Oleksa v. Chaikin

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-JUN-2023
02:12 PM
Dkt. 76 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MICHAEL OLEKSA and ERICA OLEKSA, Plaintiffs-Appellants, v.
DONALD C. CHAIKIN, JERRY SULLIVAN, Defendants-Appellees,
and
JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10,
DOE CORPORATIONS 1-10, DOE ENTITIES 1-10, and
DOE GOVERNMENTAL UNITS 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 16-1-0628(2))

SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)

Plaintiffs-Appellants Michael and Erica Oleksa (the
Oleksas) appeal from the February 12, 2020 "Final Judgment in
Favor of Defendants[-Appellees Donald C. Chaikin (Chaikin) and
Jerry Sullivan (Sullivan) (collectively Defendants)] and Against
[the Oleksas]," entered by the Circuit Court of the Second
Circuit (Circuit Court).1/ The Oleksas also challenge the Circuit
Court's February 12, 2020 "Order: (1) Granting . . . Sullivan's
Motion for Summary Judgment (Filed 1/3/2020); (2) Granting . . .
Chaikin's Motion for Summary Judgment (Filed 1/3/2020); and (3)
Denying [the Oleksas'] Request for Extensions and Continuances of
All Pending Proceedings (Filed 1/21/2020)" (MSJ Order).
On appeal, the Oleksas contend that the Circuit Court:
(1) "failed to render summary judgment on the merits of the case
pursuant to [Hawai#i Rules of Civil Procedure] Rule 56, but

1/
The Honorable Peter T. Cahill presided.
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instead in the guise of summary judgment entered a dismissal
sanction"; and (2) abused its discretion in entering "a dismissal
sanction," by "not consider[ing] less severe sanctions" and
"miscalculat[ing] any prejudice to [Defendants] had a continuance
been granted."
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve the
Oleksas' contentions as follows and affirm.
The Oleksas' points of error are both premised on the
contention that the Circuit Court, "in the guise of summary
judgment[,] entered a dismissal sanction for not attending the
summary judgment hearing and for other alleged pretrial
misconduct . . . ." That contention is not supported by the
record.
We review a trial court's grant or denial of summary
judgment de novo using the same standard applied by the trial
court. Nozawa v. Operating Eng'rs Local Union No. 3, 142 Hawai#i
331, 338, 418 P.3d 1187, 1194 (2018) (citing Adams v. CDM Media
USA, Inc., 135 Hawai#i 1, 12, 346 P.3d 70, 81 (2015)). "Summary
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 a judgment
as a matter of law." Id. at 342, 418 P.3d at 1198 (brackets
omitted) (quoting Adams, 135 Hawai#i at 12, 346 P.3d at 81). "A
fact is material if proof of that fact would have the effect of
establishing or refuting one of the essential elements of a cause
of action or defense asserted by the parties." Id. (quoting
Adams, 135 Hawai#i at 12, 346 P.3d at 81). The evidence and the
inferences drawn from the evidence must be viewed in the light
most favorable to the non-moving party. Yoneda v. Tom, 110
Hawai#i 367, 384, 133 P.3d 796, 813 (2006).
The moving party has the burden to establish that
summary judgment is proper. Nozawa, 142 Hawai#i at 342, 418 P.3d
at 1198 (citing French v. Haw. Pizza Hut, Inc., 105 Hawai#i 462,
470, 99 P.3d 1046, 1054 (2004)).

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Where the moving party is the defendant, who does not bear
the ultimate burden of proof at trial, summary judgment is
proper when the non-moving party-plaintiff
fails to make a showing sufficient to establish the
existence of an element essential to that party's
case, and on which that party will bear the burden of
proof at trial. In such a situation, there can be no
genuine issue as to any material fact, since a
complete failure of proof concerning an essential
element of the nonmoving party's case necessarily
renders all other facts immaterial.

Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116
Hawai#i 277, 302, 172 P.3d 1021, 1046 (2007) (emphases omitted)
(quoting Hall v. State, 7 Haw. App. 274, 284, 756 P.2d 1048, 1055
(1988)). Further, a defendant moving for summary judgment "may
satisfy his or her initial burden of production by either (1)
presenting evidence negating an element of the non[]movant's
claim, or (2) demonstrating that the nonmovant will be unable to
carry his or her burden of proof at trial." Ralston v. Yim, 129
Hawai#i 46, 60, 292 P.3d 1276, 1290 (2013). In other words, the
movant's "burden may be discharged 'by demonstrating that if the
case went to trial, there would be no competent evidence to
support a judgment for his or her opponent.'" Kondaur Cap. Corp.
v. Matsuyoshi, 136 Hawai#i 227, 240, 361 P.3d 454, 467 (2015)
(ellipsis and brackets omitted) (quoting Young v. Planning Comm'n
of the Cnty. of Kauai, 89 Hawai#i 400, 407, 974 P.2d 40, 47
(1999)).
"Once a summary judgment movant has satisfied its
initial burden of producing support for its claim that there is
no genuine issue of material fact, the party opposing summary
judgment must 'demonstrate specific facts, as opposed to general
allegations, that present a genuine issue worthy of trial.'"
Nozawa, 142 Hawai#i at 342, 418 P.3d at 1198 (brackets omitted)
(quoting Lales v. Wholesale Motors Co., 133 Hawai#i 332, 359, 328
P.3d 341, 368 (2014)).
Here, the Oleksas filed a complaint that appears to
allege personal injuries caused by Chaikin and Sullivan. Three
years later, following discovery, Chaikin and Sullivan each filed
a motion for summary judgment. Both motions were supported by
declarations, deposition testimony, and documentary evidence.

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Chaikin's motion for summary judgment construed the
Complaint as asserting claims against him for breach of fiduciary
duty and intentional infliction of emotional distress (IIED).
Chaikin argued, among other things, that the Oleksas could not
establish a fiduciary relationship between Chaikin and the
Oleksas, and there were "no admissible or material facts" to
support the elements of the IIED claim. In particular, Chaikin
produced support, including his declaration and related exhibits,
for his contention that the Oleksas could not establish
circumstances giving rise to a fiduciary relationship between
Chaikin and the Oleksas. Chaikin also produced support,
including his declaration and related exhibits, for his
contention that the Oleksas could not establish the outrageous
conduct element of IIED.
Sullivan's motion for summary judgment construed the
Complaint as asserting an IIED claim against her. She argued,
among other things, that there was "no admissible or material
evidence" to support the IIED element that she engaged in
outrageous conduct against the Oleksas. In particular, Sullivan
produced support, including her declaration and related
exhibits, for her contention.
Based on our de novo review of Defendants' respective
summary judgment submissions, we conclude that Chaikin and
Sullivan each met their initial burden of production as to the
claims asserted against them in the Complaint. See Nozawa, 142
Hawai#i at 338, 418 P.3d at 1194; Ralston, 129 Hawai#i at 60, 292
P.3d at 1290. The Oleksas do not argue otherwise on appeal.
The Oleksas did not file an opposition to either motion
for summary judgment and did not attend the January 22, 2020
hearing on the motions. On January 21, 2020, the day before the
hearing, the Oleksas' then-counsel, Gary Victor Dubin (Dubin),
filed a document entitled, "Notice of Illness of Plaintiffs'
Counsel and Inability to Attend January 22, 2020 Hearings, and
Request for Extensions and Continuances of All Pending
Proceedings" (Request). In the Request, Dubin stated that he was
ill and had been unable to file opposition papers, and requested
"that all case deadlines be extended and continued for at least

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30 days." In an accompanying declaration, Dubin further stated
that he would be "at the doctor's office" during the hearing the
next day, he could not appear by telephone, and no member of his
firm was sufficiently knowledgeable about the case to attend the
hearing.
At the January 22, 2020 hearing, the Circuit Court
ruled as follows:

I've read the motions.
. . . [Defendants] still have to be able to prove
there are no material questions of fact in dispute and that
[they]'re entitled to judgment as a matter of law. The
moving papers establish that. There is nothing in
opposition.
The idea that you call or you submit papers the day
before and say I can't come, well, the deadline to file a
written response was a while ago. The motions were filed on
January 3rd. Something should have been done at that point.
So I will grant those two motions.

On February 12, 2020, the court entered the MSJ Order,
which stated, in relevant part:

The Court, after having carefully considered the
Motions, the Exhibits and other submittals in support of the
Motions, the Request, the arguments of counsel, and the
records and files of this action, and for good cause
showing, hereby FINDS, CONCLUDES, and ORDERS as follows:
1. Defendant Sullivan's Motion is GRANTED. There are
no genuine issues of material fact and Defendant Sullivan is
entitled to summary judgment as a matter of law on all
claims alleged against her in Plaintiffs' Complaint filed
December 23, 2016 ("Complaint"). All claims asserted
against Defendant Sullivan are hereby DISMISSED WITH
PREJUDICE.
2. Defendant Chaikin's Motion is GRANTED. There are
no genuine issues of material fact and Defendant Chaikin is
entitled to summary judgment as a matter of law on all
claims alleged against him in Plaintiffs' Complaint. All
claims asserted against Defendant Chaikin are hereby
DISMISSED WITH PREJUDICE.

The MSJ Order also denied the Oleksas' request for extensions and
continuances for a variety of reasons, including that the Oleksas
were represented by two attorneys of record in addition to Dubin,
and the Request failed to address why those attorneys did not
file any opposition to the motions or attend the January 22, 2020
hearing.

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Accordingly, the record reflects that the Circuit Court
granted the motions for summary judgment because the Defendants
met their initial burden of showing there was no genuine issue of
material fact, and the Oleksas, by failing to file any opposition
to the motions and to appear at the hearing, failed to
demonstrate specific facts that presented a genuine issue worthy
of trial. The Oleksas point to no evidence in the record
supporting their argument that the Circuit Court, "in the guise
of summary judgment[,] entered a dismissal sanction for not
attending the summary judgment hearing and for other alleged
pretrial misconduct[.]" Their argument thus lacks merit.
Moreover, because the Circuit Court did not enter a "dismissal
sanction," it did not abuse its discretion by doing so.2/
For these reasons, the following judgment and order
entered on February 12, 2020, by the Circuit Court of the Second
Circuit are affirmed: the "Final Judgment in Favor of Defendants
and Against Plaintiffs" and the "Order: (1) Granting Defendant
Jerry Sullivan's Motion for Summary Judgment (Filed 1/3/2020);
(2) Granting Defendant Donald C. Chaikin's Motion for Summary
Judgment (Filed 1/3/2020); and (3) Denying Plaintiffs' Request
for Extensions and Continuances of All Pending Proceedings (Filed
1/21/2020)."
DATED: Honolulu, Hawai#i, June 27, 2023.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Frederick J. Arensmeyer and
Matthew K. Yoshida
(Dubin Law Offices) /s/ Katherine G. Leonard
for Plaintiffs-Appellants. Associate Judge

John D. Zalewski and
Michelle J. Chapman /s/ Clyde J. Wadsworth
(Case Lomardi & Pettit) Associate Judge
for Defendants-Appellees.

2/
The Oleksas do not specifically challenge the denial of their
request for extensions and continuances. See Hawai #i Rules of Appellate
Procedure Rule 28(b)(4), (7). In any event, the Circuit Court did not abuse
its discretion in denying that request in these circumstances. The Oleksas
were represented by two attorneys in addition to Dubin, all of whom had an
obligation as counsel of record to properly represent their clients and none
of whom filed an opposition or timely response to the summary judgment
motions.

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