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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 17-JUN-2022 08:26 AM Dkt. 80 SO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I WILLIAM H. GILLIAM, Plaintiff-Appellant, v. DANIEL J. ELLIOT, Defendant-Appellee APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CIVIL NO. 19-1-00045) SUMMARY DISPOSITION ORDER (By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.) Plaintiff-Appellant William H. Gilliam (Gilliam), self- represented, appeals from the April 19, 2022 Judgment entered by the Circuit Court of the Fifth Circuit (Circuit Court).1 On appeal, Gilliam challenges the Circuit Court's granting of Defendant-Appellee Dan Elliott's (Elliott) "Motion for Summary Judgment to Dismiss Complaint Filed on 03/22/2019 Which Are Time-Barred by § 657-72 and § 657-43 of the Hawaii Revised Statutes" (MSJ) (footnotes added). Gilliam's Amended Opening Brief (Amended OB) does not comply with Hawai#i Rules of Appellate Procedure (HRAP) Rule NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

interpreted liberally, and self-represented litigants should not be automatically foreclosed from appellate review because they fail to comply with court rules). Gilliam contends the Circuit Court erred by (1) denying him the opportunity to "resist" the MSJ by conducting discovery prior to ruling on the MSJ; (2) treating the MSJ as a motion for judgment on the pleadings under Rule 12 of the Hawaii Rules of Civil Procedure (HRCP) but then considering matters outside of the pleadings; and (3) applying a two-year statute of limitations to all causes of action in his Complaint. Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we resolve Gilliam's points of error as follows, and vacate in part and affirm in part. (1) The record does not support Gilliam's contention that the Circuit Court erred by denying him the opportunity to conduct discovery prior to ruling on the MSJ. Gilliam argues that he was denied an "opportunity to develop material facts in opposition" to the motion, and he had "no opportunity to develop facts supporting tolling, or broadening [sic] from allegations of the complaint."6 Gilliam asserts that his "Motion per HRCP 56(f)" was "summarily denied" even despite "renewing orally [sic] before the bench at each opportunity[.]" HRCP Rule 56(f) states:

(f) When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER depositions to be taken or discovery to be had or may make such other order as is just.

Here, Gilliam's "Motion for Relief Pursuant to HRCP 56(f)" was essentially a one-page document, in which Gilliam "incorporates" a "Declaration last filed . . . in support of [Gilliam's] Motion to Shorten and for Protective Order"; states that Elliott "continuously denied [Gilliam]'s request to depose [Elliott]"; and concludes that "the Court should deny such Motion for Summary Judgment herewith or continue the same indefinitely to permit [Gilliam]'s discovery of [Elliott] by deposition or discovery to be had." No other argument or reasoning is provided, explaining how the "discovery" or "deposition" of Elliott was necessary to enable Gilliam to demonstrate a genuine issue of material fact. See Org. of Police Officers v. City and Cty. of Honolulu, 149 Hawai#i 492, 519, 494 P.3d 1225, 1252 (2021) ("In civil cases, the [HRCP] set forth procedures for discovery and summary judgment; pursuant to HRCP Rule 56(f), the circuit court may deny a motion for summary judgment if the opposing party establishes that additional discovery is necessary."). Gilliam provides no record references that establish his claim that the HRCP Rule 56(f) motion was "summarily denied." Gilliam did not provide any transcript to support his account of what occurred at the hearing. "The burden is upon appellant in an appeal to show error by reference to matters in the record, and he [or she] has the responsibility of providing an adequate transcript." Bettencourt v. Bettencourt, 80 Hawai#i 225, 230, 909 P.2d 553, 558 (1995) (quoting Union Building Materials Corp. v. The Kakaako Corp., 5 Haw. App. 146, 151, 682 P.2d 82, 87 (1984)). The court will not presume error from a silent record. Matter of the Estate of Camacho, 140 Hawai#i 404, 413, 400 P.3d 605, 614 (App. 2017) (citing State v. Hoang, 93 Hawai#i 333, 336, 3 P.3d 499, 502 (2000)). Gilliam's contention is without merit.

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(2) The record does not support Gilliam's claim that the Circuit Court treated the MSJ as a motion for judgment on the pleadings pursuant to HRCP Rule 12.7 The MSJ specifically stated it was made pursuant to HRCP Rule 56 and requested that the Circuit Court consider the attached exhibits as evidence as to when Gilliam learned of facts that triggered the statute of limitations on his claims. No transcript of the MSJ hearing is provided. See Bettencourt, 80 Hawai#i at 230, 909 P.2d at 558. Gilliam does not point to anything in the record reflecting that the Circuit Court treated the MSJ as a motion pursuant to HRCP Rule 12. This contention is without merit. (3) Gilliam's contention that a two-year statute of limitations was erroneously applied to all causes of action has merit. Gilliam argues that a four-year statute of limitations applied to his "Unfair and Deceptive Trade Practice (UDAP)" claim, and a six-year statute of limitations applied to his "[c]ontract and fraud" claims. We conclude the Circuit Court erred in part by granting summary judgment on all of Gilliam's claims, because Elliott was not entitled to summary judgment as a matter of law on the UDAP and Fraud claims based on the applicable statutes of limitations. On appeal, the grant or denial of summary judgment is reviewed de novo. Nuuanu Valley Ass'n v. City & Cty. of Honolulu, 119 Hawai#i 90, 96, 194 P.3d 531, 537 (2008).

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

fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and inferences drawn therefrom in the light most favorable to the party opposing the motion.

Id. (citation omitted). Gilliam filed his Complaint in the case on March 22, 2019. The parties do not dispute the nature of Gilliam's claims or that the causes of action accrued in April 2016 when Gilliam "first learned, just days before trial [in a District Court proceeding] in April, 2016," of exhibits that Gilliam's Complaint alleged were "malicious lies, which defame, slander [sic], liable [sic] [Gilliam] so as to hold [Gilliam] out in a false light to others[.]" Complaint ¶¶ 5 and 7. There was no genuine issue of material fact as to when Gilliam's claims accrued. See Nuuanu Valley Ass'n, 119 Hawai#i at 96, 194 P.3d at 537. "The relevant limitations period is determined by the nature of the claim or right asserted, which is in turn determined from the allegations contained in the pleadings." Delapinia v. Nationstar Mortg. LLC, 146 Hawai#i 218, 224–25, 458 P.3d 929, 935–36 (App. 2020), overruled in part on other grounds by Delapinia v. Nationstar Mortg. LLC, 150 Hawai#i 91, 497 P.3d 106 (2021). "Defamation and False Light" claim: This claim was subject to a two-year statute of limitations. "Defamation actions are governed by HRS § 657–4 (1993), which provides that '[a]ll actions for libel or slander shall be commenced within two years after the cause of action accrued, and not after.'" Bauernfiend v. Aoao Kihei Beach Condos., 99 Hawai#i 281, 282 n.4, 54 P.3d 452, 453 n.4 (2002). "The tort of false light substantially overlaps with defamation," and where a false light claim is derivative, based on the same statements as the defamation claim, the false light claim must be dismissed if the defamation claim is dismissed. Nakamoto v. Kawauchi, 142 Hawai#i 259, 270 n.7 418 P.3d 600, 611 n.7 (2018) (citing Wilson v.

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Freitas; 121 Hawai#i 120, 130, 214 P.3d 1110, 1120 (App. 2009)). Summary judgment was properly granted on this claim. Breach of Duty of Good Faith and Fair Dealing claim: A tort claim for breach of the covenant of good faith and fair dealing in the insurance context is subject to the two-year statute of limitations under HRS § 657-7. Christiansen v. First Ins. Co. of Hawaii, 88 Hawai#i 442, 450, 967 P.2d 639, 647 (App. 1998), as amended (Apr. 22, 1998), rev'd in part on other grounds by Christiansen v. First Ins. Co. of Hawai#i, 88 Hawai#i 136, 963 P.2d 345 (1998). "Hawaii law generally does not recognize tort claims for breach of good faith or fair dealing outside the insurance context." Alii Sec. Sys., Inc. v. Pro. Sec. Consultants, 139 Hawai#i 1, 9, 383 P.3d 104, 112 (App. 2016) (citation omitted). The Complaint alleged that Elliott "assumed a position of trust and owed [Gilliam] and others a duty of good faith and fair dealing," but did not allege any contractual relationship. Complaint ¶ 12. It does not appear that Gilliam's ipso facto assertion on appeal that the breach of good faith and fair dealing claim was for breach of a contract involving the "AOAO and its agents," which included Elliott who engaged in "such duties for the AOAO," was made and preserved below. See HRAP Rule 28(b)(4). Summary judgment was properly granted on this claim. UDAP claim: This purported claim was subject to a four-year statute of limitations. Gilliam cited HRS § 480-2 as the statutory basis for his claim; therefore, it was subject to the four-year statute of limitations pursuant to HRS § 480-24.8 Summary judgment was erroneously granted on this claim.

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Tortious Interference claim: This claim was subject to a two-year statute of limitations under HRS § 657-7. Gilliam's "Tortious Interference with Business Relationships" (Tortious Interference) claim generally asserted a claim for tortious interference with existing contractual relations, subject to the statute of limitations under HRS § 657-7. See Complaint ¶¶ 24 to 27; One Wailea Dev., LLC v. Warren S. Unemori Eng'g, Inc., No. CAAP-XX-XXXXXXX, 2016 WL 2941062 (App. Apr. 20, 2016), at[*15] (mem.) (citing HRS § 657-7; Kutcher v. Zimmerman, 87 Hawai#i 394, 406, 957 P.2d 1076, 1088 (1998) (holding that a cause of action for interference with prospective contractual relations "run[s] parallel to that for interference with existing contracts[.]")). Summary judgment was properly granted on this claim. Fraud claim: This purported claim was subject to a six-year statute of limitations under HRS § 657-1(4). Gilliam appears to attempt to assert a fraud9 or fraudulent misrepresentation10 claim. "Fraudulent misrepresentation is not governed by a specific limitations period, and the general limitations period set forth in HRS § 657-1(4) applies." Eastman v. McGowan, 86 Hawai#i 21, 27, 946 P.2d 1317, 1323 (1997) NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(citation omitted). Summary judgment was erroneously granted on this claim. In summary, Gilliam's claims for Defamation and False Light, Breach of Good Faith and Fair Dealing, and Tortious Interference were subject to two-year statutes of limitations under either HRS §§ 657-4 or 657-7, and the Circuit Court did not err by granting summary judgment on these claims. Gilliam's claim of Fraud was subject to a six-year statute of limitations under HRS § 657-1(4), and the UDAP claim subject to a four-year statute of limitations under HRS § 480-24. Thus, the Circuit Court erred by granting summary judgment on the UDAP and Fraud claims because they were not barred by the applicable statutes of limitations. For the foregoing reasons, the April 19, 2022 Judgment entered by the Circuit Court of the Fifth Circuit is affirmed in part and vacated in part, and the case is remanded for further proceedings consistent with this Summary Disposition Order. DATED: Honolulu, Hawai#i, June 17, 2022. On the briefs: /s/ Lisa M. Ginoza William H. Gilliam, Chief Judge Self-Represented Plaintiff-Appellant. /s/ Clyde J. Wadsworth Associate Judge Cathy S. Juhn, (Ortiz & Associates) /s/ Karen T. Nakasone for Defendant-Appellee. Associate Judge