NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 10-1-0101).
On briefs Arleen D. Jouxson and Rafael G. Del Castillo, for Appellee-Appellant.
Dianne Winter Brookins and Jason H. Kim, (Alston Hunt Floyd & Ing) for Appellant-Appellee.
Nakanvura, C.J., Foley and Fujise, JJ.
SUMMARY DISPOSITION ORDER
In this secondary appeal, Appellee-Appellant Patricia E.G. Adams, in her capacity as the Administrator of the Estate of Brent Adams (Adams), appeals from the September 10, 2010 Final Judgment in Favor of Appellant-Appellee Hawaii Medical Service Association (HMSA) entered by the Circuit Court of the First Circuit (Circuit Court).
Adams contends that the Circuit Court erred when it concluded the Insurance Commissioner (Commissioner) had no jurisdiction to award Adams's attorney's fees and costs incurred in defending her judgment in Hawaii Medical Service Ass'n v. Adams, 120 Hawaii 446, 209 P.3d 1260 (App. 2009) (Adams I).
After a careful review of the issues raised by the parties, the record and the applicable authority, we resolve Adams's point on appeal as follows.
The Circuit Court erred when it ruled the Commissioner "lacked subject matter jurisdiction to issue the Second Order Awarding Attorneys' Fees and Costs, filed December 28, 2009 ("Second Fee Order") such that the Second Fee Order was void ab initio[.]"
"Subject matter jurisdiction is concerned with whether the court has the power to hear a case." Hawaii Mgmt. Alliance Ass'h v. Ins. Comm'r, 106 Hawaii 21, 27, 100 P.3d 952, 958 (2004) (citations and internal quotation marks omitted). Adams filed the subject request for fees and costs with the Commissioner in the same proceeding in which the Commissioner conducted his external review, HER-07-1345.7 . Hawaii Revised Statutes (HRS) 43.2E-6(e) (2005) permits an enrollee of a health benefit plan to be "allowed, at the commissioner's discretion, an award of a reasonable sum for attorney's fees and reasonable costs incurred in connection with the external review . . . . " HRS § 432E-6(e). Thus, the statute, on its face, gave the Commissioner the authority to award attorney's fees in connection with the external review and the Commissioner had the power to make such an award.
The terseness of the Circuit Court's ruling leaves us to guess at the basis for the ruling. However, during the Circuit Court's oral ruling, it stated that it lacked subject matter jurisdiction "over this case" and that the Commissioner "also lacked jurisdiction" to rule on Adams's December 3, 2009 motion for fees and costs..
As to the former, the Circuit Court appeared to rely on Standard Mount., Inc. v. Kekona. 99 Hawaii 125, 53 P.3d 264 (App. 2001), for the proposition that when a reviewing court remands a case with specific instructions, "the trial court is powerless to undertake any proceedings beyond those specified therein." Id., at 137, 53 P.3d at 276. While it is true that the mandate in Adams I was specific,  the Circuit Court was presiding over HMSA's appeal from the Second Fee Order, in Civ. No. 10-1-0101, and not presiding over the remand of Adams I in Civ. No. 07-1-0918. As a result, Standard Management did not apply.
With regard to the Commissioner's jurisdiction, the Circuit Court ruled that the only tribunal with jurisdiction over the case after the remand in Adams I was the circuit court, and there was "no jurisdictional basis" for the Commissioner to consider Adams's December 3, - 2009 motion for fees and costs. The Circuit Court did. not reveal any reason why it did not consider the authority contained in HRS § 432E-6(e) as authorizing the Commissioner's consideration of a request for fees incurred in the recently completed appeal in Adams I.
Nor is one apparent from this record. HRS 432E-6(e), does not set a time limit for the fee request. Moreover, it would have been impracticable, if not impossible, to submit a request--that must pass a reasonableness test--in advance of the proceedings for which they would be incurred. Thus, the Circuit Court's suggestion that the request should have been made before the ...