott was not entitled to summary judgment as a matter of law on the UDAP and Fraud claims based on the applicable statutes of limitations.

On appeal, the grant or denial of summary judgment is reviewed de novo. Nuuanu Valley Ass'n v. City & Cty. of Honolulu, 119 Hawai'i 90, 96, 194 P.3d 531, 537 (2008).

[S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and inferences drawn therefrom in the light most favorable to the party opposing the motion.

Id. (citation omitted).

Gilliam filed his Complaint in the case on March 22, 2019. The parties do not dispute the nature of Gilliam's claims or that the causes of action accrued in April 2016 when Gilliam "first learned, just days before trial [in a District Court proceeding] in April, 2016," of exhibits that Gilliam's Complaint alleged were "malicious lies, which defame, slander [sic], liable [sic] [Gilliam] so as to hold [Gilliam] out in a false light to others[.]" Complaint ¶¶ 5 and 7. There was no genuine issue of material fact as to when Gilliam's claims accrued. See Nuuanu Valley Ass'n, 119 Hawai'i at 96, 194 P.3d at 537.

"The relevant limitations period is determined by the nature of the claim or right asserted, which is in turn determined from the allegations contained in the pleadings." Delapinia v. Nationstar Mortg. LLC, 146 Hawai'i 218, 224-25, 458 P.3d 929, 935-36 (App. 2020), overruled in part on other grounds by Delapinia v. Nationstar Mortg. LLC, 150 Hawai'i 91, 497 P.3d 106 (2021) .

"Defamation and False Light" claim: This claim was subject to a two-year statute of limitations. "Defamation actions are governed by HRS § 657-4 (1993), which provides that '[a]11 actions for libel or slander shall be commenced within two years after the cause of action accrued, and not after.'" Bauernfiend v. Aoao Kihei Beach Condos., 99 Hawai'i 281, 282 n.4, 54 P.3d 452, 453 n.4 (2002). "The tort of false light substantially overlaps with defamation," and where a false light claim is derivative, based on the same statements as the...

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