RICHARD A. VILLAVER, Petitioner/Plaintiff-Appellant, vs. DAVID KAWIKA SYLVA; HAWAII MEGA-COR, INC., a Hawaii domestic for-profit corporation, Respondents/Defendants-Appellees.
SCWC-14-0001086
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
MAY 13, 2019
RECKTENWALD, C.J., NAKAYAMA, MCKENNA, POLLACK, AND WILSON, JJ.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0001086; CIVIL NO. 10-1-2445)
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OPINION OF THE COURT
In order to expedite the often extensive discovery process,
In this case, claims brought by pro se Petitioner/Plaintiff-Appellant Richard A. Villaver (“Villaver”) were dismissed based on his alleged failure to timely respond to a request for admissions-notwithstanding his request that the court provide him with an interpreter to help answer the requests. Villaver was denied the opportunity to exercise the right to a jury trial on the basis of his alleged failure to respond to a request for admissions that asked him to concede he had no claim. Villaver appeals from the judgment of the Intermediate Court of Appeals (“ICA”), which affirmed the order of the Circuit Court of the First Circuit (“circuit court”) granting summary judgment against Villaver on the basis of his failure to timely respond to the request for admissions. He argues that the ICA erred in affirming the circuit сourt and that his request for an interpreter should have been construed by the circuit court as a request to withdraw the
I. BACKGROUND
A. Complaint and Court-Annexed Arbitration
On November 15, 2010, Villaver filed a complaint in the circuit court, alleging that on August 20, 2008, Respondent/Defendant-Appellee David Kawika Sylva (“Sylva”), an employee of Respondent/Defendant-Appellee Hawaii Mega-Cor, Inc. (“HMCI”), negligently drove an HMCI-owned van into Villaver‘s sedan while it was being operated by Villaver. Villaver alleged that as a result of Respondents’ negligence, “he suffered and continues to suffer from damages including, but not limited to, past and future medical and related expenses; past and future pain and suffering; past and future loss of enjoyment of life; [and] past and future serious emotional distress,” and that he is entitled to compensation.
The matter proceeded through a non-binding Court Annexed Arbitration Program (“CAAP”), where Villaver was represented by counsel. The arbitrator found in favor of Villaver, and awarded him $24,245.58 in damages: $5,942.62 in medical expenses, $8,302.96 of lost wages, and $20,000 in general damages, less $10,000 for the covered loss deductible.
B. Post-CAAP Proceedings
On August 31, 2012, Villaver appealed the CAAP award and requested a trial de novo. On March 13, 2013, Villaver‘s attorney filed a motion to continue the trial and to withdraw as counsel. Villaver told his attorney that he would seek replacement legal counsel. Respondents took no position on the motion, and, after a hearing on April 3, 2013, the court granted the first motion to continue trial and for withdrawal of counsel, and set May 13, 2013 as the date for the trial setting conference. At the trial setting conference on May 13, 2013, Villaver made his first pro se appearance and requested more time to obtain counsel. A new trial setting conferеnce was set for June 20, 2013. On June 20, 2013, Villaver appeared pro se for the second time, and trial was set for the week of June 23, 2014. The discovery deadline had been set as April 24, 2014, and the substantive motions deadline had been set as May 5, 2014.
Approximately nine months after Villaver‘s second pro se appearance, on March 17, 2014, Respondents served Villaver with a request for admissions via U.S. mail. The request contained seventy-seven statements. Among those statements were five statements that the circuit court later relied upon to grant summary judgment to Respondеnts on all claims. The five statements requested that Villaver take a position contrary to the claims he successfully asserted before the CAAP arbitrator; specifically, they requested that he admit it was his negligence that caused the accident and that he incurred no injuries:
16. You were reversing your car out of a parking stall at the time of the subject accident.
. . . .
18. Your negligence was the sole legal cause of the subject accident.
. . . .
70. You did not sustain any injuries as a result of the subject accident.
. . . .
76. You did not incur any general damages as a result of the subject accident.
. . . .
77. You did not incur any special damages as a result of the subject accident.1
Less than a month after Villaver received the request for admissions, on April 15, 2014, defense counsel received a letter dated April 11, 2014 from Villaver‘s wife. Her letter explained that Villaver received the request for admissions and understood that the deadline to respond was April 18, but stated that Villaver was unable to complete the paperwork. According to Villaver‘s wife, Villaver
On May 1, 2014, Respondents Sylva and HMCI filed a motion for summary judgment. Respondents argued that, under
Twenty days later, on May 21, 2014, the court held a hearing on Respondents’ motion for summary judgment.2 At the hearing, Villaver explained to the court that he could not respond to the request for admissions because he was losing memory of the event, and because he could not understand English well. He testified that he mostly spoke Visayan with his mother and Filipino in his business. He requested an interpreter to help him answer the questions, saying, “if you can give me one interpreter, that would help me for answer thаt question. Because some English I don‘t really understand. . . . All I see, I cannot read. I cannot really understand.” The court noted that Villaver previously appeared in court and had not indicated that he had any difficulty speaking or understanding English; the court also elicited from Villaver that he had lived in Hawaiʻi for forty-one years and that he had attended public elementary, intermediate, and high school in Hawaiʻi. The court denied his request for an interpreter to assist him with the written documents. The court also observed that its June 2013 trial status-setting order contained various pre-triаl deadlines, and that there had been ample time for Villaver to obtain new counsel or proceed pro se.
The court indicated to Villaver that it was inclined to grant the summary judgment motion on the basis of his failure to respond to the request for admissions:
[THE COURT:] Mr. Villaver, so the defendants are requesting that this court grant summary judgment in their favor, which means finding that they were not negligent, not liable, and that the basis, the reason why they‘re saying they should get judgment in their favor, along -- in addition to what‘s been argued today, is that you did not respond to the requests for admissions that were sent to you; and under the rules, if you don‘t respond within the time period, the admissions are -- the requests are deemed admitted. So not responding to their requests for admissions within 30 days or by 30 days, you have now admitted the requests that they had put in there, in particular -- well, there‘s a number of them. I won‘t go through them because they‘re all contained in the motion. But, essentially, the admission being that you were negligent and Defendants were not.
So I‘m inclined to grant the motion, as the responses were not provided -- there was no response provided to the request for admissions. The rule requires a respоnse.
At the conclusion of the hearing, the court deemed the statements admitted, concluded that there would be no genuine issue of material fact for trial, and granted Respondents’ motion for summary judgment.
Approximately one month after the hearing, on June 26, 2014, the court‘s order was
(a) Plaintiff was reversing his car out of a parking stall at the time of the subject accident (Request for Admissions No. 16);
(b) Plaintiff‘s negligence was the sole legal cause of the subject accident (Request for Admissions No. 18);
(c) Plaintiff did not sustain any injuries as a result of the subject accident (Request for Admissions No. 70);
(d) Plaintiff did not incur any general damages as a result of the subject accident (Request for Admissions No. 76); and
(e) Plaintiff did not incur any special damages as a result of the subject accident (Request for Admissions No. 77).
Based on these admitted facts, the court ordered that Respondents’ motion for summary judgment be granted. Judgment was entered in favor of Respondents on June 23, 2014. This appeal followed.
C. Appeal to the ICA
On appeal, Villaver contended through retained counsel that the circuit court erred in granting summary judgment. He argued that it should have allowed him to withdraw his admissions under
[T]he court mаy permit withdrawal or amendment [of any admission] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining his or her action or defense on the merits.
Villaver‘s opening brief requested that his “inarticulate pro se” attempts to explain his failure to respond to the request for admissions and the motion for summary judgment-namely, his wife‘s letter to defense counsel and his oral arguments about his faulty memory and difficulty with the English language-be construеd as a motion to withdraw the admissions under
The ICA affirmed the circuit court‘s order granting summary judgment. Villaver v. Sylva, No. CAAP-14-0001086, 2017 WL 4534435, at *4 (App. Oct 11, 2017) (SDO). In reaching this decision, the ICA acknowledged that, where possible, the court should “afford[] litigants the opportunity to have their cases heard on the merits[.]” Id. at *2 (citing Marvin v. Pflueger, 127 Hawaiʻi 490, 496, 280 P.3d 88, 94 (2012)). However, the ICA expressed concern that Villaver had not followed the rules of discovery while representing himself, stating that “pro se plaintiffs are not exempt from discovery rules.” Id. It found that Villaver‘s wife‘s letter was not a proper objection to the request for admissions under
The ICA cited the standard enunciated in
[I]n exercising its discretion the court must apply the test set forth in Rule 36(b): (1) whether the presentation of the merits will be subserved if the withdrawal of the admission is permitted and (2) whether the party who obtained the admission can satisfy the court that withdrawal will prejudice
him in maintaining his action or defense on the merits.
Id. at *3 (internal quotation marks and ellipses omitted) (quoting W.H. Shipman, Ltd. v. Hawaiian Holiday Macadamia Nut Co., 8 Haw. App. 354, 366-67, 802 P.2d 1203, 1209-10 (1990)). The ICA distinguished Villaver‘s case from Shipman, wherein the defendant was represented by counsel who filed untimely answers to a request for admissions. Id. (citing Shipman, 8 Haw. App. at 366, 802 P.2d at 1209). The defendant in Shipman subsequently filed a motion to amend a discovery order which thе ICA construed to impliedly include a motion to withdraw statements that had been previously deemed admitted and to submit a late response. 8 Haw. App. at 367, 820 P.2d at 1210. The ICA noted that in Shipman, defendant Hawaiian Holiday had belatedly answered Shipman‘s interrogatories, produced requested documents, and allowed Shipman to depose two of its officers; additionally, there were two and a half months left before trial when it did respond. Villaver, 2017 WL 4534435, at *3 (citing Shipman, 8 Haw. App. at 367, 802 P.2d at 1210). The ICA found it significant that at the time of his request for an interpreter, Villaver had not moved forward with discovery in any way, numerous discovery deadlines had passed, and there werе only a few weeks left until trial. Id. at *4. The ICA held that the circuit court did not abuse its discretion in concluding that Respondents would have been prejudiced in maintaining their defense if withdrawal was permitted. Id.
Villaver filed an application for a writ of certiorari with this court, which was accepted.
II. STANDARDS OF REVIEW
An abuse of discretion occurs if the trial court has “clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.” Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 26 (1992).
“On appeal, the grant or denial of summary judgment is reviewed de novо.” Nuuanu Valley Ass’n v. City & Cty. of Honolulu, 119 Hawaiʻi 90, 96, 194 P.3d 531, 537 (2008). “[S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id. (quoting Kahale v. City & Cty. Of Honolulu, 104 Hawaiʻi 341, 344, 90 P.3d 233, 236 (2004)).
III. DISCUSSION
A. Villaver‘s Request for an Interpreter Should Have Been Deemed a Motion to Withdraw His Admissions.
Although Villaver‘s failure to respond to Respondents’ request for admissions provided a proper basis to find the requests admitted under
As Villaver concedes, he failed to respond to the request for admissions within thirty days of service as required by
couldn‘t remember facts, or couldn‘t understand the questions. She explained that they were returning the paperwork to defense counsel uncompleted. Her letter did not constitute an answer because it was not signed by Villaver or by an attorney representative, and thus did not comply with
Because neither Villaver nor an attorney representing him complied with the answer or objection requirements of
Villaver‘s oral request for an interpreter to help him answer the admissions was not a formal motion to withdraw admissions. But his failure to observe formalities did not preclude the court from permitting him to withdraw his admissions, as Hawaiʻi courts have considered untimely responses to a request for admissions as constituting an informаl motion to withdraw admissions. One such example is In re Trade Wind Tours of Hawaii, Inc., wherein the ICA addressed the director of taxation‘s untimely filing of answers to a request for admissions. 6 Haw. App. 260, 264, 718 P.2d 1122, 1125 (1986). The ICA held that the tax appeal court “did not abuse its discretion in deeming the Director‘s admissions to have been withdrawn upon the filing of the answers.” Id. at 264, 718 P.2d at 1126. Similarly, in Shipman, the ICA held that late responses to a request for admissions could be considered a request for withdrawal of the admissions. 8 Haw. App. at 366, 802 P.2d at 1209. In that case, the circuit court entered an order deeming admitted the statements in the request for admissions served by Shipman on Hawaiian Holiday because Hawaiian Holiday had not responded before the
In the present case, when Villaver made his request for an interpreter, the circumstances constituted a request to the court for permission to withdraw his admissions and file a late response to the rеquest for admissions. His wife had indicated that he needed a lawyer to help him complete the paperwork sent to him by Respondents. Villaver requested the interpreter for the purpose of filing his response to the request for admissions: “So if I if if I need if you can give me one interpreter, that would help me for answer that question.” The circuit court recognized that Villaver‘s purpose in asking for an interpreter was in part to file a late response to the request for admissions, stating “I‘m inclined at this point to . . . deny . . . [Villaver‘s] request for an interpreter to assist him with the written documents that he‘s received from the other side.” The request to file a late response to a request for admission was the equivalent of a request to withdraw admissions. See Trade Wind Tours, 6 Haw. App. at 264, 718 P.2d at 1126.
Villaver‘s status as a pro se litigant supports construing his request for an interpreter as a request to withdraw his admissions and file a late response. In the context of pro se pleadings, we have explained that “[a] fundamental tenet of Hawaiʻi law is that ‘[p]leadings prepared by pro se litigants should be interpreted liberally[,]’” and that “[t]he underpinnings of this tenet rest on the promotiоn of equal access to justice[.]” Waltrip, 140 Hawaiʻi at 239, 398 P.3d at 828 (quoting Dupree v. Hiraga, 121 Hawaiʻi 297, 314, 219 P.3d 1084, 1101 (2009)). In Waltrip, we favorably noted that “[f]ederal courts have extended this ‘liberality doctrine’ to include pro se motions in certain scenarios[,]” and held that liberal construction of motions was appropriate in workers’ compensation cases, as they typically provide “the only recovery available for an employee who is injured at work[.]” Id. Similarly, Villaver‘s pro se request for an interpreter at the hearing 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.
B. The Circuit Court Abused Its Discretion by Failing to Apply the Two Factors of Rule 36(b) to Villaver‘s Informal Motion to Withdraw Admissions and File a Late Response.
To determine whether to permit Villaver to withdraw his admissions, the circuit court was required to consider the two factors enumerated in
The circuit court in the present case did not consider either of the two
The circuit court also did not consider the second factor, whether withdrawal would prejudice the party that obtained the admission. Prejudice under
The prejudice contemplated by the Rule is not simply that the party who initially obtained the admission will now have to convince the fact finder of its truth. Rather, it relates to the difficulty a party may face in proving its case, e.g., caused by the unavailability of key witnesses, because of the sudden need to obtain evidence with respect to the questions previously answered by the admissions.
Perez v. Miami-Dade Cty., 297 F.3d 1255, 1266 (11th Cir. 2002) (quoting Smith v. First Nat. Bank of Atlanta, 837 F.2d 1575, 1578 (11th Cir. 1988)); see also Conlon, 474 F.3d at 624 (“[W]e are reluctant to conclude thаt a lack of discovery, without more, constitutes prejudice. . . . The district court could have reopened the discovery period . . . and prejudice must relate to the difficulty a party may face in proving its case at trial[.]”). Thus, the party that has obtained the admissions must show that withdrawal of the admissions will impact its ability to prove the facts previously admitted.
Here, the circuit court did not address, nor did it ask the parties to address, whether allowing Villaver’s withdrawal would unfairly prejudice Respondents.4 Thus, Respondents, “the part[ies] who obtained the admissions[,] fail[ed] to satisfy the court that withdrawal or amendment [would] prejudice that party in maintaining his or her action or
defense on the merits.”
The circumstances of this case exemplify a disfavored use of
disfavored.”), abrogated on other grounds by Tax Found. of Hawaiʻi v. State, No. SCAP-16-0000462, 2019 WL 1292286 (Haw. Mar. 21, 2019). The circuit сourt should have considered Villaver‘s informal motion to withdraw his admissions under the two factors of
IV. CONCLUSION
Villaver‘s pro se request to obtain an interpreter before the court entered summary
For the foregoing reasons, we vacate the ICA’s November 22, 2017 judgment on appeal and the circuit court’s June 26, 2014 order granting summary judgment and July 28, 2014 judgment and remand the case to the Circuit Court of the First Circuit for further proceedings consistent with this opinion.
Charles H. Brower for Petitioner
J. Patrick Gallagher, Erin I. Macdonald for Respondents
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson