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Ryan v. Palmer

Intermediate Court of Appeals of Hawaii

August 20, 2013

KAREN RYAN, Plaintiff/Appellant,
v.
TERRENCE D. PALMER, MARY LYNNE BOLAND, KAHANA MANOR AOAO, Defendants/Cross-Claim Defendants/Appellees, ALPHA EXECUTIVE SECURITY, INC., LOWSON AND ASSOCIATES, Defendants/Cross-Claim Plaintiffs/Cross-Claim Defendants/Appellees, JOHN DOES 1-5, JANE DOES 1-5, DOE CORPORATIONS 1-5, DOE PARTNERSHIPS 1-5, DOE ENTITIES 1-5, AND DOE GOVERNMENTAL UNITS 1-5, Defendants/Appellees

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CIVIL NO. 10-1-0791(1))

On the briefs:

Matthew S. Kohm for Plaintiff-Appellant Karen Ryan.

Sidney K. Ayabe Ryan I. Inouye (Ayabe, Chong, Nishimoto, Sia & Nakamura) for Defendants/ Cross-Claim Defendants/Appellees Mary Lynne Boland and Kahana Manor AOAO.

Stefan M. Reinke Malia E. Schreck (Lyons, Brandt, Cook & Hiramatsu) for Defendant/Cross-Claim Plaintiff/ Cross-Claim Defendant/Appellee Lowson and Associates.

NAKAMURA, C.J., FOLEY AND GINOZA, JJ.

OPINION

FOLEY, J.

Plaintiff/Appellant Karen Ryan (Plaintiff) appeals from a July 17, 2012 final judgment entered in the Circuit Court of the Second Circuit[1] (circuit court) dismissing Plaintiff's complaint and entering judgment in favor of Defendants/Cross-Claim Defendants/Appellees Terrence D. Palmer, Mary Lynne Boland, and Kahana Manor AOAO; and Defendants/Cross-Claim Plaintiffs/ Cross-Claim Defendants/Appellees Alpha Executive Security, Inc. and Lowson and Associates (collectively, Defendants).

I. BACKGROUND

This appeal arises out of a tort lawsuit Plaintiff filed for injuries she allegedly suffered while in her apartment unit. On December 29, 2010, Plaintiff filed a complaint asserting various tort claims against Defendants, and the parties engaged in discovery between March and August 2011. On July 29, 2011, Plaintiff filed a request to admit the case into the Court Annexed Arbitration Program (CAAP). The circuit court granted the request on August 30, 2011.

On September 20, 2011, the circuit court entered an "Order Of Dismissal" dismissing Plaintiff's complaint pursuant to Rule 12(q) of the Rules of the Circuit Courts of the State of Hawai'i (RCCH). RCCH Rule 12(q) states:

(q) Dismissal for Want of Prosecution. An action maybe 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[.] . . . 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.'

At the time the circuit court entered its dismissal order, eight months and twenty-two days had passed since the complaint's filing, and Plaintiff had not submitted a pretrial statement.

On September 30, 2011, Plaintiff's attorney Joseph T. Toma (Toma) filed a "Motion To Set Aside Order Of Dismissal" and a supporting declaration by Toma. Toma stated he had "just overlooked" the pretrial statement and noted the case had been admitted into the CAAP, and he requested additional time to file a pretrial statement. The circuit ...


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