Gilliam v. Galvin

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
10-OCT-2024
08:08 AM
Dkt. 108 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

WILLIAM H. GILLIAM, Plaintiff-Appellant,
v.
SUSAN GAIL GALVIN as Personal Representative of
Michael J. Galvin, Deceased, JOAN CHERICE KRUSSEL,
now known as JOAN CHERICE COTE, and MATT COTE also known as
MATHEW A. COTE, Defendants-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 5CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)

This appeal challenges whether summary judgment was
properly granted under the res judicata doctrine.
Self-represented Plaintiff-Appellant William H.
Gilliam (Gilliam) appeals from the February 8, 2021 "Order
Granting Defendants Joan Cherice Krussel and Mathew A. Cote's
Motion for Summary Judgment and Motion for Rule 11 Sanctions
Against [Gilliam]" (Order Granting MSJ and Sanctions); April 30,
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2021 "Order Granting to Defendants Joan Cherice Krussel and
Mathew A. Cote Award of Rule 11 Sanctions and Fees Against
[Gilliam]" (Order Awarding Sanctions); and (3) May 26, 2021
Judgment, all filed and entered by the Circuit Court of the
Fifth Circuit (Circuit Court). 1
Upon review of the record on appeal and relevant legal
authorities, giving due consideration to the issues raised and
arguments advanced by the parties, we vacate and remand.
On appeal, Gilliam appears to contend 2 that the Circuit
Court erred by (1) granting summary judgment by applying res
judicata; (2) awarding Hawai‘i Rules of Civil Procedure (HRCP)
Rule 11 sanctions; (3) denying his request for a continuance to
conclude discovery under HRCP Rule 56(f); and (4) denying his
motion to amend the complaint. We conclude Gilliam's first
contention regarding res judicata has merit and is dispositive.
On February 13, 2020, Gilliam filed a Complaint
against Defendants-Appellees Susan Gail Galvin as Personal
Representative of Michael J. Galvin (Galvin), Joan Cherice
Krussel now known as Joan Cherice Cote (Joan), and Matt Cote
also known as Mathew A. Cote (Matt) (Joan and Matt collectively
referred to as the Cotes), alleging various claims related to
the March 2015 posting of a defamatory and slanderous review

1 The Honorable Randal G.B. Valenciano presided.

2 Gilliam raises eleven points of error (POEs) that are difficult
to discern and do not comply with Hawai‘i Rules of Appellate Procedure (HRAP)
Rule 28(b)(4). Despite Gilliam's noncompliance with HRAP Rule 28, we
endeavor to "afford [] litigants the opportunity to have their cases heard on
the merits, where possible." Marvin v. Pflueger, 127 Hawai‘i 490, 496, 280
P.3d 88, 94 (2012) (cleaned up). To promote access to justice, we interpret
pleadings prepared by self-represented litigants liberally and attempt to
afford them appellate review even though they fail to comply with court
rules. See Erum v. Llego, 147 Hawai‘i 368, 380-81, 465 P.3d 815, 827-28
(2020). Accordingly, Gilliam's eleven POEs are consolidated and restated to
the extent they are discernible.

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regarding Gilliam's condominium, which was posted on Airbnb, a
website that allows persons to rent out their homes on a short-
term basis.
On December 1, 2020, the Cotes filed a Motion for
Summary Judgment (MSJ), arguing that Gilliam's claims were
barred under res judicata because the "claims were previously
dismissed with prejudice in 2015" by the District Court of the
Fifth Circuit, Small Claims Division, State of Hawai‘i (District
Court) in Civil No. 5SC151000192 (Small Claims Case). The MSJ
attached the following documents from the Small Claims Case:
Gilliam's "Statement of Claim and Notice" against Joan for
"[f]raud" and "deceit" in "May, 2015"; Joan's motion to dismiss;
and a December 21, 2015 "Order Granting [Joan]'s Motion to
Dismiss" with prejudice, which noted Gilliam's failure to file
any reply or opposition and to appear at the hearing on the
motion to dismiss.
The Cotes also filed a "Motion for Rule 11 Sanctions
Against [Gilliam]" (Motion for Sanctions), arguing that
Gilliam's Complaint violated HRCP Rule 11(b)(1) and (2); that
Gilliam's claims were precluded by res judicata; and that
sanctions of attorney's fees were warranted.
Gilliam opposed the MSJ and Motion for Sanctions,
arguing, inter alia, that res judicata did not apply; the Small
Claims Case only named Joan as a defendant, not Matt; and
requested "sufficient time to conclude discovery" under HRCP
Rule 56(f).
On January 14, 2021, the Circuit Court conducted a
hearing on the MSJ and Motion for Sanctions, and granted both. 3

3 There is no transcript of the January 14, 2021 hearing. On March
11, 2021, Gilliam filed a "Statement [sic] No Transcript," in which he stated

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On February 8, 2021, the Circuit Court filed the Order
Granting MSJ and Sanctions, which stated that: all of Gilliam's
claims in the present action were precluded by res judicata in
light of the Small Claims Case; Gilliam failed to demonstrate
that discovery would enable him to rebut the Cotes' showing of
the absence of a material fact; because Gilliam refused to
withdraw his claims after the Cotes brought the res judicata
preclusion to his attention under HRCP Rule 11(c), the Cotes
were entitled to an award of "their reasonable attorneys' fees
and other expenses incurred as a direct result of [Gilliam]'s
violation of Rule 11"; and the Cotes "shall submit" a
declaration regarding their reasonable attorneys' fees and
expenses, upon which the court would determine the amount to
award.
On March 11, 2021, Gilliam filed a Notice of Appeal
(Notice) from the February 8, 2021 Order Granting MSJ and
Sanctions.
On April 30, 2021, the Circuit Court issued the Order
Awarding Sanctions, awarding the Cotes $29,198.48 of attorneys'
fees as Rule 11 sanctions.
On May 26, 2021, the Circuit Court entered an HRCP
Rule 54(b)-certified Judgment in favor of the Cotes and against
Gilliam on the claims against the Cotes in the Complaint. 4
On June 25, 2021, Gilliam filed an Amended Notice of
Appeal (Amended Notice) from the February 8, 2021 Order Granting

that "in the absence of any evidentiary hearing, [he] deems no transcript
necessary or available herein."

4 Gilliam's claims against defendant Galvin were resolved by orders
granting Galvin's 2023 motions for summary judgment, which are the subject of
a separate appeal, CAAP-24-000033. We denied Gilliam's October 1, 2024
motions to consolidate both appeals for the reasons set forth in our
October 8, 2024 order.

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MSJ and Sanctions; April 30, 2021 Order Awarding Sanctions; and
the May 26, 2021 Judgment.
Jurisdiction
The Cotes argue that this court lacks appellate
jurisdiction because the initial Notice appealed from the
February 8, 2021 Order Granting MSJ and Sanctions, which is a
"non-appealable interlocutory order." The Cotes claim that
Gilliam's Notice is not "considered as filed immediately after"
the May 26, 2021 Judgment under HRAP Rule 4(a)(2), because the
Order Granting MSJ and Sanctions "is not an 'announcement'" of
the Order Awarding Sanctions and Judgment. The Cotes argue that
while Gilliam filed the June 25, 2021 Amended Notice after the
April 30, 2021 Order Awarding Sanctions and May 26, 2021
Judgment, the Amended Notice "relates back to the filing date of
the original [N]otice."
HRAP Rule 4(a)(2), entitled "Premature Filing of
Appeal," states: "If a notice of appeal is filed after
announcement of a decision but before entry of the judgment or
order, such notice shall be considered as filed immediately
after the time the judgment or order becomes final for the
purpose of appeal." (Emphases added.)
Here, the Circuit Court announced its decision to
grant the Cotes' MSJ and Motion for Sanctions in its February 8,
2021 Order Granting MSJ and Sanctions. On May 26, 2021, the
Circuit Court entered Judgment "[p]ursuant to" the February 8,
2021 Order Granting MSJ and Sanctions. The Judgment contained
the necessary language for certification under HRCP Rule 54(b).
Thus, although Gilliam prematurely filed the March 11, 2021
Notice "after [the] announcement" of the Circuit Court's
decision to grant the MSJ and Motion for Sanctions, the Notice
is "considered as filed immediately after" the May 26, 2021

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Judgment, and we have jurisdiction over this appeal, including
the April 30, 2021 Order Awarding Sanctions. See HRAP Rule
4(a)(2); Ueoka v. Szymanski, 107 Hawai‘i 386, 396, 114 P.3d 892,

902 (2005) ("An appeal from a final judgment 'brings up for
review all interlocutory orders not appealable directly as of
right which deal with issues in the case.'" (citation omitted)).
(1) While Gilliam's arguments are difficult to
discern, Gilliam appears to argue, inter alia, that the Small
Claims Case was "not of competent jurisdiction [sic] for
application of res judicata"; Matt was "not a party" to the
Small Claims Case; Gilliam "could not appeal" from the Small
Claims Case; and the Small Claims Case has "no preclusive
effect." The Cotes argue that the elements of res judicata were
met.
"We review a circuit court's grant or denial of
summary judgment de novo under the same standard applied by the
circuit court." Makila Land Co., LLC v. Kapu, 152 Hawai‘i 112,
119-20, 522 P.3d 259, 266-67 (2022) (citation omitted).
"Application of res judicata is a question of law. Questions of
law are reviewed de novo under the right/wrong standard."
PennyMac Corp. v. Godinez, 148 Hawai‘i 323, 327, 474 P.3d 264,
268 (2020) (citation omitted).
"Res judicata, or claim preclusion," is a doctrine
that "limit[s] a litigant to one opportunity to litigate
aspects of the case to prevent inconsistent results and
multiplicity of suits and to promote finality and judicial
economy." Bremer v. Weeks, 104 Hawai‘i 43, 53, 85 P.3d 150, 160
(2004) (citation omitted). Res judicata "prohibits a party from
relitigating a previously adjudicated cause of action" and also
precludes the relitigation "of all grounds of claim and defense

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which might have been properly litigated in the first action but
were not litigated or decided." Id. at 53, 85 P.3d at 160
(cleaned up). The party asserting res judicata has the burden
of establishing the following: "(1) there was a final judgment
on the merits [(Element No.1)], (2) both parties are the same or
in privity with the parties in the original suit [(Element
No.2)], and (3) the claim decided in the original suit is
identical with the one presented in the action in question
[(Element No.3)]." Id. at 54, 85 P.3d at 161.
As to Element No.1, the Hawai‘i Supreme Court recently
held that res judicata is inapplicable where there is a
dismissal order with prejudice, but no final judgment entered.
See Saplan v. U.S. Bank Nat'l Ass'n as Tr. for BAFC 2007-A,
154 Hawai‘i 181, 188-90, 549 P.3d 266, 273-75 (2024) ("Because
there was no separate final judgment filed, th[e] matter was not
finally adjudicated on the merits." (citation omitted)). The
supreme court concluded that, "[w]ithout a final judgment, . . .
[this court] and [the] circuit court both erred to the extent
they suggested that the dismissal of the 2011 action was 'on the
merits' for the purpose of claim preclusion." Id. at 189,
549 P.3d at 274 (emphasis added).
Here, the Cotes assert that "the dismissal with
prejudice of the Small Claims Case was a final judgment on the
merits." 5 The MSJ attached a dismissal order with prejudice, but
no final judgment. Hawai‘i District Court Rules of Civil

5 In their MSJ below and on appeal, the Cotes rely on Land v.
Highway Const. Co., Ltd., 64 Haw. 545, 551, 645 P.2d 295, 299 (1982), to
argue that "a dismissal with prejudice 'is an adjudication on the merits.'"
In Land, however, after the dismissal order was filed, there was a final
judgment entered on the merits. Id. at 551, 645 P.2d at 299 ("After final
judgment was entered, we believe that this order became an adjudication on
the merits of the cross-claims.").

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Procedure Rule 58, entitled "Entry of Judgment," provides in
pertinent part: "The filing of the judgment in the office of
the clerk constitutes the entry of the judgment; and the
judgment is not effective before such entry." (Emphasis added.)
Thus, the Circuit Court erred by granting summary judgment in
favor of the Cotes based on res judicata, where there was no
"final judgment on the merits" in the Small Claims Case, and
Element No.1 was not met. See Saplan, 154 Hawai‘i at 188-89,

549 P.3d at 273-74; Makila Land Co., LLC, 152 Hawai‘i at 119-20,

522 P.3d at 266-67; PennyMac Corp., 148 Hawai‘i at 327, 474 P.3d
at 268. In light of our disposition, we do not address the
remaining res judicata elements.
(2) Because summary judgment was erroneously granted,
the Circuit Court acted outside the scope of its discretion in
granting HRCP Rule 11 sanctions. See Gap v. Puna Geothermal
Venture, 106 Hawai‘i 325, 331, 104 P.3d 912, 918 (2004) ("All
aspects of a HRCP Rule 11 determination should be reviewed under
the abuse of discretion standard." (citation omitted)).
In light of our disposition, we need not address
Gilliam's remaining contentions. 6
For the foregoing reasons, we vacate the (1) February
8, 2021 "Order Granting Defendants Joan Cherice Krussel and
Mathew A. Cote's Motion for Summary Judgment and Motion for Rule
11 Sanctions Against Plaintiff William H. Gilliam";
(2) April 30, 2021 "Order Granting to Defendants Joan Cherice
Krussel and Mathew A. Cote Award of Rule 11 Sanctions and Fees
Against Plaintiff William H. Gilliam"; and (3) May 26, 2021

6 Gilliam's "Notice of Oral Argument" in his Opening Brief, stating
that he "seeks to be heard in oral argument[,]" is denied. See "Order of No
Oral Argument" filed on October 1, 2024.

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Judgment, all filed and entered by the Circuit Court of the
Fifth Circuit. We remand for further proceedings consistent
with this Summary Disposition Order.
DATED: Honolulu, Hawai‘i, October 10, 2024.
On the briefs:
/s/ Katherine G. Leonard
William H. Gilliam,
Acting Chief Judge
Self-represented
Plaintiff-Appellant.
/s/ Karen T. Nakasone
Associate Judge
Nathaniel Dang,
for Defendants-Appellees
/s/ Sonja M.P. McCullen
Associate Judge

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