NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-OCT-2024
08:13 AM
Dkt. 91 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
JOHN DAVIS, Plaintiff-Appellant/Cross-Appellee, and
HAWAII EMPLOYERS' MUTUAL INSURANCE COMPANY, INC.,
Plaintiff-Intervenor-Appellee/Cross-Appellee, v.
GP SERVICES, LLC, Defendant-Appellee/Cross-Appellant; and
YOUNG BROTHERS LIMITED; JOHN DOES 1-5; JANE DOES 1-5,
DOE PARTNERSHIPS 1-5, DOE CORPORATIONS 1-5, ROE NON-PROFIT
CORPORATIONS 1-5, and ROE GOVERNMENTAL ENTITIES 1-5,
Defendants-Appellees/Cross-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC111000497)
SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Defendant-Appellee/Cross-Appellant GP Services, LLC
appeals from the Circuit Court of the First Circuit's 1
October 20, 2020 "Order Granting in Part and Denying in Part
Defendant GP Services, LLC's Motion for Attorneys' Fees and
1 The Honorable Gary W.B. Chang presided.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Costs Filed on May 3, 2017" (Fees and Costs Order) and
October 20, 2020 Final Judgment. The circuit court's October 1,
2021 First Amended Final Judgment (Amended Judgment) affirmed
its original grant of costs in its Fees and Costs Order.
On appeal, GP challenges the circuit court's Fees and
Costs Order.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below and affirm.
(1) GP contends the circuit court "abused its
discretion by not designating GP as the prevailing party as
against" Plaintiff-Intervenor-Appellee/Cross-Appellee Hawaii
Employers' Mutual Insurance Company, Inc. (HEMIC). (Formatting
altered.)
Hawai‘i Arbitration Rules (HAR) Rule 25 defines
"prevailing party" in a trial de novo as "the party who
(1) appealed and improved upon the arbitration award by 30% or
more, or (2) did not appeal and the appealing party failed to
improve upon the arbitration award by 30% or more." HAR
Rule 25(A).
According to the Fees and Costs Order, the issue "came
on for oral hearing on June 1, 2017 . . . ." The June 1, 2017
circuit court minutes show that there was a 30-minute hearing,
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and the circuit court "concluded that only Mr. Davis is subject
to [Court Annexed Arbitration Program] sanctions because
Mr. Davis was the only party that filed the request for trial de
novo and notice of appeal." (Formatting altered.)
GP does not point to where in the record HEMIC
appealed from the arbitration award. GP instead argues that the
circuit court should have exercised its inherent authority to
designate HEMIC an appealing party. "However, the Supreme Court
has cautioned that because of the very potency of a court's
inherent power, it should be exercised with restraint and
discretion." Enos v. Pac. Transfer & Warehouse, Inc., 79 Hawai‘i
452, 458, 903 P.2d 1273, 1279 (1995) (cleaned up). And there
was no reason for the circuit court to invoke its inherent
authority when HAR Rule 25 specifically speaks to the issue.
(2) GP also contends the circuit "abused its
discretion by not awarding attorneys' fees against Davis and
HEMIC" and not awarding all of its costs. (Formatting altered.)
HAR Rule 26(A) provides that "[a]fter the verdict is
received and filed, or the court's decision rendered in a trial
de novo, the trial court may, in its discretion, impose
sanctions . . . against the non-prevailing party whose appeal
resulted in the trial de novo." (Emphasis added.) "[A]n abuse
of discretion occurs where the trial court has clearly exceeded
the bounds of reason or disregarded rules or principles of law
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or practice to the substantial detriment of a party litigant."
Enoka v. AIG Haw. Ins. Co., 109 Hawai‘i 537, 544, 128 P.3d 850,
857 (2006) (quoting Price v. AIG Haw. Ins. Co., 107 Hawai‘i 106,
110,
111 P.3d 1, 5 (2005)).
Possible sanctions include "[r]easonable costs and
fees (other than attorneys' fees) actually incurred by the party
but not otherwise taxable under the law, including, but not
limited to, expert witness fees, travel costs, and deposition
costs" and "[a]ttorneys' fees not to exceed $15,000[.]" HAR
Rule 26(B)(1), (3). "In determining sanctions, if any, the
court shall consider all the facts and circumstances of the case
and the intent and purpose of the" Court Annexed Arbitration
Program. HAR Rule 26(D).
GP does not argue that the circuit court failed to
"consider all the facts and circumstances of the case and the
intent and purpose" of the Court Annexed Arbitration Program.
GP also does not explain how the circuit court exceeded the
bounds of reason or disregarded the law.
The June 1, 2017 minutes show that the circuit court
"addressed costs" and "gave its reasons . . . ." (Formatting
altered.) As to sanctions under HAR Rule 26, the minutes note
that the circuit court "exercised its discretion and did not
award [Court Annexed Arbitration Program] sanctions against
Mr. Davis." (Formatting altered.)
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Hawai‘i Rules of Appellate Procedure Rule 10(b)(1)(A)
provides that "[w]hen an appellant desires to raise any point on
appeal that requires consideration of the oral proceedings
before the circuit court appealed from," the appellant must
order the transcripts within 10 days of filing the notice of
appeal. GP failed to comply with this rule, and without a
transcript of the June 1, 2017 hearing, we will not conclude the
circuit court abused its discretion based on what transpired
during the hearing. See State v. Hoang, 93 Hawai‘i 333, 336, 3
P.3d 499, 502 (2000) ("Without the relevant transcript, there is
insufficient evidence to review the alleged error, and [the
appellant] carries the burden of demonstrating the alleged error
in the record.").
Based on the foregoing, we affirm the circuit court's
October 20, 2020 Fees and Costs Order and October 1, 2021
Amended Judgment.
DATED: Honolulu, Hawai‘i, October 31, 2024.
On the brief: /s/ Katherine G. Leonard
Acting Chief Judge
Gary W.K. Au Young,
for Defendant-Appellee/ /s/ Karen T. Nakasone
Cross-Appellant. Associate Judge
Charles H. Brower, /s/ Sonja M.P. McCullen
Michael P. Healy, Associate Judge
for Plaintiff-Appellant/
Cross-Appellee.
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