Carter v. Shields

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
01-MAY-2024
08:06 AM
Dkt. 47 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

WILLIAM H. CARTER, individually and as Successor Trustee
of the Coolidge Carter and Mary Trenery Carter Trust No.
Three for William H. Carter, established February 5, 1974,
Plaintiff-Appellee,
v.
JOANNE K. SHIELDS, Defendant-Appellant; ASSOCIATION OF
APARTMENT OWNERS OF KONA MAKAI, Defendant-Appellee,
and
DOE DEFENDANTS 1-50, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC16100287K)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)

Joanne K. Shields appeals from the "Final Judgment as
to All Parties and All Claims" entered by the Circuit Court of
the Third Circuit on February 13, 2019.1 We vacate in part as
against Shields, affirm in part as against the Association of
Apartment Owners of Kona Makai, and remand for further
proceedings.
William H. Carter, the successor trustee of the
Coolidge Carter and Mary Trenery Carter Trust No. Three for
William H. Carter, established February 5, 1974, filed the

1
The Honorable Henry T. Nakamoto presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

complaint below on September 8, 2016. A process server in
California tried to serve Shields, but was told she had moved to
India. The circuit court granted Carter's motion to serve
Shields by publication. The affidavit of publication was filed
on April 18, 2017. Shields did not appear at the May 10, 2017
return hearing. Her default was entered on June 7, 2017.
Carter moved for a default judgment against Shields.
The circuit court entered findings of fact, conclusions of law,
and an order granting default judgment on September 28, 2017. A
judgment was also entered on September 28, 2017.
Shields moved to set aside the default judgment on
October 20, 2017. An order was entered on December 8, 2017.2
The order conditioned setting the judgment aside on Shields
paying "the reasonable attorneys' fees and costs incurred by
[Carter]" and filing an answer to the complaint within 20 days.
Shields' answer to Carter's complaint was filed on December 28,
2017. On February 16, 2018, the circuit court entered an order
requiring that Shields pay Carter $12,266.07 in attorneys fees
and $2,367.07 in costs within 30 days.
Shields moved for reconsideration of the February 16,
2018 order. An order denying reconsideration was entered on
April 24, 2018. A judgment for possession and writ of possession
were entered on December 6, 2018. The Final Judgment was entered
on February 13, 2019. This appeal followed.
Shields challenges the circuit court's (1) June 7, 2017
entry of her default; (2) September 28, 2017 "Findings of Fact,
Conclusions of Law and Order Granting Plaintiff's Motion for
Default Judgment"; (3) February 16, 2018 "Order"; and
(4) April 24, 2018 "Order Denying Defendant Joanne K. Shields'
Motion to Reconsider Order Entered February 16, 2018."3

2
The Honorable Robert D.S. Kim presided.
3
Shields also challenges two of the circuit court's minute orders,
but minute orders are not appealable orders. Abrams v. Cades, Schutte,
Fleming & Wright, 88 Hawai#i 319, 321 & n.3, 966 P.2d 631, 633 & n.3 (1998).

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

(1) Shields contends the circuit court erred by
entering her default. The published summons required Shields to
either appear at a May 10, 2017 return hearing or to file and
serve "an answer or other pleading" before that date. Shields
did neither. She argues that she sent a "written settlement
offer" which Carter's counsel acknowledged receiving. A written
settlement offer is not a pleading under Hawai#i Rules of Civil
Procedure (HRCP) Rule 7(a). The circuit court did not err by
entering Shields' default.
(2) Shields' appeal from the September 28, 2017
"Findings of Fact, Conclusions of Law and Order Granting
Plaintiff's Motion for Default Judgment" is moot because the
circuit court granted her motion to set aside the default
judgment by order entered on December 8, 2017, from which Carter
has not appealed.
(3) Shields contends the circuit court erred by
conditioning the setting aside of the default judgment on Shields
paying Carter's attorneys fees. We review for abuse of
discretion. James B. Nutter & Co. v. Namahoe, 153 Hawai#i 149,
161-62, 528 P.3d 222, 234-35 (2023).
After hearing argument from counsel, the circuit court
stated its intent "to grant the motion with the provision that
[Shields] pay the reasonable attorney's fees and costs incurred
by [Carter.]" Shields argues that the circuit court erroneously
"imposed a fourth (4th) condition for setting aside a default"
in addition to the three in BDM, Inc. v. Sageco, Inc., 57 Haw.
73, 76, 549 P.2d 1147, 1150 (1976), abrogated on other grounds by
Chen v. Mah, 146 Hawai#i 157, 457 P.3d 796 (2020). HRCP
Rule 60(b) gives the circuit court discretion to grant relief
from a judgment "upon such terms as are just." Applying the
materially identical District Court Rules of Civil Procedure
Rule 60(b), we noted that requiring a defaulted defendant to
reimburse a plaintiff's reasonable expenses incurred because of
the defendant's neglect would be just and proper. Bassan v.
Holzman, 3 Haw. App. 677, 678, 657 P.2d 1065, 1066 (1983).

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

The circuit court did not abuse its discretion by
conditioning the setting aside of the default judgment on Shields
paying Carter's attorneys fees and costs. However, the court
should have limited reimbursement to fees and costs incurred
because of Shields' neglect — that is, only those directly
incurred for the preparation, filing, and hearing of Carter's
motion for default judgment. The documentation filed by Carter's
counsel shows that the amount of the award reflected fees and
costs other than those incurred for the motion for default
judgment. Accordingly, we vacate the portion of the February 16,
2018 Order awarding Carter $12,266.07 in attorneys fees and
$2,367.07 in costs, without prejudice to Carter submitting an
amended request for fees and costs that complies with this
summary disposition order.
(4) Because the circuit court acted outside its
discretion in ordering reimbursement of Carter's attorneys fees
and costs other than those incurred for his motion for default
judgment, the circuit court should have granted reconsideration
to that extent.
For these reasons, we vacate in part the February 13,
2019 "Final Judgment as to All Parties and All Claims" as against
Shields, affirm in part as against the Association of Apartment
Owners of Kona Makai, and remand this case for further
proceedings consistent with this summary disposition order.
DATED: Honolulu, Hawai#i, May 1, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Stephen D. Whittaker, Presiding Judge
for Defendant-Appellant.
/s/ Karen T. Nakasone
Robert D. Triantos, Associate Judge
Michelle Chi Dickinson,
for Plaintiff-Appellee. /s/ Sonja M.P. McCullen
Associate Judge

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