Huls v. Dong

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-MAY-2026
08:10 AM
Dkt. 56 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

EDWARD HULS, Plaintiff-Appellant,
v.
LANZ DONG, Defendant-Appellee,
and DOES 1-10; and DOE ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

Edward Huls sued Lanz Dong for injuries he claims to
have sustained when Dong hit him with her car. The Circuit Court
of the First Circuit granted Dong's motion to dismiss for failure
to prosecute.1 Huls appeals from the Final Judgment for Dong.
We vacate and remand for further proceedings.
Huls, represented by counsel, sued Dong on February 23,
2021. He filed his pretrial statement on October 22, 2021. It
identified several health care providers as witnesses, and
stated: "The parties have conferred over numerous telephonic
conferences and have, in good faith, considered the feasibility
of settlement and alternative dispute resolution options. At
this time, the parties are proceeding through the Court Annexed
Arbitration Program [(CAAP)] and have scheduled an arbitration
hearing date of February 4, 2022."

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The Honorable James S. Kawashima presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Huls's attorneys withdrew from his representation on
November 25, 2022. No substitute counsel appeared. Nothing
material happened until March 20, 2024, when Dong moved to
dismiss for failure to prosecute under Hawai#i Rules of Civil
Procedure (HRCP) Rule 41(b).
Dong's motion revealed that the scheduled CAAP hearing
didn't take place. The arbitrator obtained two extensions of
time to submit an award, the last expiring on December 12, 2022.
On January 25, 2024, Dong's counsel emailed the arbitrator and
Huls to reschedule the arbitration. By letter dated February 27,
2024, counsel followed up with Huls to set a hearing date. A
certified mail receipt shows the letter was delivered on March 1,
2024. Dong's motion stated that Huls did not respond to the
email or the letter. Huls did not file an opposition to Dong's
motion.
The motion was heard on July 10, 2024, at 9:00 a.m.
Huls did not appear when the motion was called.
Dong's counsel stated: "Mr. Huls did send me a letter
on April 8th, acknowledging that he had received my motion. He
indicated he was going to retain new counsel and get back to me,
and he never did."
After noting Huls's non-appearance and that no
opposition had been filed, the circuit court orally granted the
motion and recessed.
The case was recalled at 9:30 a.m., after Huls
appeared. Dong's counsel was also present. Huls read "a one-
page statement" to the court. He did not explain why he didn't
reschedule the CAAP hearing or otherwise pursue his case. He
asked for more time "until I have finished finalizing with my new
attorney and counsel," whom he did not identify.
The circuit court stood on its ruling. A written order
containing findings of fact and conclusions of law was entered on
August 5, 2024. The Final Judgment was entered on September 26,
2024. This appeal followed.
Huls, now represented by counsel, contends the circuit
court erred by granting the motion to dismiss. He challenges

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findings of fact (FOF) nos. 6, 7, 10, and 12, and every
conclusion of law (COL).
Conclusions of law are not binding on an appellate
court, and are reviewed de novo. Cowan v. Exclusive Resorts
PBL1, LLC, 156 Hawai#i 268, 272, 574 P.3d 288, 292 (2025).
We review findings of fact under the clearly erroneous
standard. Cowan, 156 Hawai#i at 272, 574 P.3d at 292. The
circuit court found:

6. On January 25, 2024, [Dong] requested that
[Huls] participate in a phone conference with the arbitrator
assigned by the court-annexed arbitration program, in order
to re-set this matter for an arbitration hearing.

7. [Huls] did not respond to [Dong]'s request.

FOF no. 6 is supported by Dong's Exhibit C, the
January 25, 2024 email from his attorney to Huls and the CAAP
arbitrator. FOF no. 7 is supported by Dong's Exhibit D, his
attorney's February 27, 2024 follow-up letter to Huls about
resetting the arbitration. Huls submitted no evidence he
responded to the January 25, 2024 email. FOF nos. 6 and 7 are
not clearly erroneous.
Huls does not challenge FOF no. 8:

8. On February 27, 2024, [Dong] again communicated
with [Huls], to request that he participate in the court-
annexed arbitration program and set the matter for an
arbitration hearing. [Huls] did not respond to [Dong]'s
request.

This unchallenged FOF is binding on appeal. Okada
Trucking Co. v. Bd. of Water Supply, 97 Hawai#i 450, 459, 40 P.3d
73, 82 (2002).
Huls challenges FOF nos. 10 and 12:

10. On April 8, 2024, [Huls] communicated with
[Dong], acknowledging that he received [Dong]'s Motion; that
he would communicate again once he retained new counsel.
. . . .
12. [Huls] failed to appear for the hearing when the
case was called at 9:00 a.m. on July 10, 2024.

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FOF no. 10 is consistent with representations made by
Dong's counsel and Huls at the hearing on the motion to dismiss.
FOF no. 12 is supported by the circuit court's statement during
the hearing: "Time is 9:02 a.m. Plaintiff has failed to
appear." They are not clearly erroneous.
We review a dismissal under HRCP Rule 41(b) for abuse
of discretion. In re Blaisdell, 125 Hawai#i 44, 48, 252 P.3d 63,
67 (2011). Dismissal of a complaint with prejudice is a "last
resort where lesser sanctions would not serve the interest of
justice." Id. at 49, 252 P.3d at 68. To justify involuntary
dismissal, "the record must show [1] deliberate delay,
[2] contumacious conduct or [3] actual prejudice." Id.
(1) The circuit court found, and the record supports,
that the CAAP arbitration hearing was delayed more than two years
— from February 4, 2022 (when it was originally set) until
July 10, 2024 (the hearing on Dong's motion to dismiss). But the
record does not show that Huls deliberately delayed the
arbitration. The record also shows the first action Dong took to
reset the arbitration was his counsel's email of January 25,
2024. Under these circumstances, Dong was equally responsible
for the delay.
(2) "Contumacious conduct" means "willfully stubborn
and disobedient conduct." Blaisdell, 125 Hawai#i at 50, 252 P.3d
at 69 (brackets omitted). The circuit court did not find, nor
does the record show, contumacious conduct by Huls.
(3) "A dismissal with prejudice would not constitute
an abuse of discretion where a plaintiff's deliberate delay
causes actual prejudice to a defendant." Blaisdell, 125 Hawai#i
at 49, 252 P.3d at 68. Dong argued "there is actual and
substantial prejudice given the length of time that has passed
since the accident. After five years, memories fade, making it
much more difficult for witnesses to recall events." The
argument was conclusory. Dong did not offer evidence — such as a
deposition transcript showing an eyewitness could not remember
material events, or denials of credit or loan applications

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because of the pending lawsuit — to show he was actually
prejudiced by a CAAP or litigation delay.
(4) Finally:

Because the interests of justice are best served by
resolving a case on its merits, absent a clear record of
delay or contumacious conduct, the careful exercise of
judicial discretion requires that a trial court consider
less severe sanctions and explain, where not obvious, their
inadequacy for promoting the interests of justice.

Blaisdell, 125 Hawai#i at 49, 252 P.3d at 68 (cleaned up).
The record does not reflect that the circuit court
considered less severe sanctions (such as imposing a deadline for
completion of the CAAP arbitration) before dismissing Huls's
lawsuit with prejudice. Under the circumstances, we conclude the
circuit court acted outside its discretion by granting Dong's
motion to dismiss.
The September 26, 2024 Final Judgment is vacated and
this case is remanded for further proceedings.
DATED: Honolulu, Hawai#i, May 7, 2026.

On the briefs:
/s/ Katherine G. Leonard
Keith M. Kiuchi, Presiding Judge
for Plaintiff-Appellant
Edward Huls. /s/ Keith K. Hiraoka
Associate Judge
Samantha Storm,
for Defendant-Appellee /s/ Clyde J. Wadsworth
Lanz Dong. Associate Judge

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