Canalez v. Bob's Appliance Service Center, Inc. (Order of Amendment)

IN THE SUPREME COURT OF THE STATE OF HAWAI`I

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KEVIN A. CANALEZ, Plaintiff-Appellant, v. BOB'S APPLIANCE SERVICE CENTER, INC.; and ELANIE HINOKUMA, Defendants-Appellees, and GREGORY T. GRAB, Party-In-Interest-Appellant

NO. 21548

MOTION FOR RECONSIDERATION AND

ORDER OF AMENDMENT

(CIV. NO. 93-1892)

FEBRUARY 22, 1999

MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, AND RAMIL, JJ.

Upon consideration of Appellants Kevin A. Canalez and Gregory T. Grab's motion for reconsideration, filed on February 12, 1999, and the records and files herein,

IT IS HEREBY ORDERED that the motion is granted for the sole purpose of clarifying this court's opinion of February 2, 1999. In all other respects, the motion is denied.

IT IS FURTHER ORDERED that the opinion of the court is amended as follows:

1. Page 26-27: This court quoted, in relevant part, the language of HCCR Rule 12.1(a) at pages 26 and 27 of the opinion. The court hereby amends the quoted language to include subparagraph (iv) as follows [added language appears in bold print]:

(6) Sanctions. The failure of a party or his attorney to appear at a scheduled settlement conference, the neglect of a party or his attorney to discuss or attempt to negotiate a settlement prior to the conference, or the failure of a party to have a person authorized to settle the case present at the conference shall, unless a good cause for such failure or neglect is shown, be deemed an undue interference with orderly procedures. As sanctions, the court may, in its discretion:

. . . .

(ii) Order a party to pay the opposing party's reasonable expenses and attorneys' fees;

. . . .

(iv) Impose any other sanction as may be appropriate.

2. Page 31: The complete paragraph should read [additional language appears in bold print]:

As previously stated, it is well settled that this court "may affirm a judgment of the lower court on any ground in the record that supports affirmance." Gold, 88 Hawai`i at 103 n.7, 962 P.2d at 362 n.7; Enos, 79 Hawai`i at 459, 903 P.2d at 1280. Moreover, although HCCR Rule 12.1(a)(6)(ii) specifies only that a party can be ordered to pay the opposing party's reasonable expenses and attorney's fees, HCCR Rule 12.1(a)(6)(iv) expressly authorizes the court to "[i]mpose any sanction as may be appropriate." Insofar as the record unequivocally demonstrates that Appellants -- to wit: Grab and Canalez -- failed to thoroughly evaluate the case or to discuss or even attempt to negotiate, in good faith, a settlement prior to settlement conference, in violation of HCCR Rule 12.1(a)(6), we affirm the circuit court's sanctions, including attorney's fees, based on HCCR Rule 12.1.

The Clerk of the Court is directed to incorporate the foregoing changes in the original opinion.

Gregory T. Grab, for

plaintiff-appellant

Kevin A. Canalez and

as Party-In-Interest-

Appellant, on the

motion