Chin v. CARPENTER-ASUI

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NO. 28654 el
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
SHARON §.H. CHIN, Plaintiff-Appellant v. “gle
VENETIA K. CARPENTER-ASUI, Defendant-Appellee ~'
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(Civil No. 05-1-2287)

MEMORANDUM OPINION
Presiding Judge,

(By: Foley, Reifurth and Ginoza, JJ.)

Plaintiff-Appellant Sharon S.H. Chin
June 25, 2007 final judgment of the Circuit Court of the First
Circuit (circuit court) in favor of Chin's former attorney
Defendant -Appellee Venetia K. Carpenter-Asui

(Carpenter-Asui) .*

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(Chin) appeals the

The circuit court granted summary judgment in favor of Carpenter-

Asui on all five of Chin's claims for legal malpractice,

breach
of contract,

breach of fiduciary duty, emotional distress and

punitive damages.
Chin, proceeding pro se, appeals from the circuit

court's grant of summary judgment and generally reiterates her

contentions below that, due to Carpenter-Asui's alleged

mishandling of Chin's marital status discrimination case against

her former employer City Bank (Chin v. City Bank, Civ. No. 03-1-
0196),? Chin not only lost that case but was forced to give up

her right to appeal as part of an unwanted and coerced
settlement. A significant component of Chin's current appeal

focuses on Carpenter-Asui's alleged failure in the underlying

action to contest City Bank's motion for attorney's fees and

1. The Honorable Randal K. 0. Lee presided.
2

In the underlying action, Chin asserted claims against City Bank and
a City Bank manager who allegedly harassed Chin due to her status as a single
female.

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costs, which Chin argues led to a judgment against her in the
amount of $54,734.60. This in turn allegedly caused Chin to
ultimately decide to forgo her appeal in the underlying action in
exchange for City Bank's dropping its demand for attorney's fees
and costs.

I. Standard of Review

We review de novo the circuit court's grant of summary

judgment. Hawaii Cmty. Fed. Credit Union v. Keka, 94 Hawai‘i

213, 221, 11 P.3d 1, 9 (2000). As the Hawai‘i Supreme Court has

often articulated:

[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 .
The evidence must be viewed in the light most favorable

to the non-moving party.

Querubin v. Thronas, 107 Hawai‘i 48, 56, 109 P.3d 689, 697 (2005)

(quoting Durette v. Aloha Plastic Recycling, Inc., 105 Hawai'i

490, 501, 100 P.3d 60, 71 (2004)).
The respective burdens of the movant and the opposing

party regarding a summary judgment motion must be considered.

The burden is on the party moving for summary judgment
(moving party) to show the absence of any genuine issue as
to all material facts, which, under applicable principles of
substantive law, entitles the moving party to judgment as a
matter of law. This burden has two components.

First, the moving party has the burden of producing
support for its claim that: (1) no genuine issue of material
fact exists with respect to the essential elements of the
claim or defense which the motion seeks to establish or
which the motion questions; and (2) based on the undisputed
facts, it is entitled to summary judgment as a matter of
law. Only when the moving party satisfies its initial burden
of production does the burden shift to the non-moving party
to respond to the motion for summary judgment and
demonstrate specific facts, as opposed to general
allegations, that present a genuine issue worthy of trial.
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Second, the moving party bears the ultimate burden of
persuasion. This burden always remains with the moving
party and requires the moving party to convince the court
that no genuine issue of material fact exists and that the
moving party is entitled to summary judgment as a matter of
law.

Stanford Carr Dev. Corp. v. Unity House Inc., 111 Hawai‘i 286,

295-96, 141 P.3d 459, 468-69 (2006) (quoting French v. Hawaii
Pizza Hut, Inc., 105 Hawai‘i 462, 470, 99 P.3d 1046, 1054
(2004)).:

In responding to a summary judgment motion, "an adverse
party may not rest upon the mere allegations or denials of the
adverse party's pleading, but the adverse party's response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial."
Hawai'i Rules of Civil Procedure (HRCP) 56(e) (2010). Thus, "f[a]
party opposing a motion for summary judgment cannot discharge his
or her burden by alleging conclusions, 'nor is [the party]
entitled to a trial on the basis of a hope that [the party] .can
produce some evidence at that time.'" Henderson v. Prof'1

Coatings Corp., 72 Haw. 387, 401, 819 P.2d 84, 92 (1991) (quoting

10OA Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure: Civil 2d § 2727 (1983)).

II. Discussion

A. Circuit Court's Ruling

The circuit court determined that Carpenter-Asui "used
the skill, prudence and diligence that a lawyer of ordinary skill
and capacity possesses and exercises," and granted summary
judgment in favor of Carpenter-Asui on the first three counts of
the complaint: (1) legal malpractice, (2) breach of contract,

(3) breach of fiduciary duty.

As to Chin’s claim for emotional distress, which the

circuit court characterized as a claim for Intentional Infliction

of Emotional Distress (IIED), the circuit court ruled that Chin
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failed to meet her burden of presenting evidence that Carpenter-
Asui acted in an unreasonable or outrageous manner. Accordingly,
the court granted Carpenter-Asui’s motion for summary judgment on
the IIED claim.

Having decided the other counts in favor of Carpenter-
Asui, the circuit court granted summary judgment on the punitive
damages claim as well.

B. Fvidence Adduced Regarding The Summary Judgment Motion

In support of her motion for summary judgment,
Carpenter-Asui submitted a detailed declaration and exhibits
setting forth her actions in representing Chin in the underlying
action. This declaration set forth facts establishing, inter
alia, that Carpenter-Asui communicated with Chin on a regular and
extensive basis, that she responded to and opposed several
substantive motions by the City Bank defendants, and that she
perfected an appeal in the underlying action from the trial
court's judgment against Chin.

Of note, the only information in Carpenter-Asui's
declaration regarding City Bank's underlying motion for
attorney's fees and costs is that the motion was granted in the
amount of $47,093.73 in fees and $7,640.87 in costs ($54,734.60
total), and that Carpenter-Asui's strategy -- apparently after
the motion was granted -- "was to move to stay the award of fees
and costs pending the outcome of the Appeal and to see what City
Bank would be willing to settle for in the meantime." Absent
from the record is any evidence as to whether Carpenter-Asui
responded to or opposed the motion for fees and costs in the
first instance, and if not, the reason for not responding or
opposing it. Moreover, the underlying motion for fees and costs

is not in evidence in this case.
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Of further significance in this case, however, is that
Chin completely failed to present any admissible evidence in
responding to Carpenter-Asui's motion for summary judgment .?
Therefore, there is nothing in the record to rebut the facts to
the extent they are set forth in Carpenter-Asui's declaration or
exhibits in support of her motion.

Cc. Legal Malpractice Claims

The Hawai'i Supreme Court has established that:

[t]he general rule with respect to the liability of an
attorney for failure to properly perform his duties to his
client is that the attorney, by accepting to give legal
advice or to render other legal services, impliedly agrees
to use such skill, prudence, and diligence as lawyers of
ordinary skill and capacity commonly possess and exercise in
the performance of the tasks which they undertake.

Blair v. Ing, 95 Hawai‘i 247, 259, 21 P.3d 452, 464 (2001)

(quoting Lucas v. Hamm, 364 P.2d 685, 689 (Cal. 1961)). However,

"an attorney cannot be held liable for every mistake made in his
or her practice, especially for an error as to a question of law
on which reasonable doubt may be entertained by well-informed
lawyers." Id.

In general, the elements of a cause of action for legal
malpractice are: (1) the attorney-client relationship or other
basis for duty; (2) a negligent act or omission; (3) causation
and (4) damages. Kurinij v. Hanna & Morton, 55 Cal.App.4th 853,
863 (1997).

With regard to causation, a legal malpractice case "is

the type of case that imposes a burden on a plaintiff... in
conducting 'a trial within a trial,'! i.e. it is necessary for

plaintiff to prove both the attorney's negligence and also what

> The only evidence that Chin proffered was a letter from her
psychologist purporting to document her emotional trauma from the alleged
discrimination at City Bank and her failure to get vindication through the
legal system. Carpenter-Asui objected to the admission of the unauthenticated
letter and the circuit court refused to consider the letter on hearsay
grounds.
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the outcome of the mishandled litigation would have been if it

had been properly tried." Collins v. Greenstein, 61 Haw. 26, 38,

595 P.2d 275, 282 (1979). Moreover, "[w]here reasonable persons
would not dispute the absence of causality .. . the court may
take the decision from the jury and treat it as a question of
law." Id. at 42, 595 P.2d at 284, (citing Ishmael v. Millington,
241 Cal.App.2d 520, 525-26 (1966)).

{
Ultimately, "where there is no conflict from the

evidence and but one inference can be drawn from the facts, it is
the duty of the court to pass upon the question of negligence and
proximate cause as questions of law." Collins, 61 Haw. at 38,
595 P.2d at 282 (internal quotation marks omitted) (quoting Young
v. Price, 47 Haw. 309, 313, 388 P.2d 203, 206 (1963)).

For purposes of the legal malpractice claims,
Carpenter-Asui contends that irrespective of Carpenter-Asui's
actions, Chin must make a showing that she would have prevailed
if the underlying discrimination case went forward (i.e.
causation, or the "trial within a trial" analysis). Moreover, we
must take into account that because Chin has the burden of
proving such causation at trial, for summary judgment purposes
she must make a sufficient showing on this essential element.

The Hawai‘i Supreme Court has stated:

(w]here 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. The moving party
is entitled to judgment as a matter of law because the
nonmoving party has failed to make a sufficient
showing on an essential element of her case with
respect to which she has the burden of proof.
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Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116

Hawai'i 277, 302, 172 P.3d 1021, 1046 (2007) (emphasis in
original) (citation omitted).

Here, Chin has the burden of making a sufficient
showing that there is at least a genuine issue of material fact
regarding whether she would have had some sort of success going
forward in the underlying discrimination case. That is, not only
that she would have prevailed on appeal, but that she would have
also succeeded on some part of her underlying claim on remand in
that case. Chin has completely failed to present any evidence or
to make any showing whatsoever on this point. Under the
particular circumstances of this case, Chin has failed to make
any showing to "establish the existence of an element essential"
for her claims related to alleged malpractice.

Summary judgment was therefore proper with regard to
Chin's first three causes of action.

D. ITED claim

The elements for an IIED claim under Hawai‘i law are:

1) that the act allegedly causing the harm was intentional
or reckless, 2) that the act was outrageous, and 3) that the
act caused 4) extreme emotional distress to another.

Hac v. University of Hawaii, 102 Hawai‘i 92, 106-07, 73 P.3d 46,

60-61 (2003). "Outrageous" is construed as meaning "without just
cause or excuse and beyond all bounds of decency." lee v. Aiu,

85 Hawai'i 19, 34 n.12, 936 P.2d 655, 670 n.12 (1997) (internal

quotation marks omitted) (quoting Chedester v. Stecker, 64 Haw.

464, 468, 643 P.2d 532, 535 (1982)).

Here, to the extent Carpenter-Asui set forth in her

declaration and supporting exhibits the efforts she made to
represent Chin in the underlying action, summary judgment was
appropriate. That is, given the evidence adduced by Carpenter-
Asui and that no counter evidence was submitted by Chin, there is

no genuine issue of material fact that Carpenter-Asui
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communicated often and extensively with Chin, sought to assert
Chin's claims, defended against several substantive motions by
the City Bank defendants, and perfected an appeal after judgment
was entered against Chin. Thus, as to these areas, Carpenter-
Asui'ts conduct in the underlying case was not "outrageous."

As noted, however, Carpenter-Asui failed to present
evidence as to whether she responded to or opposed the underlying
motion for fees and costs, and if not, why. Moreover, the facts
surrounding the fees and costs motion could impact whether
Carpenter-Asui's actions in later addressing settlement and
dismissal of the underlying appeal constitute a basis for IIED.*
That Carpenter-Asui's declaration touches on the fees and costs
award but does not address these issues raises questions of fact
in itself.

Carpenter-Asui, as summary judgment movant , had the
initial burden to establish the material facts related to the
TIED claims. Without anything in the record to determine what
actions Carpenter-Asui took in addressing the motion for fees and
costs, the basis for such action or inaction, and what the merits
or demerits of the motion were, it was error for the trial court
to grant summary judgment regarding these allegations. That is,
there was no basis to determine whether Carpenter-Asui's conduct
in addressing the motion for fees and costs was "intentional or
reckless," and whether it would constitute "outrageous" conduct.

Therefore, summary judgment was appropriate on the IIED
claim except as to the allegations that Carpenter-Asui failed to.
properly handle the underlying motion for fees and costs and that
"subsequently, [Carpenter-Asui] pressured and forced [Chin] to

settle the matter and [withdraw] her appeal."

4 For purposes of the IIED claim, the "trial within a trial" analysis
does not apply. Instead, the elements as to IIED must be considered.

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E. Punitive Damages

Punitive damages serve as a remedy. See, Masaki v.

General Motors Corp., 71 Haw. 1, 6, 780 P.2d 566, 570 (1989).

"(A] claim for punitive damages is .. . purely incidental toa
separate cause of action." Ross v. Stouffer Hotel Co. (Hawai‘i),
Ltd., 76 Hawai'i 454, 466, 879 P.2d 1037, 1049 (1994).

To the extent that part of the IIED claim survives, the

remedy of punitive damages remains viable.

III. Conclusion

Upon a careful review of the record and upon due
consideration of the arguments made and issues raised by the
parties, we hold that:

(1) Summary judgment was appropriate with regard to the
claims for legal malpractice, breach of contract, and breach of
fiduciary duty;

(2) With regard to the claim for IIED, summary judgment
was appropriate as to all of Chin's allegations except those
pertaining to the handling of the underlying motion for fees and
costs and whether the handling of that motion had any relation to
efforts by Carpenter-Asui to settle and dismiss the underlying
appeal ;

(3) The remedy of punitive damages remains viable to

the extent the claim for IIED survives.
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We therefore affirm in part, vacate in part and remand

for further proceedings.
DATED: Honolulu, Hawai‘i, June 24, 2008.

On the briefs:

Sharon §.H. Chin
for Plaintiff Pro Se Appeliant Lathe i

William C.H. Jarrett (\\ Q «|
for Defendant -Appellee QLyunte . AC

Associate Judge

AA WwW

Associate Judge

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