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Abastillas v. Kekona6/8/1998
Opinion OF THE COURT BY LEVINSON, J.
The defendants-appellees-petitioners Benjamin Paul Kekona and Tamae M. Kekona (the Kekonas) applied for a writ of certiorari from the order of the Intermediate Court of Appeals (ICA) denying their motion for attorney's fees and reconsideration, filed subsequent to the ICA's summary Disposition order in Abastillas v. Kekona, No. 20812, which affirmed the circuit court's judgment and order, both filed on June 5, 1997, which, in turn, (1) dismissed with prejudice all of the plaintiff-appellant-respondent Paz F. Abastillas's claims against the Kekonas, (2) ruled that Abastillas's lawsuit (a) "lack support by the facts and the law," (b) "was a waste of court time and judicial resources," and (c) "as such, . . . was frivolous," and, therefore, (3) awarded the Kekonas $4907.40 in attorney's fees and costs pursuant to Hawai'i Revised Statutes (HRS) § 607-14.5 (1993). The issue presented is whether an appellate court should award attorney's fees and costs to the prevailing appellee, pursuant to Hawai'i Rules of Appellate Procedure Rule (HRAP) 38 (1996), where the appellate court has affirmed in toto the trial court's findings and Conclusions that the appellant's lawsuit was frivolous, not reasonably supported by the facts or the law, and was a waste of court time and judicial resources. The Kekonas argue that, when a lawsuit is found to be frivolous under HRS § 607-14.5, then a fortiori or ipso facto any appeal filed by the frivolous litigant that is affirmed in toto should result in full and complete sanctions under HRAP Rule 38. We granted certiorari in order to address their contention.
I. BACKGROUND
On December 17, 1993, the Kekonas obtained a judgment, in the amount of $281,250.00, against Abastillas on a cross-claim filed in the First Circuit Court in Standard Management, Inc. v. Kekona, Civil No. 89-3517-11. Subsequently, the Kekonas discovered that Abastillas had a pending personal injury lawsuit that she had filed in 1992, captioned Abastillas v. Furuya, Civil No. 92-0139-01. Accordingly, on January 31, 1994, the Kekonas filed a motion for a judgment creditor's lien on any judgment or settlement that Abastillas might derive from that case.
Robert Smith, Abastillas's lawyer, "live-in boyfriend," and co-cross-claim judgment debtor in the Standard Management lawsuit, responded to the Kekonas' motion on Abastillas's behalf by filing a "Notice Of Assignment Of Claim And Proceeds Thereon And Notice Of Lien," to which was attached a document, entitled "Acknowledgment Of Indebtedness And Assignment Of Claim And Creation Of Lien," which purported to assign all of Abastillas's interest in the Furuya lawsuit to Smith. The document contained the following recitals:
... In the Standard Management, Inc. v. Kekona litigation, the Kekonas recovered a substantial judgment against Kekonas and may seek to enforce such judgment by realizing on the assets and claims of [Abastillas];
... [Smith] is not willing to continue to render services and advance costs on behalf of [Abastillas] without the financial protection provided in this document; and
... [Abastillas] is willing to provide [Smith] with such protection because she prefers paying and securing her indebtedness to him, in preference to the Kekonas....
The "assignment" document recited that Abastillas had signed it on October 16, 1993--prior to the filing of the Kekonas' motion for a judgment creditor's lien; however, it was not filed in the circuit court until February 3, 1994 and was not alleged to have been filed at the Bureau
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