Ditto v. McCurdy12/3/2003
FOR PUBLICATION
In this consolidated appeal, plaintiff-appellant/cross-appellee Janie Ditto, defendant-appellee/cross-appellant John A. McCurdy, Jr., and garnishee-appellee/cross-appellant Pacific Century Trust, fka Hawaiian Trust Company, Limited [hereinafter, PCT], appeal from the first circuit court's March 24, 2000 order granting in part and denying in part McCurdy and PCT's motion for return of garnished funds and for attorneys' fees and costs and a September 28, 2000 "final" judgment. Ditto also appeals from the first circuit court's November 20, 2000 order denying her motion to set aside and/or to alter the judgment. Based on the discussion below, we sua sponte dismiss, for lack of jurisdiction, Ditto's appeal and McCurdy and PCT's cross-appeal from the March 24, 2000 order and September 28, 2000 "final" judgment. We affirm the November 20, 2000 order denying Ditto's motion to set aside and/or alter the judgment.
I. BACKGROUND
A. The Underlying Case
The facts of the underlying medical malpractice action are described in detail in prior opinions of the Intermediate Court of Appeals (ICA) and this court. See Ditto v. McCurdy, 86 Hawaii 93, 947 P.2d 961 (App.), vacated in part, 86 Hawaii 84, 947 P.2d 952 [hereinafter Ditto I], reconsideration denied, 86 Hawaii 84, 947 P.2d 952 (1997). Briefly stated, Ditto was disfigured as a result of breast augmentation surgery performed by McCurdy. In June 1992, a jury awarded Ditto $1,003,500 in general and special damages for negligence, $400,000 in damages for fraud, and $600,000 in punitive damages. Judgment was entered in July 1992 [hereinafter, the July 1992 Judgment].
B. Garnishment and Ditto II
In October 1992, McCurdy filed a voluntary petition for bankruptcy in the United States Bankruptcy Court for the District of Hawaii. As a result, inter alia, the July 1992 judgment against McCurdy was automatically stayed.
Following bankruptcy proceedings and relief from the automatic bankruptcy stay, Ditto initiated circuit court garnishment proceedings in October 1997 with respect to two of McCurdy's pension plans at PCT. Details of the garnishment proceedings are described in Ditto v. McCurdy, 90 Hawaii 345, 348-50, 978 P.2d 783, 787-89 (1999) [hereinafter, Ditto II]. Of relevance here is the circuit court's September 1998 garnishee order directing PCT to pay Ditto, in care of her attorneys, $65,910.00, the amount of funds placed into McCurdy's pension plans at PCT between December 1984 and December 1987. See id. at 351, 978 P.2d at 788. Although HRS § 651-124 (1993) provides that the right of a debtor to pension money is generally exempt from attachment, execution, seizure, or the other legal process, an exception is made for, inter alia, contributions made to a plan within three years before the date a civil action is initiated against the debtor. The circuit court relied upon this exception in issuing its September 1998 garnishee order.
In Ditto II, this court held the HRS § 651-124 exception was preempted by section 206(d)(1) of ERISA, which prohibits garnishment of McCurdy's ERISA pension plan benefits. 90 Hawaii at 359, 978 P.2d at 797. We, therefore, reversed the circuit court's September 1998 garnishee order and the underlying August 1998 order granting in part and denying in part Ditto's motion for issuance of garnishee summons after judgment. Id.
On November 16, 1999, McCurdy and PCT moved for return of the $65,910.00 in garnished funds and sought $83,191.25 in attorneys' fees and costs. Following a hearing on the matter, the circuit court granted McCurdy and PCT's motion as to the return of the garnished funds and for payment of $8,576.86 in
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