Villaver v. Sylva. , 445 P.3d 701 ( 2019 )

Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
13-MAY-2019
02:58 PM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
RICHARD A. VILLAVER,
Petitioner/Plaintiff-Appellant,
vs.
DAVID KAWIKA SYLVA; HAWAII MEGA-COR, INC.,
a Hawaiʻi domestic for-profit corporation,
Respondents/Defendants-Appellees.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CIVIL NO. 10-1-2445)
MAY 13, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY WILSON, J.
In order to expedite the often extensive discovery
process, Hawaiʻi Rules of Civil Procedure (“HRCP”) Rule 36 allows
a party to a lawsuit to “serve upon any other party a written
request” for admissions. Requesting that a party admit the
truth of matters of fact, or of the application of law to fact,
narrows the issues that must be proven at trial to those that
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
are actually disputed, which fosters more efficient trials.
However, because a careless or inexpert litigant might
unintentionally admit an entire case by failing to respond to a
request for admissions, HRCP Rule 36(b) gives the trial court
the discretion to permit the withdrawal of the admissions on the
motion of an admitting party, so long as withdrawal will
facilitate presentation of the merits and will not prejudice the
party that obtained the admissions. Courts should exercise this
discretion liberally in cases involving pro se litigants, which
invoke the judicial system’s interest in “promotion of equal
access to justice[.]” Waltrip v. TS Enters., Inc., 140 Hawaiʻi
226, 239, 398 P.3d 815, 828 (2016).
In this case, claims brought by pro se
Petitioner/Plaintiff-Appellant Richard A. Villaver (“Villaver”)
were dismissed based on his alleged failure to timely respond to
a request for admissions—notwithstanding his request that the
court provide him with an interpreter to help answer the
requests. Villaver was denied the opportunity to exercise the
right to a jury trial on the basis of his alleged failure to
respond to a request for admissions that asked him to concede he
had no claim. Villaver appeals from the judgment of the
Intermediate Court of Appeals (“ICA”), which affirmed the order
of the Circuit Court of the First Circuit (“circuit court”)
granting summary judgment against Villaver on the basis of his
2
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
failure to timely respond to the request for admissions. He
argues that the ICA erred in affirming the circuit court and
that his request for an interpreter should have been construed
by the circuit court as a request to withdraw the admissions and
file a late response. We agree.
I. BACKGROUND
A. Complaint and Court-Annexed Arbitration
On November 15, 2010, Villaver filed a complaint in
the circuit court, alleging that on August 20, 2008,
Respondent/Defendant-Appellee David Kawika Sylva (“Sylva”), an
employee of Respondent/Defendant-Appellee Hawaii Mega-Cor, Inc.
(“HMCI”), negligently drove an HMCI-owned van into Villaver’s
sedan while it was being operated by Villaver. Villaver alleged
that as a result of Respondents’ negligence, “he suffered and
continues to suffer from damages including, but not limited to,
past and future medical and related expenses; past and future
pain and suffering; past and future loss of enjoyment of life;
[and] past and future serious emotional distress,” and that he
is entitled to compensation.
The matter proceeded through a non-binding Court
Annexed Arbitration Program (“CAAP”), where Villaver was
represented by counsel. The arbitrator found in favor of
Villaver, and awarded him $24,245.58 in damages: $5,942.62 in
3
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
medical expenses, $8,302.96 of lost wages, and $20,000 in
general damages, less $10,000 for the covered loss deductible.
B. Post-CAAP Proceedings
On August 31, 2012, Villaver appealed the CAAP award
and requested a trial de novo. On March 13, 2013, Villaver’s
attorney filed a motion to continue the trial and to withdraw as
counsel. Villaver told his attorney that he would seek
replacement legal counsel. Respondents took no position on the
motion, and, after a hearing on April 3, 2013, the court granted
the first motion to continue trial and for withdrawal of
counsel, and set May 13, 2013 as the date for the trial setting
conference. At the trial setting conference on May 13, 2013,
Villaver made his first pro se appearance and requested more
time to obtain counsel. A new trial setting conference was set
for June 20, 2013. On June 20, 2013, Villaver appeared pro se
for the second time, and trial was set for the week of June 23,
2014. The discovery deadline had been set as April 24, 2014,
and the substantive motions deadline had been set as May 5,
2014.
Approximately nine months after Villaver’s second pro
se appearance, on March 17, 2014, Respondents served Villaver
with a request for admissions via U.S. mail. The request
contained seventy-seven statements. Among those statements were
five statements that the circuit court later relied upon to
4
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
grant summary judgment to Respondents on all claims. The five
statements requested that Villaver take a position contrary to
the claims he successfully asserted before the CAAP arbitrator;
specifically, they requested that he admit it was his negligence
that caused the accident and that he incurred no injuries:
16. You were reversing your car out of a parking stall at
the time of the subject accident.
. . . .
18. Your negligence was the sole legal cause of the
subject accident.
. . . .
70. You did not sustain any injuries as a result of the
subject accident.
. . . .
76. You did not incur any general damages as a result of
the subject accident.
. . . .
77. You did not incur any special damages as a result of
the subject accident.[1]
Less than a month after Villaver received the request
for admissions, on April 15, 2014, defense counsel received a
letter dated April 11, 2014 from Villaver’s wife. Her letter
explained that Villaver received the request for admissions and
understood that the deadline to respond was April 18, but stated
that Villaver was unable to complete the paperwork. According
to Villaver’s wife, Villaver became very stressed and
1
Other requests for admissions related not only to authentication
of documents and photographs, the extent of damages to Villaver’s vehicle,
and circumstances of the accident, but also to medical examinations,
treatment, diagnosis, and opinions which were clearly beyond Villaver’s
expertise.
5
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
overwhelmed when he tried to answer the questions, had a
difficult time remembering the specifics of his treatments, and
did not understand English well. She explained further that
Villaver did not have legal representation and that she could
not help him because she was suffering from depression and
anxiety. She concluded her letter by explaining that they were
returning the paperwork to defense counsel uncompleted.
On May 1, 2014, Respondents Sylva and HMCI filed a
motion for summary judgment. Respondents argued that, under
HRCP Rule 36(a), because Villaver did not respond to the request
for admissions within thirty days of service of the request, the
matters contained within the request were admitted. HRCP Rule
36(a) states that each matter for which an admission is
requested “is admitted unless, within 30 days after service of
the request, . . . the party to whom the request is directed
serves upon the party requesting the admission a written answer
or objection addressed to the matter, signed by the party or by
the party’s attorney[.]” Based on Villaver’s admissions,
Respondents argued that Villaver’s claims against them failed as
a matter of law because he could not prove the elements of his
negligence claim. Accordingly, Respondents requested summary
judgment. The letter from Villaver’s wife to defense counsel
was attached to their motion as an exhibit.
6
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Twenty days later, on May 21, 2014, the court held a
hearing on Respondents’ motion for summary judgment.2 At the
hearing, Villaver explained to the court that he could not
respond to the request for admissions because he was losing
memory of the event, and because he could not understand English
well. He testified that he mostly spoke Visayan with his mother
and Filipino in his business. He requested an interpreter to
help him answer the questions, saying, “if you can give me one
interpreter, that would help me for answer that question.
Because some English I don’t really understand. . . . All I
see, I cannot read. I cannot really understand.” The court
noted that Villaver previously appeared in court and had not
indicated that he had any difficulty speaking or understanding
English; the court also elicited from Villaver that he had lived
in Hawaiʻi for forty-one years and that he had attended public
elementary, intermediate, and high school in Hawaiʻi. The court
denied his request for an interpreter to assist him with the
written documents. The court also observed that its June 2013
trial status-setting order contained various pre-trial
deadlines, and that there had been ample time for Villaver to
obtain new counsel or proceed pro se.
2
The Honorable Jeannette H. Castagnetti presided.
7
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
The court indicated to Villaver that it was inclined
to grant the summary judgment motion on the basis of his failure
to respond to the request for admissions:
[THE COURT:] Mr. Villaver, so the defendants are
requesting that this court grant summary judgment in their
favor, which means finding that they were not negligent,
not liable, and that the basis, the reason why they’re
saying they should get judgment in their favor, along -- in
addition to what’s been argued today, is that you did not
respond to the requests for admissions that were sent to
you; and under the rules, if you don’t respond within the
time period, the admissions are -- the requests are deemed
admitted. So not responding to their requests for
admissions within 30 days or by 30 days, you have now
admitted the requests that they had put in there, in
particular -- well, there’s a number of them. I won’t go
through them because they’re all contained in the motion.
But, essentially, the admission being that you were
negligent and Defendants were not.
So I’m inclined to grant the motion, as the responses
were not provided -- there was no response provided to the
request for admissions. The rule requires a response.
At the conclusion of the hearing, the court deemed the
statements admitted, concluded that there would be no genuine
issue of material fact for trial, and granted Respondents’
motion for summary judgment.
Approximately one month after the hearing, on June 26,
2014, the court’s order was filed. In the order, the court
explained that “[b]ecause no written answer or objection
addressed to the matter and signed by the Plaintiff was served
with respect to Defendants’ Request for Admissions, Defendants’
Request for Admissions are therefore deemed admitted.” The
court found that the following five admissions demonstrated that
there were no genuine issues as to any material fact:
8
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
(a) Plaintiff was reversing his car out of a parking
stall at the time of the subject accident (Request for
Admissions No. 16);
(b) Plaintiff’s negligence was the sole legal cause
of the subject accident (Request for Admissions No. 18);
(c) Plaintiff did not sustain any injuries as a
result of the subject accident (Request for Admissions No.
70);
(d) Plaintiff did not incur any general damages as a
result of the subject accident (Request for Admissions No.
76); and
(e) Plaintiff did not incur any special damages as a
result of the subject accident (Request for Admissions No.
77).
Based on these admitted facts, the court ordered that
Respondents’ motion for summary judgment be granted. Judgment
was entered in favor of Respondents on June 23, 2014. This
appeal followed.
C. Appeal to the ICA
On appeal, Villaver contended through retained counsel
that the circuit court erred in granting summary judgment. He
argued that it should have allowed him to withdraw his
admissions under HRCP Rule 36(b). HRCP Rule 36(b) provides
discretion to the court to permit the withdrawal of admissions
if doing so would facilitate presentation of the merits and
would not prejudice the party that obtained the admissions:
[T]he court may permit withdrawal or amendment [of any
admission] when the presentation of the merits of the
action will be subserved thereby and the party who obtained
the admission fails to satisfy the court that withdrawal or
amendment will prejudice that party in maintaining his or
her action or defense on the merits.
9
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Villaver’s opening brief requested that his “inarticulate pro
se” attempts to explain his failure to respond to the request
for admissions and the motion for summary judgment—namely, his
wife’s letter to defense counsel and his oral arguments about
his faulty memory and difficulty with the English language—be
construed as a motion to withdraw the admissions under HRCP Rule
36(b). He argued that the circuit court’s failure to consider
his request for an interpreter as a motion to withdraw
admissions was an abuse of its discretion, and that the circuit
court erred in its decision to award summary judgment on the
basis of the statements he was deemed to have admitted. He
contended that the court should have allowed him to withdraw his
admissions. He argued further that the court should have given
him one last chance to obtain assistance of counsel and to
answer the request for admissions with such assistance.
The ICA affirmed the circuit court’s order granting
summary judgment. Villaver v. Sylva, No. CAAP-XX-XXXXXXX, 2017
WL 4534435, at *4 (App. Oct 11, 2017) (SDO). In reaching this
decision, the ICA acknowledged that, where possible, the court
should “afford[] litigants the opportunity to have their cases
heard on the merits[.]” Id. at *2 (citing Marvin v. Pflueger,
127 Hawaiʻi 490, 496, 280 P.3d 88, 94 (2012)). However, the ICA
expressed concern that Villaver had not followed the rules of
discovery while representing himself, stating that “pro se
10
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
plaintiffs are not exempt from discovery rules.” Id. It found
that Villaver’s wife’s letter was not a proper objection to the
request for admissions under HRCP Rule 36(a), and that
Villaver’s pro se in-court request for appointment of an
interpreter was not a request to withdraw admissions. Id.
The ICA cited the standard enunciated in HRCP Rule
36(b) to determine whether the circuit court properly exercised
its discretion to allow for the withdrawal of admissions:
[I]n exercising its discretion the court must apply the
test set forth in Rule 36(b): (1) whether the presentation
of the merits will be subserved if the withdrawal of the
admission is permitted and (2) whether the party who
obtained the admission can satisfy the court that
withdrawal will prejudice him in maintaining his action or
defense on the merits.
Id. at *3 (internal quotation marks and ellipses omitted)
(quoting W.H. Shipman, Ltd. v. Hawaiian Holiday Macadamia Nut
Co., 8 Haw. App. 354, 366–67, 802 P.2d 1203, 1209–10 (1990)).
The ICA distinguished Villaver’s case from Shipman, wherein the
defendant was represented by counsel who filed untimely answers
to a request for admissions. Id. (citing Shipman, 8 Haw. App.
at 366, 802 P.2d at 1209). The defendant in Shipman
subsequently filed a motion to amend a discovery order which the
ICA construed to impliedly include a motion to withdraw
statements that had been previously deemed admitted and to
submit a late response. 8 Haw. App. at 367, 820 P.2d at 1210.
The ICA noted that in Shipman, defendant Hawaiian Holiday had
11
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
belatedly answered Shipman’s interrogatories, produced requested
documents, and allowed Shipman to depose two of its officers;
additionally, there were two and a half months left before trial
when it did respond. Villaver, 2017 WL 4534435, at *3 (citing
Shipman, 8 Haw. App. at 367, 820 P.2d at 1210). The ICA found
it significant that at the time of his request for an
interpreter, Villaver had not moved forward with discovery in
any way, numerous discovery deadlines had passed, and there were
only a few weeks left until trial. Id. at *4. The ICA held
that the circuit court did not abuse its discretion in
concluding that Respondents would have been prejudiced in
maintaining their defense if withdrawal was permitted. Id.
Villaver filed an application for a writ of certiorari
with this court, which was accepted.
II. STANDARDS OF REVIEW
An abuse of discretion occurs if the trial court has
“clearly exceeded the bounds of reason or disregarded rules or
principles of law or practice to the substantial detriment of a
party litigant.” Amfac, Inc. v. Waikiki Beachcomber Inv. Co.,
74 Haw. 85, 114, 839 P.2d 10, 26 (1992).
“On appeal, the grant or denial of summary judgment is
reviewed de novo.” Nuuanu Valley Ass’n v. City & Cty. of
Honolulu, 119 Hawaiʻi 90, 96, 194 P.3d 531, 537 (2008).
“[S]ummary judgment is appropriate if the pleadings,
12
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
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.” Id. (quoting
Kahale v. City & Cty. Of Honolulu, 104 Hawaiʻi 341, 344, 90 P.3d
233, 236 (2004)).
III. DISCUSSION
A. Villaver’s Request for an Interpreter Should Have Been
Deemed a Motion to Withdraw His Admissions.
Although Villaver’s failure to respond to Respondents’
request for admissions provided a proper basis to find the
requests admitted under HRCP Rule 36(a), his request for an
interpreter should have been considered as a motion to withdraw
his admissions under HRCP Rule 36(b).
HRCP Rule 36(a) allows one party to serve another a
written request for admissions. A request for admissions must
set forth statements of fact, of opinion, or of the application
of law to fact, that concern issues in the case. HRCP Rule
36(a). The party in receipt of the request can answer or object
to each matter for which an admission is requested. If the
party chooses to answer, the party must “specifically deny the
matter or set forth in detail the reasons why the answering
party cannot truthfully admit or deny the matter.” Id. If the
party denies a matter, the party must “fairly meet the substance
13
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
of the requested admission[.]” Id. If the party gives lack of
information or knowledge as a reason for failure to admit or
deny a matter, the party must “state[] that the party has made
reasonable inquiry and that the information known or readily
obtainable by the party is insufficient to enable the party to
admit or deny.” Id. If the party chooses to object, it must
state the reasons for the objection. Id. An answer or
objection must be written and signed by the party or the party’s
attorney. Id. If the party neither answers nor objects to a
matter within thirty days after service of the request for
admissions, or within such shorter or longer time as the court
allows or the parties agree to in writing, then the matter is
admitted. Id.
As Villaver concedes, he failed to respond to the
request for admissions within thirty days of service as required
by HRCP Rule 36(a).3 The letter from Villaver’s wife to defense
counsel did not constitute an answer or objection to the request
for admissions pursuant to HRCP Rule 36(a), and, as such, did
not preclude the court from deeming the statements admitted
after thirty days. In her letter, Villaver’s wife explained
that Villaver was unable to respond to the request for
admissions because, when he tried, he became overwhelmed,
3
Respondents served Villaver with the request for admissions on
March 17, 2014. Villaver’s wife sent her letter on April 11, 2014, and it
was received by defense counsel on April 15, 2014. The thirty day response
deadline expired on April 16, 2014.
14
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
couldn’t remember facts, or couldn’t understand the questions.
She explained that they were returning the paperwork to defense
counsel uncompleted. Her letter did not constitute an answer
because it was not signed by Villaver or by an attorney
representative, and thus did not comply with HRCP Rule 36(a).
Furthermore, the letter could not be construed as a motion to
withdraw admissions because the letter was sent and received
before the statements in the request for admissions were deemed
admitted. However, the letter was relevant to the court’s
determination as to the degree to which Villaver sought to
comply with the request for admissions, and whether his request
for an interpreter warranted a continuance of the hearing on the
motion for summary judgment and withdrawal of his admissions.
Because neither Villaver nor an attorney representing
him complied with the answer or objection requirements of HRCP
Rule 36(a) within thirty days of service of the request, the
statements in the request were properly deemed admitted; we
therefore consider Villaver’s contention that the circuit court
erred by failing to consider his request for an interpreter as a
motion to withdraw his admissions pursuant to HRCP Rule 36(b).
HRCP Rule 36(b) provides that the court may allow any matter
admitted under HRCP Rule 36(a) to be withdrawn upon an
appropriate motion: “Any matter admitted under this rule is
15
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
conclusively established unless the court on motion permits
withdrawal or amendment of the admission.”
Villaver’s oral request for an interpreter to help him
answer the admissions was not a formal motion to withdraw
admissions. But his failure to observe formalities did not
preclude the court from permitting him to withdraw his
admissions, as Hawaiʻi courts have considered untimely responses
to a request for admissions as constituting an informal motion
to withdraw admissions. One such example is In re Trade Wind
Tours of Hawaii, Inc., wherein the ICA addressed the director of
taxation’s untimely filing of answers to a request for
admissions. 6 Haw. App. 260, 264, 718 P.2d 1122, 1125 (1986).
The ICA held that the tax appeal court “did not abuse its
discretion in deeming the Director’s admissions to have been
withdrawn upon the filing of the answers.” Id. at 264, 718 P.2d
at 1126. Similarly, in Shipman, the ICA held that late
responses to a request for admissions could be considered a
request for withdrawal of the admissions. 8 Haw. App. at 366,
802 P.2d at 1209. In that case, the circuit court entered an
order deeming admitted the statements in the request for
admissions served by Shipman on Hawaiian Holiday because
Hawaiian Holiday had not responded before the HRCP Rule 36(a)
thirty-day deadline. Id. at 365, 802 P.2d at 1209. The court
subsequently denied Hawaiian Holiday’s motion to amend an order
16
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
to compel discovery which provided that all matters covered by
the request for admissions were deemed admitted. Id. at 358-59,
802 P.2d at 1206. The ICA held that Hawaiian Holiday’s motion
to amend the order deeming the matters in the request admitted,
made after late service of its response to the request, was
“impliedly a motion to withdraw the Rule 36(a) automatic
admissions.” Id. at 366, 802 P.2d at 1209. The ICA held that
“the allowance of a late filing of a response to a request for
admissions by the court ‘is the equivalent of allowing a party
to withdraw admissions made by operation of Rule 36(a).’” Id.
(quoting Trade Wind Tours, 6 Haw. App. at 264, 718 P.2d at
1126); see also Bergemann v. United States, 820 F.2d 1117, 1121
(10th Cir. 1987) (finding that “both the response to [the
plaintiff’s] motion for summary judgment and the recorded pre-
trial hearings in this case were, in essence, motions to
withdraw the admissions”); Warren v. Int’l Bhd. of Teamsters,
Chauffers, Warehousemen & Helpers of Am., 544 F.2d 334, 339 (8th
Cir. 1976) (“To allow a late filing of answers to a request for
admissions is the equivalent of allowing a party to withdraw
admissions made by operation of Rule 36(a).” (internal
parentheticals omitted) (quoting Pleasant Hill Bank v. United
States, 60 F.R.D. 1, 3 (W.D. Mo. 1973))).
17
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
In the present case, when Villaver made his request
for an interpreter, the circumstances constituted a request to
the court for permission to withdraw his admissions and file a
late response to the request for admissions. His wife had
indicated that he needed a lawyer to help him complete the
paperwork sent to him by Respondents. Villaver requested the
interpreter for the purpose of filing his response to the
request for admissions: “So if I -- if -- if I need -- if you
can give me one interpreter, that would help me for answer that
question.” The circuit court recognized that Villaver’s purpose
in asking for an interpreter was in part to file a late response
to the request for admissions, stating “I’m inclined at this
point to . . . deny . . . [Villaver’s] request for an
interpreter to assist him with the written documents that he’s
received from the other side.” The request to file a late
response to a request for admission was the equivalent of a
request to withdraw admissions. See Trade Wind Tours, 6 Haw.
App. at 264, 718 P.2d at 1126.
Villaver’s status as a pro se litigant supports
construing his request for an interpreter as a request to
withdraw his admissions and file a late response. In the
context of pro se pleadings, we have explained that “[a]
fundamental tenet of Hawaiʻi law is that ‘[p]leadings prepared by
pro se litigants should be interpreted liberally[,]’” and that
18
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
“[t]he underpinnings of this tenet rest on the promotion of
equal access to justice[.]” Waltrip, 140 Hawaiʻi at 239, 398
P.3d at 828 (quoting Dupree v. Hiraga, 121 Hawaiʻi 297, 314, 219
P.3d 1084, 1101 (2009)). In Waltrip, we favorably noted that
“[f]ederal courts have extended this ‘liberality doctrine’ to
include pro se motions in certain scenarios[,]” and held that
liberal construction of motions was appropriate in workers’
compensation cases, as they typically provide “the only recovery
available for an employee who is injured at work[.]” Id.
Similarly, Villaver’s pro se request for an interpreter at the
hearing should have been interpreted liberally as a request to
withdraw his admissions and file a late response, particularly
since a more restrictive interpretation would have extinguished
his only opportunity to recover on his negligence claim.
B. The Circuit Court Abused Its Discretion by Failing to Apply
the Two Factors of Rule 36(b) to Villaver’s Informal Motion to
Withdraw Admissions and File a Late Response.
To determine whether to permit Villaver to withdraw
his admissions, the circuit court was required to consider the
two factors enumerated in HRCP Rule 36(b): “(1) whether ‘the
presentation of the merits will be subserved’ if the withdrawal
of the admission is permitted and (2) whether the party who
obtained the admission can ‘satisfy the court that withdrawal
. . . will prejudice him in maintaining his action or defense on
the merits.’” Shipman, 8 Haw. App. at 367, 802 P.2d at 1209–10
19
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
(quoting HRCP Rule 36(b)). When both factors are met—that is,
when withdrawal would promote presentation of the merits but
would not prejudice the party that obtained the admissions—the
court may permit withdrawal.
The circuit court in the present case did not consider
either of the two HRCP Rule 36(b) factors. With respect to the
first factor, the court was required to consider whether
“upholding the admissions would practically eliminate any
presentation of the merits of the case.” Conlon v. United
States, 474 F.3d 616, 622 (9th Cir. 2007) (quoting Hadley v.
United States, 45 F.3d 1345, 1348 (9th Cir. 1995)). Thus, the
first factor weighed in favor of permitting Villaver to withdraw
his admissions; otherwise, the admissions necessarily required
the court to grant summary judgment and precluded a trial on the
merits. Denial of the request to withdraw admissions did not
subserve the presentation of the merits.
The circuit court also did not consider the second
factor, whether withdrawal would prejudice the party that
obtained the admission. Prejudice under HRCP Rule 36(b) does
not contemplate the prejudice that the party who obtained the
admissions will incur merely because the admissions are no
longer deemed admitted; such a standard would render the
withdrawal of admissions nearly impossible. Instead, prejudice
in this context deals with the difficulty to the party who
20
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
obtained the admissions from proving its case once the
admissions are withdrawn:
The prejudice contemplated by the Rule is not simply that
the party who initially obtained the admission will now
have to convince the fact finder of its truth. Rather, it
relates to the difficulty a party may face in proving its
case, e.g., caused by the unavailability of key witnesses,
because of the sudden need to obtain evidence with respect
to the questions previously answered by the admissions.
Perez v. Miami-Dade Cty., 297 F.3d 1255, 1266 (11th Cir. 2002)
(quoting Smith v. First Nat. Bank of Atlanta, 837 F.2d 1575,
1578 (11th Cir. 1988)); see also Conlon, 474 F.3d at 624 (“[W]e
are reluctant to conclude that a lack of discovery, without
more, constitutes prejudice. The district court could have
reopened the discovery period . . . and prejudice must relate to
the difficulty a party may face in proving its case at
trial[.]”). Thus, the party that has obtained the admissions
must show that withdrawal of the admissions will impact its
ability to prove the facts previously admitted.
Here, the circuit court did not address, nor did it
ask the parties to address, whether allowing Villaver’s
withdrawal would unfairly prejudice Respondents.4 Thus,
Respondents, “the part[ies] who obtained the admissions[,]
fail[ed] to satisfy the court that withdrawal or amendment
[would] prejudice that party in maintaining his or her action or
4
The court did emphasize that it would not postpone the trial
further, particularly given that Villaver knew about the trial deadlines.
However, the court did not consider how the expiration of the trial deadlines
in conjunction with allowing Villaver to file a late response would prejudice
Respondents.
21
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
defense on the merits.” HRCP Rule 36(b). The record does not
indicate that Respondents would have suffered prejudice to their
case if the admissions were permitted to be withdrawn; to the
contrary, it indicates they had adequate opportunity to, and
did, develop their case without the aid of the admissions, and
that withdrawal of the admissions would not have created a need
for new evidence otherwise addressed by the admissions.
Respondents were clearly on notice throughout the case regarding
Villaver’s allegations of negligence and the damages he claimed
to have suffered. Those allegations were addressed in the CAAP
process. Respondents conducted over a year and a half of
discovery well before the statements in the request for
admissions were deemed admitted.5
The circumstances of this case exemplify a disfavored
use of HRCP Rule 36, one in which proponents submit a request
for admissions “with the wild-eyed hope that the other side will
fail to answer and therefore admit essential elements” of his
case. Perez, 297 F.3d at 1268; see also Bergemann, 820 F.2d at
1121; cf. Cty. of Hawaiʻi v. Ala Loop Homeowners, 123 Hawaiʻi
391, 423, 235 P.3d 1103, 1135 (2010) (“Defaults are generally
5
The record indicates that by April 2014, Respondents had
identified at least thirty-five lay witnesses and eighteen expert witnesses
they intended to call to testify at trial, and had served subpoenas duces
tecum to State Farm Insurance Companies, Workstar Injury Recovery Center, and
Claudette H. Ozoa, Ph.D. The request for admissions itself indicates that
Respondents had developed various theories under which they would avoid
liability to Villaver.
22
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
disfavored.”), abrogated on other grounds by Tax Found. of
Hawaiʻi v. State, No. SCAP-XX-XXXXXXX, 2019 WL 1292286 (Haw. Mar.
21, 2019). The circuit court should have considered Villaver’s
informal motion to withdraw his admissions under the two factors
of HRCP Rule 36(b) relating to presentation of the merits and
prejudice to the non-admitting party, both of which favored
withdrawal. In failing to grant the motion, the court abused
its discretion.
IV. CONCLUSION
Villaver’s pro se request to obtain an interpreter
before the court entered summary judgment against him should
have been considered a motion to withdraw his admissions and
continue the hearing on the motion for summary judgment. The
court’s discretion in ruling on the motion to withdraw
admissions under HRCP Rule 36(b) was bound by the requirement
that it consider whether the merits of the case would be served
by withdrawal and whether the party obtaining the admissions
would be prejudiced by the withdrawal. It was an abuse of
discretion to deny withdrawal of Villaver’s admissions. Absent
the admissions, the record contains genuine issues of material
fact that preclude summary judgment against Villaver.
For the foregoing reasons, we vacate the ICA’s
November 22, 2017 judgment on appeal and the circuit court’s
June 26, 2014 order granting summary judgment and July 28, 2014
23
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
judgment and remand the case to the Circuit Court of the First
Circuit for further proceedings consistent with this opinion.
Charles H. Brower /s/ Mark E. Recktenwald
for Petitioner
/s/ Paula A. Nakayama
J. Patrick Gallagher
Erin I. Macdonald /s/ Sabrina S. McKenna
for Respondents
/s/ Richard W. Pollack
/s/ Michael D. Wilson
24