Gilliam v. Elliot ( 2022 )


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  •   NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Electronically Filed
    Intermediate Court of Appeals
    CAAP-XX-XXXXXXX
    17-JUN-2022
    08:26 AM
    Dkt. 80 SO
    NO. CAAP-XX-XXXXXXX
    IN THE INTERMEDIATE COURT OF APPEALS
    OF THE STATE OF HAWAI#I
    WILLIAM H. GILLIAM, Plaintiff-Appellant,
    v.
    DANIEL J. ELLIOT, Defendant-Appellee
    APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
    (CIVIL NO. 19-1-00045)
    SUMMARY DISPOSITION ORDER
    (By:    Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)
    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 § 657-72 and § 657-43 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
    1
    The Honorable Randal G.B. Valenciano presided.
    2
    HRS § 657-7 (2016) states: "Actions for the recovery of
    compensation for damage or injury to persons or property shall be instituted
    within two years after the cause of action accrued, and not after, except as
    provided in section 657-13."
    3
    HRS § 657-4 (2016) states: "All actions for libel or slander shall
    be commenced within two years after the cause of action accrued, and not
    after."
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    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
    4
    Gilliam's Statement of the Case Section in the Amended OB contains
    record references for certain filed pleadings but no record references
    supporting the factual statements, in violation of HRAP Rule 28(b)(3)
    (requiring presentation of material facts, "with record references supporting
    each statement of fact . . . ."). There are no record references in the
    Argument section in violation of HRAP Rule 28(b)(7) (requiring the reasons for
    the contentions to contain "citations to the authorities, statutes and parts
    of the record relied on."). There is no Point of Error section as required by
    HRAP Rule 28(b)(4) (requiring each point to state: "(i) the alleged error
    committed by the court . . .; (ii) where in the record the alleged error
    occurred; and (iii) where in the record the alleged error was objected to or
    the manner in which the alleged error was brought to the attention of the
    court . . . .").
    5
    In a May 11, 2020 order, we denied Elliott's motion to dismiss
    Gilliam's appeal for failure to comply with HRAP Rule 28(b)(3), (4), and (7),
    and granted the alternative relief of striking Gilliam's non-compliant Opening
    Brief, and ordering Gilliam to file a first amended opening brief that
    "includes citations to the record, consistent with HRAP Rule 28(b)(3), (4),
    and (7)." Elliott asserts that the Amended OB fails to contain necessary
    references to the court record to establish "the material facts of the case, .
    . . where in the record [Gilliam] objected to or where [Gilliam] brought the
    alleged error to the attention of the trial court, and what parts of the
    record support [Gilliam's] argument." Elliott claims that Gilliam "only makes
    general assertions" and "conclusory statements" regarding the Circuit Court's
    errors and "fails to identify . . . where in the record the errors exist."
    2
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    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
    6
    Gilliam's tolling argument in the Amended OB is difficult to
    understand as it consists only of the following disjointed assertion without
    context or record references, where he argues: "it can't be argued on the
    bare record of the movant (who elsewhere in extinguishing plaintiff's
    deposition of the defendant by arguing the defendant resided without the State
    over six months at time [sic], thus meeting the statues [sic] very terms for
    tolling. H.R.S. § 657.18.)." No record references are provided. Gilliam
    does not indicate how and where this argument was preserved below. This
    argument is waived. See HRAP Rule 28(b)(4), (b)(7).
    3
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    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.
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    (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
    7
    HRCP Rule 12(c) states:
    (c) Motion for judgment on the pleadings. After the
    pleadings are closed but within such time as not to delay
    the trial, any party may move for judgment on the pleadings.
    If, on a motion for judgment on the pleadings, matters
    outside the pleadings are presented to and not excluded by
    the court, the motion shall be treated as one for summary
    judgment and disposed of as provided in Rule 56, and all
    parties shall be given reasonable opportunity to present all
    material made pertinent to such a motion by Rule 56.
    5
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    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]ll 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
    defamation claim, the false light claim must be dismissed if the
    defamation claim is dismissed. Nakamoto v. Kawauchi, 142 Hawai#i
    259, 270 n.7 
    418 P.3d 600
    , 611 n.7 (2018) (citing Wilson v.
    6
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    Freitas; 121 Hawai#i 120, 130, 
    214 P.3d 1110
    , 1120 (App. 2009)).
    Summary judgment was properly granted on this claim.
    Breach of Duty of Good Faith and Fair Dealing claim: A
    tort claim for breach of the covenant of good faith and fair
    dealing in the insurance context is subject to the two-year
    statute of limitations under HRS § 657-7. Christiansen v. First
    Ins. Co. of Hawaii, 88 Hawai#i 442, 450, 
    967 P.2d 639
    , 647 (App.
    1998), as amended (Apr. 22, 1998), rev'd in part on other grounds
    by Christiansen v. First Ins. Co. of Hawai#i, 88 Hawai#i 136, 
    963 P.2d 345
     (1998). "Hawaii law generally does not recognize tort
    claims for breach of good faith or fair dealing outside the
    insurance context." Alii Sec. Sys., Inc. v. Pro. Sec.
    Consultants, 139 Hawai#i 1, 9, 
    383 P.3d 104
    , 112 (App. 2016)
    (citation omitted). The Complaint alleged that Elliott "assumed
    a position of trust and owed [Gilliam] and others a duty of good
    faith and fair dealing," but did not allege any contractual
    relationship. Complaint ¶ 12. It does not appear that Gilliam's
    ipso facto assertion on appeal that the breach of good faith and
    fair dealing claim was for breach of a contract involving the
    "AOAO and its agents," which included Elliott who engaged in
    "such duties for the AOAO," was made and preserved below. See
    HRAP Rule 28(b)(4). Summary judgment was properly granted on
    this claim.
    UDAP claim: This purported claim was subject to a
    four-year statute of limitations. Gilliam cited         HRS § 480-2 as
    the statutory basis for his claim; therefore, it        was subject to
    the four-year statute of limitations pursuant to        HRS § 480-24.8
    Summary judgment was erroneously granted on this        claim.
    8
    HRS § 480-24 (Supp. 2016) states:
    §480-24 Limitation of actions. Any action to enforce a
    cause of action arising under this chapter shall be barred
    unless commenced within four years after the cause of action
    accrues, except as otherwise provided in section 480-22.
    For the purpose of this section, a cause of action for a
    continuing violation is deemed to accrue at any time during
    the period of the violation.
    7
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    Tortious Interference claim:        This claim was subject to
    a two-year statute of limitations under HRS § 657-7. Gilliam's
    "Tortious Interference with Business Relationships" (Tortious
    Interference) claim generally asserted a claim for tortious
    interference with existing contractual relations, subject to the
    statute of limitations under HRS § 657-7. See Complaint ¶¶ 24 to
    27; One Wailea Dev., LLC v. Warren S. Unemori Eng'g, Inc., No.
    CAAP-XX-XXXXXXX, 
    2016 WL 2941062
     (App. Apr. 20, 2016), at *15
    (mem.) (citing HRS § 657-7; Kutcher v. Zimmerman, 87 Hawai#i 394,
    406, 
    957 P.2d 1076
    , 1088 (1998) (holding that a cause of action
    for interference with prospective contractual relations "run[s]
    parallel to that for interference with existing contracts[.]")).
    Summary judgment was properly granted on this claim.
    Fraud claim: This purported claim was subject to a
    six-year statute of limitations under HRS § 657-1(4). Gilliam
    appears to attempt to assert a fraud9 or fraudulent
    misrepresentation10 claim. "Fraudulent misrepresentation is not
    governed by a specific limitations period, and the general
    limitations period set forth in HRS § 657-1(4) applies." Eastman
    v. McGowan, 86 Hawai#i 21, 27, 
    946 P.2d 1317
    , 1323 (1997)
    9
    To support a fraud claim,
    it must be shown that "the representations were made and
    that they were false, ... [and] that they were made by the
    defendant with knowledge that they were false, (or without
    knowledge whether they were true or false) and in
    contemplation of the plaintiff's relying upon them" and also
    that the plaintiff did rely upon them.
    E. Star, Inc., S.A. v. Union Bldg. Materials Corp., 
    6 Haw. App. 125
    , 140, 
    712 P.2d 1148
    , 1158 (1985) (citation omitted).
    10
    To support a fraudulent misrepresentation claim, it must be shown
    that:
    (1) false representations were made by defendants[;] (2)
    with knowledge of their falsity (or without knowledge of
    their truth or falsity)[;] (3) in contemplation of
    plaintiff’s reliance upon these false representations[;] and
    (4) plaintiff did rely upon them.
    Ass'n of Apartment Owners of Newtown Meadows, 115 Hawai #i 232, 263, 
    167 P.3d 225
    , 256 (2007) (italics and citation omitted).
    8
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    (citation omitted). Summary judgment was erroneously granted on
    this claim.
    In summary, Gilliam's claims for Defamation and False
    Light, Breach of Good Faith and Fair Dealing, and Tortious
    Interference were subject to two-year statutes of limitations
    under either HRS §§ 657-4 or 657-7, and the Circuit Court did not
    err by granting summary judgment on these claims. Gilliam's
    claim of Fraud was subject to a six-year statute of limitations
    under HRS § 657-1(4), and the UDAP claim subject to a four-year
    statute of limitations under HRS § 480-24. Thus, the Circuit
    Court erred by granting summary judgment on the UDAP and Fraud
    claims because they were not barred by the applicable statutes of
    limitations.
    For the foregoing reasons, the April 19, 2022 Judgment
    entered by the Circuit Court of the Fifth Circuit is affirmed in
    part and vacated in part, and the case is remanded for further
    proceedings consistent with this Summary Disposition Order.
    DATED: Honolulu, Hawai#i, June 17, 2022.
    On the briefs:
    /s/ Lisa M. Ginoza
    William H. Gilliam,                Chief Judge
    Self-Represented
    Plaintiff-Appellant.               /s/ Clyde J. Wadsworth
    Associate Judge
    Cathy S. Juhn,
    (Ortiz & Associates)               /s/ Karen T. Nakasone
    for Defendant-Appellee.            Associate Judge
    9