Sousaris v. Miller

• Citation: 993 P.2d 539,92 Haw. 505
• Decision Date: 31 January 2000
• Docket Number: No. 21167.,21167.
• Parties: Joseph M. SOUSARIS, Individually; as Special Administrator for the Estate of Rosemary Sousaris, deceased; and as Prochein Ami of Michael J. Sousaris and Nicholas A. Sousaris, minors, Respondents-Claimants-Appellees, v. Barry D. MILLER, M.D., dba Center for Cosmetic Surgery, Petitioner-Respondent-Appellant, and John Does 1-10, Jane Does 1-10, Doe Corporations 1-10; Doe Partnerships 1-10; Doe "Non-Profit" Organizations 1-10 and Doe Governmental Agencies 1-10, Defendants.
• Court: Supreme Court of Hawai'i

993 P.2d 539

92 Haw. 505

Joseph M. SOUSARIS, Individually; as Special Administrator for the Estate of Rosemary Sousaris, deceased; and as Prochein Ami of Michael J. Sousaris and Nicholas A. Sousaris, minors, Respondents-Claimants-Appellees, v. Barry D. MILLER, M.D., dba Center for Cosmetic Surgery, Petitioner-Respondent-Appellant, and John Does 1-10, Jane Does 1-10, Doe Corporations 1-10; Doe Partnerships 1-10; Doe "Non-Profit" Organizations 1-10 and Doe Governmental Agencies 1-10, Defendants.

No. 21167.

Supreme Court of Hawai`i.

January 31, 2000.

Francis T. O'Brien, on the briefs, Honolulu, for petitioner-respondent-appellant.

L. Richard Fried, Jr. and John D. Thomas, Jr., on the briefs, Honolulu, for respondents-claimants-appellees.

MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, and RAMIL, JJ.

Opinion of the Court by RAMIL, J.

We accepted the application for a writ of certiorari of petitioner-respondent-appellant Barry D. Miller, M.D. (Dr.Miller), dba Center for Cosmetic Surgery, to review the opinion of the Intermediate Court of Appeals (ICA) in Sousaris v. Miller, 92 Hawai`i 534, 993 P.2d 568, (Haw.Ct.App. 1998) [hereafter "ICA's opinion"]. In its opinion, the ICA framed the dispositive issue as whether HRS chapter 658 allowed a party to amend a timely petition to vacate an arbitration award by raising a new ground to vacate the arbitration award during the period between the expiration of the ten-day period set forth in Hawai`i Revised Statutes (HRS) § 658-11 (1993)¹ and the entry of the circuit court's order denying the petition to vacate and granting the petition to confirm the arbitration award. The ICA answered the foregoing question in the negative and denied Dr. Miller's appeal. We granted certiorari to determine whether a party could file a motion for reconsideration from the grant or denial of a petition to confirm or vacate an arbitration award in a HRS chapter 658 proceeding. Upon further review, we hold, pursuant to the Hawai`i Rules of Civil Procedure, that a party may seek reconsideration of a order granting an arbitration award. However, insofar as Dr. Miller's motion for reconsideration asserted a new statutory ground to vacate the arbitration award and proffered new evidence directed exclusively at the new ground, we agree with the ICA that Dr. Miller's motion for reconsideration contravened the stringent ten-day notice requirements set forth in HRS § 658-11 and, thus, was untimely.

We believe, however, that it is necessary to clarify that a motion for reconsideration, which is limited to new evidence that (1) supports a statutory basis that has already been raised in a timely motion to vacate pursuant to HRS §§ 658-9 (1993)² and 658-11 11 and (2) could not have been raised in a petition to vacate nor could have been discovered, despite due diligence, prior to the expiration of the ten-day period in HRS § 658-11, would not contravene HRS § 658-11.

I. BACKGROUND

Rosemary Sousaris (Rosemary) died as a result of Dr. Miller's alleged negligence in performing liposuction surgery and in rendering post-operative treatment. Pursuant to the terms of an arbitration agreement between Rosemary and Dr. Miller, respondent-claimant-appellee Joseph Sousaris (Sousaris), in his capacities as an individual, special administrator of his late wife's estate, and as next friend of his late wife's surviving minor children, Michael J. Sousaris and Nicholas A. Sousaris, brought a negligence claim against Dr. Miller. Dr. Miller and Sousaris participated in selecting Peter Char, Esq. (Char), Kathy Muller (Muller), and Ronald P. Peroff, M.D. (Dr. Peroff), as the arbitration panel in this case. In his notice of appointment, Dr. Peroff divulged that Richard K. Quinn (Quinn), counsel for Dr. Miller during the arbitration, had defended him in a medical malpractice suit in which L. Richard Fried, Jr. (Fried), counsel for Sousaris, had represented the plaintiff.

A. Arbitration award

The arbitration panel issued its decision on July 7, 1997 (the arbitration award), wherein Char and Dr. Peroff concluded that Dr. Miller was "actionably negligent in his care and treatment of [Rosemary]." Although Muller did not concur with Char and Dr. Peroff as to Dr. Miller's negligence, she joined Char and Dr. Peroff in determining that "the evidence does not support [Dr. Miller's] contention that [Rosemary] was negligent or assumed the risk of her death and that Tripler Army Medical Center was negligent in its care and treatment of [Rosemary] between Friday, January 12, 1996 and Thursday, January 18, 1996[, the period after Dr. Miller treated Rosemary]." Accordingly, the arbitration award ordered Dr. Miller to pay $1,635,776.44 in damages to Sousaris.

B. Confirmation proceedings

On July 8, 1997, Sousaris filed a petition to confirm the arbitration award, and on July 16, 1997, Dr. Miller filed a petition to vacate the arbitration award. Both petitions were set for hearing on August 1, 1997.

In his memorandum in support of his July 16, 1997 petition to vacate, Dr. Miller alleged that there was a "social relationship" between Dr. Peroff and Fried, and that Dr. Peroff's failure to disclose such a relationship amounted to "evident partiality" which constituted grounds for vacating the arbitration award under HRS § 658-9(2). See supra note 2. In an affidavit attached to the memorandum in support of his July 16, 1997 petition to vacate, Dr. Miller asserted that sometime after the arbitration award was issued, a person, whose identity Dr. Miller could not remember, called Dr. Miller and reported that he or she observed Dr. Peroff and Fried playing tennis at some unidentified time. In light of this allegation, Dr. Miller urged the circuit court to conduct an evidentiary hearing on the issue of impropriety and to grant him additional time for discovery.

In a July 23, 1997 affidavit, Fried responded to Dr. Miller's allegations by admitting that he did recall playing tennis with Dr. Peroff in a tournament about ten years ago. At that time, Fried represented a plaintiff in a medical malpractice suit against Dr. Peroff. Fried also stated that he may have played tennis with Dr. Peroff on one other occasion in a tournament "many years ago." Dr. Peroff also submitted a July 23, 1997 affidavit that was consistent with Fried's recollection.

At the August 1, 1997 hearing on the petitions to confirm and to vacate the arbitration award, the circuit court found that "the evidence presented fails to establish evident partiality or even a reasonable impression of partiality in this case, or any other grounds pursuant to [HRS §] 658-9 which would warrant vacating the award in this case." Accordingly, the circuit court orally granted Sousaris's petition to confirm the arbitration award and denied Dr. Miller's petition to vacate. On August 14, 1997, the circuit court filed its written order memorializing its oral determination.

C. Dr. Miller's motion to reconsider

Not waiting until the circuit court filed its written order, Dr. Miller filed a motion styled as "Motion to Reconsider Order Denying Respondent [Dr. Miller's] Motion to Vacate [the] Arbitration Award or, in the Alternative for Relief from Order Confirming [the] Arbitration Award" (the August 8, 1997 motion). The August 8, 1997 motion raised a new ground for vacating the arbitration award based on new evidence that allegedly did not become available until after the circuit court had orally granted Sousaris's petition to confirm the arbitration award. In his memorandum in support of the August 8, 1997 motion, Dr. Miller asserted that Dr. Peroff engaged in ex parte consultations with other physicians in violation of section 31 of the arbitration rules, which mandated that all evidence be taken in the presence of all of the arbitrators and all of the parties. Such conduct, according to Dr. Miller, constituted prejudicial misconduct under HRS § 658-9(3). See supra note 2. An affidavit submitted by Quinn served as the basis for Dr. Miller's assertion of a new ground to vacate the arbitration award. Quinn stated that after receiving the arbitration award, he attempted to contact Dr. Peroff to discuss Dr. Peroff's analysis of the evidence. After several unsuccessful attempts, Quinn finally spoke with Dr. Peroff on August 1, 1997, the day that the circuit court heard arguments on Sousaris's petition to confirm and Dr. Miller's petition to vacate the arbitration award. Quinn claimed that during their telephone conversation, Dr. Peroff admitted to consulting several outside physicians and to using the information gleaned from those consultations to arrive at his conclusion that Dr. Miller was negligent. Along with his affidavit, Quinn attached a "transcript" of the conversation with Dr. Peroff based on the speed-written notes that Quinn took during the conversation.

On August 20, 1997, Sousaris filed a memorandum in opposition to the August 8, 1997 motion, wherein Sousaris argued: (1) that Dr. Peroff properly consulted with outside medical experts to corroborate his own conclusions; (2) that Dr. Peroff's statements were inadmissible to impeach the arbitration award; and (3) that the August 8, 1997 motion was untimely insofar as it advanced a new basis for vacating the arbitration award after the ten-day period set forth in HRS § 658-11 had elapsed. In an affidavit attached to Sousaris's memorandum in opposition, Dr. Peroff maintained that he reached his decision based solely on his evaluation of the evidence presented during the arbitration proceedings. Dr. Peroff claimed that he contacted other physicians to confirm the conclusions that he already reached. Moreover, Dr. Peroff related that Char, his fellow arbitrator, instructed Dr. Peroff not to discuss the award with the attorneys until ten days after the arbitration award was issued.

On August 25, 1997, the circuit court, without a hearing, issued a minute order denying the August 8, 1997 motion and filed a written order to the same effect on ...