NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-JUN-2021
08:23 AM
Dkt. 58 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
WELLS FARGO DELAWARE TRUST COMPANY, N.A., AS TRUSTEE FOR
VERICREST OPPORTUNITY LOAN TRUST 2011-NPL1,
Plaintiff,
v.
MICHELLE COHEN; MARK STEVEN COHEN; WAIKOLOA BEACH RESORT;
ASSOCIATION OF APARTMENT OWNERS OF VISTA WAIKOLOA; FLAGSTAR BANK,
FSB; JOHN AND MARY DOES 1-20; DOE PARTNERSHIPS, CORPORATIONS OR
OTHER ENTITIES 1-20, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 3CC12100006K)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)
Real Party in Interest-Appellant Karyn A. Doi appeals
from the "Order Imposing Monetary Sanction (As to: Karyn A. Doi,
Esq.)" (Sanction Order) entered by the Circuit Court of the Third
Circuit on February 20, 2018.1 For the reasons explained below,
we reverse the Sanction Order.
This appeal arises from a mortgage foreclosure action.
Doi represented the plaintiff, Wells Fargo Delaware Trust
Company, N.A. The complaint was filed on January 9, 2012. The
defendant mortgagors were served with the complaint but failed to
respond. The mortgagors' defaults were entered. Wells Fargo's
motion for interlocutory decree of foreclosure was granted. A
1
The Honorable Melvin H. Fujino presided. Judge Fujino retired
from the bench effective June 30, 2020.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
foreclosure judgment was entered. A foreclosure commissioner was
appointed. The commissioner conducted an auction of the
foreclosed property. Wells Fargo was the only bidder. The
foreclosure commissioner's report was filed with the circuit
court.
Wells Fargo's motion to confirm the foreclosure sale
was filed on January 13, 2017. The motion was heard on
February 1, 2017. Doi appeared for Wells Fargo; no other party
appeared. The circuit court orally granted the motion but denied
the request for costs because no documentation of the requested
costs had been provided. The circuit court directed that Doi
prepare the order.
Before Doi prepared the order confirming the
foreclosure sale, she filed another motion for authority to pay
costs from the proceeds of the foreclosure sale. The motion was
heard on October 4, 2017. The circuit court treated the motion
as one for reconsideration of the previous denial of costs, and
denied the motion. The following exchange then occurred:
THE COURT: And what happened to the order granting
[confirmation of] the foreclosure [sale]?
MS. DOI: I'll look into that, Judge.
THE COURT: You going get ten days from today to
submit that order.
MS. DOI: Alright. Thank you.
Doi did not submit the order confirming the foreclosure sale
within the time ordered by the circuit court.2
The order denying the motion for costs was entered on
November 27, 2017. On the same day, the circuit court issued an
order to show cause (OSC) to Doi. The OSC stated:
YOU ARE HEREBY ORDERED to appear before the Honorable
Melvin H. Fujino, Judge presiding in this case, on
January 4, 2018, at 8:00 a.m., in his courtroom located at
2
The "Order Granting Plaintiff's Motion for Confirmation of Sale,
Distribution of Proceeds, and for Writ of Ejectment Filed January 13, 2017"
was entered on December 7, 2017. A judgment confirming the sale and a writ of
ejectment were also entered on December 7, 2017.
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81-940 Haleki[#]i Street, Kealakekua, Hawai#i, to show cause
why you should not be sanctioned for failing to submit the
order granting Plaintiff's Motion for Confirmation of Sale,
Distribution of Proceeds, and for Writ of Ejectment in the
above-entitled case within 10 days of the hearing held
October 4, 2017.
Doi filed a memorandum in response to the OSC on
December 11, 2017. The circuit court conducted an evidentiary
hearing on the OSC on February 9, 2018. Doi testified, and a
number of documents were entered into evidence. After hearing
closing argument, the circuit court imposed a $500 sanction
against Doi for violation of Rule 23 of the Rules of the Circuit
Courts of the State of Hawai#i (RCCH).3 This appeal followed.
"Sanctions imposed under statute, court rule, or the
trial court's inherent powers are reviewed for an abuse of
discretion. The trial court abuses its discretion if it bases
its ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence." Erum v. Llego, 147
Hawai#i 368, 378, 465 P.3d 815, 825 (2020) (citation omitted).
RCCH Rule 23 provides, in relevant part:
SETTLEMENT OF JUDGMENTS, DECREES, AND ORDERS.
(a) Preparation. Within 10 days after a decision of
the court awarding any judgment, decree, or order, including
any interlocutory order, the prevailing party, unless
otherwise ordered by the court, shall prepare a judgment,
decree, or order in accordance with the decision, attempt to
secure approval as to form from all other parties, and
following such approval deliver, by filing conventionally or
electronically, the original and 1 copy to the court.
(b) Party Approval or Objection to Form; Delivery to
Court. If there is no objection to the form of a proposed
judgment, decree, or order, the other parties shall promptly
approve as to form. If a proposed judgment, decree, or
order is not approved as to form by the other parties within
5 days after a written request for approval, the drafting
party shall deliver, by[ ]filing conventionally or
3
The circuit court has inherent power to sanction an attorney for
violation of a court rule. Gap v. Puna Geothermal Venture, 106 Hawai#i 325,
332-33, 104 P.3d 912, 919-20 (2004); see Hawaii Revised Statutes § 603-21.9
(2016). However, "[i]t is well settled that a court may not invoke its
inherent powers to sanction an attorney without a specific finding of bad
faith." Gap, 106 Hawai#i at 334, 104 P.3d at 921 (citation omitted). In this
case, the circuit court specifically based the sanction on RCCH Rule 23; the
circuit court stated it was not relying upon its inherent powers to sanction
Doi, and it did not make a specific finding of bad faith.
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electronically, the original and 1 copy to the court along
with notice of service on all parties and serve a copy
thereof upon each party who has appeared in the action. If
any party objects to the form of a proposed judgment,
decree, or order, that party shall, within 5 days after
service of the proposed judgment, decree, or order, serve
upon each party who has appeared in the action and deliver
to the court, either conventionally or through electronic
filing:
(1) A statement of objections and the reasons
therefor, and
(2) The form of the objecting party's proposed
judgment, decree, or order.
In such event, the court shall proceed to settle the
judgment, decree, or order. Failure to file and serve
objections and a proposed judgment, decree, or order shall
constitute approval as to form of the drafting party's
proposed judgment, decree, or order.
. . . .
(d) Court Approval; Sanctions. . . . The court may
impose a monetary sanction against a party who submits a
defective or untimely judgment, decree, or order.
(Underscoring added.)
"The interpretation of a court rule is reviewed
de novo[.]" State v. Choy Foo, 142 Hawai#i 65, 72, 414 P.3d 117,
124 (2018) (citation omitted). "When interpreting rules
promulgated by the court, principles of statutory construction
apply. Interpretation of a statute is a question of law which we
review de novo." Gap v. Puna Geothermal Venture, 106 Hawai#i
325, 331, 104 P.3d 912, 918 (2004) (citation omitted). "Where
the statutory language is plain and unambiguous, our sole duty is
to give effect to its plain and obvious meaning." State v.
Marroquin, 149 Hawai#i 136, 139, 482 P.3d 1097, 1100 (2021)
(cleaned up).
RCCH Rule 23 authorizes the circuit court to "impose a
monetary sanction against a party who submits a[n] . . . untimely
. . . order" (underscoring added). Compare RCCH Rule 23 with
Hawai#i Rules of Civil Procedure (HRCP) Rule 11(c) ("the court
may . . . impose an appropriate sanction upon the attorneys, law
firms, or parties that have violated subdivision (b) of this
Rule") (underscoring added), and HRCP Rule 37(a)(4)(A) ("If the
motion [to compel discovery] is granted . . . the court shall,
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after affording an opportunity to be heard, require . . . the
party or attorney advising such conduct or both of them to pay to
the moving party the reasonable expenses incurred in making the
motion, including attorney's fees[.]") (underscoring added), and
Hawai#i Arbitration Rules Rule 28 ("The Arbitration Judge . . .
shall have the power to award sanctions against any party or
attorney for failure to participate in the arbitration hearing in
a meaningful manner.") (underscoring added).
Doi did not submit a proposed order confirming the
foreclosure sale to the circuit court within the time required by
RCCH Rule 23. However, Rule 23 authorizes the circuit court to
impose sanctions against a party; the plain and unambiguous
language of the rule does not authorize the circuit court to
sanction a party's attorney. We conclude that the circuit court
abused its discretion by imposing sanctions against Doi, because
the sanction was based upon an erroneous application of RCCH
Rule 23. Accordingly, the Sanction Order is reversed.
DATED: Honolulu, Hawai#i, June 22, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Gary Y. Okuda, Chief Judge
for Real Party in
Interest-Appellant /s/ Keith K. Hiraoka
Karyn A. Doi. Associate Judge
/s/ Clyde J. Wadsworth
Associate Judge
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