Erum v. Llego.

465 P.3d 815

• Court: Hawaii Supreme Court
• Decided: June 18, 2020
• Docket: SCWC-17-0000762
• Status: Published

Opinion

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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 18-JUN-2020 11:38 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

---o0o---

THEODORICO ERUM, JR., Petitioner/Plaintiff-Appellant,

vs.

JOSUE BUMATAY LLEGO, Respondent/Defendant-Appellee.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CIV. NO. 14-1-0199)

JUNE 18, 2020

McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

OPINION OF THE COURT BY POLLACK, J.

This appeal challenges the granting by the circuit

court of a defendant’s ex parte oral motion to dismiss a case

with prejudice. The case involves a personal injury claim

brought by a pro se litigant, who did not attend the pretrial ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

conference at which the oral motion to dismiss was made and

granted.

For the reasons discussed, we hold that the circuit

court abused its discretion in granting the defendant’s oral

motion to dismiss with prejudice because the record does not

provide a valid basis for the dismissal order, and the court

failed to make the requisite findings of fact that would be

required to support such an order in any event. We also

reaffirm that motions must generally be made in writing with

notice provided as required by our procedural rules unless the

motion is made during a hearing or trial. And, we again note

that Hawai‘i courts should liberally construe the filings of pro

se litigants. Finally, because the Intermediate Court of

Appeals relied upon monetary sanctions imposed by the circuit

court upon the plaintiff in affirming the dismissal order, we

review the sanction orders in light of applicable law.

I. BACKGROUND

A. Trial Court Proceedings

On July 10, 2013, Theodorico Erum, Jr., filed a

Statement of Claim against Josue Bumatay Llego in the Small

Claims Court of the Fifth Circuit (small claims court) in the

amount of $2,650.00 for property damage to his vehicle from a

July 12, 2012 automobile collision in Kapaʻa, Hawaiʻi. In his

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Statement of Claim, Erum stated that, on the day of the

accident, he was stopped at a traffic sign when the rear end of

his Toyota pickup truck was struck by a Dodge taxi van driven by

Llego. The small claims court entered final judgment in Erum’s

favor on August 6, 2013, and he was awarded $236.69 in damages,

plus fees and mileage for a total amount of $311.69 (small

claims court judgment).

On July 11, 2014, Erum, proceeding pro se, filed a

complaint against Llego in the District Court of the Fifth

Circuit (district court) alleging personal injuries and property

damage arising out of the July 12, 2012 automobile accident.1

Llego, through an attorney, filed an answer on September 15,

2014, disputing liability and damages and making a demand for a

jury trial, which resulted in the commitment of the case from

the district court to the Circuit Court of the Fifth Circuit

(circuit court).2

On June 10, 2015, Erum moved for an extension of time

to file his pretrial statement, which Erum indicated had been

1 Erum studied law via a correspondence course and became licensed to practice law in California in 1968. He has never received a law degree. He practiced law as a sole practitioner in Los Angeles for approximately three and a half years until about 1972-1973, when he returned to Hawai‘i to care for his parents. Erum did not obtain a license to practice law in Hawai‘i after returning and has never practiced law in this state. 2 All circuit court proceedings were presided over by the Honorable Randal G.B. Valenciano.

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due on June 6, 2015. The court granted the motion, and the due

date for Erum’s pretrial statement was continued to December 6,

2015. Erum neglected to file a pretrial statement by that date,

and on March 7, 2016, Llego filed a motion to dismiss the case

for failure to prosecute. Erum filed his pretrial statement on

March 16, 2016, and an opposition to Llego’s motion to dismiss

on March 21, 2016. In a declaration attached to his memorandum

in opposition, Erum averred that his failure to submit his

pretrial statement was due to his mistakenly placing the wrong

date in his personal calendar as the due date, and that the

error was brought to his attention by Llego’s March 7 motion to

dismiss.

In an order entered on May 13, 2016, the circuit court

found that although Erum did not timely submit his pretrial

statement, dismissal was “too harsh a sanction.” However, the

court stated that Erum’s failure to timely file his pretrial

statement “compelled Defendant to file the Motion.”3 On that

basis, the court ordered Erum to pay all attorneys’ fees and

costs related to the motion, including the fees and costs

related to drafting the order denying Llego’s motion to dismiss

3 There is no indication in the record that Llego communicated to Erum that a motion to dismiss would be filed if a pretrial statement was not filed by a specific date.

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and reducing the order to a judgment. The court did not cite

the authority pursuant to which the sanction was awarded, nor

did the court find that Erum had acted in bad faith by failing

to file his pretrial statement. Based on a declaration filed by

defense counsel, the court awarded Llego $3,007.79 in attorneys’

fees and $272.40 in costs.4

On May 16, 2016, Erum filed a motion requesting that

the circuit court schedule a status conference for the purpose

of setting a trial date. The court entered an order granting

Erum’s motion and scheduled a trial setting status conference

for June 21, 2016. At the status conference, Erum and Llego

agreed to a jury trial with a duration of three to four days.

On July 5, 2016, the court filed an order setting a pretrial

conference on December 22, 2016, and scheduling trial for the

week of January 17, 2017.

On July 11, 2016, Llego moved to dismiss with

prejudice Erum’s property damage claim, arguing that the

judgment of the small claims court barred his property damage

claim under the doctrine of res judicata. Llego also sought an

award of attorneys’ fees and costs, alleging that Erum knew that

4 The order that specified the amount of the award also did not contain any other findings or conclusions. This is similarly true of the other orders in this case in which the court specified the amount of monetary sanctions awarded.

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his claim was frivolous and barred by res judicata, that defense

counsel had informed Erum that it would seek sanctions if Erum

refused to voluntarily dismiss his claim with prejudice, and

that Erum had not so dismissed his claim.

Erum did not file an opposition to Llego’s motion and

instead, on July 27, 2016, Erum filed a Cross-Motion for

Continuance of Hearing on Defendant’s Motion to Dismiss with

Prejudice Plaintiff’s Property Damage Claim (cross-motion),

stating that he was seeking vacatur of the small claims court

judgment via writ of mandamus to this court, and that his claim

would not be barred if the requested writ was issued. Erum

filed a petition for writ of mandamus on August 5, 2016, and

this court issued an order denying his petition on August 18,

2016. Erum v. Kobayashi, No. SCPW-XX-XXXXXXX, 2016 WL 4398441

(Aug. 18, 2016). On December 2, 2016, the circuit court entered

a written order granting Llego’s motion to dismiss the property

damage claim and awarded Llego $2,801.54 in fees and $288.00 in

costs associated with the motion to dismiss. In the order, the

court found that Erum’s cross-motion was untimely filed and that

Llego had afforded Erum an opportunity to withdraw his claim

with prejudice and Erum had not done so. The order did not

include findings that Erum’s cross-motion or mandamus petition

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were frivolous or made in bad faith, nor did it cite the

authority pursuant to which the sanctions were granted.

On December 8, 2016, Llego filed a motion to enforce

settlement, or in the alternative, continue the trial (motion to

enforce settlement). Llego also requested that the court award

fees and costs incurred by defense counsel in conducting

settlement negotiations and in making the motion to enforce

settlement. In a declaration attached to his motion, Llego

contended that the parties had reached a final settlement on

November 9, 2016, but Erum had intentionally delayed execution

of the settlement documents in bad faith. Llego maintained that

the parties had agreed that Llego would pay Erum $16,000.00 in

general damages, Llego would not pursue collection of any

sanctions against Erum, Erum would sign a standard release and

indemnity agreement and stipulation for dismissal with

prejudice, and Erum would be responsible for any and all medical

bills related to the automobile accident.

In the motion to enforce settlement, Llego stated that

on November 9, 2016, defense counsel wrote a confirmatory letter

to Erum setting forth the material terms of the settlement as

outlined above, and a week later, he mailed settlement agreement

documents to Erum. Llego further stated that Erum contacted

defense counsel on November 29, 2016, to advise Llego that he

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would not execute the documents as drafted because the agreement

document released a party designated as “J’s Taxi” whom Erum did

not agree to release. According to Llego, Erum said that he

would not release J’s Taxi unless Erum received additional money

in the settlement. Llego indicated that he obtained authority

from the insurance carrier to remove J’s Taxi from the agreement

and so informed Erum, but Erum advised defense counsel that he

would be visiting the doctor and might require future treatment,

in which case Erum would want an additional amount to settle his

case against Llego. Defense counsel stated that he continued to

contact Erum to resolve the matter but that as of December 5,

2016, the parties had not reached agreement in the case.

On December 12, 2016, Erum filed an opposition to

Llego’s motion to enforce settlement in which he disputed

Llego’s contention that a final settlement had been reached and

stated that the terms of the agreement as drafted by Llego’s

counsel were not, and had never been, acceptable to him. In his

opposition, Erum maintained that during settlement negotiations

he had informed defense counsel that he would not settle unless

Llego agreed to pay for future medical treatment of his injuries

arising from the automobile accident and to vacate the order and

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final judgment awarding Llego attorneys’ fees and costs.5 Erum

further asserted that he had contacted defense counsel on

November 29, 2016, to inform counsel that the documents as

drafted were not acceptable because he had not agreed to release

J’s Taxi, the agreement did not provide for the vacatur of the

sanction award, and the agreement did not provide for the

payment of Erum’s future medical expenses by Llego.

At a hearing held on December 13, 2016, the circuit

court denied Llego’s motion to enforce the settlement and

granted the alternative motion to continue trial. A written

order granting Llego’s motion to continue was entered on January

27, 2017, in which the court stated that “[Defense counsel]’s

actions in the settlement negotiations with Plaintiff were made

in good faith. The Court further finds that Plaintiff’s actions

in the settlement negotiations were not made in good faith.” On

that basis, the court awarded sanctions against Erum for Llego’s

attorneys’ fees and costs associated with the unsuccessful

settlement negotiations. The court did not conduct an

evidentiary hearing regarding the settlement negotiations or

make any findings of fact in the order that set forth the basis

5 The confirmatory letter sent to Erum by defense counsel did not refer to the release of J’s Taxi or to vacating the awards of sanctions to Llego. Instead, the letter stated Llego would not pursue collection of the sanctions.

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for its determination that Erum negotiated in bad faith or that

supported the granting of monetary sanctions. The court also

did not cite the authority pursuant to which the sanction was

awarded. Erum filed an opposition to the proposed award of

attorneys’ fees, maintaining that he had not negotiated in bad

faith. On February 15, 2017, the court entered an order

awarding Llego $4,577.04 in sanctions against Erum for the fees

and costs incurred by Llego’s counsel related to the

unsuccessful settlement negotiation.

The court on January 6, 2017, filed an amended order

setting the trial date for April 3, 2017, and providing dates

for the submission of pretrial documents. Erum did not submit

the pretrial documents by the applicable deadlines and instead,

on February 27, 2017, filed a motion for continuance of trial.

In a declaration attached to his motion, Erum stated that Llego

had extended a settlement offer to him on February 15, 2017,

that he had responded with a counteroffer on February 25, 2017,

and that a settlement conference with the court was scheduled

for March 24, 2017. In the event a settlement was reached, Erum

stated, trial would no longer be required. Additionally, Erum

stated that if the settlement negotiations failed, he intended

to retain a personal injury attorney to represent him at trial.

The requested continuance, Erum stated, would enable such

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counsel to prepare for trial and submit the requisite pretrial

documents in compliance with the various deadlines.

On March 3, 2017, Llego filed a motion to dismiss or

in the alternative to exclude all of Erum’s pretrial documents

that were not filed by the deadlines set out in the amended

order. In his motion, Llego argued that the fact that the

parties were engaged in settlement negotiations did not excuse

Erum from submitting his pretrial documents by the applicable

deadlines. Two weeks later, Llego filed an opposition to Erum’s

motion to continue, in which he incorporated by reference his

motion to dismiss or in the alternative to exclude Erum’s

pretrial documents. Erum filed an opposition to Llego’s motion

to dismiss on March 22, 2017, stating that he expected that the

continuance of trial would also extend the due date for pretrial

documents and further that dismissal with prejudice was

unwarranted because there was no showing of deliberate delay,

contumacious conduct, or prejudice to Llego.6

At the hearing on Llego’s motion to dismiss, held on

April 18, 2017, at 1:00 p.m., the court denied Llego’s motion to

dismiss or in the alternative to exclude Erum’s pretrial

6 At a hearing on March 23, 2017, the court took the trial off calendar and continued the motion to dismiss in order for the court to determine how the case would proceed in light of Erum’s filing of a bankruptcy petition on March 16, 2017.

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documents. The court continued the trial to September 18, 2017,

and orally informed the parties that the pretrial conference

would take place on August 24, 2017. In a written order entered

on May 19, 2017, the court stated that it had reviewed the

pleadings and heard oral argument and was denying Llego’s motion

on that basis. The court nevertheless awarded Llego fees and

costs related to his motion to dismiss.

A settlement conference was scheduled on the same day

as the hearing on Llego’s motion to dismiss, April 18, 2017, at

4:00 p.m. Although Erum appeared at the hearing held at 1:00

p.m., when he did not appear at the settlement conference later

that afternoon, Llego orally moved to dismiss the case for

failure to prosecute. The court stated that it would not grant

an oral motion but would allow Llego to file a written motion.

On May 11, 2017, Llego filed a motion to dismiss the

case with prejudice, asserting that Erum’s failure to appear at

the settlement conference was a deliberate, contumacious delay

that prejudiced him because it cost him and his counsel

significant time and resources. Erum filed a memorandum in

opposition to the motion on May 24, 2017. In a declaration

attached to his memorandum in opposition, Erum averred that on

April 18, 2017, at about 3:00 p.m., shortly before the

settlement conference was to be held, he suffered an onset of

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atrial fibrillation. Erum stated in his declaration that he is

84 years old and suffers from multiple illnesses, one of which

is sporadic atrial fibrillation. Sporadic atrial fibrillation,

Erum stated, can lead to a stroke, heart attack, or heart

failure unless treated. Because his attention was solely

directed to treating his illness, he inadvertently failed to

attend the settlement conference on April 18, 2017, Erum

explained.7

A hearing was held on June 1, 2017, in which the court

denied Llego’s motion to dismiss but again awarded Llego fees

and costs incurred in making the motion. In total, Llego

received five awards of sanctions throughout the course of

litigation (collectively, monetary sanction orders). The record

7 Erum’s declaration states as follows:

I am 84 years old. My illnesses include sporadic atrial fibrillation (fibrillation of the atrium chamber of the heart), which could lead to a stroke, heart attack or heart failure unless attended to by the restoration of a normal heartbeat by medication or electro-cardio conversion. At about 3 p.m. on April 18, 2017, shortly before a settlement conference was to [be] held by the Court, as earlier announced by the Court during a 1 p.m. hearing on the same day, I suffered an onset of atrial fibrillation, which is one of my illnesses. Because this illness required immediate attention, I immediately drove home to obtain my medication (Amiodarone 200 mg.) for its treatment. Because my immediate attention was solely directed to treating this illness to avoid any life threatening consequences for not doing so, I inadvertently overlooked and failed to comply with the Court’s requirement that I attend the subject settlement conference.

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contains judgments for the first three awards, the respective

amounts of which were $3,280.19, $3,089.54, and $4,577.04 for a

total of $10,946.77.8

In imposing the sanctions with regard to the May 11,

2017 motion to dismiss, the court again did not cite the

authority under which the sanction was made, nor did it find

that Erum had acted in bad faith by failing to attend the

settlement conference. At the hearing, Llego asked the court to

order Erum to file his pretrial documents by a date certain to

avoid prejudicing Llego, but Erum indicated that he did not

intend to file any pretrial documents for strategic reasons.

The court apparently did not consider Erum’s decision not to

file pretrial documents problematic or a rule violation.9

8 The monetary sanction orders include the following: (i) Order Re: Defendant Josue Bumatay Llego’s Motion For Dismissal With Prejudice For Failure To Prosecute Case, entered on May 13, 2016; (ii) Order 1) Granting Defendant Josue Bumatay Llego’s Motion To Dismiss With Prejudice Plaintiff’s Property Damage Claim; And 2) Order Denying Plaintiff Theodorico Erum’s Cross Motion To Continue Hearing on Defendant Josue Bumatay Llego’s Motion To Dismiss with Prejudice Plaintiff’s Property Damage Claim, entered on December 2, 2016; (iii) Order Granting In Part And Denying In Part Defendant Josue Bumatay Llego’s Motion to Enforce Settlement Or In The Alternative For Continuation Of Trial, entered on January 27, 2017; (iv) Order Denying Josue Bumatay Llego’s Motion To Dismiss Case With Prejudice Or In The Alternative To Exclude All Of Plaintiff’s Pre-trial Documents That Were Due Under The January 6, 2017 Amended Order Filed On March 3, 2017, entered on May 19, 2017; (v) and Order Denying Defendant Josue Bumatay Llego’s Motion For Dismissal With Prejudice Filed on May 11, 2017, entered on July 18, 2017. 9 The court responded to Erum’s statement that he did not intend to file pretrial documents by asking Llego’s counsel to include Erum’s statement in the order denying Llego’s motion to dismiss.

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On August 24, 2017, the day of the calendared pretrial

conference, Erum did not appear. Llego made an oral motion to

dismiss the case, although there was no in-court proceeding

scheduled and Erum was not present. The court nonetheless

granted Llego’s oral motion to dismiss with prejudice, and trial

in the case was taken off calendar. At the time the court

dismissed the case, seven months and one week had elapsed from

the original trial date. The trial date had been continued

twice: once at the request of Llego because settlement

negotiations had broken down; and the second time at the request

of Erum because the parties had re-entered settlement

negotiations and a settlement conference was scheduled with the

court. On September 13, 2017, Erum, apparently unaware that the

court had already granted Llego’s oral motion to dismiss,

submitted an “Emergency Ex Parte Motion to Reschedule Trial”

(emergency motion) and moved for the trial to be continued and

rescheduled

so as to allow sufficient time for the Court to consider the Defendant’s apparent request for dismissal of this action, which should be made by the Defendant by written motion, as well as to allow sufficient time for Plaintiff to respond to such motion.

On September 15, 2017, the court issued an Order

Granting Llego’s Oral Motion for Dismissal with Prejudice

(Dismissal Order). The Dismissal Order indicated that Erum was

not present at the pretrial conference on August 24, 2017, which 15 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

he had been orally instructed to attend by the court at the

hearing on April 18, 2017.10 The Dismissal Order also noted that

the motion to dismiss was brought pursuant to Hawai‘i Rules of

Civil Procedure (HRCP) Rules 16 and 37, but it did not state the

rule(s) on which the oral motion to dismiss was granted. The

Dismissal Order instead stated that the court’s decision was

made after “review[ing] the pleadings, consider[ing] the entire

case record, and hear[ing] oral argument.” The same day, the

court summarily stamped “Denied” on Erum’s emergency motion.

On September 27, 2017, a Judgment Re: Order Granting

Defendant Josue Bumatay Llego’s Oral Motion for Dismissal with

Prejudice (circuit court judgment) was filed, dismissing the

case with prejudice pursuant to the oral motion to dismiss

“heard on August 24, 2017.” On October 10, 2017, Erum filed a

Motion to Set Aside Judgment of Dismissal and to Reschedule

Trial Without Further Pretrial Conferences (motion to set

aside). In a declaration attached to his motion to set aside,

Erum averred that he inadvertently did not attend the August 24,

10 The Dismissal Order states that “On April 18, 2017, the Court orally ordered the parties to appear for the August 24, 2017 pre-trial conference.” Other than the court’s oral instruction to Erum at the hearing on April 18, 2017, which was the same day he suffered a debilitating medical episode that prevented him from attending an afternoon settlement conference, there is no indication in the record that Erum was given any other instruction regarding the August 24, 2017 pretrial conference.

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2017 pretrial conference due to memory lapses and mental

confusion associated with his age of 85 and the side effects of

medications taken for his illnesses.11 Erum contended that there

was “no evidence in the record or offered by Llego in his oral

motion which shows that Erum’s failure to attend that pretrial

conference was contumacious conduct (willful resistance to

authority) or was deliberately made by Erum to delay the

prosecution of this case.” Erum further stated that “it was

erroneous for the trial court to enter such judgment of

dismissal with prejudice without notice to Erum and without a

written motion and a hearing.” On October 27, 2017, Llego filed

an opposition to Erum’s motion. Also on October 27, 2017, Erum

filed a Notice of Appeal, appealing from the circuit court

judgment and the Dismissal Order. On December 5, 2017, the

court denied Erum’s motion to set aside, concluding that it

11 The declaration states in full as follows:

I, the undersigned, am the plaintiff in this case. I am 85 years old and suffer from memory lapses and mental confusion associated with my elderly age and which are also the side effects of medications which I take for my illnesses, which include, sporadic atrial fibrillation (i.e. irregular heartbeat of the atrial chamber of the heart), hypertension (i.e. high blood pressure), abdominal hernia (i.e. protrusion of the abdominal wall), and gout (i.e., inflammation of the joint. As a result of these medical conditions, I mistakenly failed to calendar and thus mistakenly failed to remember and attend the pretrial conference held by the Court in this case on August 24, 2017.

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lacked jurisdiction over the matter since Erum had filed a

Notice of Appeal.12

B. ICA Proceedings

In a Summary Disposition Order (SDO), the Intermediate

Court of Appeals (ICA) concluded that the circuit court did not

abuse its discretion in granting Llego’s oral motion to

dismiss.13 The ICA stated that, throughout the case, Erum

“missed deadlines, refused to voluntarily dismiss the property

damage claim . . . was found not to have conducted settlement

negotiations in good faith, failed and refused to submit

pretrial documents . . . and failed to attend court-ordered

12 After filing his Notice of Appeal, Erum filed a declaration in support of his request to proceed in forma pauperis. Erum stated that he was unable to pay the costs for proceedings or give security because of his poverty. Specifically, Erum related that he received $453.00 monthly in social security payments and had less than $10.00 in his checking and savings accounts. Erum also stated that he was receiving monthly rental payments from properties, but that those properties were in foreclosure. Erum’s request to proceed in forma pauperis was approved. The dissent concludes Erum made his declaration in bad faith and that it demonstrates his willingness to “make false statements to the court for financial gain.” Dissent at 23 n.14. This breathtaking accusation is inferred from a statement in Erum’s declaration that his last employer was the United States Air Force. During his deposition, Erum had stated that he served six years in the Air Force after attending college, spent another year and a half in school, and then between 1958 and 1960 spent about a year and a half working for a bank and the federal government. He was subsequently self-employed for the rest of his career. Erum’s statement that the Air Force was his last employer rather than the federal government, which related to employment 55 years earlier, does not warrant the accusation leveled by the dissent. Moreover, the dissent does not explain how this “false statement” could have benefitted Erum’s application to proceed in forma pauperis. The dissent’s attack on Erum’s character is unjustified. 13 The ICA’s SDO can be found at Erum v. Llego, No. CAAP-XX-XXXXXXX, 2019 WL 1923002 (App. Apr. 30, 2019) (SDO).

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conferences.” (Footnote omitted.) The ICA further noted that

the circuit court had awarded monetary sanctions against Erum

five times prior to dismissing the case and that Erum had

offered no reason for his failure to attend the final pretrial

conference on August 24, 2017. The ICA, citing Webb v. Harvey,

103 Hawai‘i 63, 79 P.3d 681 (App. 2003), concluded that the

circuit court did not abuse its discretion in dismissing Erum’s

case based on the record.

II. STANDARDS OF REVIEW

Sanctions imposed under statute, court rule, or the

trial court’s inherent powers are reviewed for an abuse of

discretion. Gap v. Puna Geothermal Venture, 106 Hawai‘i 325,

331, 104 P.3d 912, 918 (2004). 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. Id.

When interpreting rules promulgated by the court,

principles of statutory construction apply. Bank of Am., N.A.

v. Reyes-Toledo, 143 Hawai‘i 249, 257, 428 P.3d 761, 769 (2018)

(quoting Ranger Ins. Co. v. Hinshaw, 103 Hawai‘i 26, 30, 79 P.3d

119, 123 (2003)). Interpretation of a statute is a question of

law which we review de novo. Id.

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III. DISCUSSION

A. HRCP Rule 7(b)(1) Requires that All Motions Be Made in Writing Properly Served on the Opposing Party Unless the Motion Is Made During a Hearing or Trial.

HRCP Rule 7(b) (2000)14 governs the manner in which

motions must be made before the trial court. HRCP Rule 7(b)(1)

requires that all motions be made in writing unless the motion

is made during a hearing or trial. See also Cooke Tr. Co. v.

Chinn Ho, 43 Haw. 243, 245 (Haw. Terr. 1959) (per curiam)

(granting a motion to dismiss an appeal for non-compliance with

HRCP Rule 7(b)(1) because the oral motion seeking allowance of

an interlocutory appeal was not made during a hearing or trial).

Llego made an oral motion to dismiss the complaint

during a pretrial conference where he was the only party

present. HRCP Rule 16(c) (2000) sets out the subjects for

consideration at a pretrial conference. Of the sixteen

enumerated subjects, the only one concerning motions is HRCP

Rule 16(c)(11), which states that “consideration may be

14 HRCP Rule 7(b) states in relevant part as follows:

(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

(Emphasis added.)

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given . . . [to] the disposition of pending motions[.]”

(Emphasis added.) No motions were pending in this case when the

pretrial conference began. As such, the pretrial conference was

not a “hearing” for the purposes of satisfying HRCP Rule

7(b)(1)’s requirement that motions be made in writing unless

made during a hearing or trial.

The writing requirement of HRCP Rule 7(b)(1)15 was

addressed in Benezet v. Nowell, 42 Haw. 581 (Haw. Terr. 1958).

In that case, the plaintiff made an oral motion, in open court,

to reopen a case for the introduction of additional evidence.

Id. at 582. After hearing arguments from both parties, the

trial court granted the motion. Id. On appeal, the Benezet

court affirmed the trial court’s granting of the motion, stating

that although the motion was not made in writing, it was made in

open court at a hearing at which opposing counsel was present.

Id. at 584. Since the defendant received notice of the hearing,

appeared at the hearing, and made oral argument on the motion,

15 The court in Benezet quotes HRCP Rule 7(b)(1) as follows:

This rule provides “An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.”

42 Haw. at 584. This language is identical to HRCP Rule 7(b)(1) (2000).

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the court stated, the purposes of the writing requirement were

satisfied. Id.

Unlike the defendant in Benezet, Erum was not present

at the August 24, 2017 pretrial conference when Llego moved to

dismiss Erum’s case. And because he was not present at the

pretrial conference and no written motion was filed, Erum did

not receive a pleading that “state[d] with particularity the

grounds therefor, and . . . set forth the relief or order

sought” as required by HRCP Rule 7(b)(1).

Erum was also not given notice of the motion as

specified by HRCP Rule 5(a) (2000),16 which requires service of

motions. Instead, the court heard argument from Llego’s counsel

on the ex parte motion at the pretrial conference and summarily

granted the motion with prejudice, contrary to the requirement

that notice of the motion and its grounds be given to Erum

16 HRCP Rule 5(a) states in relevant part as follows:

Every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, brief or memorandum of law, offer of judgment, bill of costs, designation of record on appeal, and similar paper shall be served upon each of the parties[.]

(Emphases added.)

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before consideration of the motion. Erum argued to the circuit

court that Llego’s motion to dismiss should have been made in

writing and in a manner that allowed Erum an opportunity to

respond, which is precisely what is required by HRCP Rule

7(b)(1).

We note, however, that Erum’s application for

certiorari, which is only one page in length, does not include

as a question presented the court’s failure to comply with HRCP

Rule 7(b)(1) and, in fact, does not contain a section setting

forth questions presented; thus the application contravenes

Hawaii Rules of Appellate Procedure (HRAP) Rule 40.1(d) (2017).17

A strict application of HRAP Rule 40.1(d) would require that

Erum’s application for writ of certiorari be disregarded unless

plain error was to be invoked. But such an application of the

rule would contravene a fundamental tenet of our law: “pleadings

17 HRAP Rule 40(d)(1) provides as follows:

(d) Contents. The application for a writ of certiorari shall not exceed 12 pages and shall contain in the following order:

(1) A short and concise statement of the questions presented for decision, set forth in the most general terms possible. The statement of a question presented will be deemed to include every subsidiary question fairly comprised therein. Questions not presented according to this paragraph will be disregarded. The supreme court, at its option, may notice a plain error not presented.

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prepared by pro se litigants should be interpreted liberally.”

Waltrip v. TS Enters., Inc., 140 Hawai‘i 226, 239, 398 P.3d 815,

828 (2016) (brackets omitted) (quoting Dupree v. Hiraga, 121

Hawai‘i 297, 314, 219 P.3d 1084, 1101 (2009)). Underlying this

principle of law is “the promotion of equal access to justice--a

pro se litigant should not be prevented from proceeding on a

pleading or letter to an agency if a reasonable, liberal

construction of the document would permit him or her to do so.”

Id. (citing, inter alia, Eldridge v. Block, 832 F.2d 1132, 1137

(9th Cir. 1987) (“The Supreme Court has instructed the federal

courts to liberally construe the ‘inartful pleading’ of pro se

litigants”) (citing Boag v. MacDougall, 454 U.S. 364, (1982)

(per curiam))).

Liberal interpretation of a pro se litigant’s

application for writ of certiorari is consistent with this

court’s and the ICA’s holdings that a pro se litigant’s failure

to state the alleged errors of the lower court in precise

compliance with HRAP Rule 28(b) (2016)18 will not foreclose

18 HRAP Rule 28(b) provides in relevant part as follows:

Within 40 days after the filing of the record on appeal, the appellant shall file an opening brief, containing the following sections in the order here indicated:

. . . .

(continued. . .) 24 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

consideration of the appeal, so long as the litigant’s argument

can reasonably be discerned. Housing Fin. & Dev. Corp. v.

Ferguson, 91 Hawai‘i 81, 85-86, 979 P.2d 1107, 1111-12 (1999)

(addressing an appeal on the merits despite the fact that the

opening brief fell “woefully short” of the requirements of HRAP

Rule 28(b) and did not state the points of error alleged or

where in the record the errors occurred and contained a one-

sentence statement of the case); In re Estate of Damon, 119

Hawai‘i 500, 503-04, 199 P.3d 89, 92-93 (2008) (addressing the

merits of one of appellants arguments despite the fact that the

citation for the relevant point of error was located in the

statement of the case); Wagner v. World Botanical Gardens, Inc.,

126 Hawai‘i 190, 193, 268 P.3d 443, 446 (App. 2011) (addressing

arguments raised on appeal by a pro se litigant “to the extent

(. . .continued)

(4) A concise statement of the points of error set forth in separately numbered paragraphs. Each point shall state: (i) the alleged error committed by the court or agency; (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 or agency. . . .

Points not presented in accordance with this section will be disregarded, except that the appellate court, at its option, may notice a plain error not presented. . . .

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they can reasonably be discerned” although finding that the

opening brief did not meet the requirements of HRAP Rule 28(b)

in a variety of ways); see also Tautua v. BCI Coca-Cola Bottling

Co., No. 30291, 2012 WL 2308162 (App. June 18, 2012) (SDO)

(addressing points of error “to the extent that they can be

discerned” because appellant had not included points of error in

the opening brief). This approach is particularly appropriate

when, despite failing to articulate points of error on appeal,

“the remaining sections of the brief provide the necessary

information to identify the party’s argument” and “petitioner

had raised the same argument before the trial court.” Marvin v.

Pflueger, 127 Hawai‘i 490, 496, 280 P.3d 88, 94 (2012).

This court additionally has long adhered to the policy

of affording litigants the opportunity to be heard on the merits

whenever possible. Morgan v. Planning Dep’t, 104 Hawai‘i 173,

180-81, 86 P.3d 982, 989-90 (2004) (quoting O’Connor v. Diocese

of Honolulu, 77 Hawai‘i 383, 386, 885 P.2d 361, 364 (1994)). In

view of this longstanding policy, we believe that pro se

litigants should not automatically have their access to

appellate review in this court foreclosed because of failure to

conform to requirements of the procedural rules. See id.

Indeed, we have instructed the lower courts to liberally

interpret the filings of pro se litigants if possible, and this

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court is equally obligated to interpret applications for

certiorari liberally in order to facilitate access to justice.

Waltrip, 140 Hawai‘i at 240, 398 P.3d at 829.

In the statement of the case of his application, Erum

contends that when he mistakenly failed to attend a pretrial

conference, “the circuit court granted an oral motion by Llego

to dismiss the case with prejudice without a hearing which the

circuit court granted.” The argument paragraph is only four

sentences and states that the dismissal was inconsistent with

our holding in In re Blaisdell, 125 Hawai‘i 44, 252 P.3d 63

(2011), and this court’s policy of having cases heard on the

merits when possible. In addition to the statements in the

application, Erum argued in his emergency motion that continuing

the trial would allow the circuit court sufficient time to

consider Llego’s apparent request to dismiss the action, “which

should be made by the Defendant by written motion, as well as to

allow sufficient time for Plaintiff to respond to such motion.”

In his motion to set aside, Erum contended that there was “no

evidence in the record or offered by Llego in his oral motion

which shows that Erum’s failure to attend that pretrial

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dismissal with prejudice without notice to Erum and without a

written motion and a hearing.” In his opening brief before the

ICA, Erum simply identifies the court’s granting of Llego’s oral

motion to dismiss with prejudice as the point of error on

appeal.

Thus, liberally construing Erum’s application for

certiorari, we discern from it, as informed by the arguments

Erum made before the trial court, that the following questions

are presented (1) whether the granting of an oral motion to

dismiss with prejudice, without a hearing, was a proper exercise

of the court’s discretion; and (2) whether the circuit court

abused its discretion in dismissing the case with prejudice

under our holding in Blaisdell.

Because of our disposition of the other issue Erum

raises, it is unnecessary to further address the violation of

HRCP Rule 7(b) in this case.19 Nevertheless, because of the

19 The dissent argues that our consideration of the court’s noncompliance with HRCP Rule 7(b) is an improper exercise of plain error review because the rule was not specifically referred to in the application. Dissent at 24 (citing HRAP Rule 28(b)(4) (2016)). The contention is inapposite because we do not consider this issue under the plain error doctrine. The dissent further contends that our consideration of the issue disregards the “principle of party presentation.” Dissent at 32. As explained, under fundamental principles of this jurisdiction, pro se pleadings are to be read liberally, and we conclude that under our precedent this issue was adequately raised. The inapt application of the “principle of party presentation” to this case is demonstrated by the case relied upon by

(continued. . .) 28 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

importance of the requirements of HRCP Rule 7(b), we reaffirm

that a motion must be made in writing and in compliance with

other provisions of HRCP Rule 7(b) and relevant court rules,

unless the motion is made at a hearing or trial.20

B. The Circuit Court Abused Its Discretion in Entering the Dismissal Order Without Making Any Findings of Deliberate Delay or Contumacious Conduct and Actual Prejudice and by Failing to Explain Why Lesser Sanctions Were Inadequate.

It is well established that the involuntary dismissal

of a complaint with prejudice is such a severe sanction that it

“should be ordered only in extreme circumstances.” Blaisdell,

125 Hawai‘i at 49, 252 P.3d at 68 (emphasis added); see also

Shasteen, Inc. v. Hilton Hawaiian Vill. Joint Venture, 79 Hawai‘i

the dissent. Dissent at 29 (quoting United States v. Sineneng-Smith, 140 S.Ct. 1575, 1579 (2020) (holding that the Ninth Circuit violated the party presentation principle by sua sponte naming and inviting three amici to brief and argue issues framed by the appeals panel after oral argument had been concluded). Further, the party presentation doctrine is generally not controlling in circumstances of a pro se litigant. Castro v. Melchor, 142 Hawai‘i 1, 19, 414 P.3d 53, 71 (2018) (Nakayama, J., concurring) (stating that under the “principle of party presentation” courts hesitate to consider issues not raised by the parties “because our system assumes and depends upon the assistance of counsel.” (emphasis added) (quoting United States v. Pryce, 938 F.2d 1343, 1353 (D.C. Cir. 1991) (Silberman, J., dissenting))). 20 We also observe that the circuit court’s consideration and granting of Llego’s oral motion to dismiss without notice to Erum raises serious constitutional due process considerations. The fundamental requirements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Minton v. Quintal, 131 Hawai‘i 167, 189, 317 P.3d 1, 23 (2013); see also In re Application of Maui Elec. Co., 141 Hawai‘i 249, 269, 408 P.3d 1, 21 (2017). Constitutionally adequate notice must inform affected parties of the action about to be taken against them as well as of procedures available for challenging that action. Brown v. Thompson, 91 Hawai‘i 1, 10, 979 P.2d 586, 595 (1999).

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103, 107, 899 P.2d 386, 390 (1995) (“[D]ismissal of a complaint

is such a severe sanction, that it should be used only in

extreme circumstances where there is clear record of delay or

contumacious conduct . . . .” (quoting Lim v. Harvis Constr.,

Inc., 65 Haw. 71, 73, 647 P.2d 290, 292 (1982))). As this court

stated in Blaisdell, there are only two circumstances in which a

trial court may, in its sound discretion, dismiss a claim with

prejudice. 125 Hawai‘i at 49-50, 252 P.3d at 68-69. Dismissal

with prejudice is not an abuse of discretion when a plaintiff’s

deliberate delay or contumacious conduct causes actual

prejudice.21 Chen v. Mah, 146 Hawai‘i 157, 179–80, 457 P.3d 796,

818–19 (2020). Additionally, because the sanction of dismissal

with prejudice is one of last resort, it may be invoked only

21 The dissent argues that we are “expand[ing] upon Blaisdell’s standard for involuntary dismissals pursuant to HRCP Rule 41(b), and creat[ing] an even higher standard.” Dissent at 39. Specifically, the dissent contends that under Blaisdell the court could dismiss a case if the record merely showed that the defendant suffered actual prejudice, without any need to consider deliberate delay or contumacious conduct. Dissent at 40. First, the dissent appears to overlook Chen, wherein this court recently considered Blaisdell as well as other relevant precedent that reached the conclusions we reiterate today. 146 Hawai‘i at 179–80, 457 P.3d at 818–19. Moreover, the dissent would allow dismissal with prejudice solely based on a showing that the defendant suffered actual prejudice, without any causal connection to the plaintiff’s conduct. Dissent at 40-41. But “[p]roof of [prejudice] in the air, so to speak, will not do.” Martin v. Herzog, 126 N.E. 814, 816 (N.Y. 1920). There must be a causal connection between the plaintiff’s conduct and the defendant’s actual prejudice in order for dismissal with prejudice to be warranted. Blaisdell, 125 Hawai‘i at 49-50, 252 P.3d at 68-69 (“A dismissal with prejudice would not constitute an abuse of discretion where a plaintiff’s deliberate delay causes actual prejudice to a defendant.”).

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when the actual prejudice cannot be addressed through lesser

sanctions. Id. Therefore, we have stated that before

dismissing a case with prejudice the trial court is to consider

less severe sanctions and state why a lesser sanction “is

insufficient to serve the interests of justice.” Id. at 180

n.29, 457 P.3d at 819 n.29 (citing Blaisdell, 125 Hawai‘i at 50-

51, 252 P.3d at 69-70).

Llego contends that the foregoing precedents do not

apply to this case because the circuit court dismissed Erum’s

claim as a sanction under HRCP Rules 16(f) (2000) and

37(b)(2)(C) (2015),22 and Blaisdell involved a dismissal pursuant

to HRCP Rule 41(b) (2012).23 First, we note that the circuit

22 HRCP Rule 16(f) (2000) states as follows:

If a party or party’s attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party’s attorney is substantially unprepared to participate in the conference, or if a party or party’s attorney fails to participate in good faith, the judge, upon motion or the judge’s own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney’s fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.

HRCP Rule 37(b)(2)(C) (2015), in turn, permits an order dismissing the action or proceeding or any part thereof. 23 HRCP Rule 41(b) states in relevant part as follows:

(continued. . .) 31 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

court did not cite any rule as authority in its Dismissal Order.

But even if it had referenced HRCP Rule 16(f), the preconditions

for a valid dismissal set forth in Blaisdell result from the

severity of the sanction of dismissal itself, not from the

dismissal in that case being based on HRCP Rule 41(b). See

Blaisdell, 125 Hawai‘i at 49, 252 P.3d at 68 (“[T]he sanction of

dismissal of a complaint with prejudice is one of last resort

where lesser sanctions would not serve the interest of justice.

. . . [And] an order of dismissal cannot be affirmed absent

deliberate delay, contumacious conduct, or actual prejudice.”

(citation and brackets omitted)). The Blaisdell court did not

limit the standard it articulated to dismissals pursuant to HRCP

Rule 41(b); in fact this court has previously applied the

Blaisdell standard to cases dismissed with prejudice pursuant to

Rule 12 of the Rules of the Circuit Courts of the State of

Hawai‘i (RCCH). See Bagalay v. Lahaina Restoration Found., 60

Haw. 125, 132, 588 P.2d 416, 421 (1978) (concluding that caselaw

analyzing dismissals pursuant to HRCP Rule 41(b) is applicable

(b) Involuntary dismissal: Effect thereof. (1) For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against it.

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to a dismissal pursuant to RCCH Rule 12(f));24 Phillips v.

Brisebois, 72 Haw. 146, 148, 808 P.2d 370, 371 (1991) (per

curiam) (“[RCCH] Rule 12(b)(6) dismissal is subject to the same

analysis as in Bagalay.”).25 Additionally, by its own language,

HRCP Rule 41(b)(1) authorizes a motion for involuntary dismissal

based on failure to comply with any of the rules of civil

procedure or a court order. See HRCP Rule 41(b)(1) (“For

24 At the time of this court’s decision in Bagalay, RCCH Rule 12(f) provided as follows:

Where no statement of readiness had been filed within one year after a complaint has been filed or within any extension granted by the court, the clerk shall notify in writing all parties affected thereby that the case will be dismissed for want of prosecution unless objections are filed within 10 days after receipt of such notice. If objections are not filed within said 10-day period or any extension granted by the court, the case shall stand dismissed with prejudice without the necessity of an order of dismissal being entered therein. Where objections are filed within said 10-day period or any extension granted by the court, the court shall hear said objections upon notice and determine whether the case should be dismissed.

Bagalay, 60 Haw. at 128 n.1, 588 P.2d at 419 n.1. 25 RCCH Rule 12(b)(6) provided at the time in relevant part as follows:

Dismissal for Want of Prosecution. Where no statement of readiness has been filed within one year after a complaint has been filed . . ., the clerk shall notify in writing all parties affected thereby that the case will be dismissed for want of prosecution unless objections thereto showing good cause (specific reasons) are filed within 10 days after receipt of such notice. . . . Where objections are filed within said 10-day period or any extension granted by the court, the court shall hear said objections upon notice and determine whether the case should be dismissed.

Phillips, 72 Haw. at 147, 808 P.2d at 371 (alterations in original) (emphasis omitted).

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failure of the plaintiff to prosecute or to comply with these

rules or any order of the court, a defendant may move for

dismissal of an action or of any claim against it.” (emphasis

added)). The general authorization to dismiss a case under HRCP

Rules 16(f) and 37(b)(2)(C) for a violation of provisions

relating to pretrial conferences does not allow a court to

bypass the requirements integrated into HRCP Rule 41(b) by

Blaisdell and other precedent of this court, which are expressly

applicable to a failure “to comply with these [HRCP] rules or

any order of the court.”

Further, limiting the application of the Blaisdell

factors only to those dismissal orders entered under HRCP Rule

41(b) would produce an inconsistent application of our court

rules. See Ryan v. Palmer, 130 Hawai‘i 321, 323, 310 P.3d 1022,

1024 (App. 2013) (finding that it was abuse of discretion to

dismiss under RCCH Rule 12(q) absent deliberate delay,

contumacious conduct, or actual prejudice because allowing such

dismissal would put RCCH Rule 12(q) and HRCP Rule 41(b) into

conflict “by expanding the circuit court’s authority beyond that

which it possesses under HRCP Rule 41(b)”); see also Bagalay, 60

Haw. at 132, 588 P.2d at 421. Significantly, there are numerous

other rules or statutes under which a circuit court may impose

the sanction of dismissal with prejudice. See, e.g., Hawai‘i

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Revised Statutes (HRS) § 635-3 (2016);26 HRCP Rule 16(f), Rule

37(b)(2)(C), Rule 41(b); RCCH Rule 12(q) (2007),27 Rule

12.1(a)(6) (2000),28 Rule 28 (2007),29 Rule 29 (2007).30 The

26 HRS § 635-3 provides in relevant part as follows: “The court may dismiss any action for want of prosecution after due notice to the claimants whenever claimants have failed to bring such action to trial within a period established by rule of court.” 27 RCCH Rule 12(q) states as follows:

An action may be dismissed sua sponte with written notice to the parties if a pretrial statement has not been filed within 8 months after a complaint has been filed (or within any further period of extension granted by the court) or if a trial setting status conference has not been scheduled as required by Rule 12(c). Such dismissal may be set aside and the action reinstated by order of the court for good cause shown upon motion duly filed not later than ten (10) days from the date of the order of dismissal. 28 RCCH Rule 12.1(a)(6) provides in relevant part as follows:

The failure of a party or his attorney to appear at a scheduled settlement conference, the neglect of a party or his attorney to discuss or attempt to negotiate a settlement prior to the conference, or the failure of a party to have a person authorized to settle the case present at the conference shall, unless a good cause for such failure or neglect is shown, be deemed an undue interference with orderly procedures. As sanctions, the court may, in its discretion:

(i) Dismiss the action on its own motion, or on the motion of any party or hold a party in default, as the case may be[.] 29 RCCH Rule 28 provides as follows:

A diligent effort to effect service shall be made in all actions. An action or claim may be dismissed sua sponte with written notice to the parties if no service is made within 6 months after the action or claim has been filed. Such dismissal may be set aside and the action or claim reinstated by order of the court for good cause shown upon motion duly filed not later than ten (10) days from the date of the order of dismissal.

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District Court Rules of Civil Procedure and the Hawai‘i Family

Court Rules contain similar provisions. Applying different

legal standards to similar conduct--based on different rules--

when the rules impose the same sanction of dismissal with

prejudice undermines the equitable application of the law,

complicates appellate review, and produces outcomes that turn

not on the merits but on the litigants’ skill in procedural

navigation.31 Thus, our decisions interpreting HRCP Rule 41 and

30 RCCH Rule 29 provides as follows:

An action may be dismissed with prejudice sua sponte with written notice to the parties for want of prosecution where all defendants are in default and if the plaintiff fails to obtain entry of default and fails to apply for default judgment within six months after all defendants are in default. Such dismissal may be set aside and the action reinstated by order of the court for good cause shown upon motion duly filed not later than ten (10) days from the date of the order of dismissal. 31 In its SDO, the ICA did not address Erum’s contention that the circuit court was required to apply the Blaisdell factors and instead cited Webb v. Harvey, 103 Hawai‘i 63, 79 P.3d 681 (App. 2003), to support its holding that the circuit court did not abuse its discretion in dismissing Erum’s case with prejudice. Insofar as Webb stands for the proposition that a dismissal with prejudice may be affirmed absent deliberate delay or contumacious conduct causing actual prejudice, it was implicitly overruled by Blaisdell. The dissent maintains that HRCP Rule 16(f) is excepted from the preconditions for a valid dismissal set forth in Blaisdell, but HRCP Rule 16 does not state that it is excepted from HRCP Rule 41(b)(1). Dissent at 38- 39. Rather, HRCP Rule 41(b) specifically provides that its provisions apply to all the rules of civil procedure and court orders. HRCP Rule 41(b)(1) (“For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal.” (emphases added)). As stated, the general ability to dismiss under HRCP Rules 16(f) and 37(b)(2)(C), which relates solely to pretrial conferences, does not allow the court to bypass the requirements integrated into HRCP Rule 41(b) by

(continued. . .) 36 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

discussing involuntary dismissal pursuant to that rule are

applicable to the involuntary dismissal in this case.32

1. Deliberate Delay

Dismissal with prejudice does not constitute an abuse

of discretion when a plaintiff’s deliberate delay causes actual

prejudice to a defendant that cannot be addressed through a

Blaisdell and other precedent of this court. HRCP Rule 41(b) applies to any dismissal for failure to comply with court rules or orders of the court. The dissent provides no adequate justification for distinguishing dismissals based on the specific underlying rule violation, particularly when that rule violation is expressly subject to the general rule governing involuntary dismissals. 32 The dissent asserts that we are improperly “import[ing] the standard for an involuntary dismissal pursuant to HRCP Rule 41(b), as set forth in Blaisdell.” Dissent at 38. As stated, our caselaw has clearly established for over forty years that the standard we apply today is not limited to involuntary dismissals entered under HRCP Rule 41(b). Bagalay, 60 Haw. at 132, 588 P.2d at 421; Phillips, 72 Haw. at 147, 808 P.2d at 371. Indeed, the dismissal in Blaisdell was not specifically entered under HRCP Rule 41(b), the circuit court in that case failed to cite the authority for its dismissal of Blaisdell’s claims with prejudice. 125 Hawai‘i at 47, 252 P.3d at 66. On appeal, this court concluded that Blaisdell had violated HRCP Rule 4, which governs service of process, and therefore the court had authority to dismiss the case pursuant to HRCP Rule 41(b)(2). Id. at 48-49, 252 P.3d at 67-68. We further note that the ICA has commonly applied the Blaisdell standard in a wide variety of circumstances involving violations of court rules or court orders. See Middleton v. Dep’t of Human Servs., No. CAAP-XX-XXXXXXX, 2017 WL 663538 (App. Feb. 17, 2017) (mem.) (applying the Blaisdell standard to a dismissal entered pursuant to HRCP Rule 72); Durda v. Ion Genius, Inc., No. CAAP-XX-XXXXXXX, 2017 WL 621277 (App. Feb. 15, 2017) (mem.) (applying the Blaisdell standard to dismissal where trial court did not identify authority pursuant to which dismissal was entered); Rapoza v. Soares, No. CAAP-XX-XXXXXXX, 2020 WL 354759 (App. Jan. 21, 2020) (SDO) (same); Poe v. City & Cty. of Honolulu, No. CAAP-XX-XXXXXXX, 2019 WL 762590 (App. Jan. 30, 2019) (SDO) (applying the Blaisdell standard to a dismissal entered pursuant to Rules of the Tax Appeal Court Rule 29 and HRCP Rule 41(b)); Nakamoto v. Hilton Waikoloa Vill., No. CAAP-XX-XXXXXXX, 2019 WL 1747015 (App. Apr. 18, 2019) (SDO) (applying the Blaisdell standard to a dismissal entered pursuant to RCCH Rule 12(q)).

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lesser sanction. Chen, 146 Hawai‘i at 179–80, 457 P.3d at 818–

19. The ICA considered the issue of a plaintiff’s deliberate

delay in Ryan v. Palmer. 130 Hawai‘i 321, 310 P.3d 1022 (App.

2013). In Ryan, the circuit court, pursuant to RCCH 12(q), sua

sponte dismissed the plaintiff’s tort claim with prejudice on

the basis that the plaintiff had not filed a pretrial statement

within 8 months after the complaint was filed. Id. at 322, 310

P.3d at 1023. The plaintiff moved to set aside the order of

dismissal, arguing that the failure to submit a pretrial

statement within the allotted time was an inadvertent error.

Id. The circuit court denied the plaintiff’s motion, and the

plaintiff appealed to the ICA. Id. On appeal, the ICA vacated

the order of dismissal and the order denying the plaintiff’s

motion to set aside, holding that the circuit court had abused

its discretion in dismissing the case with prejudice because the

record did not show a deliberate attempt by the plaintiff to

delay prosecution of the case or actions that constituted

contumacious conduct, and the circuit court did not make

findings to that effect. Id. at 324, 310 P.3d at 1025.

Although the plaintiff had violated RCCH Rule 12(q) by failing

to file a pretrial statement, the ICA noted that the plaintiff

had prosecuted the case by actively engaging in discovery and

had provided a declaration explaining that the failure to submit

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the pretrial statement was the result of an inadvertent

miscommunication between plaintiff’s counsel and co-counsel.

Id.

Like the plaintiff in Ryan, Erum did not timely file a

pretrial statement, and he was not present at a pretrial

conference and a settlement conference that he was supposed to

attend. Also like the plaintiff in Ryan, Erum filed

declarations explaining that his conduct was not deliberate but

inadvertent. Erum explained that his failure to timely submit

his pretrial statement was the result of his mistakenly placing

the wrong date in his personal calendar. In regard to his

absence at the settlement conference held on April 18, 2017,

Erum stated that he suffered an onset of atrial fibrillation

that required him to drive home for treatment. It was on that

same day that the court orally informed the parties that the

pretrial conference would be held on August 24, 2017. Erum was

not present on that date and the court granted Llego’s oral

motion to dismiss on that basis. In the declaration attached to

his motion to set aside, Erum averred that his failure to attend

the pretrial conference was not intentional, but instead it was

due to his advanced age and memory loss caused by his

medication. The veracity of Erum’s declarations has not been

challenged at any stage of these proceedings, and the only other

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procedural violation of ostensible significance on Erum’s part

was his strategic decision not to submit pretrial documents,

which the court apparently did not consider to be a violation.33

In sum, the record does not show that Erum deliberately delayed

the prosecution of his case, and the circuit court did not make

any such finding.34

33 The dissent concludes that Erum was deploying creative tactics in order to delay proceedings, but it misapprehends the record in making this assertion. First, the dissent concludes that Erum’s refusal to sign the settlement agreement documents because it released J’s Taxi was a bad faith effort to delay the proceedings as the confirmatory letter actually did inform Erum the agreement would release J’s Taxi by stating Erum would “sign a standard Release and Indemnity Agreement and Stipulation For Dismissal With Prejudice Of All Claims And All Parties.” Dissent at 9 n.5. Respectfully, J’s Taxi is not, and has never been, a party to this litigation, and the dissent does not address Erum’s contention that the drafted agreement was also deficient because it did not provide for the vacatur of the sanctions awards. Additionally, the dissent accuses Erum of filing his March 16, 2017 bankruptcy petition, which sought the reinstatement of a bankruptcy proceeding from 2013, in bad faith with the deliberate and sole purpose of delaying these proceedings, but there is no indication in the record of such an intent. Dissent at 16 n.8. Finally, despite the absence of any finding that Erum deliberately delayed providing an explanation for his absence at the April 18, 2017 settlement conference and the record indicating Erum immediately explained his nonattendance because of the sudden onset of the life-threatening atrial fibrillation condition as soon as it was brought to his attention by the motion to dismiss, the dissent accuses Erum of misconduct for not sooner explaining his absence. Dissent at 43. 34 The dissent contends that our decision “gives license” to untimely filings, not appearing as required, or other delay “tactics.” Dissent at 44. This is plainly incorrect. Regarding the issue of deliberate delay, we hold only that the record before us does not contain findings or demonstrate that Erum’s procedural violations were deliberate, which our caselaw requires if the violations underlie an order of dismissal with prejudice. Chen, 146 Hawai‘i at 179–80, 457 P.3d at 818–19. The dissent selectively identifies particular events that may have delayed proceedings and declares that, taken together, they establish that Erum was deliberately delaying the prosecution of his case. Dissent at 42-43. But the dissent ignores the reasons for these events and the relevant contexts in which they occurred, which is a necessary consideration. Here, the record contains Erum’s uncontested declarations establishing that his violations were inadvertent, and the circuit court never made any findings of deliberateness

(continued. . .) 40 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

Additionally, the record reflects that, other than his

inadvertent procedural violations, Erum has prosecuted his case

with reasonable diligence. Erum participated in discovery,

filed motions and responded to motions filed by Llego, engaged

in settlement negotiations, attended numerous hearings, moved to

schedule trial, filed a pretrial statement, and monitored the

court docket.35

Therefore, upon “review[ing] the pleadings [and]

consider[ing] the entire case record,” which was the stated

on Erum’s part. All the delays the dissent identifies were either inadvertent or not caused by Erum, and the dissent’s assertion that Erum engaged in “creative dilatory tactics” is unsupported by the record. See supra note 33. The delays in this case were not so unreasonable or numerous that deliberateness can be conclusively inferred from their length and number alone. Erum requested and duly received an extension to file his pretrial statement, both parties sought and received one continuance of trial because of ongoing settlement negotiations, and the case was ultimately dismissed only seven months after the initial trial setting. As such, the length of delay was clearly not so inordinate that a deliberate intent to delay may be inferred. Cf. Ellis v. Harland Bartholomew and Assocs., 1 Haw. App. 420, 428, 620 P.2d 744, 749 (1980) (dismissal upheld where, although there was no finding of deliberate delay, the record was voluminous with motions to delay and postpone trial and affidavit upon affidavit reciting plaintiff- appellant’s unavailability for various proceedings). We note that the dissent analogizes the length and number of delays in this case to those in Ryan, but the comparison is inapposite because Ryan does not define the parameters for inferring a deliberate intent to delay. Dissent at 42. There was no dispute in Ryan that the violation in that case was inadvertent; the challenge was to the initial application of the Blaisdell standard to the dismissal of the plaintiff’s claim. Ryan, 130 Hawai‘i at 324, 310 P.3d at 1025. 35 The ICA incorrectly stated that Erum refused to voluntarily dismiss his property damage claim. Erum did not oppose Llego’s motion to dismiss his property damage claim and instead sought to continue the hearing on the motion to dismiss until this court ruled on his writ of mandamus, which this court promptly did.

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basis for both the circuit court’s Dismissal Order and the ICA’s

SDO, the record does not demonstrate that Erum deliberately

delayed prosecution of his case. The record thus does not

support the circuit court’s dismissal of Erum’s case with

prejudice on this basis or the ICA’s affirmance.

2. Contumacious Conduct

In addition to deliberate delay, when a plaintiff’s

contumacious conduct results in actual prejudice that cannot be

addressed by a lesser sanction, dismissal of an action with

prejudice may be justified. Chen, 146 Hawai‘i at 179–80, 457

P.3d at 818–19. This court has defined contumacious conduct as

“willfully stubborn and disobedient conduct.” Blaisdell, 125

Hawai‘i at 50, 252 P.3d at 69 (brackets omitted) (quoting

Shasteen, 79 Hawai‘i at 108, 899 P.2d at 391). Here, the only

conceivable disobedience by Erum was his strategic decision not

to submit pretrial documents, which the circuit court did not

consider to be a rule violation. The other instances of

noncompliance with court orders or rules of procedure were, as

discussed above, the inadvertent product of Erum’s advanced age,

lapses in memory, and medical condition. Significantly, there

are no findings of fact from the circuit court that Erum engaged

in contumacious conduct and that the motion to dismiss was

granted on that basis. See Blaisdell, 125 Hawai‘i at 50, 252

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P.3d at 69 (“Without evidence that Blaisdell conducted himself

in a willfully defiant manner, his actions did not amount to

what this court considers ‘contumacious conduct.’”); Ryan, 130

Hawai‘i at 324, 310 P.3d at 1025 (finding it was an abuse of

discretion to dismiss the plaintiff’s case with prejudice when

the record did not show a deliberate attempt to delay or actions

rising to the level of contumacious conduct, and the circuit

court did not make any such finding). Rather, Erum’s

uncontested declarations show that he was making good faith

efforts to participate in the proceedings, and the record does

not show that he was willfully stubborn and disobedient such

that his actions constituted contumacious conduct. Shasteen, 79

Hawai‘i at 108, 899 P.2d at 391 (“[T]here is no indication in the

record that the Shasteen corporation’s failure to secure

substitute counsel, to attend the settlement conference with

counsel, or to reschedule the conference constituted

contumacious conduct . . . .”). Thus, the circuit court’s

dismissal with prejudice of Erum’s case cannot be supported on

this basis as well.

3. Actual Prejudice

As stated, actual prejudice that cannot be addressed

through a lesser sanction is also a necessary precondition to

the sound dismissal of a complaint with prejudice. Chen, 146

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Hawai‘i at 179-80, 457 P.3d at 818-19; see also Blaisdell, 125

Hawai‘i at 49, 252 P.3d at 68. If the party seeking dismissal

demonstrates that the plaintiff has deliberately delayed

prosecution of the case, that party is entitled to a presumption

of prejudice that is rebuttable upon a showing that actual

prejudice did not occur. Blaisdell, 125 Hawai‘i at 49, 252 P.3d

at 68. Although it is unnecessary to consider whether Llego

suffered actual prejudice in light of our conclusion that there

was no deliberate delay or contumacious conduct in this case, we

nevertheless address the instances of actual prejudice Llego

asserted that he suffered in order to provide guidance as to the

proper consideration of this component of the standard for

involuntary dismissal of a complaint.

Actual prejudice in this context does not mean mere

inconvenience, hardship, or expenditure imposed upon the

defendant. Actual prejudice is “[d]amage or detriment to one’s

legal rights or claims.” Prejudice, Black’s Law Dictionary 1428

(11th ed. 2019). In Anderson v. Air West, Inc., discussed by

this court in Blaisdell, the Ninth Circuit affirmed the federal

district court’s dismissal with prejudice of a plaintiff’s claim

for failure to prosecute pursuant to Federal Rules of Civil

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Procedure (FRCP) Rule 41(b) (1968).36 542 F.2d 522, 523-34 (9th

Cir. 1976). The district court in Anderson found that the

plaintiff’s failure to serve several of the named defendants

until approximately one year after the complaint had been filed

caused actual prejudice because the death of two of the

defendants six months after process was served prevented them

from contributing to the preparation of the defense. Id. at

525. “Prejudice is clear” the court stated, “because if service

had been made promptly they would have been able to participate

in the first 18 months of defense planning.” Id.

This court discussed the actual prejudice necessary to

support a dismissal with prejudice in Bagalay v. Lahaina

Restoration Foundation, 60 Haw. 125, 138, 588 P.2d 416, 425

(1978). In Bagalay, the circuit court, pursuant to RCCH Rule

12(f), dismissed the plaintiff’s claim with prejudice because of

the plaintiff’s repeated failures to submit a proper statement

of readiness. Id. at 137-38, 588 P.2d at 424-25. On appeal we

36 FRCP Rule 41(b) (2007), which has not been amended since Anderson, states as follows:

Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19-- operates as an adjudication on the merits.

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reversed the court’s dismissal, in part because the record did

not indicate that the delay caused the defendants to suffer

actual prejudice. Id. at 142, 588 P.2d at 427. Our decision

explained that although delay generally has a detrimental effect

on the preservation of evidence and the maintenance of

communication with witnesses, all parties in the case were able

to participate fully in the discovery proceedings and take

depositions of potential witnesses. Id. at 138, 588 P.2d at

425. We further observed that there was no indication in the

record that “circumstances have changed which have impaired

appellees’ ability to adequately present their defense.” Id.

Accordingly, our precedent establishes that the actual prejudice

a defendant must suffer is actual damage or detriment to the

presentation of the defense.

In his motions to dismiss before the circuit court,

Llego asserted that he suffered actual prejudice because the

delays in this case caused both him and his counsel to expend

additional time and resources. However, there were no findings

or other evidence in the record indicating that any of the

asserted additional costs imposed on Llego by the delays in this

case affected Llego’s ability to present his defense. The

incurring of additional fees and costs that have no effect on

the defendant’s ability to present a defense is not legal

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prejudice and cannot alone support a finding of actual prejudice

under Blaisdell. Thus, the record does not show that any of the

delays in this case caused Llego to suffer actual prejudice, and

there were no findings to that effect.

4. Inadequacy of Lesser Sanctions

In cases where a plaintiff’s deliberate delay or

contumacious conduct causes actual prejudice, the circuit court

is also required to consider and explain why a lesser sanction

than dismissal with prejudice could not adequately address the

actual prejudice caused by the plaintiff’s conduct. Chen, 146

Hawai‘i at 179-80, 457 P.3d at 818-19. In its Dismissal Order,

the circuit court did not address the possibility of less severe

sanctions or state any reasons why lesser sanctions could not

address any prejudice Llego may have suffered. As an

explanation for its ruling, the Dismissal Order only states that

the court reviewed the pleadings, considered the entire case

record, and heard oral argument.37 As stated, “[i]nvoluntary

dismissals of a complaint with prejudice are not favored, and

should be ordered only in extreme circumstances[.]” Blaisdell,

at 49, 252 P.3d at 68. The circuit court in this case should

37 The “argument” was held at an ex parte hearing at which only defense counsel was present.

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have expressly considered the lesser sanctions available to it

and explained why the circumstances were so extreme that a

lesser sanction could not adequately address any actual

prejudice Llego suffered.38 Id. at 50-51, 252 P.3d at 69-70.

Accordingly, the circuit court abused its discretion in granting

Llego’s oral motion to dismiss without a determination that Erum

had engaged in deliberate delay or contumacious conduct that

caused Llego actual prejudice, and the court erred by failing to

explain the inadequacy of lesser sanctions.39 Consequently, the

ICA erroneously affirmed the circuit court’s Dismissal Order.

5. The Necessity of Making Relevant Findings

We next consider whether it is appropriate for the

38 In order to address any actual prejudice caused by a plaintiff’s delay, the lesser sanction should be designed to encourage diligent prosecution of the case and, as necessary, compliance with the court’s orders. Here, because Erum’s medical condition and advanced age led to delay in the prosecution of the case, the court could have considered, for example, permitting Erum to appear at the pretrial conference by phone or video, requiring Erum to have a relative or a friend to assist him in attending court proceedings, providing Erum with information as to entities that possibly could provide him the assistance of legal counsel, or utilizing other means to provide reminder notices to Erum as to court dates. 39 The dissent concludes that dismissal was obviously the only sanction available to the court because Erum had been sanctioned five times with judgments entered in the amount of $10,946.77, and he had not satisfied these obligations prior to Llego’s oral motion to dismiss. Dissent at 19 n.10, 44-45. Although the dissent asserts that Erum was willfully refusing to pay the sanctions, there is nothing in the record to indicate that he even had the ability to pay the sanctions. Erum’s request to proceed in forma pauperis and self-representation indicate that an inability to pay is the more likely explanation. See supra note 12. Additionally, as discussed infra, in imposing monetary sanctions “Hawai‘i courts should consider the effect of sanctions upon a party’s resources in conjunction with a decision to levy sanctions.” Kaina v. Gellman, 119 Hawai‘i 324, 332–33, 197 P.3d 776, 784–85 (App. 2008).

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circuit court, as it did in this case, to dismiss a case with

prejudice without making any underlying findings of fact as to

deliberate delay or contumacious conduct, actual prejudice, and

the inadequacy of lesser sanctions. While this court has stated

that the record must clearly support an order of dismissal, we

have not expressly required the making of relevant findings.

See Blaisdell, 125 Hawai‘i at 49, 252 P.3d at 68 (“If the record

does not show the requisite facts, an order of dismissal cannot

be affirmed . . . .” (emphasis added)); see also Shasteen, 79

Hawai‘i at 107, 899 P.2d at 390 (“[D]ismissal of a complaint is

such a severe sanction, that it should be used only in extreme

circumstances where there is clear record of delay or

contumacious conduct[.]”).

However, with regard to a court’s consideration of

lesser sanctions prior to the dismissal of a case, this court

has made the rendering of findings a near-requirement. In

Blaisdell, we stated that, “the careful exercise of judicial

discretion requires that a [trial] court consider less severe

sanctions and explain, where not obvious, their inadequacy for

promoting the interests of justice.” 125 Hawai‘i at 49, 252 P.3d

at 68 (emphasis added and omitted) (alteration in original)

(quoting Schilling v. Walworth Cty. Park & Planning Comm’n, 805

F.2d 272, 275 (7th Cir. 1986)). Requiring a court to consider

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and explain the inadequacy of lesser sanctions underscores this

court’s frequent admonition that dismissal with prejudice “is

such a severe sanction that it should seldom be used.” Id.

And, in the rare situation when a dismissal may be appropriate,

a trial court must first carefully consider lesser sanctions and

explain why they are inadequate to address the circumstances of

that case. See Enos v. Pac. Transfer & Warehouse, Inc., 79

Hawai‘i 452, 458, 903 P.2d 1273, 1279 (1995) (“[S]anctions are

not to be assessed without full and fair consideration by the

court.” (quoting Simmerman v. Corino, 27 F.3d 58, 64 (3d Cir.

1994))). This is because “a dismissal with prejudice is

inconsistent with this court’s ‘policy of affording litigants

the opportunity to have their cases heard on the merits, where

possible.’” Blaisdell, 125 Hawai‘i at 51, 252 P.3d at 70.

It is noteworthy that when a court explains why lesser

sanctions will be insufficient to address the plaintiff’s errant

conduct, it will necessarily entail describing the underlying

conduct, the measures that were previously taken by the court to

address the conduct, and the measures’ lack of success in

remedying the situation. In other words, the required

explanation is nearly the functional equivalent of requiring a

court to make findings.

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Additionally, this court has recommended that orders

imposing sanctions in other contexts “set forth findings that

describe, with reasonable specificity, the perceived misconduct

(such as harassment or bad faith conduct), as well as the

appropriate sanctioning authority (e.g., HRCP Rule 11 or the

court’s inherent power).” Bank of Hawaii v. Kunimoto, 91 Hawai‘i

372, 390, 984 P.2d 1198, 1216 (1999). When an order imposing

sanctions does not follow this recommendation, the appellate

court is compelled to review the entire record for an abuse of

discretion. Fujimoto v. Au, 95 Hawai‘i 116, 153, 19 P.3d 699,

736 (2001). However, we have stated that specific findings must

be made in cases when it is warranted. See, e.g., Tagupa v.

VIPdesk, 135 Hawai‘i 468, 479, 353 P.3d 1010, 1021 (2015)

(stating that prior to a statutory award of attorneys’ fees for

a frivolous claim, the court must make a specific finding that

all or a portion of the claims made by a party are frivolous);

Fujimoto, 95 Hawai‘i at 153, 19 P.3d at 736 (“Absent a

particularized finding of bad faith, the circuit court abused

its discretion in sanctioning the plaintiffs.”); Kunimoto, 91

Hawai‘i at 389, 984 P.2d at 1215 (“It is well settled that a

court may not invoke its inherent powers to sanction an attorney

without a specific finding of bad faith.”); Kawamata Farms, Inc.

v. United Agri Prods., 86 Hawai‘i 214, 258, 948 P.2d 1055, 1099 51 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

(1997) (affirming the circuit court’s award of attorneys’ fees

because the court issued findings describing defendant’s

discovery violations in detail).

We have also stated that specific findings that

describe the perceived misconduct serve multiple important

purposes. Enos, 79 Hawai‘i at 459, 903 P.2d at 1280. First,

findings permit a more meaningful and efficient appellate review

as to whether “the trial court exercised its discretion in a

reasoned and principled fashion.” Id. Second, findings assure

the litigants, as well as the court, “that the decision was the

product of thoughtful deliberation.” Id. Finally, findings

clearly identify and explain to the sanctioned person the

conduct underlying the sanction.

The importance of these purposes is heightened in the

context of a dismissal with prejudice because the sanction is so

severe. It is thus particularly critical that the trial court’s

decision reflects informed and reasoned discretion, and that

appellate review of such a dismissal be efficacious and

meaningful. Fujimoto, 95 Hawai‘i at 153, 19 P.3d at 736 (“The

circuit court’s finding of a bad faith filing--as expressed in

its oral ruling from the bench . . . lacks specificity and,

based on our review, lacks support in the record.”). Further,

we note that the current standard requiring the appellate court,

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in the absence of specific findings, to review the entire record

for abuse of discretion and only requiring an explanation of the

inadequacy of lesser sanctions when the inadequacy is “not

obvious” impairs the efficacy of appellate review and is subject

to varied application by the trial courts.

These considerations lead us to conclude that whenever

a case is involuntarily dismissed with prejudice, the trial

court must state essential findings on the record or make

written findings as to deliberate delay or contumacious conduct

and actual prejudice and explain why a lesser sanction than

dismissal with prejudice is insufficient to serve the interests

of justice.40

40 Minimal oral or written findings will suffice when the cited rule provides the precise conduct in question that warrants dismissal and the order of dismissal or rule specifically provides the party with the ability to seek reinstatement of the case. For example, RCCH Rule 12(q) allows the court to dismiss an action sua sponte with written notice to the parties if a pretrial statement has not been filed within 8 months after the complaint has been filed or if a trial setting status conference has not been scheduled as required by RCCH Rule 12(c). “Such dismissal may be set aside and the action reinstated by order of the court for good cause shown upon motion duly filed not later than ten (10) days from the date of the order of dismissal.” RCCH Rule 12(q). If, after the entry of dismissal, the sanctioned party seeks reinstatement “for good cause shown,” it will be necessary for the court to more explicitly consider whether there was deliberate delay or contumacious conduct, and whether there is actual prejudice that cannot be addressed through lesser sanctions. See RCCH Rule 12(q); Ryan, 130 Hawai‘i at 324, 310 P.3d at 1025 (vacating the circuit court’s denial of a motion to set aside a dismissal entered under RCCH 12(q) because there was no evidence that plaintiff’s failure to submit a pretrial statement was deliberate or contumacious, and nothing in the record showed prejudice to defendant); Chen, 146 Hawai‘i at 179-80, 457 P.3d at 818-19 (holding that an HRCP Rule 55(c) motion to set aside entry of default is to be evaluated based on whether there has been a showing of good cause, and good cause exists if there was no deliberate delay or contumacious conduct causing actual prejudice that cannot

(continued. . .) 53 ***FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***

Accordingly, we hold that after the filing date of the

judgment on appeal in this case, the circuit courts must enter

findings setting forth the requisite facts underlying an

involuntary dismissal of a case with prejudice based on

procedural violations of court rules. Cf. State v. Hussein, 122

Hawai‘i 495, 510, 229 P.3d 313, 328 (2010) (holding that, after

the filing date of the judgment, circuit courts must state on

the record at the time of sentencing the reasons for imposing a

consecutive sentence).

C. The Circuit Court Should Have Considered Erum’s Emergency Motion to Reschedule Trial.

The Hawai‘i Rules of Civil Procedure “do not require

technical exactness or draw refined inferences against the

pleader; rather, they require a determined effort to understand

what the pleader is attempting to set forth and to construe the

pleading in his favor.” Giuliani v. Chuck, 1 Haw. App. 379,

385-86, 620 P.2d 733, 737-38 (1980); see also Dupree v. Hiraga,

be addressed through lesser sanctions); see also Blaisdell, 125 Hawai‘i at 49, 252 P.3d at 68 (noting that “the circuit court had authority to dismiss Blaisdell’s complaint, subject to the ten day reinstatement motion and a finding of good cause” under HRCP Rule 41(b)(2)). The dissent asserts this distinction for rules and orders of dismissal that provide an ability to seek reinstatement is confusing, Dissent at 46, but this is merely an application of the practice this court and the ICA have followed when resolving the appeal of a dismissal with prejudice under a rule that permits reinstatement. See Chen, 146 Hawai‘i at 179-80, 457 P.3d at 818-19; Ryan, 130 Hawai‘i at 324, 310 P.3d at 1025.

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121 Hawai‘i 297, 314, 219 P.3d 1084, 1101 (2009) (“[P]leadings

. . . are to be construed liberally rather than technically.”).

This is particularly true when the court is dealing with pro se

litigants, and it is well established that the pleadings of pro

se litigants should be liberally interpreted in order to promote

access to justice. Waltrip v. TS Enters., Inc., 140 Hawai‘i 226,

239-41, 398 P.3d 815, 828-30 (2016) (stating that courts and

agencies have discretion to liberally construe and

recharacterize the filings of pro se litigants in order to

promote access to justice).

In furtherance of promoting access to justice, we have

stated that “pro se filings, even when ‘misbranded,’ should be

reasonably construed in a manner that ‘results in identifying a

route to relief, not in rendering relief impossible.’”41 Id. at

241, 398 P.3d at 830 (quoting Mata v. Lynch, 576 U.S. 143, 151

(2015)). Thus, a court abuses its discretion if it construes a

filing by a pro se litigant in a manner that prevents the 41 Although Erum has been pro se throughout these proceedings, the dissent argues that Erum has no right to have his filings liberally construed because he is “a litigation-savvy retired attorney.” Dissent at 53. The record indicates that Erum became licensed to practice law in California in 1968 after passing the bar, but that he never attended law school and does not possess a law degree. Erum practiced law as a sole practitioner for three and a half years before returning to Hawai‘i to care for his parents. After returning in 1972, there is no indication he has practiced law at any time in the past forty-eight years. The dissent’s characterization of Erum as a “litigation-savvy retired attorney” does not present an accurate reflection of his background.

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litigant from proceeding when a reasonable, liberal construction

of the document would permit the litigant to do so.42 See id. at

239, 398 P.3d at 828.

In this case, after the court had granted Llego’s oral

motion to dismiss and taken the trial off calendar, Erum filed

an emergency motion requesting a continuance so that the court

would have time to consider Llego’s motion to dismiss and Erum

would have time to respond. In his emergency motion, which Erum

apparently prepared after he became aware that Llego had

“presented to the Court for its approval and signature a

proposed order to dismiss this action,” Erum contended that

Llego’s motion to dismiss should have been made in writing and

that he should be allowed sufficient time to respond. Although

the motion was framed as a motion to continue, the court should

have made a determined effort to understand what Erum was

attempting to set forth and to liberally construe the pleading

42 The dissent contends that we are broadening this court’s holding in Waltrip. Dissent at 51-52. A close reading of the case indicates otherwise. In Waltrip, this court concluded that Hawai‘i courts and agencies have discretion to reasonably construe the filings of pro se litigants in order to promote access to justice. Waltrip, 140 Hawai‘i at 239-41, 398 P.3d at 828-30. We determined that the agency in that case had construed a filing by the pro se litigant in a manner that prevented the litigant from proceeding, even though a reasonable, liberal construction of the filing would have permitted the litigant to do so. Id. at 241, 398 P.3d at 830. We then held that the agency’s failure to recharacterize the filing required remanding the case to the agency so that it could properly dispose of the pro se litigant’s filing in a way that facilitated the litigant’s access to relief. Id.

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in a manner that did not foreclose the possibility of relief.43

Waltrip, 140 Hawai‘i at 241, 398 P.3d at 830. This obligation

was underscored by the fact that the court’s denial of Erum’s

emergency motion extinguished the possibility of recovery on

Erum’s claim. See Villaver v. Sylva, 145 Hawai‘i 29, 36, 445

P.3d 701, 708 (2019) (finding that a pro se litigant’s request

for an interpreter 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). Had the circuit court done so in this case, the court

might have considered the merits of the emergency motion, which

pointed to both procedural and substantive deficiencies

underlying the granting of the dismissal motion. Instead, the

court denied Erum’s motion without a hearing and failed to

construe Erum’s emergency motion in a reasonable, liberal

43 The dissent posits that the circuit court in fact did consider Erum’s emergency motion, and there was no reasonable construction of the motion that would permit Erum to proceed. Dissent at 50. Under this hypothesis, the circuit court recognized the writing requirement of HRCP Rule 7(b)(1), the due process implications of granting Llego’s motion ex parte, see supra note 20, and its failure to comply with applicable law, and yet still denied Erum’s emergency motion and upheld the granting of Llego’s oral motion to dismiss. Manifestly, such a ruling would have been an abuse of discretion because it would have been based on an incorrect application of the law. Gap v. Puna Geothermal Venture, 106 Hawai‘i 325, 331, 104 P.3d 912, 918 (2004) (“The trial court abuses its discretion if it bases its ruling on an erroneous view of the law[.]”).

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manner, which would have allowed reinstatement of the case and

permitted Erum to proceed on his claim.44 Waltrip, 140 Hawai‘i at

241, 398 P.3d at 830.

D. The Circuit Court Awarded Monetary Sanctions Without Citing the Authority Underlying the Sanctions or Making Findings of Bad Faith.45

In affirming the Order of Dismissal in this case, the

ICA pointed to the fact that the circuit court had “awarded

monetary sanctions against Erum five times” prior to dismissing

the case. By citing the monetary sanction orders, the ICA

indicated that the Dismissal Order was justified at least in

part because of the previous sanctions the circuit court had

imposed on Erum. In light of the ICA’s reliance on the monetary

sanction orders as support for its affirmance, and the

possibility of their future consideration on remand, it is

appropriate to review our precedent in this area.

It is settled law that the trial courts of this state

are empowered in appropriate circumstances to impose monetary

sanctions on a party during the course of litigation. Kunimoto,

44 In view of our disposition of other issues in this case, we do not address whether the court’s failure to construe Erum’s Emergency Motion liberally would also warrant vacating the Dismissal Order. 45 Because this case is being remanded to the circuit court for further proceedings, we provide guidance to the court with regard to the monetary sanctions that have been imposed.

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91 Hawai‘i at 387, 984 P.2d at 1213. Such sanctions may be

imposed under the authority of either a statute, a rule, or the

court’s own inherent power. Id. The sanctioning order should

set forth findings that describe the perceived misconduct with

reasonable specificity, and it must state the sanctioning

authority. Trs. of Estate of Bishop v. Au, No. SCWC-XX-XXXXXXX,

2020 WL 1150157 (Haw. March 10, 2020); Kaina v. Gellman, 119

Hawai‘i 324, 331, 197 P.3d 776, 783 (App. 2008) (“[T]he court’s

order must inform the party of the authority pursuant to which

he or she is to be sanctioned.” (citing Fujimoto, 95 Hawai‘i at

153, 19 P.3d at 736)). When the sanction order does not state

the authority pursuant to which the sanction is imposed, the

appellate court’s ability to review the sanction is hindered.

This is because the appellate court is forced to speculate as to

the authority for the monetary sanction and consider whether the

sanction’s imposition was proper under any potentially

applicable rules or statutes, or even inherent authority, to

determine whether the sanction should be affirmed. See Enos, 79

Hawai‘i at 457-60, 903 P.2d at 1278-81 (considering whether the

circuit court’s imposition of a sanction should be affirmed

under its inherent authority after finding it was not proper

under HRCP Rule 11, which was the stated basis); Wong v. Frank,

9 Haw. App. 249, 261, 833 P.2d 85, 93 (1992) (vacating and

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remanding sanction order where circuit court did not specify the

authority for sanction after determining that regardless of

whether the sanction was imposed under the circuit court rules

or the court’s inherent power, the sanction violated appellant’s

rights to notice and hearing).

In this case, the circuit court imposed five monetary

sanctions against Erum for the costs and attorneys’ fees

incurred by Llego at various points during the course of

litigation. None of the sanction orders recited the legal

authority for the imposition of the sanction. While a trial

court has the inherent power to curb abuses and promote a fair

process, including the power to impose sanctions in the form of

attorneys’ fees for abusive litigation practices, the court must

exercise its inherent power to impose sanctions “with restraint

and discretion.” Kunimoto, 91 Hawai‘i at 387, 984 P.2d at 1213.

In recognition of the need for such restraint, this court

requires a particularized showing of bad faith as a necessary

condition precedent to any sanction of attorneys’ fees under the

court’s inherent powers. Id. at 389, 984 P.2d at 1215; Enos, 79

Hawai‘i at 458–59, 903 P.2d at 1279–80. Additionally, the

finding of bad faith must be supported by clear and convincing

evidence. Kunimoto, 91 Hawai‘i at 390-93, 984 P.2d at 1216-19

(applying clear and convincing evidence standard to imposition

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of sanctions based on finding of bad faith); LaPeter v. LaPeter,

144 Hawai‘i 295, 309, 439 P.3d 247, 261 (App. 2019) (“[T]he

court’s finding of bad faith must be based on clear and

convincing evidence.”).

Here, none of the sanction orders contain a finding

that Erum acted in bad faith. The only reference to Erum’s good

or bad faith was the court’s finding that Erum’s “actions in the

settlement negotiations were not made in good faith.” Our

cases, however, have consistently held that the circuit court

must find bad faith before imposing an award of attorneys’ fees

pursuant to the court’s inherent authority. See, e.g., Gap v.

Puna Geothermal Venture, 106 Hawai‘i 325, 334, 104 P.3d 912, 921

(2004). A lack of good faith is not tantamount to acting in bad

faith, and the court’s conclusory statement in this case is

unsupported by any findings as to the basis of its conclusion.

Cf. Kunimoto, 91 Hawai‘i at 390, 984 P.2d at 1216 (“[T]hese

findings are sufficient to enable this court to infer a specific

finding of bad faith by the circuit court.”). In addition,

there is no basis to conclude that this sanction is supported by

clear and convincing evidence.

Further, none of the sanction orders make any findings

related to the reasonableness of Llego’s fees and costs. The

record does not disclose whether the fees and costs awarded were

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reasonable under the circumstances.46 Manifestly, it would be

inappropriate for the circuit court to award attorneys’ fees and

costs that were unreasonably incurred under its inherent

authority. Cf. HRCP Rule 16(f) (allowing the court to sanction

a party for “the reasonable expenses incurred because of any

noncompliance with this rule, including attorney’s fees, unless

the judge finds that the noncompliance was substantially

justified or that other circumstances make an award of expenses

unjust” (emphasis added)); RCCH Rule 12.1(a)(6)(ii) (permitting

the court to order a party to pay the opposing party’s

reasonable expenses and attorneys’ fees).

In determining reasonableness as to the assessment of

fees, “Hawai‘i courts should consider the effect of sanctions

upon a party’s resources in conjunction with a decision to levy

46 For example, the record does not show that, before filing his first motion to dismiss, Llego made an effort to informally resolve Erum’s failure to timely file a pretrial statement, as the Guidelines of Professional Courtesy and Civility for Hawai‘i Lawyers recommend. See Guidelines of Professional Courtesy and Civility for Hawai‘i Lawyers Rule 8(a) (2018) (“Motions should be filed sparingly, only in good faith and when the issue cannot be otherwise resolved. Specifically, a lawyer who manifests professional courtesy and civility . . . [e]ngages in more than a mere pro forma effort to resolve the issue before filing a motion[.]” (emphases added)). Erum promptly filed his pretrial statement just nine days after Llego’s motion to dismiss was filed, and he stated in a declaration attached to his opposition to Llego’s motion that he only became aware of his error after Llego’s motion to dismiss was filed. From the record, it appears that the costs and fees incurred in making the first motion to dismiss, which defense counsel averred to be in the total amount of $3,280.19, may have been avoided if an effort had been made to resolve the issue without resorting to the filing of a motion to dismiss.

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sanctions[.]” Kaina, 119 Hawai‘i at 332–33, 197 P.3d at 784–85.

In Kaina, a wrongful death case, the trial court sanctioned the

plaintiff for the defendants’ attorneys’ fees and costs incurred

in defending a renewed motion for consolidation.47 Id. at 327-

28, 197 P.3d at 779-80. As in this case, the sanction order did

not state the authority under which the sanction was imposed.

Id. at 328-29, 197 P.3d at 780-81. On appeal, the ICA reversed

the sanction order after concluding that the record did not show

that Kaina acted in bad faith in making the motion and that an

imposition of sanctions against Kaina under HRCP Rule 11 would

have been improper. Id. at 330-33, 197 P.3d at 782-85.

Additionally, the ICA noted that the circuit court had given no

consideration to the effect of the sanction on Kaina’s

resources. Id. at 332, 197 P.3d at 784. Kaina’s uncontested

declaration indicated that she was totally disabled, the sole

provider for her own financial support, and lived on social

security disability and a small pension. Id. The ICA stated

that although a party’s resources, or lack thereof, is not a

complete bar to the award of sanctions when sanctions are

warranted, the court should take into account the effect of

47 The circuit court had previously bifurcated Kaina’s claims against the defendants into two separate trials. Kaina, 119 Hawai‘i at 326, 197 P.3d at 778.

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sanctions upon a party’s resources when considering the

imposition of sanctions. Id. at 332-34, 197 P.3d at 784-85.

In this case, the record does not provide any

indication that the circuit court considered Erum’s resources or

what effect the imposition of sanctions would have upon him if

monetary sanctions were awarded. Although it is unclear from

the record what facts were before the court as to Erum’s

resources at the time any of the sanctions were imposed, Erum

was pro se throughout the proceedings, and at minimum the court

was aware that Erum was involved in bankruptcy proceedings by

March of 2017. In any event, at this time there is “other

evidence pertinent to the issue” in the record,48 and the circuit

court may properly consider Erum’s resources on remand. Kaina,

119 Hawai‘i at 333, 197 P.3d at 776.

In light of our disposition vacating the Dismissal

Order and remanding this case to the circuit court, and because

the deficiencies in the record seriously impede our ability to

review the sanctions awarded in this case, we vacate the

monetary sanctions awarded against Erum.49 See Fuqua Homes, Inc.

48 See supra note 12. 49 Although this court has in the past considered potentially applicable authority for a sanction imposed by a trial court and then determined whether the authority could support the sanction’s affirmance, we conclude that it is unnecessary to engage in conjectural analysis because the

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v. Beattie, 388 F.3d 618, 623 (8th Cir. 2004) (vacating and

remanding the district court’s sanctioning order because the

court’s failure to identify the sanctioning authority made it

“impossible to review the district court’s order”). On remand

the circuit court may reconsider the sanctions awarded and, if

warranted, enter appropriate sanction orders that comply with

the requirements outlined in this opinion.

IV. CONCLUSION

Accordingly, we vacate the ICA’s Judgment on Appeal

entered on June 28, 2019, the circuit court judgment, the

Dismissal Order, and the monetary sanction orders. The case is

Dismissal Order is being vacated and the case is being remanded to the circuit court. Cf. Enos, 79 Hawai‘i at 457-60, 903 P.2d at 1278-81. Additionally, we note that some federal appellate courts, when presented with the appeal of sanctioning orders that do not state the authority pursuant to which the sanction was imposed, have rejected conjectural analysis and instead automatically vacate the sanction and remand the case to the district court “for specification of the authority on which the [district] court relied for imposing sanction and the particular conduct meriting such sanctions.” Coltrade Int’l, Inc. v. United States, 973 F.2d 128, 132 (2d Cir. 1992) (vacating and remanding a district court’s order imposing sanctions because although the record made it “abundantly clear” sanctions were justified, the district court failed to identify the sanctioning authority); see also Beattie, 388 F.3d at 623.

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remanded to the circuit court for proceedings consistent with

this opinion.

Theodorico Erum, Jr., /s/ Sabrina S. McKenna petitioner, pro se /s/ Richard W. Pollack Lisa Strandtman, Jason M. Tani, Shawn M. Nakoa, /s/ Michael D. Wilson for respondent