Querubin v. Thronas

• Decision Date: 31 March 2005
• Docket Number: No. 24086.,24086.
• Citation: 109 P.3d 689,107 Haw. 48
• Parties: Benjamin QUERUBIN; Carolyn Taketa, as Special Administrator of the Estate of Juanita Querubin, deceased, Plaintiffs-Appellants, v. OLAF THRONAS, Defendant-Appellee, and Charles K. Lee; John Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; Roe Corporations 1-10; Roe "Non-Profit" Corporations 1-10; and Roe Governmental Entities 1-10; Defendants; Olaf Thronas, Defendant/Cross-Plaintiff, v. Charles K. Lee, Defendant/Cross-Defendant, Olaf Thronas, Defendant/Counter-Plaintiff, v. Benjamin Querubin, Plaintiff/Counter-Defendant. Carolyn Taketa, as Special Administrator of the Estate of Juanita Querubin, deceased, Plaintiff/Cross-claim Plaintiff, v. Benjamin Querubin, Plaintiff/Cross-claim Defendant. Olaf Thronas, Third-Party Plaintiff, v. The County of Kaua'i, a political subdivision of the State of Hawai'i, John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Partnerships 1-10, and Doe Entities 1-10, Third-party Defendants.
• Court: Hawaii Supreme Court

109 P.3d 689

107 Haw. 48

Benjamin QUERUBIN; Carolyn Taketa, as Special Administrator of the Estate of Juanita Querubin, deceased, Plaintiffs-Appellants, v. OLAF THRONAS, Defendant-Appellee, and Charles K. Lee; John Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; Roe Corporations 1-10; Roe "Non-Profit" Corporations 1-10; and Roe Governmental Entities 1-10; Defendants;

Olaf Thronas, Defendant/Cross-Plaintiff, v. Charles K. Lee, Defendant/Cross-Defendant, Olaf Thronas, Defendant/Counter-Plaintiff, v. Benjamin Querubin, Plaintiff/Counter-Defendant.

Carolyn Taketa, as Special Administrator of the Estate of Juanita Querubin, deceased, Plaintiff/Cross-claim Plaintiff, v. Benjamin Querubin, Plaintiff/Cross-claim Defendant.

Olaf Thronas, Third-Party Plaintiff, v. The County of Kaua'i, a political subdivision of the State of Hawai'i, John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Partnerships 1-10, and Doe Entities 1-10, Third-party Defendants.

No. 24086.

Supreme Court of Hawai`i.

March 31, 2005.

Rick J. Eichor, of Price, Okamoto, Himeno & Lum, Honolulu, Ryan E. Jimenez, Kapaa, on the briefs, for plaintiffs-appellants Benjamin Querubin; Carolyn Taketa, as Special Administrator of the Estate of Juanita Querubin.

Warren C.R. Perry, Lihue, on the briefs, for defendant-appellee Olaf Thronas.

MOON, C.J., LEVINSON, NAKAYAMA, and DUFFY, JJ., and ACOBA, J., Dissenting.

Opinion of the Court by LEVINSON, J.

The plaintiffs-appellants Benjamin Querubin [hereinafter, "Benjamin"] and Carolyn Taketa, as Special Administrator of the Estate of Juanita Querubin [hereinafter, "Juanita"] [collectively hereinafter, "the Appellants"], appeal from the February 7, 2001 final judgment of the circuit court of the fifth circuit, the Honorable George M. Masuoka presiding, alleging that the circuit court erroneously entered the February 25, 2000 order granting the defendant-appellee Olaf Thronas's motion for summary judgment (MSJ) via joinder in the MSJ of the third-party defendant County of Kaua'i [hereinafter, "the County"] [collectively hereinafter, "the order granting Thronas's MSJ via joinder"].

On appeal, the Appellants argue: (1) that they "were deprived of their constitutional right to due process of law" because (a) the circuit court "erred in sua sponte granting summary judgment" and (b) they "were deprived of their right to present evidence when the [circuit] court granted summary judgment against them"; (2) that "the third-party complaint pleads an action distinct and separate from that originating in the original complaint"; (3) that the Appellants'"right to present evidence is not defeated by Thronas's collusion with the County"; and (4) that "the evidence does not support summary judgment against the" Appellants, insofar as "only admissible evidence can be considered on a motion for summary judgment," such that the circuit court should not have considered (a) "counsel's statements in legal briefs," (b) "the `drivers' statements,'" which are "inadmissable double hearsay," and (c) "police reports," which are "not authenticated."

Thronas responds: (1) that the Appellants "raise issues in this appeal which they failed to raise in the trial court, their failure does not meet the criteria for addressing new issues on appeal, and hence this court must ignore these new issues"; (2) that, "by filing a statement of no position to [the] County's motion for summary judgment on the issue which formed the basis for their claim against Thronas, [the Appellants] waived their right to challenge the effect of a decision in favor of [the] County"; (3) that, "given [the Appellants'] taking no position on [the] County's motion, and the moving papers providing a sufficient basis, Judge Masuoka properly granted summary judgment in favor of [the] County and Thronas"; (4) that "the still-viable judgment on the order granting summary judgment in favor of [the] County is the `law of the case,' eliminated the basis for [the Appellants'] claim against Thronas, and cannot be vacated without causing harm to [the] County"; and (5) that "there was no clerical error involved in Judge Masuoka's granting summary judgment to Thronas; thus Judge Masuoka did not abuse his discretion when he denied [the Appellants'] [Hawai'i Rules of Civil Procedure (HRCP)] Rule 60(a) [(2000)¹] motion for reconsideration." (Emphasis in original.)

The Appellants reply: (1) that "Thronas grossly misstates the procedural facts"; (2) that "an affidavit consisting of inadmissible hearsay cannot serve as a basis for awarding summary judgment"; (3) that the Appellants "did not waive their claims"; (4) that "this court could consider all issues raised in the appeal"; (5) that "the law of the case doctrine does not apply"; and (6) that the Appellants "were deprived of due process of law."

For the reasons discussed infra in section III, we hold: (1) that the circuit court erred in sua sponte entering the order granting Thronas's MSJ via joinder in Thronas's favor and against the Appellants without providing the Appellants notice that the entry of summary judgment against the Appellants was under consideration and an oral hearing expressly with respect thereto; and (2) that, notwithstanding the foregoing, (a) the order granting the County's MSJ against Thronas and (b) the judgment in favor of the County and against Thronas remain the "law of the case." Accordingly, we (1) vacate (a) the February 25, 2000 order granting Thronas's MSJ via joinder in Thronas's favor and against the Appellants and (b) the circuit court's February 7, 2001 final judgment and (2) remand this matter to the circuit court for further proceedings consistent with this opinion.

I. BACKGROUND

The procedural history of the present matter includes several events that are immaterial to the appeal before this court. Accordingly, we set out only the relevant background below. On April 22, 1998, the Appellants filed a complaint in the circuit court, alleging in relevant part:

1.... [Benjamin] ... and ... [Juanita], deceased, ... at all material times herein, were residents of the County of Kauai, State of Hawaii.

2. Defendant CHARLES K. LEE ... at all material times herein, was a resident of the County of Kauai, State of Hawaii.

3.... [Thronas], ... at all material times herein, was a resident of the County of Kauai, State of Hawaii.

....

6. On or about August 1, 1997, at the intersection of Laukona Street and Kuhio Highway near the Mile Marker # 2, in the town of Hanamaulu, County of Kauai, State of Hawaii, ... [Lee] negligently operated his motor vehicle so as [to] run the red light and collide with [the Appellants'] vehicle.

7.... [Thronas] is the registered landowner of the property located at 4485 Laukona Street, adjacent to the intersection of Laukona Street and Kuhio Highway.

8.... [Thronas] negligently maintained a hedge at the corner closest to said intersection[,] which far exceeded the three feet height limitation imposed by law and thereby obstructed the vision of motorists and caused a traffic hazard.

9. The combined negligence of [Lee and Thronas] directly caused the collision described above.

10. As a result of said collision,... [Benjamin] suffered severe bodily injuries including, but not limited to[,] multiple fractured ribs and [a] punctured lung.

11. As a result of the said accident, ... [Juanita] suffered multiple heart attacks and died.

12. As a further result of the aforesaid conduct of [Lee and Thronas], ... [Benjamin] has suffered mental distress, limitation of activities, loss of enjoyment of life, loss of consortium and other damages as shall be proven at trial.

13. As a further result of the negligence aforesaid, [the Appellants] have sustained medical, rehabilitative and miscellaneous expenses in excess of the minimum threshold established in H.R.S. Chapter 431:10C-308, and [they] seek damages therefor in an amount to be shown at trial.

WHEREFORE, [the Appellants] demand judgment against [Lee and Thronas], jointly and severally, as follows:

A. General damages in an amount to be shown at the time of trial.

B. Special damages in an amount to be shown at the time of trial.

C. Prejudgment interest from the date of the accident, costs, and reasonable attorneys fees, and such other and further relief as may be deemed just and equitable.

On May 18, 1998, Thronas filed, inter alia, an answer to the Appellants' complaint. On March 5, 1999, Thronas filed a third-party complaint against the County, alleging in relevant part as follows:

4. [The Appellants] alleged in their Complaint[,] ... among other things, that [Thronas] "is the registered landowner of the property ... adjacent to the intersection of Laukona Street and Kuhio Highway (hereinafter designated `intersection')," [Thronas] was negligent in maintaining "a hedge at the corner closest to [INTERSECTION]... and thereby obstructed the vision of motorists and caused a traffic hazard," and the negligence of [Thronas] "directly caused" a traffic accident at INTERSECTION from which [the Appellants] incurred damages[;]

5. Based on information and belief, [Thronas] alleges that the portion of the subject hedge that is closest to INTERSECTION is in property that is owned and under the control of [the County;]

6. [The County] ... had a duty to maintain that portion of the hedge that is closest to INTERSECTION, and if any part of the hedge contributed to the damages incurred by [the Appellants], or any of them, it was the portion of the hedge located in [the County's] ... property that did so, and [the County]... breached its[ ] duty to maintain that portion of the hedge;

7. If [the Appellants], or any of them, incurred damages as alleged in their Complaint, each of their damages were the result of the negligence or fault of [the County,] ... and [Thronas] was not at fault in any way; and

8. Any negligence or fault on the part of [Thronas] was passive and quaternary, whereas the negligence or fault of [the County]

...