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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
NO. 28422 §§
IN THE INTERMEDIATE COURT OF APPEALS §§
oF THE STATE OF HAWAI‘I
PHILIP LAU, Plaintiff-Appellant, §§
CLOYCE E. THOMPSGN, gha CORY THOMPSON, and §§ §§
TAIME TOEAINA, D:;:?dants-Appellees,
DOE CORPORATIONS l-lO, and
DOE lNDIVIDUALS l-20, DefendantS
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 04-1-l533)
SUMMARY DISPOSITION ORDER
(Byr Nakamura, C;J., Leonard and Reifurth, JJ.)
This appeal arises out of allegations by Plaintiff-
Appellant Philip Lau (Lau) of intentional infliction of emotional
distress and public humiliation against Defendants-Appellees
Cloyce Thompson and Taime Toeaina, who, along with Lau, worked as
, dba The Cab. Lau
appeals from the Amended Final Judgment filed on February 2, 2007
in the Circuit Court of the First Circuit (circuit court)F,
drivers for Signature Cab Holdings, Inc.
awarding summary judgment and attorneys' fees and costs in favor
of the defendants and against Lau.
On appeal, Lau contends that the circuit court erred:
(l) in granting defendants' joint motion for summary
judgment because there was a genuine issue of material fact
regarding his Intentional Infliction Of Emotional Distress (IIED)
claim;
(2) in granting defendants' joint motion for summary
judgment because defendants failed to respond to Lau's claim for
Public Humiliation; and
(3) in granting defendants' motion for recovery of
fees and costs.
Upon careful review of the record and the briefs, and
giving due consideration to the arguments advanced, issues
- The Honorable Randal K.O. Lee presided.
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raised, and all relevant statutory and case law, we conclude that
there are no genuine issues of material fact with regard to Lau's
IIED claim, and both the defendants' joint motion for summary
judgment and the circuit's court's order granting summary
judgment (MSJ order) addressed Lau's Public Humiliation claim.
Consequently, Lau's appeal, as it relates to the circuit court's
award of summary judgment to the defendants, is without merit.
Regarding Laufs appeal as it relates to the circuit court's award
of fees and costs, however, we conclude that the circuit court
abused its discretion in awarding attorneys' fees to
defendants.W
Defendants requested attorneys' fees and costs pursuant
to Rules 7 through l1, Hawafi Rules of Civil Procedure.
Attached to the accompanying affidavit of counsel is a copy of
the MSJ order, and a list of the major activities deemed by
counsel to be necessary in the preparation and presentation of
the motion for summary judgment, The affidavit further explains
counsel's efforts to keep fees and costs to a minimum. The
affidavit contends that fees and costs are warranted because the
circuit court's MSJ order "allow[ed] said Defendants to recover
from Plaintiff the costs and fees associated with the preparation
of and presentation of the Motion for Summary Judgment."
The MSJ order, however, only "allows" recovery of fees
and costs to the extent that it does not disallow them.W More
accurately, it denies defendants' fees and costs as part of the
3/ Upon judgment, "c0sts shall be allowed as of course to the
prevailing party unless the court otherwise directs[.]" Haw. R. Civ. P.
54(d)(l). Lau's arguments on appeal do not apply to the defendants'
entitlement to costs under Rule 54, and we therefore affirm that portion of
the circuit court's order. Defendants' failure to reference the appropriate
authority with regard to costs is not fatal since costs are to be allowed "as
of course." Id.; See Poe v. HawaiH Labor Relations Bd., 87 HawaiH 191, l97,
953 P.2d 569, 575 (1998) ("[W]here the circuit court's decision is correct,
its conclusion will not be disturbed on the ground that it gave the wrong
reason for its ruling." (quoting Reyes v. Kuboyama, 76 HawaFi 137, 140, 870
P.2d 1281, 1284 (1994))).
5/ Even if the MSJ order awarded fees and costs, we would still need
to locate a source of the authority under which the circuit court proceeded.
We observe in passing that none of the parties to this appeal incorporated a
transcript of the hearings on the defendants' motion for summary judgment or
the defendants' motion for recovery of fees and costs in the record on appeal,
As a result, we do not have the benefit of the circuit court's explanation for
its actions apart from what is contained in the two orders.
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order, but notes that defendants are "free to" file a subsequent
and separate motion. Specifically, the MSJ order states:
IT IS FURTHER ORDERED that no costs and fees will be
awarded Defendants as a result of this Order; however,
Defendants are free to file a separate motion seeking an
award of fees and costs, but such motion must be accompanied
by fully substantiated costs and fees, which shall be
related only to the preparation and presentation of
Defendants' Motion for Summary Judgment.
Thus, we look at rules 7 through 11, Hawafi Rules of Civil
Procedure, the authority under which defendants here moved, to
adetermine whether there is a sufficient basis for the circuit
court's award of fees and costs.
While Rule ll provides a process by which a party may
seek attorneys' fees, the process was not complied with.y "A
motion for sanctions under this rule shall be made separately
from other motions or requests and shall describe the specific
conduct alleged to violate subsection (b)." Haw. R. Civ. P
ll(c)(l)(A). Defendants' motion for recovery of fees and costs
did not describe any conduct alleged to violate Rule 11(b),
Hawai‘i Rules of Civil Procedure.
Defendants further argue on appeal that some amount of
attorneys' fees are warranted under section 607-l4, Hawaii
Revised Statutes, because they relate to contract-based claims
raised in this and another related case. This argument is
unpersuasive. The circuit court's order granting fees and costs
relates to the instant case only, and this case did not involve
an action "for the recovery of damages for non-performance of a
contract, either express or implied, written or verbal, as well
as quasi contractual obligations." Blair v. Ing, 96 Hawafi 327,
332, 31 P.3d l84, 189 (200l) (quoting TSA Int'l Ltd. v. Shimizu
i/ Ordinarily, Lau's failure to provide us with transcripts of the
hearing on defendants' motion for fees and costs would be a sufficient basis
for us to affirm the circuit court's ruling. Bettencourt v. Bettencourt, 80
Hawai‘i 225, 231, 909 P.2d 553, 559 (1995) ("Without the transcript . . . we
have no basis upon which to review the family court's imposition or sanctions,
which we therefore leave undisturbed.") Nor would Lau's pro se status deflect
us from this course. Lepere v. United Public Workers, 77 HawaiH.471, 474,
887 P.2d lO29, 1032 (1995) ("[A] pro se litigant's subjective sincere belief
in his or her claim is not sufficient to satisfy the mandates of [Federal
Rules of Civil Procedure] Rule 11.") In the instant case, however,
defendants' own filing establishes that the requirements of Rule ll were not
met.
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Corp., 92 HawaiU_243, 264, 990 P.2d 713, 734 (1999) (internal
quotation marks omitted). Moreover, defendants did not raise a
section 607-14 argument below, so it is deemed waived. See State
'v. Moses, 102 HawaiH 449, 456, 77 P.3d 940, 947 (2003) ("[a]s a
general rule, if a party does not raise an argument at trial,
that argument will be deemed to have been waived on appeal").
In light of the foregoing, we hold that summary
judgment to the defendants on the merits of the case was the
correct result, and that costs to defendants were warranted under
Rule 54, HawaiYi Rules of Civil Procedure. We, therefore, affirm
those portions of the February 2, 2007 Amended Final Judgment.
We also hold that the circuit court abused its discretion in
awarding attorneys' fees to defendants and, therefore, reverse
that portion of the Amended Final Judgment so directing.
DATED: Honolulu, Hawafi, July 28, 2010.
On the briefs:
Philip Lau
Pro Se Plaintiff-Appellant.
William W. Milks,
for Defendants-Appellees.
Mum_ &W<,
. Associate Judge