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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 30-APR-2026 08:33 AM Dkt. 96 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
LINDA WILSON, on behalf of the Estate of TITUS WILSON, Plaintiff-Appellant, v. PALI MOMI MEDICAL CENTER, a Hawaii Domestic Nonprofit Corporation; THOMAS W. POLLARD, D.O.; NATALIE KITAMURA, APRN, Defendants-Appellees, and DOES 1-10, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CC161001725)
SUMMARY DISPOSITION ORDER (By: Nakasone, Chief Judge, Leonard and McCullen, JJ.)
Plaintiff-Appellant Linda Wilson, on behalf of the
Estate of Titus Wilson (together, the Estate), appeals from the NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Circuit Court of the First Circuit's July 17, 2023 Final
Judgment and various underlying orders. 1
On appeal, the Estate raises four points of error,
challenging the circuit court's (1) partial grant of its motion
to compel; (2) denial of its request for a Hawaiʻi Rules of Civil
Procedure (HRCP) Rule 56(f) continuance; (3) grant of Defendant-
Appellee Pali Momi Medical Center's motion for summary
judgment; and (4) exclusion of evidence as related to Linda's
Intentional Infliction of Emotional Distress (IIED) claim.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
1 The Honorable Gary W.B. Chang presided. The Estate appeals from the following underlying orders:
1. March 19, 2020 "Order Granting Defendant Pali Momi Medical Center's Motion for Summary Judgment Re Medical Negligence, Vicarious Liability and Informed Consent, Filed January 16, 2020";
2. August 4, 2020 "Order Denying with Prejudice 'Plaintiff's Motion for Reconsideration of the Order Granting Defendant Pali Momi Medical Center's Motion for Summary Judgment Re Medical Negligence, Vicarious Liability and Informed Consent, Filed January 16, 2020, Filed on March 19, 2020,' Which Motion Was Filed on April 6, 2020";
3. April 6, 2021 "Order Granting, in Part, and Denying, in Part, Defendant Pali Momi Medical Center's Motion for Fees and Costs, Filed January 6, 2021";
4. October 11, 2021 "Order Denying Plaintiffs' Motion to Admit Joseph A. Yanny, Esq. Pro Hac Vice, Filed 6/30/21 [DOC. 935]"; and
5. March 19, 2020 "Order Granting in Part and Denying in Part Defendants Thomas W. Pollard, D.O. and Natalie Kitamura, APRN's Motion for Partial Summary Judgment, Filed 1/17/20."
(Formatting altered.)
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the issues raised and the arguments advanced, we resolve the
points of error as discussed below and affirm.
In September 2016, Linda (self-represented) sued Pali
Momi, as well as Defendants Thomas Pollard, D.O. (Dr. Pollard),
Natalie Kitamura, APRN (Nurse Kitamura), and the Board of
Directors for Hawaiʻi Pacific Health. 2 In her complaint, Linda
asserted Negligence, Malpractice, and Wrongful Death/Vicarious
Liability claims.
According to Linda's complaint, her twenty-three-year-
old son, Titus Wilson, had a complicated medical history, was
admitted to Pali Momi in June 2014, and died of septic shock.
Although not named as parties or mentioned in her
complaint, other doctors involved in Titus's care were Ky Le,
M.D. (Dr. Le); John Kao, M.D. (Dr. Kao); and Abhijeet Koli, M.D.
(Dr. Koli).
Over a year later, in October 2017, Richard Gronna,
Esq., and Jonathan E. Burge, Esq., entered their appearance as
the Estate's attorneys. A jury trial was initially set for
August 2019.
In June 2018, Attorneys Gronna and Burge moved to
withdraw, which was granted. In the order granting the motion
2 In February 2020, the parties stipulated to dismiss the Board of Directors. As mentioned below, the Estate and Linda settled with Dr. Pollard and Nurse Kitamura in December 2022 and stipulated to dismiss Dr. Pollard and Nurse Kitamura in June 2023. Thus, this appeal only involves the Estate's claims against Pali Momi.
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to withdraw, the circuit court stated that "the Estate must be
represented by an individual who is licensed to practice law in
Hawaii or otherwise privileged to practice law in Hawaii."
In September 2018, Dr. Pollard and Nurse Kitamura
moved for judgment on the pleadings, as there was no attorney
representing the Estate. Pali Momi joined. The circuit court
denied the motion but reiterated that the Estate must be
represented by a licensed attorney.
In February 2019, William C. McCorriston, Esq., and
Jesse J.T. Smith, Esq., from McCorriston Miller Mukai MacKinnon
LLP (McCorriston Firm), entered their appearance as the Estate's
attorneys. With trial six months away, the Estate moved to
continue trial and all pretrial deadlines. Over the other
parties' objections, the circuit court continued trial to March
2020. Discovery cut-off was January 9, 2020. 3
In July 2019, the Estate moved for leave to amend
Linda's complaint, which the circuit court granted "with respect
to the claim for [IIED] which is being alleged by [Linda] in her
individual capacity against Dr. Pollard and Nurse Kitamura
only."
3 Certain deadlines were extended by stipulation for deposing certain doctors.
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On December 30, 2019, the Estate noticed Pali Momi's
deposition under HRCP Rule 30(b)(6) 4 for nineteen various areas
of inquiry. On January 9, 2020, Pali Momi moved "for a
protective order to preclude the depositions of the 30(b)(6)
designee(s)" as being irrelevant, overbroad, and in excess of
the Estate's deposition limit.
On January 16, 2020, seven days after discovery cut-
off, Pali Momi moved for summary judgment on the Estate's claims
of Medical Negligence, Vicarious Liability, and Informed
Consent. Also in January 2020, Dr. Pollard and Nurse Kitamura
moved for partial summary judgment on various claims, including
Linda's IIED claim, which Pali Momi joined.
On February 6, the Estate moved to compel Pali Momi's
HRCP Rule 30(b)(6) deposition as well as to produce documents it
requested on November 20, 2019.
4 HRCP Rule 30(b)(6) provides as follows:
A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these Rules.
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On February 28, the circuit court verbally granted
Dr. Pollard and Nurse Kitamura's motion for summary judgment as
to IIED after excluding evidence related to that claim and
entered its written order on March 19. On March 3, the circuit
court verbally granted Pali Momi's motion for summary judgment
as to Medical Negligence, Vicarious Liability, and Informed
Consent and entered its written order on March 19.
On March 4, the circuit court granted Pali Momi's
motion for a protective order to preclude the deposition of the
HRCP Rule 30(b)(6) designee(s). The circuit court also
partially granted the Estate's motion to compel production of
Pali Momi's policies and procedures, limiting production to the
policies on informed consent, prescription medication, treatment
plan, and hospitalization.
On March 11, trial commenced against Dr. Pollard and
Nurse Kitamura. Six days later, the circuit court suspended
trial due to the COVID-19 pandemic; it ultimately declared a
mistrial and released the jurors.
On April 6, the Estate moved for reconsideration of
the order granting Pali Momi's motion for summary judgment
regarding Medical Negligence, Vicarious Liability, and Informed
Consent, which the circuit court denied.
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A year later, in April 2021, the McCorriston Firm
withdrew; Attorney Smith (formerly of the McCorriston Firm, now
affiliated with Yamamoto Caliboso, LLLC) appeared.
By June 2023, Linda and the Estate reached a
settlement with Dr. Pollard and Nurse Kitamura and stipulated to
dismiss the case against them.
As to Pali Momi, the circuit court entered its final
judgment in favor of Pali Momi and against the Estate. Final
judgment was also entered against Linda on her IIED claim. The
Estate (and Linda) timely appealed.
(1) First, the Estate contends the circuit court
"erred when it partially granted [the Estate's] Motion to
Compel, granting documentary evidence but not allowing
additional discovery." (Formatting altered.)
In its points of error, the Estate sets forth the
background as to its motion to compel. The Estate then states
that, "[a]lthough [its] counsel never specifically raised it,
the deposition was also necessary under [HRCP] Rule 56(f) to
properly respond to" Pali Momi's motion for summary judgment,
"which the court had already granted the day before," and "the
court abused its discretion when it did not allow [the Estate]
additional discovery based upon the compelled documents and its
denial of the deposition severely prejudiced [the Estate]."
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The Estate, however, presents no argument to support
these conclusory statements. See Hawaiʻi Rules of Appellate
Procedure (HRAP) Rule 28(b)(7) (requiring an "argument,
containing the contentions of the appellant on the points
presented and the reasons therefor, with citations to the
authorities, statutes and parts of the record relied on").
A circuit court abuses its discretion when it
disregards rules or principles of law to a party's substantial
detriment. Dela Cruz v. Quemado, 141 Hawaiʻi 338, 344, 409 P.3d
742, 748 (2018) (quoting Shanghai Inv. Co. v. Alteka Co., 92
Hawaiʻi 482, 491-92, 993 P.2d 516, 525-26 (2000)). But the
Estate does not provide reasons and citations to authorities
showing the circuit court disregarded rules or principles of
law. See Hawaii Ventures, LLC v. Otaka, Inc., 114 Hawaiʻi 438,
496, 164 P.3d 696, 754 (2007) (explaining where the appellant
does not provide this court with reasons why the circuit court
erred, the appellant's argument must fail).
Thus, we consider this argument waived. See HRAP
Rule 28(b)(7) ("Points not argued may be deemed waived.").
(2) Next, the Estate contends the circuit court
"erred when it did not grant [an HRCP] 56(f) continuance prior
to ruling on [Pali Momi's] Summary Judgment Motion."
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HRCP Rule 56(f) allows for a continuance if the
opposing party's affidavits show that a continuance will help
enable the opposing party, by discovery or other means, to
establish specific facts showing a genuine issue for trial:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
HRCP Rule 56(f) (emphasis added); see generally Acoba v. Gen.
Tire, Inc., 92 Hawaiʻi 1, 9-10, 986 P.2d 288, 296-97 (1999)
(explaining the request for continuance "must demonstrate how
postponement of a ruling on the motion will enable [the party],
by discovery or other means, to rebut the movants' showing of
absence of a genuine issue of fact" (citation modified)).
"A trial court's decision to deny a request for a
continuance pursuant to HRCP Rule 56(f) . . . will not be
reversed absent an abuse of discretion." Acoba, 92 Hawaiʻi at 9,
986 P.2d at 296.
The Estate's memorandum in opposition argued that Pali
Momi was vicariously liable under the doctrines of respondeat
superior or apparent authority for the medical negligence of
various medical personnel involved in Titus's care. The Estate
attached three declarations to its memorandum in opposition to
Pali Momi's motion for summary judgment — one from Attorney
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Smith, another from Linda herself, and the third from the
Estate's expert, Andrew Nett, M.D. None of these declarations
explained why postponement of the circuit court's ruling would
assist the Estate in showing there was a genuine issue of
material fact as to Pali Momi's vicarious liability. Although
Attorney Smith's declaration referenced his attempts to acquire
Pali Momi's policies and procedures, there was no explanation in
his declaration as to how acquiring Pali Momi's policies and
procedures would rebut Pali Momi's showing of no genuine issue
of material fact.
Where the declarations attached to the Estate's
memorandum in opposition failed to explain how a continuance
would allow it to rebut Pali Momi's motion for summary judgment,
the circuit court did not disregard rules or principles of law
and, thus, did not abuse its discretion.
(3) Third, the Estate contends it "presented
evidence, at both the opposition to the Motion for Summary
Judgment, and the Motion to Reconsider the Motion for Summary
Judgment which raised material issues of fact." (Formatting
altered.) The Estate argues that Pali Momi was vicariously
liable, advancing the theories of respondeat superior and
apparent authority.
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(a) Respondeat Superior
In its points of error, the Estate contends it
presented evidence showing Pali Momi was liable under respondeat
superior.
Block-quoting from its memorandum in opposition to
Pali Momi's motion for summary judgment, the Estate points out
that Dr. Kao and Dr. Koli were employed by Pali Momi or Hawaiʻi
Pacific Health at the time Titus was treated. The Estate then
asserts that Dr. Kao and Dr. Koli "appear to have failed to have
adequately reviewed Titus's hospital records to Titus's
detriment." The Estate relies on the "common knowledge"
exception to the requirement that expert medical testimony be
used to establish negligence in medical malpractice actions.
We pause to note that the Estate makes no argument on
appeal that Pali Momi was vicariously liable under the theory of
respondeat superior for Dr. Pollard or Nurse Kitamura.
We review the circuit court's grant of summary
judgment de novo. Dairy Rd. Partners v. Island Ins. Co., 92
Hawaiʻi 398, 411, 992 P.2d 93, 106 (2000) (quoting Amfac, Inc. v.
Waikiki Beachcomber Inv. Co., 74 Haw. 85, 104, 839 P.2d 10, 22
(1992)). "Only with the satisfaction of [an] initial showing
does the burden shift to the nonmoving party to respond by
affidavits or as otherwise provided in HRCP Rule 56, setting
forth specific facts showing that there is a genuine issue for 11 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
trial." Kondaur Cap. Corp. v. Matsuyoshi, 136 Hawaiʻi 227, 240-
41, 361 P.3d 454, 467-68 (2015) (citation modified).
Under respondeat superior, "an employer may be liable
for the negligent acts of its employees that occur within the
scope of their employment." Wong-Leong v. Hawaiian Indep.
Refinery, Inc., 76 Hawaiʻi 433, 438, 879 P.2d 538, 543 (1994).
"It is well settled that in medical malpractice
actions, the question of negligence must be decided by reference
to relevant medical standards of care for which the plaintiff
carries the burden of proving through expert medical testimony."
Craft v. Peebles, 78 Hawaiʻi 287, 298, 893 P.2d 138, 149 (1995).
"The standard of care to which a doctor has failed to adhere
must be established by expert testimony because a jury generally
lacks the requisite special knowledge, technical training, and
background to be able to determine the applicable standard
without assistance of an expert." Id. (citation modified).
An exception is the "common knowledge" exception,
which "provides that certain medical situations present routine
or non-complex matters wherein [lay persons are] capable of
supplanting the applicable standard of care from [their] 'common
knowledge' or ordinary experience." Id. For example, leaving a
sponge in a patient or removing the wrong body part. Id.
(quoting Medina v. Figuered, 3 Haw. App. 186, 188, 647 P.2d 292,
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294 (App. 1982)). "This exception, however, is rare in
application." Id.
In its complaint, the Estate did not claim that Pali
Momi was vicariously liable for Dr. Kao and Dr. Koli's actions.
Nonetheless, even if we were to liberally interpret the self-
represented complaint and its amendment and assume Pali Momi was
on notice for being vicariously liable for Dr. Kao and
Dr. Koli's alleged inadequate review of Titus's hospital
records, such an assertion necessarily requires reference to
medical standards for what is adequate in reviewing hospital
records. In any event, as discussed infra, the record also
reflects that the policies subsequently obtained by the Estate
were ultimately ruled inadmissible because they were not
comprehensible to a lay juror without the aid of an expert.
Determining the adequacy of a doctor's review of a
hospital record requires an understanding of the hospital
record's contents. Hospital records contain medical terms and
procedures. "[S]pecial knowledge, technical training, and
background" are required to understand that information and
whether it was significant to Titus's treatment. See Craft, 78
Hawaiʻi at 298, 300-01, 893 P.2d at 149, 151-52 (holding that the
manufacturer's "package inserts alone, without supporting expert
testimony, are insufficient to establish a standard of care").
Thus, the adequacy of a doctor's review of this information,
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which is the Estate's challenge, is not within a lay person's
common knowledge. See id.
We decline to apply the common knowledge exception
under these circumstances. As such, the circuit court did not
err in granting summary judgment as to the Estate's claim that
Pali Momi was vicariously liable under the theory of respondeat
superior for Dr. Kao and Dr. Koli's alleged inadequate review of
the hospital records.
(b) Apparent Authority
In its points of error, the Estate asserts that it
presented evidence showing Pali Momi was liable for the actions
of Dr. Pollard, Nurse Kitamura, and Dr. Le under the theory of
apparent authority. The Estate's entire apparent authority
argument is as follows:
Evidence was also submitted, that in the best light to the plaintiff, that the Doctors and Nurses who worked on [Titus] appeared to have apparent authority to act on behalf of [Pali Momi]. See #458 at 2-3 and #458 at 8-12. Evidence also established that [Pali Momi] had apparent authority over Dr. Le. See #458 at 12-13.
The Estate's argument is conclusory. See HRAP
Rule 28(b)(7). And to the extent the Estate attempts to
incorporate arguments made in its opposition to Pali Momi's
motion for summary judgment by simply citing to docket and page
numbers, incorporation by reference is improper here. Kapiolani
Com. Ctr. v. A&S P'ship, 68 Haw. 580, 584, 723 P.2d 181, 184-85
(1986) ("[C]ross-appellant, in violation of our 35-page
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limitation set forth in HRAP Rule 28(a), attempts to incorporate
by reference in its brief, the arguments made before the trial
court. Since this is in violation of our rules, we will
disregard those points.").
Thus, we consider the Estate's apparent authority
argument waived. See id. Relatedly, the Estate argues that if
Pali Momi is liable for the medical negligence of Dr. Pollard
and Nurse Kitamura, Pali Momi had a duty of informed consent. 5
Because we consider the Estate's apparent authority argument
waived, we do not reach the issue of informed consent.
(c) Motion for Reconsideration
In its motion for reconsideration, the Estate argued
that "[n]ew evidence, which could not have been adequately
reviewed prior to the filing of [its] memorandum in opposition
to the [motion for summary judgment] or were produced after the
Court's oral finding on the [motion for summary judgment], have
brought to light genuine issues of material fact that support a
denial of the [motion for summary judgment]."
"The purpose of a motion for reconsideration is to
allow the parties to present new evidence and/or arguments that
could not have been presented during the earlier adjudicated
5 "According to Hawaii law, physicians, and not hospitals, are required to obtain the informed consent of patients." Bynum v. Magno, 125 F. Supp. 2d 1249, 1267 (D. Haw. 2000).
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motion." Amfac, 74 Haw. at 114, 839 P.2d at 27. The denial of
a motion for reconsideration is reviewed for an abuse of
discretion. Id. at 114, 839 P.2d at 26.
Specifically, the Estate pointed to learning that
Nurse Kitamura was an employee of Pali Momi, "which raised a
genuine issue of material fact with regard to whether [Pali
Momi] was vicariously liable for Nurse Kitamura's negligence."
On this point, the circuit court found that Nurse
Kitamura was employed by both Pali Momi and Dr. Pollard, but the
"material fact [was] which employer had control over [Nurse]
Kitamura's treatment of Titus Wilson." To that, the circuit
court also found that, "[o]n the question of control over
[Nurse] Kitamura at the times that she treated Titus Wilson,
there is no genuine issue of material fact. The record shows
that only [Dr.] Pollard had control over [Nurse] Kitamura during
the treatment of Titus Wilson." The circuit court thus
determined there was no basis to reconsider its summary judgment
ruling based on the doctrine of respondeat superior.
In its opening brief, the Estate does not identify
evidence in the record that shows Pali Momi exerted any control
over Nurse Kitamura as to Titus's treatment or that shows the
circuit court's determination that this material fact was not
disputed, was wrong. See Lanai Co. v. Land Use Comm'n, 105
Hawaiʻi 296, 309 n.31, 97 P.3d 372, 385 n.31 (2004) ("This court
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is not obligated to sift through the voluminous record to verify
an appellant's inadequately documented contentions.").
In its motion for reconsideration, the Estate also
pointed to the production of certain Pali Momi policies and
procedures after the granting of summary judgment, which "raise
a genuine issue of material fact as to whether [Pali Momi]
exerted control over Dr. Pollard and Nurse Kitamura such that it
is vicariously liable for their negligence and whether [Pali
Momi] impliedly granted these healthcare providers authority to
act on its behalf."
The circuit court found that Pali Momi's policies and
procedures were "not readily understandable to the average
juror," as they involved "concepts of medical treatment, the
manner in which health care providers' business practices dove
tail with sophisticated hospital organizations." The Estate had
not "named an expert witness to testify as to the interpretation
of [Pali Momi]'s policies and procedures." The circuit court
concluded that "there are no genuine issues of material fact
with regard to whether [Pali Momi] can be held liable based on
its policies and procedures."
In the argument section of its opening brief, the
Estate argues the "policy and procedures showed, in plain
language that did not need an expert, that there was a material
fact as to whether [Pali Momi], had enough control over the
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medical personnel treating" Titus. But the Estate does not
expressly identify the policies and procedures on which it
relies or explain why the policies and procedures on which it
relies are understandable to lay persons.
As such, we cannot say the circuit court's findings
were clearly erroneous or that the circuit court abused its
discretion in denying the Estate's motion for reconsideration.
(4) Finally, the Estate contends the circuit court
"erred when it denied Dr. Pollard and Nurse Kitamura's Motion
for Partial Summary Judgment and the [IIED] count, but then
ruled that the Statements, which it ruled would in the light
most favorable to [Linda] create emotional distress were more
prejudicial than probative and dismissed the count anyway."
The IIED claim against Pali Momi is premised on
whether Pali Momi is vicariously liable for Dr. Pollard and
Nurse Kitamura's actions. But, as discussed above, we affirm
the circuit court's granting of Pali Momi's motion for summary
judgment, which included Linda's claim that Pali Momi was
vicariously liable for Dr. Pollard and Nurse Kitamura's actions.
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As such, the circuit court did not err in dismissing the IIED
claim, albeit on different grounds.
Based on the foregoing, we affirm the circuit court's
July 17, 2023 Final Judgment.
DATED: Honolulu, Hawaiʻi, April 30, 2026.
On the briefs: /s/ Karen T. Nakasone Chief Judge Jonathan E. Burge, for Plaintiff-Appellant. /s/ Katherine G. Leonard Associate Judge Gail Y. Cosgrove, Deirdre Marie-Iha, /s/ Sonja M.P. McCullen Maegan A. Ruggles, Associate Judge Lindsey N. Barrios, (Goodsill Anderson Quinn & Stifel), for Defendant-Appellee.