Kaina v. Gellman
| Decision Date | 11 December 2008 |
| Docket Number | No. 28119.,28119. |
| Citation | 197 P.3d 776 |
| Parties | Genevie Momilani KAINA, Plaintiff-Appellant, v. Mark P. GELLMAN, D.O.; Cheryl Vasconcellos; Hana Community Health Center; Does 1-20, inclusive, Defendants-Appellees. |
| Court | Hawaii Court of Appeals |
Dennis L. Buckley, on the briefs, for Plaintiff-Appellant.
William A. Bordner, John Reyes-Burke, (Burke McPheeters Bordner & Estes), Honolulu, on the briefs, for Defendants-Appellees.
Plaintiff-Appellant Genevie Momilani Kaina (Kaina) appeals from the Order Denying Plaintiff's Renewed Motion for Consolidation filed on July 27, 2006 (Order), by the Circuit Court of the Second Circuit (Circuit Court),1 in which monetary sanctions were awarded against Kaina and in favor of Defendants-Appellees Mark P. Gellman, D.O. (Dr. Gellman), Cheryl Vasconcellos (Vasconcellos), and Hana Community Health Center (Health Center) (collectively, Appellees). The Circuit Court ordered Kaina to pay Appellees' attorneys' fees and costs incurred in defending the motion.
Kaina contends on appeal that the Circuit Court abused its discretion when it sanctioned her because: (1) there was no bad faith or other legal basis to do so; (2) the Circuit Court did not identify the sanctioning authority or, with reasonable specificity, the perceived misconduct; (3) the sanctions were unreasonable and punitive; and (4) there was no separate motion for sanctions. We hold that: (1) any award of sanctions against Kaina based on Hawai`i Rules of Civil Procedure (HRCP) Rule 11 was procedurally defective because there was no motion or order to show cause as required under HRCP Rule 11(c)(1); (2) a specific showing of bad faith is required to justify the use of the court's inherent power to sanction a represented party; and (3) Kaina's conduct in conjunction with the filing of a renewed motion to consolidate did not constitute and was not tantamount to bad faith. Therefore, we reverse.
On March 8, 2001, Kaina's twenty-three year old son, Perry Ka`eo Kaina (Perry) was involved in a motor vehicle accident on the Hana Highway in East Maui, and sustained serious internal injuries. Dr. Gellman treated Perry at Health Center, and Vasconcellos was the Executive Director at Health Center. The next day, on March 9, 2001, Perry died.
On July 2, 2003, Kaina filed a Complaint against Appellees for the wrongful death of Perry. Kaina asserted two counts: (1) a cause of action against Dr. Gellman and Health Center for professional negligence; and (2) a cause of action against Vasconcellos and Health Center for negligently hiring Dr. Gellman.
The trial was initially scheduled for March 14, 2005, but was continued to July 25, 2005, over Kaina's objection, on a motion by the Appellees.
On July 14, 2005, in a hearing on a summary judgment motion, the Circuit Court2 bifurcated Kaina's claims into two separate trials on: (1) the claim of medical malpractice against Dr. Gellman; and (2) the claim of negligent hiring against Vasconcellos. The Appellees had not made a motion to bifurcate the case, but had raised the issue of bifurcation in a supplemental reply memorandum on a defense motion for partial summary judgment, which was filed three days before the hearing on that motion. In light of an apparent need for additional expert witnesses and depositions related to the claim against Vasconcellos, and based on the court's independent research on the issue of bifurcation, the Circuit Court ordered bifurcation to prevent the delay of the trial against Dr. Gellman and Health Center for medical malpractice.
The Circuit Court instructed that if Kaina prevailed in the trial against Dr. Gellman, and "it turns out that the damages which are awarded by the jury go beyond that which the defendants have taking [sic] into account [based upon] the issue of respondeat superior which is basically admitted here, then the court will then schedule a subsequent trial against Miss Vasconcellos for the remainder of those damages." If the Appellees prevailed, the Circuit Court stated that "the likelihood of a second trial is nil since she would still—or the plaintiff would still have to prove the medical negligence and causation, and I think that will then at least permit this woman who has lost her son to have her day in court on the essential issue without a prolonged delay...." Kaina's counsel objected to bifurcation, noting that he had not had an opportunity to research the subject and that he was not familiar with such bifurcating theories. Kaina also argued, unsuccessfully, that separate trials were not in her best interest.
On July 18, 2005, Kaina filed a declaration requesting Judge August's disqualification from her case for bias and prejudice, listing, inter alia, that he suggested that Kaina dismiss the action against Vasconcellos as an individual because it did not make "a great deal of difference" to the case, granted a motion to continue the trial at the Appellees' request over Kaina's objection, commented that Kaina's attorney was "courageous" for accepting her case and that medical malpractice cases are usually not successful at trial, and ordered bifurcation of her claims over her attorney's objection and despite Appellees' failure to file a motion, which would have given her an opportunity to file an opposition. On the same day, Judge August signed a Certificate of Recusation and Reassignment pursuant to Kaina's request. The July 25, 2005 trial date was vacated and the case was reassigned to Judge Cardoza.
After his recusal, on July 28, 2005, Judge August entered an Order re: Defendants' Renewed Motion for Partial Summary Judgment re: Claims Against Cheryl Vasconcellos and Hana Community Health Center, Inc. as Her Employer, Filed June 3, 2005, filed July 28, 2005. In this order, the Circuit Court stated the reasons for bifurcation of Kaina's claims and ordered separate trials pursuant to HRCP Rule 42(b).3
On October 27, 2005, Judge Cardoza rescheduled the case for a jury trial commencing June 5, 2006. At various junctures, Kaina sought unsuccessfully to have Judge August's post-recusal orders declared void.
On March 28, 2006, Kaina filed a Motion for Consolidation and a Motion to Continue Trial. On April 19, 2006, the Circuit Court heard arguments from both parties on these motions, and orally denied both motions. Judge Cardoza characterized Kaina's motion principally as a request for reconsideration of Judge August's bifurcation order.
THE COURT: The Court has considered the pleadings filed in connection with this motion—or these two motions and the arguments of the parties.
The Motion for Consolidation appears to the Court to be, in essence, a motion for reconsideration of previous orders—plaintiff argues otherwise—and, as a result, will attempt to address that on both levels.
If we first take the approach of the motion being one for reconsideration, in the Court's view, the motion to consolidate fails to raise any—any new issues or facts that could not have been presented earlier. And would fail for that reason.
If, on the other hand, we approach this as a—as a motion to consolidate, that is in—that is not, in essence, a motion for reconsideration. It is true that when actions involving a common question of law or fact are pending before a Court, the Court may order a joint trial of all matters at issue. The Court may order consolidation.
And there is no question that [HRCP] Rule 42(a)[] is designed to encourage consolidation where there are common questions of law or fact. The Court is given the broad discretion to determine whether consolidation would in fact be the appropriate and desirable manner of proceeding. The movant bears the burden of persuading the Court that consolidation is appropriate. And consolidation may be denied if it will cause delay or will lead to confusion or prejudice.
If we look back at the history of the case ... looking back to the time that it was ... in Judge August's court, the parties were on the eve of a trial. And this case evolved into a case involving two claims of—a medical negligence claim and a negligent hiring, supervision, training claim.
It appears that Judge August, being confronted with the situation where the trial was in, the medical malpractice claim determined that would be appropriate to have that claim proceed to trial for a variety of reasons. And, essentially, chose that course as the appropriate method of dealing with the circumstances confronting the Court at that time.
....
And if I—I am looking at this without any consideration to the history of this case, placing all factors related to the motion for reconsideration aside, in assuming that I am looking at this question for the very first time, we have a June 5th trial date, that date is, obviously, fast approaching.
....
So we are, once again, in a situation where we are essentially on the eve of trial. And this—let's see. In the Court's view, considering all relevant factors, in considering the law that would apply here, would seem to be, in the Court's view, the appropriate way that this Court should rule as it relates to the motion for consolidation.
(Emphasis added.)
On April 27, 2006, Kaina filed a notice of appeal of the interlocutory order denying her motion for consolidation.4 On May 26, 2006, the supreme court dismissed the appeal as premature. However, after a May 17, 2006 hearing, the June 5, 2006 trial date was vacated due to the pendency of the appeal.
At this point, on June 5, 2006, Kaina filed a Renewed Motion for Consolidation. She argued that the previous rationale by both judges for separate trials—imminent trial dates and the need for further discovery— was no longer valid and that she would suffer "extreme prejudice" from separate trials. At the June 28, 2006 hearing, the...
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